House Picks Paul Clement to Champion DOMA

News for the Week Ended April 20, 2011
BY ANN ROSTOW


House Picks Paul Clement to Champion DOMA

We finally got some actual answers to the critical questions surrounding the federal challenges to the Defense of Marriage Act. You know, of course, that the President and the Justice Department decided to stop defending the insidious ban on federal recognition of same-sex marriage. Thank you again, President and Justice Department. We profoundly appreciate your decision, particularly since we are in the middle of six, or maybe even twelve federal “Gay People v. United States” type court cases.

With the United States vacating the defendants’ chair, the House of Representatives picked up the sword to defend DOMA, but for two months we’ve received no details. Who is acting on behalf of the House? Which lawsuits will they litigate? Will they intervene as actual defendants, or simply write briefs as friends of the court? And finally, how will they argue? Will they rely on antigay stereotypes, or will they try to thread legal needles and defend the statute without ripping our community to shreds?

Here’s what we learned on Monday. The House “Bipartisan Legal Advisory Commission” (BLAG) has hired the international corporate law firm King & Spalding, and has signed a contract to pay the firm’s lawyers an average of $520 an hour up to a maximum of $500,000 through April of 2013 if necessary. The contract covers work on any and all DOMA litigation, but does not specify exactly which cases will be defended. Also, the half million dollar cap can be lifted if more money is needed. Considering the work ahead, we’ll be hitting the DOMA debt ceiling in no time.

Leading the charge will be GW Bush’s former Solicitor General, Paul Clement, who will presumably handle any oral arguments. On Monday, Clement and company filed a motion in a New York federal court, asking permission to intervene in the ACLU’s case on behalf of lesbian widow, Edith Windsor, who is forced by DOMA to pay estate taxes on her own property.

In an entertaining sideshow, gay allies in Congress and elsewhere are now making hay about the cost of the DOMA defense, which to be honest, is nothing. Even if the final figure triples and triples again, this is not a significant “taxpayer expense.” Nonetheless, Speaker Boehner is trying to get the Justice Department to pay the bill, reasoning that since they were the ones who would usually defend a federal law in court, they must have saved some money by abandoning the fight. Attorney General Eric Holder, in turn, said the salaried lawyers under his roof have plenty of work and have not set aside special DOMA funds.

So here’s what we don’t know, going forward.

We don’t know what Paul Clement is going to do about the other DOMA cases.

In addition to the Windsor case, there are two cases now pending before the U.S. Court of Appeals for the First Circuit; The Gay and Lesbian Advocates and Defenders (GLAD) case on behalf of same-sex couples married in Massachusetts, and the State of Massachusetts’ states rights case against the United States.

Then there’s another GLAD case in lower federal court in Connecticut, filed on behalf of same-sex couples from New England, but not from Massachusetts.

Then there’s the case of California-based federal lawyer Karen Golinski, asking for spousal benefits in a federal court in San Francisco.

Over the bay in Oakland, married gay federal workers are seeking long-term care benefits in another federal DOMA case. That’s six off the top of my head, and I’ve read articles that say up to twelve cases are pending in federal court. I plan to research these other cases later. Note that the Prop 8 case does not involve the U.S. government, since it was filed against the state of California. And another federal gay couples case, now in the Ninth Circuit, pits Arizona state workers against the Dry Heat State.

Anyway, there are a lot of cases out there in various stages. All of them involve different facts and to some extent, different legal issues. Paul Clement isn’t going to be able to send boilerplate briefs all over the country although there should be some overlap. But for example, the states rights case in the First Circuit would seem to require a unique set of arguments. This is a ton of work.

Nor will Clement be able to defend DOMA in just one or maybe two cases. If the mission is to defend DOMA, you have to defend it everywhere, in every case, in every federal court. Our side has a whole array of legal groups and partner firms, working more or less in concert across the country. Their side has Paul Clement and his colleagues.

Finally, we don’t yet know which arguments Clement will use to attack our marriages. In his motion to intervene in the Windsor case, he did not include any kind of actual legal pleading on the merits. Such pleadings are usually included in a motion to intervene, but they’re not required.

Since Clement represents the House Republicans, it will be difficult (I think) for him to fall back on antigay strategies. If he condemns gay parents or suggests that gay men and women are unfit to form families, the outrage will be intense, not just from us, but from our allies.

We do know that Clement will have to argue that sexual orientation should not be considered a suspect class worthy of constitutional protection on the level of, say, race or religion. He can make this argument in an innocuous way, by pointing out that no federal court has hitherto awarded such status to gays or lesbians. But that’s not a powerful rationale. In addition, he will probably have to insist that sexual orientation is a lifestyle choice and that gays have a great deal of political power and don’t need protection.

It was exactly this conundrum that led Obama and Holder to drop their defense of DOMA last February, so it will be interesting to see how Clement handles the hot potato.

Basically, there’s no way to make the legal case for DOMA without descending into antigay muck. Unlike a legislative fight filled with vague talk of mom and dad and religious scripture, a legal case involves specific individuals and (in theory) logical reasoning.

For example, in the Windsor case (where the judge ordered Congress to intervene by a specific date) House Republicans will not just be spouting off about “traditional marriage,” they’ll be insisting that an elderly New York woman who lived with her partner for 40 years and married her wife in Canada should be treated as a legal stranger to her own estate, forced to pay over $300,000 in taxes that would never be levied on a heterosexual widow.

Makes you wonder, have they thought this through?
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Half The Toothpaste Is Out Of The Tube

I usually don’t cover polls, because poll headlines, like “51 percent of Americans Support Same-Sex Marriage” are meaningless unless you know the exact question asked, the number of respondents, and the way the poll was conducted. Ask a hundred people at the pride parade and you’ll get one answer. Call a thousand land lines and you’ll get another.

But when poll analyst extraordinaire Nate Silver writes an assessment of the latest marriage surveys, that’s news.

Silver, who crunches numbers on a wide range of social and political matters, reports that the ongoing increase in support for same-sex marriage has risen from about one to two points a year, to four points a year in each of the last two years. Four credible polls in the last eight months show a slim majority now in favor of same-sex marriage, a slim minority opposed, and only a small percentage undecided. The trend lines of marriage polling over the last two decades show a steady and solid improvement that seems to lead inexorably to a popular consensus in favor of marriage equality.

This is great, of course. But one thing polls don’t show is the intensity of the response. And this is why marriage remains a political third rail even as we add to our support. The fact is that the hard line conservatives who oppose same-sex marriage hate us with such a passion that they can overwhelm the people who sort of like us but don’t really care. We have passion on our side too. But we’re five percent of the population, and the violently antigay crowd is maybe 20 or 25 percent. I’m not sure.

Until our allies pump up the volume and more people on their side decide it’s not worth the fuss, we’ll still have trouble getting a Presidential nominee to come out in favor of marriage equality. To me, by the way, that will be the signal that the popular sentiment has really shifted--- when the Democratic party nominee comes in favor of equality, period. Not civil unions and not “the rights of marriage” blah blah blah. But marriage equality

That day may or may not have arrived. But the erosion of opposition to same-sex marriage is still significant. It’s pretty clear that Republicans don’t want to be associated with the subject, or with the toxic cloud that now surrounds the defenders of tradition.

It was fine to be against marriage equality when a 70 percent majority stood by your side and when most of those people were just regular folks who thought this is the way it’s always been.

But now, the people who ardently fight against marriage equality are no longer the regular folks. They’re the crazy gay bashers and they’re out there all by themselves, screaming into the wind about sickness and Jesus. So, um, no wonder the GOP is trying to keep a low profile and no wonder the defense of DOMA promises to be a circus.

The other noteworthy aspect of the poll story is the ongoing collapse of the middle ground as people realize that either they have to be for equality or against it. The idea that civil unions could ever be a permanent compromise is less and less credible. And although some embrace it as a stepping stone or an incremental move towards progress, it doesn’t seem as if many fence sitters now see it as a long term institution.
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I Object!

Well, I see I’ve managed to ramble on about marriage and polls and such for nearly the entire column. Not that there’s anything wrong with that! However, in view of this extended coverage, I will skip the story about whether or not the Ninth Circuit will release the court tapes from the Prop 8 trial. Okay with you? Good.

I was also going to write about the gatekeepers at YouTube and Facebook, who both removed gay content because, I suppose, someone had clicked on the button that indicates they found it offensive.

YouTube deleted an excellent, compelling video, posted by GLBT Apple employees as part of the “It Gets Better” project. The video urged teens to tough it out, and remember that they’re not alone. After a few hours, the site put the video back up and apologized.

Likewise, Facebook removed a photo of two men kissing, for reasons unclear. The photo was reposted, also with an apology, but not before quite a few people had posted their own gay kissing shots to make a point.

Clearly, the censors at YouTube and Facebook have a lot on their plates, and rightly so. We don’t want animal snuff films or racist tirades befouling our cyberspace. But still! I imagine that most of the things flagged down by puritanical or homophobic users fall into the category of objectionable objections. How did these images fall through the cracks and get deleted by an actual employee?

Finally, there’s a lot of news out of the states, but it looks like we’re out of space! (Cue: loud noise of moaning crowd.) Delaware sent a civil union bill to the governor. Yay! Arizona and Virginia are attacking gay adoptive parents. Hiss. Hawaii passed a trans workplace bill. Yay! And there’s much talk about a push for marriage equality in New York this summer. I’m not sure how Governor Cuomo plans to strong arm the GOP leaders in the legislature, but I wish everyone luck.

Full Fifth Circuit Says Louisiana Can Ignore Gay Fathers

News for the Week Ended April 13, 2011
BY ANN ROSTOW


Full Fifth Circuit Says Louisiana Can Ignore Gay Fathers

My jaw is on the floor after reading one of the most egregiously antigay federal appellate opinions of the last decade.

That’s significant because these last ten years have seen a steady, and rapid, improvement in judicial consideration of gay rights cases, mainly due to a realization that gay litigants are regular human beings like everyone else---and also due to the layers of pro-gay precedent laid down by the U.S. Supreme Court and other federal tribunals.

Now comes the full bench of the U.S. Court of Appeals for the Fifth Circuit, a conservative court according to conventional wisdom, but still! In an 11-5 decision released Tuesday, the court basically ignored the text and spirit of the Full Faith and Credit Clause, ruling that the Louisiana state registrar had every right to withhold a corrected birth certificate from the adopted son of two gay men from out of state.

Oh, there was no direct antigay language in the opinion. Instead, the majority tied itself in knots trying to insist that the refusal to issue a birth certificate did not in any way indicate that the state of Louisiana was refusing to give full faith and credit to the out of state adoption.

Of course Louisiana “recognized” the adoption! It’s just that the registrar didn’t want to put both fathers’ names on this little certificate thingy because Louisiana prefers adoptions by married families or singles. But, hey! It’s not as if the registrar undid the adoption. In fact, the registrar even offered to put one of the father’s names on the birth certificate! Heads or tails?

Tell that to the father who’s name would not appear on his son’s birth certificate. Tell that to the bureaucrats and passport officers and school authorities and everyone else who will be relying on this paperwork over the next 80 years or so, assuming the five-year-old has a long life.

As for the Full Faith and Credit Clause, Article IV of the Constitution which requires that states respect the public acts, records and judgments of sister states, the court ruled that individuals can’t sue state actors in federal court under the Clause. Their only option is to sue in state court for the withheld recognition, and then appeal to the U.S. Supreme Court if they lose.

That’s simply not the case! And no amount of citations to pre-war (and even 19th century) precedent will make it true. To be clear, Louisiana law requires the state to issue a revised birth certificate, listing the names of the legal parents of a child born in the state and later adopted. There’s no gay exception. There’s no public policy exception. It is mandatory.

Now what? Lambda Legal Defense is presumably considering an appeal to the U.S. Supreme Court. If they appeal, I bet the High Court would accept the case.

First, because the Fifth Circuit decision is in direct opposition to an Oklahoma case, where the U.S. Court of Appeals for the Tenth Circuit struck the Sooner law against issuing revised certificates to the adopted progeny of gay parents. As you know, the High Court exists in part to resolve disputes among the federal appellate courts.

Second, because at least four members of the Supreme Court will probably want to clarify the jurisdictional scope of the Full Faith and Credit Clause.

But meanwhile, this case is amazing. And it serves as a depressing reminder --- to me at least – that for all our progress, we still have a long way to go.

You’ll be pleased to know that I skipped an entire discussion about the Equal Protection claim that was also rejected by the court, even though the issue was set aside by both the trial court and the three-judge panel. Normally, a reviewing court does not meddle in claims that have not been addressed by the lower courts, but hey. This is Louisiana, and this is the Fifth Circuit (which also governs my home state of Texas).

Anyway, keep on eye on this case, because it may be the next major gay rights claim to hit the High Court.
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Pause For the President

I’m about to turn on the TV and watch Obama wrestle with the deficit, which has somehow emerged as the Number One Priority of the United States, even as the economy struggles to recover, joblessness remains above 9 percent and three wars continue in various stages.

Fine! Cut the deficit. But stop with the crazy talk about how America is broke. We’re not.

And stop with the inane analogy to the average family cutting costs around the kitchen table. The average family lives with long-term debt, mortgages and loans of all sorts. They don’t plan to pay off the house in ten years. And the average family doesn’t take a voluntary pay cut, which America has done thanks to the Bush tax cuts. And no, America’s millionaires are not “creating jobs” with their tax savings. They’re setting up trust funds for their kids. And finally, when the average family does sit down at the kitchen table, they cut restaurant dinners, not the kids’ textbooks or annual medical checkups.

I’m back.

That was a remarkable speech. I almost cried. That’s all I’ll say, since I hear the siren song of GLBT news calling me back.
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Congress For Dummies

You may recall that the House Armed Services Committee recently held two hearings on the repeal of Don’t Ask Don’t Tell, a subject that frankly, has started to exhaust me.

So I saw an audio link to some Q and A from a Republican House member Austin Scott of Georgia to Vice Admiral William Gortney and I reluctantly clicked.

Apparently, Congressman Scott was under the impression that gay men and women were usually discharged for violating the military code, in other words for having illicit sexcapades. Admiral Gortney patiently explained that no, gay servicemembers rarely violate the code. They are simply discharged for being gay. Scott seemed perplexed and confused by this new information.

Can you believe that? A member of the House Armed Services Committee, conducting a hearing on Don’t Ask Don’t Tell, with not the slightest clue about how the law operates or how it’s been enforced?

By the way, those hearings did nothing to stall the schedule for repealing the military ban, since all the military mucky mucks said the training for repeal was going fine and there were no anticipated problems.

And while we’re on the subject of Congress, there’s a hearing on the legal defense of the Defense of Marriage Act set for Friday in the House Judiciary’s subcommittee on the Constitution. Presumably, this conclave will examine exactly how and when Congress will attempt to intervene in some or all of the DOMA challenges now advancing in the federal courts.

So far, they seem to have done next to nothing, which is fine by me. With the Justice Department backing away from the marriage cases, Congress is theoretically supposed to fill the breach in two cases now pending before the U.S. Court of Appeals for the First Circuit, as well as a case in federal court in New York and another in Connecticut. There’s also a federal DOMA challenge in Oakland, and there’s about to be one in San Francisco.

I would love to be a fly on the wall in that subcommittee room.

Think about it. The bill for defending one case, or even two, could be explained away as a necessity to protect Congressional integrity—or something. I don’t know. But the cost and continued publicity of fighting six or seven or a dozen cases? John Boehner and the House republicans are trying to present themselves as hard charging deficit hawks. The last thing they need is to be seen leading an ongoing, and expensive, attack on gay couples in courts around the country.

And you know, this isn’t an abstract political posture. In the New York case, for example, Mr. Boehner and company will be arguing that a little old lady should pay estate taxes of over $300,000 on the house she owned for decades due to the death of her longtime partner and legal wife. That will look really good.

True, the “cost” of litigation will be miniscule compared to the budget deficit. But the media and the pundits enjoy blathering about “millions” being spent on this or that, as if “millions” had the slightest impact on the national deficit. So I hope down the road we’ll be hearing about the “hundreds of thousands” wasted on this exercise.
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Former Foe Now Fights For Marriage

I was happy to read that the guy who dreamed up that traditional marriage bus tour has had a change of heart and now recognizes that same-sex couples should have the right to marry.

It’s not often you witness such a 180 degree turnaround, but Louis J Marinelli has not only turned around, he has written a fund raising email for the Courage Campaign in an effort to undo some of the damage he caused by his antigay activism.

Marinelli conceived of the cross-country bus tour, and presented the idea to the National Organization for Marriage (NOM), which jumped on the plan. For months, the little band of antigay activists drove around from town to town, invariably greeted by a handful of conservatives (if any) and a large crowd of gay marriage supporters, waving banners and chanting.

Marinelli also set up a traditional marriage web page, and became disturbed by the level of antigay hatred it attracted. After talking to the gay activists he met on the bus tour, and seeing first hand the venom spewing from the other side, Marinelli became convinced that civil marriage was not a Christian issue, and that the fight against gay couples was a dehumanizing mistake.

After coming out publicly last week, NOM announced that Marinelli was little more than an independent “bus driver” who had no real connection to the organization. Hmmmm.

I can’t count the number of essays and statements I’ve read from people who once opposed marriage equality to a greater or lesser degree, but who now support our right to wed. Politicians, activists, pundits, ex-presidents, and soon perhaps, a current president.

But I have never encountered a gay marriage supporter who thought about the issue and decided that when all is said and done, it’s probably best that gay couples be denied the right to marry. The fight for marriage equality may be slow, but it only moves in one direction.
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Unanimous Victory For Arkansas Parents

Five pm eastern standard time. Cocktail hour! I only have 200 words left so what harm can it do?

Indeed, cocktail in hand (actually a glass of rose), I am now prepared to tackle the Arkansas Supreme Court’s unanimous decision to strike the state ban on adoption or foster parenting by unmarried cohabiting couples. The Hog state has a long history of trying to outlaw gay adoptions, and after agency regulations to that effect were struck by successive courts (on technicalities) the voters got together to pass their own adoption ban in November of 2008.

Now, after skirting the core issues in a previous case, the state high court has finally and definitively weighed in on the subject, ruling that fundamental due process rights do not allow the state to put marital restrictions on parenting.

Adoptions and foster parents are selected on a case-by-case basis after a home study and so forth. In this case, the idea of preemptively barring a huge category of prospective households did not pass the smell test, otherwise known as strict scrutiny. Note that Arkansas’s law banned any unmarried couple, straight or gay, from applying to become adoptive or foster parents. And it did so for no reason save vague references to an ideal home. This, said the court, was a violation of privacy rights under the Due Process Clause, forcing people to pick and choose between their intimate relationships and their desire to adopt or foster.

Yay Arkansas Supreme Court! Boo Fifth Circuit.

Messing with the IRS

News for the Week Ended April 6, 2011
BY ANN ROSTOW


Messing With The IRS

There’s a grassroots effort underway to get married gay couples to file joint tax returns in violation of the Defense of Marriage Act. I have to confess, as a married lesbian, that the idea has some appeal.

On the other hand, as a tax phobe who dreads the annual bureaucracy and headache of filing taxes, the notion of deliberately screwing up my tax forms to make a political point is not attractive. Worse, I gather we’re supposed to go through a complex process as follows. First, file our taxes as single. Then, file a revised tax return as a married couple. Finally, wait six months to see how the IRS responds, and then file suit to collect any extra refund from the second set of tax returns.

To my brothers and sisters in the Struggle, I’m sorry. I just can’t handle it. The additional prospect of ending up with penalties, fees, interest, and having to spend extra bucks on professional tax assistance just adds to the horror of it all.

Finally, I’ve received my share of those scary envelopes from the IRS, informing me that I’ve made a mistake of some sort. I’m familiar with the unpleasant sensation of rifling through the mail and finding the kind of letter you just want to stuff under a pile of newspapers and forget about. But you can’t do that for long, and at last you tell yourself that not opening the damn thing will not actually change the reality of the situation. So you open it, take a deep breath, and check out the bottom line. Usually, it’s easier to pay it rather than hunt through your disorganized tax papers and make a challenge. But still. The whole process is best avoided.
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Go Kloppenburg!

So, I stayed up until two in the morning watching the results from the Wisconsin Supreme Court election where the hardcore conservatives who are trying to drive out unions confronted the outraged progressives who are trying to save their state. The avatars for these two factions, David Prosser and JoAnne Kloppenburg, ended up neck and neck and will likely face a recount. With all districts reporting, Kloppenburg led by about 200 out of about 1.5 million votes.

And before I move on, I have a confession. After pooh-poohing the radiation fears from the Japanese nuclear disaster, I was finally brought up short by the idea of radioactive fish. Put me the group of those who will be avoiding imports of fish from Japan, although I’m not sure how you figure out which little fishy came from which country. Maybe I’ll just stick to river trout.

I’m in a mood to ramble rather than report, so let me get a couple of actual news items out of the way. Remember the civil union bill in Colorado? You can forget about it now, since it got killed in a house committee.

There’s another Congressional hearing on the repeal of Don’t Ask Don’t Tell set for Thursday before the full House Armed Services Committee. I’m still unclear on the Republican agenda, and I assume there’s little they can do to derail the repeal process. But it’s still annoying to watch them try.

Even though DADT is technically still in effect, there have been no discharges this year. Last week, the Navy dropped proceedings against a gay sailor, basically accepting the de facto change in policy.

And Equality California is again wondering whether or not to start a petition drive to put a repeal of Prop 8 on the 2012 ballot. Now that it seems the legal battle to end Prop 8 will stretch well into next year, if not beyond, we may be back to square one—or whatever square we were on two years ago. What do you think? I think it sounds exhausting, but perhaps necessary.
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Where’s the House DOMA Defense?

Speaking of legal battles, the House leadership has yet to announce the details of their new legal role in defending the Defense of Marriage Act. Weeks have gone by since a Congressional task force voted to defend the law in court in view of the Justice Department’s decision to stop arguing in favor of the federal ban on recognizing same-sex marriage, and yet we’ve heard noting more about it. Indeed, a group of gay allies in the House just sent a letter to Speaker Boehner asking for some explanations.

Will the House general counsel defend DOMA? Will they hire outside lawyers? How much will this cost? Will the House ask to intervene in the various pending DOMA cases? Or will they just file briefs as friends of the court?

Given that one of the judges in one of those pending cases has set an April 18 deadline for a House motion to intervene, one would think that some people are working on the issue, but to date we don’t know who that might be or what they might be doing. It’s interesting as well that John Boehner does not seem to welcome his new role as the leader of the culture war. Indeed, John Boehner does not seem particularly happy about his professional life in general at this point, evincing a level of discomfort that sort of speaks well of him.
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Monkey Business

Here’s a disappointing development. A few months back I bookmarked a story about gay monkeys, and when I tried to retrieve it just now, it was gone. I forget what it said, and my only clue is the bookmark title: “reat for gay monkeys.”

Oh, good news! I found it. “Special Valentine treat for gay monkeys” was the actual headline, and although it’s no longer timely, it’s still a lovely account of two spider monkeys named Elton and David, who live at the Drayton Manor Theme Park in Staffordshire. They reportedly became a couple about a year ago. Or at least, that’s when keepers noticed them hugging and fooling around. Sadly, I can’t find out what the special treat was. I’m guessing bananas.

By the way, as usual I’m watching MSNBC in the background. It turns out that Japanese fish is safe, as long as it’s not from the nuclear plant area. Plus, food safety people are checking imports for radiation just in case.

Wonder whether those government food safety people will be on the job next week? Aw. Who needs government? We’ll just police our own sushi, thank you very much. All we need is a lab and Abby from NCIS. Or maybe there’s an iPhone ap we can use.
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Queer As Mice

In other gay animal news, I was struck by a Dallas Voice article about the connection between serotonin levels and same-sex attraction in male mice. Turns out that if you take away serotonin receptors and put a bunch of male mice together, they are all over each other. Once you give them back their receptors, they’re straight as arrows.

“Do we care” asked the gay weekly? After all, we’ve been debating the nature versus nurture question for decades, with our side usually insisting that we are not “gay by choice.”

This debate seems animated in part by the idea that if a characteristic is congenital and unchanging, discrimination on the basis of that characteristic is somehow worse than discrimination based on something more fluid. Indeed, “immutability” is one consideration courts have used to increase the level of scrutiny for laws that target a particular group.

But the question of gay immutability is a distraction from the real issue. Should you have to change or hide your sexual orientation in order to be treated equally? Of course not. Even if a simple shot of some chemical could someday turn us all into heterosexuals, such a notion is as repellent as the idea of forcing people to change their faith in order to suit a majority view.

And what if we could change our sexual orientation as easily as we change our hair color? Would it be wrong for some people to elect such a procedure? I guess I’d say that if they’re that unhappy, who am I to tell them what to do about it? But before we can assume that breezy attitude, we must create a society where being gay is easy, accepted and respected.

By the way, isn’t serotonin a happy thingy? I’d think that you’d be more gay if you had more serotonin. We all know that being gay is inherently more fun. The piano bars, the Pride parades, the glamour, the Fight for Equality!
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Gauguin Gets Gay Bashed

So, did you hear about the 50-something woman who attacked “Two Tahitian Women,” a painting by Paul Gauguin, at the National Gallery? The woman tried to pull the $80 million painting off the wall, and then tried to punch it, screaming “This is evil!” the Associated Press reports.

She later explained: “I feel that Gauguin is evil. He has nudity and is bad for the children. He has two women in the painting and it's very homosexual. I was trying to remove it. I think it should be burned.”

She also said she was from the CIA, had a radio in her head, and was planning to kill the police. I gather that she is being held without bail pending a psych evaluation.

The painting wasn’t damaged in Friday’s incident, and it’s expected back on the wall by Tuesday. That’s assuming that the staff of the National Gallery is working next week.
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Maintaining Self Control

Let’s see what else we can discuss this afternoon. (And you should know that these random items are my attempt to finish this column without going into an enraged diatribe against the House of Representatives. If I start I won’t be able to stop.)

So anyway, there’s a fight over whether or not gay couples should have the chance to adopt in Virginia, but I’ll save that for another week.

There’s some gay bashing news, but I find that subject depressing. And I think I cruised by a story out of Australia, where a maniac murdered his possibly gay ex-roommate in a violent knife attack. The killer told his pals that he once drank blood during a cannibal ritual. I don’t remember the exact details, but if you’re interested, try googling “Brisbane cannibal.”

And I was happy to read that the U.S. Court of Appeals for the Seventh Circuit ruled that Wal-Mart was within its legal rights when it fired an employee who directed a homophobic rant at several of her colleagues. The fired worker had tried to claim that her termination was a case of religious discrimination. But the court didn’t buy it

Look. You can’t be fired just because you’re Christian. You can’t be fired because you take a personal day on Yom Kippur. But you certainly can be fired if you launch a full blown screaming verbal attack at the expense of a minority group, whether Black or gay or whatever. And you can’t say the Bible made you do it. Good for the 7th Circuit.

Here’s another interesting story to wind down our column. Archeologists in Prague have discovered a gay caveman or trans cavewoman, a male who was buried in a fashion usually reserved for females.

The skeleton was facing east, and surrounded by urns and jugs. During this period, around 2900 to 2500 BC, men were buried facing west, and their graves were stocked with weapons and food. Women were laid to rest facing east, with pots and jewelry. Experts said that since burial rites were taken seriously, the male skeleton’s grave suggested not only that he was either gay or trans, but that the community respected his (or her) identity.

Don’t tell me that society was more advanced in 2900 BC than it is now.

Oh, and let’s give credit for a pretty good joke to the decadent egomaniac who runs Italy, and who is now defending himself in court against charges that he had sex with an underage prostitute (along with dozens of other hired women).

Silvio Berlusconi announced that a national survey firm had asked Italian women if they would like to sleep with him. According to the 70-something prime minister, 30 percent said “Yes,” and 70 percent said: “What? Again?”

Don’t get me wrong. The man’s still a fool. Much like the members of the GOP majority in the House of Representatives.
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arostow@aol.com

Yet Another Doomed Version of ENDA Hits Congress

News for the Week Ended March 30, 2011
BY ANN ROSTOW


Yet Another Doomed Version of ENDA Hits Congress

My email is now full of breathless headlines from all the various GLBT organizations and pundits, announcing that the Employment Nondiscrimination Act has been introduced in the House. Loyal readers are familiar with my opinion of this dubious effort, so I will forego much of my usual rant.

But not all of it.

We have introduced this stand-alone gay workplace discrimination bill to no avail in every Congress save one since 1994.

Prior to that, as far back as 1974, we introduced a bill that would have added “sexual orientation” to the provisions of Title VII of the Civil Rights Act of 1964. Title VII covers workplace discrimination on the basis of race, sex, national origin and religion, and it is reinforced with the steel of almost half a century of case-law. In short, Title VII offers the only real protection against gay bias on the job, period.

If we had kept working on a revision to Title VII, we might be close to victory by now. Instead, we decided that was too difficult, and contrived a separate bill, ENDA, riddled with loopholes to satisfy homophobic lawmakers. Small businesses are exempt from ENDA, as are religious employers. Along with its many inadequacies, ENDA does not provide an avenue for collecting civil damages. Worse, although many modern courts have found a way to rule on gay bias using Title VII, that strategy would be foreclosed should Congress create a separate law that specifically covers GLBT workers.

Perhaps fighting for a separate gay bill made sense in 1994. But nearly two decades later, it makes no sense. Do any of you California readers remember when gay workplace bias was covered under a special provision of the Labor Code rather than included in California’s main human rights act? Hint: it didn’t work and eventually sexual orientation was added to the law that protects every other Californian.

Oh, you say. But it would still be easier to pass ENDA as a first step and then go back and revise Title VII!

I have news for you. ENDA’s not going to pass this Congress. Even Barney Frank called the bill “an organizing tool” that is not likely to reach the House floor. And even if we did manage to pass ENDA after, let’s say, 25 or 30 years of trying, does anyone really think we could pass a stronger gay rights bill on its heels?

I for one am tired, year after year, of getting letters and emails asking for cash to “help pass ENDA.” This bill is a counterproductive legislative artifact from an earlier age, and if all we need an “organizing tool,” why not introduce a revision to Title VII? It would have the same chance of passage as ENDA.
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Ninth Circuit Citation A Mystery (To Me)

Moving on, I tried to check up on the Alaskan case that was cited in the one-paragraph Prop 8 announcement by the U.S. Court of Appeals for the Ninth Circuit last week. The three-judge panel informed us that they were not going to lift the stay on Judge Vaughn Walker’s decision last August to strike Prop 8 and re-legalize same-sex marriage in California. 

Since their only explanation was a reference to Southeast Alaska Conservation Council v U.S. Corps of Army Engineers, I thought I’d look up the details. But all I found was a  (kind of astonishing) lawsuit involving a gold mine that was planning to dump all its waste into a large lake. The gold mine admitted that the plan would raise the bottom of the lake by 50 feet, triple its surface area, and kill off virtually all aquatic life.

The mine received permission from the U.S. Corps of Army Engineers to go ahead with its dastardly scheme, deftly relying on an ambiguity in the Clean Water Act. A lower court thought that destroying the lake was just fine, but the Ninth Circuit disagreed in a 2007 opinion. I tried my best to find the “principle of vacatur” that applied to the Prop 8 case, but I failed, possibly due my lack of legal training (an educational deficit that normally doesn’t stop me from pontificating on all areas of the law). If any attorneys out there can help me, I’d be grateful. I’m guessing that the principle was articulated in a different opinion, but I couldn’t find it.

By the way, you’ll be interested to know that the U.S. Supreme Court overturned the Ninth Circuit in 2009 in a 6-3 decision, so I’m guessing that by now our pretty little lake is officially an industrial waste site. And here’s a coincidence! Ted Olsen argued on behalf of the gold mine and the state of Alaska.
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Gay Spouses in Limbo

Last week, we covered the bi-national lesbian couple from New York, who were given a reprieve from deportation while they pursue a Green Card in court. Even the government lawyer in the immigration hearing agreed that drastic action should be postponed while the women challenged the law that ostensibly keeps them apart—the Defense of Marriage Act.

Given that the Executive Branch officially views the Defense of Marriage Act as unconstitutional, it was not hard to infer that the U.S. will slow or cease deporting gay and lesbian spouses until the court verdict is in on the constitutional status of DOMA. This inference was bolstered by a statement a few days ago from the US Citizenship and Immigration Services, saying that indeed, deportations would be suspended for foreign gay spouses pending a legal review by Homeland Security.

Cue: Theme from Final Jeopardy. Time’s up! The legal review is over and the government confirmed that it will continue deportations as usual. You recall that the Obama administration made clear that they would still enforce the Defense of Marriage Act despite any constitutional reservations, and I suppose this sad decision reflects that pledge. I’m not sure whether this will have an impact on the girls from New York, but we all hope not.

Of all the hazardous side effects of the Defense of Marriage Act, I think the deportation of bi-national couples has to be the worst, don’t you?
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Gandhi Was What?

I kind of lost my train of thought after a ramble through cyberspace. I clicked on so many things that I completely forgot what I was originally seeking, and I can’t remember it even now. Ah, technology.

Speaking of technology, my wife was reading the paper the other day and she had her hand on her computer mouse and found herself trying to scroll down her article. And, speak of the devil, she just came home three hours early from work. Poor thing doesn’t feel well, and here I am stuck writing rather than tending to her. I’ll send the housemaid in to see if she needs anything.

Oh yes. I was going to find out why people are saying Gandhi was gay, or had a gay fling, or wanted to have a gay fling. It was something like that. I’m no longer interested, however. Instead I am fuming over the incessant talk about how President Obama needs to “clarify” our mission in Libya, and the media’s pointless insistence on knowing exactly what will happen if we end up in a “stalemate.”

Look. The man could not have been more clear. Clinton has been clear. The mission is clear! Enforce a no-fly zone through NATO. Prevent civilian deaths and encourage Gadhafi’s departure through all means short of sending in US ground forces.

But but but sputter sputter sputter! I thought he said he wanted to get rid of Gadhafi! And now he doesn’t? It’s so confusing! What if Gadhafi doesn’t leave? What specifically will we do in that hypothetical situation? Um, what if the Canadian government started attacking civilians? Would America intervene?

Then there’s the ongoing hysteria over what would happen if, say, the nuclear plant in New York had a massive total meltdown. Could we evacuate Manhattan?

I seriously watched a segment on that very possibility. And the answer? No. In fact we can’t evacuate Manhattan, and you know what? We won’t have to because the nuclear reactor on Indian Point isn’t going to have a meltdown.

There’s no radiation poisoning in LA, no great white sharks in your bathtub and while we’re at it, the sun isn’t going to explode next Tuesday. These people are driving me crazy!

I know what you’re thinking. No one is forcing me to sit around reading simplistic articles or watching cable news. And yet, I continue to torture myself.

While surfing, I did learn some of the many alternate spellings of “Gadhafi.” In addition to the AP spelling used here, the strange looking tyrant is also spelled “Gaddafi,” “Qaddafi,”  “Al-Qadhafi” “El-Qaddafi” and “Kadafi.” His first name has numerous variations as well, but I won’t indulge myself further on this topic.
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Sodomy Bans Alive and Well

What else is new, you ask? There are several state legislatures considering whether or not to repeal their anti-sodomy laws. Obviously, such laws are unenforceable in the wake of Lawrence v Texas, but some of them are still on the books, including the books of Kansas, Montana, and here in Texas. It looks like all three of these states are going to keep their sodomy laws intact, presumably just to remind their gay and lesbian citizens that they still consider us damnable perverts.

Hey. Remember it took Alabama until the 2000 election to repeal its symbolic ban on interracial marriage. At this rate, we’ll have those sodomy laws gone by 2036.

In other state news, the Colorado senate passed a civil union bill that now goes to the house. And the Indiana senate passed an amendment that bans both same-sex marriage and civil unions. The amendment has to pass in the next session of the legislature, and after that, it would go to a popular vote in 2014 at the earliest. I will withhold my pain and anguish until the Hoosier voters condemn me three years hence.
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Another Law That Won’t Die

Perhaps some of you are wondering how our brave gay men and women in uniform are doing now that Don’t Ask has been repealed.

I suppose they’re all fine, but they’re still in the closet. The repeal of Don’t Ask won’t take effect until two months after President Obama and Secretary Gates sign off on some statement that the change in policy will not affect military readiness. Or something like that.

Gates, meanwhile, won’t sign the statement until the military completes some kind of training on how to implement the new rules. I’m not sure why that would be so complicated. I mean, how hard is it not to discharge someone? At any rate, I just read that a subgroup of the House Armed Services Committee has decided to hold hearings next week in order to provide Congressional oversight for these implementation procedures. If that makes no sense to you, join the club. It appears to be a way for House Republicans to stall the eventual end of the military ban.

And do you remember the federal lawsuit back in October, when Judge Virginia Phillips struck Don’t Ask as unconstitutional? Her ruling was stayed pending appeal, and the suit rose to the U.S. Court of Appeals for the Ninth Circuit. There, the Obama administration asked the court to basically let the appeal slide while they went through the process of repealing the statute.

In a reply filed on Monday, the Log Cabin Republicans (who brought the suit) called the government’s request “absurd” and asked the court to strike Don’t Ask at once and let the chips fall where they may.

The bottom line is that Don’t Ask Don’t Tell is still the law of the land, and will remain so throughout seemingly endless court filings, training programs, subcommittee hearings and certification procedures. I haven’t heard of anyone actually getting kicked out of the service recently, but it’s still irritating to see the military ban sticking around like old gum.
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arostow@aol.com

Ninth Circuit Says No Marriages Until Prop 8 Case is Over

News for the Week Ended March 23, 2011
BY ANN ROSTOW


Ninth Circuit Says No Marriages Until Prop 8 Case is Over

As we go to press comes the disappointing news that the U.S. Court of Appeals for the Ninth Circuit will not lift the stay of Judge Vaughn Walker’s ruling, which struck Prop 8 last August. As such, gay couples in California will not be able to get married in the state for the foreseeable future.

The appeal in the case against Prop 8 was originally on a fast track. But after a relatively quick schedule of written briefs and oral arguments, the Ninth Circuit panel sent the litigation into a lengthy detour via the California Supreme Court in order to examine one aspect of the issue of standing. I don’t have to explain the standing issue to you. You’ve read all about it. Suffice it to say, it will be well over a year until the case returns to the home stretch.

In view of this torturous pace, our attorneys asked the Ninth Circuit to reconsider their decision to suspend marriage rights for the duration of the case. On Wednesday afternoon, they declined in a brief paragraph citing Southeast Alaska Conservation Council v. U.S. Army Corps of Engineers, a 2006 case within the circuit that I haven’t read, and quite frankly don’t want to.

I promise to read it before next week, because I am perplexed by the panel’s decision. Normally, to get a stay you have to prove that you are likely to win on the merits of the underlying case and that further, you will suffer some harm in the absence of a stay.

In our case, the proponents of Prop 8 are not even guaranteed to have standing to appeal, let alone are they “likely” to win. Obviously, while they may be dismayed at seeing gay couples get married, they are not harmed by such a phenomenon. We, on the other hand, are deeply harmed by the continued suspension of Judge Walker’s decision, particularly under the present timeline.
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Another Federal DOMA Case Hits California

First the Egyptian government is overthrown by popular fiat. Then we have an enormous earthquake and a tidal wave. Four nuclear reactors melt down. And now we’re in a full-fledged air war with Libya. Frankly, it looks as if someone out there is trying to steal our thunder and move the GLBT headlines off the front page.

Not if I can help it! The latest DOMA news out of a federal court in San Francisco will always trump suicide bombings, missile strikes or radiation clouds in this column!

Before I start, isn’t it creepy to watch the various GOP presidential candidates worm their way out from under their rocks? Tim Pawlenty has transformed himself in the last year or two from a bland, albeit ambitious, nonentity, into a far right gay bashing loony tune on the level of Rick Santorum. Newt Gingrich is simply delusional. And Sarah Palin manages to hopscotch between ludicrous figure of fun and evil harridan.
 
It almost makes me long for people like Mitt Romney and Steve Forbes to reenter the public stage. Even John Boehner is looking good in comparison to some of his colleagues. As a good Democrat, I should be hoping that the Republican field is filled with unelectable wingbats. But then again, as a good American, the idea that one of them could win is too frightening to contemplate.

Now, let’s talk about the latest DOMA litigation, because it seems to have slipped under the news radar along with Charlie Sheen, Bahrain and the future of NPR.

You remember, I’m sure, the tricky case of California lawyer Karen Golinski, who works for the U.S. Court of Appeals for the Ninth Circuit? Golinski has been trying to get insurance for her wife, who she married during the six month California window prior to the passage of Prop 8.

Acting as an administrator, the Chief Judge of the Ninth Circuit ruled that Golinski should be awarded the spousal benefits and ordered the federal government to pay up. Obama refused, citing the Defense of Marriage Act, and Golinski sued for enforcement of her boss’s ruling.

So here’s the latest from the courtroom of Judge Jeffrey White. Judge White said he had no choice but to rule against Golinski in the current case. At issue was not the Defense of Marriage Act, but the much smaller question of whether a Ninth Circuit judge could impose his will on the Executive Branch while acting, not as a judge, but as an administrator. Judge White’s answer to this query was no.

But White went on to suggest that the Defense of Marriage Act was unconstitutional, and he gave Golinski and Lambda Legal until April 15 to rewrite their complaint and challenge the Act directly. Judge White strongly implied that he would strike DOMA if only given the chance.

In view of the fact that Obama has since decided to stop defending DOMA in federal court, this means that those private lawyers to be hired by Congress are going to have yet another case on their hands, one with a new set of facts and a looming deadline for written briefs. Unless they get some kind of delay, their DOMA defense would be due in early May.

Meanwhile, these (yet to be hired?) lawyers have briefs due relatively shortly in two other trials in Connecticut and New York, as well as twin DOMA cases now pending before the U.S. Court of Appeals for the First Circuit in Boston.

Assuming that the administration formally bows out of both Boston cases, as well as the Golinski case, the Congressional lawyers seems to be facing a procedural nightmare. I know that the judge in the New York DOMA case has given them a mid-April deadline to intervene in his courtroom. I’m not sure however, what other schedules may be imposed, and as I implied, I’m not even sure that any lawyers have actually been hired in the two weeks since a Congressional committee voted to step up to the plate and pinch hit for the Justice Department in defending DOMA.

It’s all a mess on their side. And as far as I can tell, our side is organized and chomping on the bit. So that’s good, right?

By the way, there’s yet another federal DOMA case in Oakland, where Judge Claudia Wilken denied a motion to dismiss back in January, and where I suppose the Obama Administration will be obliged to clarify its new gay rights position in writing. That case involves a group of married gay couples trying to get long-term federal insurance.
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Let’s Not Forget The Non-DOMA Cases

Continuing our legal roundup, the Ninth Circuit is considering another gay rights case, this one filed against the state of Arizona, where the legislature decided to “save money” by dropping all the partners of gay state workers from the insurance rolls.

Not only did this save next to nothing in terms of the state budget, but it discriminated on the basis of sexual orientation in the process. Saving money is a legitimate state interest, but the budget ax cannot be applied at the expense of a minority group, any more than the legislature could have ordered every state agency to fire one woman and one Black worker in the name of cost cutting.

The case doesn’t directly involve DOMA or the federal government, but it’s interesting because it will test the Ninth Circuit’s view of Obama’s February assertion that laws targeting sexual orientation deserve more searching legal scrutiny. The Ninth Circuit has already ordered a higher level of legal scrutiny for ousted gay servicemembers under the Due Process Clause (in the Witt case). Extending the underlying principle to the Equal Protection Clause would guarantee victories in all the other gay cases now pending in the 9th Circuit’s vast western jurisdiction.
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Obama Gay Rights Policy Might Halt Deportations

So here’s something. Here’s some tasty news meat to contrast the dry court casserole served up in the last sections. After all the excited talk about Obama’s reversal on his gay legal strategy, here’s some beef.

Two women in New York City, Monica Alcota and Cristina Ojeda, got married in Connecticut last August. Alcota, however, is an Argentinean citizen and has been living here illegally for a decade. Caught in a spot border check of some sort in upstate New York in 2009, Alcota has been fighting deportation for over a year.

After their marriage, however, Ojeda applied for a spousal green card, which of course is prohibited by the Defense of Marriage Act. Nonetheless, in court on Tuesday, the U.S. authorities agreed to suspend their deportation efforts while the women make their case for green card status.

The decision is ground breaking in terms of immigration policy and seems to reflect the administration’s new views on sexual orientation discrimination. Indeed, Immigration Equality recently wrote a letter to Attorney General Eric Holder, asking him to put a hold on the deportation of same-sex foreign partners until the fate of the Defense of Marriage Act is established in court.

Of course, one case does not a general rule make. But if our government’s immigration enforcement lawyers are willing to take the cuffs off Monica Alcota, doesn’t it follow that the United States will let other foreign spouses have their day in court as well?

In other words, this could be, de facto, the end of one of DOMA’s cruelest manifestations, the ban on residency for the married partners of bi-national couples.
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There’s No Ap For That

I don’t have an iPhone, so I really don’t care about the Exodus International ap that helps gay people stay straight. That said, Apple has removed the antigay feature after a community outcry.

The left side of my lower back is killing me for some reason and I can barely stand up or sit down. Just thought you’d like to know. I’m fine when sitting or standing. The agony is in the transition, and it’s been so bad in the last few days that I consumed our household’s entire stockpile of Vicodin, left over from two dental surgeries (me), a lacerated skull (Mel) and another bad thing that I can’t remember.

I kind of liked having spare prescription painkillers on hand for emergencies. Now they’re gone until one of us suffers a new medical trauma of some sort. Ah well.

Let’s see. Three gay men have been murdered in Edinburgh over the last month, but it’s not clear whether or not the crimes are related. The latest victim, a semi-retired math lecturer named Roger Gray, was found viciously stabbed to death inside his flat, with the interior bolt locked in place. Bring on the Scots version of the BAU.

Oh, and the city of Fort Worth is shelling out $400,000 to two of the victims of the June, 2009, bar raid that turned into a scene of gratuitous gay bashing by out-of-control police and ATF agents. One man was hospitalized with a concussion and the other one tore his rotator cuff by being yanked around.
I wonder if they still have their Vicodin pills. Probably.

You know who also has some fun medication in his cabinet? Rudy Gay, the Memphis Grizzly who is now out for four to six months with a mysterious shoulder sprain. Poor Rudy.
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The Scarlet T

Here’s something I didn’t realize. In New York, a transgender man or woman may not receive a corrected birth certificate unless he or she has had complete reassignment surgery. Considering the expense, the pain, and the fact that many transmen and transwomen don’t want that kind of overhaul, the restriction is cruel and unfair. Now, The Transgender Legal Defense and Education Fund has filed suit on behalf of three individuals.

Makes you wonder what the mandarins in New York are trying to guard against. Are Empire State officials worried that citizens will change their gender on their birth certificates just for the hell of it? Do they imagine that people will ask for these fundamental documents to be revised back and forth from female to male to female on a whimsical basis, depending on how they feel in any given year? Perhaps New York could insist that transwomen brand a big W on their foreheads or that transmen have an M permanently tattooed on their biceps.

It also occurs to me that if New York has such a policy, so do many other states. I would look it up, but I don’t feel like it. Maybe next week.
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Maryland Vote Any Day Now, Really!

News for the Week Ended March 9, 2011
BY ANN ROSTOW



Maryland Vote Any Day Now, Really!

I know I’ve told you for weeks that marriage equality is just around the corner in Maryland. And it’s still true! It’s just that the corner continues to stretch around the bend and as I write, a vote in the House of Delegates is pending for, um, maybe Friday. I don’t know. Soon.

The 141-member Maryland House was supposed to be a progressive chamber, poised to back up the state senate and send the marriage bill to the friendly governor’s desk. Our big fight was supposed to be in the senate, and indeed we finally pulled that one off and passed the marriage bill in the smaller chamber ten days ago.

Since then, we’ve had a rocky road through the House judiciary committee, but finally emerged with a yes vote last week. This morning, Wednesday, our allies managed to defeat four poison pill amendments, including one that would have legalized bestiality and polygamy (I think). After these victories, the House sent the bill to a final floor vote, but again, I’m not sure when that vote will be held.

But for now, it’s all good. Sort of.

As you may recall, a victory for marriage in Maryland may well be put on hold and tested by a voter referendum. Opponents must collect about 55,000 signatures within a relatively short time in order to shelve the new law until voters have a chance to weigh in. Although marriage enjoys a small majority in the latest Maryland polls, it’s the kind of majority that slips away after our foes throw a few million dollars worth of sweet little children onto the airwaves.

Oh, they’re not our children of course. They’re the innocent little ones who will be forced to confront graphic discussions of homosexual acts in school if two men or two women are allowed to marry in the state. Much as we ourselves learned all about the birds and the bees from our first grade teachers in our early classes on heterosexual marriage. You remember those lessons, right?

Side note. I was adopted at birth, and when I finally learned exactly how babies were conceived, I remember thinking with relief: “So that’s why I was adopted! Of course my parents would never degrade themselves in that fashion!”
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No News Is Very Good News

What else is new? Well a Colorado committee advanced a civil union bill, so we’ll keep an eye on that. And Republican lawmakers in New Hampshire wisely decided to forget about trying to roll back marriage rights by shelving an antigay amendment for at least a year. Perhaps they were influenced by the poll indicating that two thirds of the voters had no interest in such a move.

All in all, our news this week is solid, but less than scintillating. And I suppose that the main story would be the lack of interest we’ve seen in President Obama’s amazing gay rights decision from two weeks ago. Hello? The President of the United States announces that gay men and women should be considered a protected class under constitutional law and no one objects? Obama’s justice department decides not to defend the Defense of Marriage Act and we hear nary a peep?

Yes, the far right has been squeaking about it, but few people are listening to their feverish cries. This is excellent news.

Earlier this week, House Speaker John Boehner announced that a bi-partisan committee of three Republicans and two Democrats would get together to hash out a response to the various lawsuits that challenge the Defense of Marriage Act. If my math is correct, this bi-partisan committee will likely decide to defend the antigay law, presumably by hiring some lawyers and writing a few briefs or whatever. This effort will fill the void created by Obama and company, who decided, as you know, that DOMA is unconstitutional and not worthy of a defense in court.

Speaker Boehner seems indifferent at best to the whole issue, so one can hope that the Congressional push lacks a certain, je ne sais quoi. We’ll see, won’t we?

I’m still not clear which lawsuits are being completely abandoned by the United States government. They are certainly dropping their defense of two new suits filed last November in lower courts in Connecticut and New York under the jurisdiction of the Second Circuit. But I’m not exactly sure how Obama’s Justice Department is handling the two Massachusetts DOMA suits now before the U.S, Court of Appeals for the First Circuit.

According to the Gay and Lesbian Advocates and Defenders, the Justice Department is continuing to participate in those cases. But they have informed the court that they will argue that Section Three of DOMA is unconstitutional under a high legal standard. Although the Justice Department has not written a second letter to Speaker Boehner concerning the First Circuit cases, I assume that Congress will be able to step into these cases as well in order to put on a more rigorous defense.

We’re still waiting for a DOMA-related ruling out of Northern California federal court that should arrive any day in the Golinsky spousal benefits case. That should be good for a lead story in this column.

And finally, as I wrote last week, the Prop 8 case could come roaring back if the U.S. Court of Appeals for the Ninth Circuit decides to lift the stay on Judge Vaughn Walker’s ruling, and allow marriages to resume in California while the case continues. Our side has petitioned the three-judge panel to reconsider the stay based on the lengthy delays that loom ahead for the litigation.

Needless to say, if the panel decides to lift the stay it would be a huge development. And that decision would likely be routed to the U.S. Supreme Court for a quick, and extremely revealing, review.
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Honorary Lesbians Behaving Badly

So that’s it for hard news. Now, Ladies? Please join me in conferring honorary lesbian status on Craig Munro of Ipswich, a Brisbane suburb, who has managed to assemble the four essential elements of a classic Lesbians Behaving Badly news item.

First, he is British and/or living in part of the old British realm. You know. The one where the sun never sets.

Second, he is a substance abuser, in this case a pill popper rather than a boozer.

Third, he attacked his ex-lover in a bizarre and obsessive fashion, surely the prime signature of the genre.

And finally, his murder attempt did virtually no damage to the hapless ex, one Brendon Gannaway, a fellow cleaner at the Brassall Shopping Centre.

According to the Brisbane Times, Munro spied his former boy toy kissing a female friend in late 2009. Enraged and unbalanced, Munro overdosed on pills of some sort and was briefly hospitalized. He then fired off 49 text messages, including:

“I’m going to dance on your grave,” “[I’m] out for blood and I promise it will be yours,” and “You shouldn’t have crossed me and you will pay.”

He then waited in his car for Gannaway to ride by on his bike, and slammed into the man at about 45 miles an hour, at the same time texting: “Ha Ha!” Gannaway was knocked out of his shoes, hit Munro’s windshield and then landed on the road. Luckily, he only suffered abrasions, and it probably helped that Munro, in keeping with the traditional Bad Lesbian scenario, called an ambulance.

Munro turned himself in at the scene, telling officers “I just wanted to hurt him like he hurt me. That’s why I ran him over… I just put my foot down and hit him.” In the end, he pled guilty to malicious intent to cause grievous bodily harm and was sentenced to sixteen months in the clink.

Anyway, congratulations to Craig from his new lesbian sisters, and welcome to the club!
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Christian Patriots Behaving Even More Badly

Since we’re not seeing the usual blockbusting news headlines this week, I think we can breath a sigh of relief and check out some of the stories that I was obliged to spike during the heady days of February.

For example, did you read about Grant Storms? Storms is a 53-year-old antigay “Christian patriot” from New Orleans, who became known for leading a crusade through the French Quarter during the annual Southern Decadence party, yelling at gay men through a bullhorn and waving his Bible.

Well, Grant was arrested the other day for masturbating in public at a local playground!

Hmmm.

The father of four explained that he had been watching porn earlier and presumably was unable to control his subsequent reaction. He also insisted he was not a pedophile, and was instead suffering from a sex addiction that was causing problems in his marriage.

Touchingly, Storms offered a word of apology to his erstwhile targets in the gay community, telling the press “I was very proudful [sic], arrogant. I have been vicious at times in my condemnation of others.”

You know, Grant. We understand. Perhaps we didn’t masturbate in front of the kids, but still. We were out there in the French Quarter wearing tight pants, buying drinks and, I don’t know, throwing beads at each other. Who are we to judge!
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Other Stuff in the News

So I should probably mention a marriage case in a Minnesota state court, where the judge just ruled against several same-sex couples, who will no doubt appeal.

As New York law professor Art Leonard pointed out, the trial court based its decision on the decades old case of Baker v Nelson, where the Minnesota Supreme Court rejected marriage rights out of hand, and where the U.S. Supreme Court wrote that marriage law was not a federal issue. The only problem here is that Baker was a federal case, and these same-sex couples were suing under state law so Baker shouldn’t even apply.

But you know what? With all our high profile lawsuits in action all over the country, I find it hard to focus on a state court ruling out of Minnesota. So let’s not.

Professor Leonard, who has inadvertently been sending me spam messages for the last week in what I assume is a snafu on his AOL account, also reviewed an interesting ruling out of the U.S. Court of Appeals for the Fourth Circuit in favor of a gay plaintiff.

Here’s the issue. If your employer sends you out into the field where you encounter relentless homophobic attacks at a client’s workplace, do you have a case for discrimination against your boss?

The answer is probably yes, assuming you told your own employer and they did nothing to protect you or resolve the situation. The case is interesting as well because the plaintiff is suing under Title VII of the Civil Rights Act, a federal law against workplace discrimination that does not specifically cover sexual orientation. And yet! Many courts have found a way to apply this vital law to protect victims of gay bashing, particularly when they are harassed due to gender non-conformity, a variety of sex discrimination that is indeed covered under Title VII.

And here’s the bottom line. If more courts could agree that Title VII covers discrimination against gays and lesbians, we would not need the Employment Nondiscrimination Act (ENDA), which stands alone as a very flawed half-assed untested weak-kneed second class substitute for the powerful law that protects everyone else.

As long as ENDA is not enacted, courts continue to try and fit our cases into the rubric of Title VII. But if the damn thing becomes law, we would automatically be blocked from Title VII protections, because obviously, our cases would then fall under our own personal gay workplace bill.

ENDA was a fine idea back in the early 1990s. In 2011 however, we should be working either to add sexual orientation to Title VII, or increase court precedents that effectively achieve the same goal. Passing ENDA would arguably be a step in the wrong direction.

I hate to end on a serious note. I promise it won’t happen again.

Obama Administration Calls Sexual Orientation Protected Class

Obama Administration Calls Sexual Orientation Protected Class
Says Defense of Marriage Act is Unconstitutional

In an extraordinary development this morning, Attorney General Eric Holder informed Congress that President Obama and the Justice Department have determined that sexual orientation discrimination should be subjected to heightened scrutiny in U.S. courts. As such, the United States will not defend the Defense of Marriage Act in two recently filed lawsuits, and (astonishingly) the government will urge the federal courts now considering older lawsuits to apply the high legal standard that virtually guarantees a gay rights victory.

Barring some other unexpected thunderbolt, Section Three of the Defense of Marriage Act will not survive this change in legal strategy in the federal appellate courts. But the fate of the bill, and our community’s legal status, will eventually be resolved by the U.S. Supreme Court.

This news is explosive—an historic moment in the history of the GLBT civil rights movement, where progress and setbacks usually follow the pattern of “two steps forward, one step back.” We may yet see a step back, but the President’s decision brought us forward by a mile in an instant.

Here’s a brief history of our federal fight against the 1996 Defense of Marriage Act, specifically our fight against Section Three, which creates a federal definition of marriage as the union of one man and one woman. (Section One of DOMA is its title; Section Two allows each state to maintain its own gay marriage policy.)

In March 2009, the New England-based Gay and Lesbian Advocates and Defenders filed suit in federal court in Boston, charging that Section Three violated the Equal Protection rights of married gay couples in Massachusetts, who were treated differently than their heterosexual neighbors by the U.S. government. The state of Massachusetts filed its own challenge to Section Three based on states’ rights issues and the two cases have proceeded in tandem.

Much to our communal disgust, the Obama administration chose to defend the Defense of Marriage Act using archaic anti-gay arguments in its initial brief. After a major outcry, the government changed its briefing strategy, rejecting overt hostility but continuing to defend DOMA as a legitimate expression of Congress’s desire to maintain the status quo and keep uniformity in the context of a contentious national debate.

The government also argued that the case should be evaluated under the easiest standard of legal review, the “rational basis test,” which requires only that a law be rationally related to a “legitimate” public interest.

This easy standard, which puts the burden of proof on the plaintiff, cannot apply when a fundamental right has been breached. Nor does it apply to an equal protection claim against members of a “suspect class” like race, national origin, gender and religion. In order to make its argument stick, the government cited local precedent for the premise that sexual orientation does not comprise a protected class.

The Supreme Court has never resolved the legal status of gays and lesbians, but the U.S. Court of Appeals for the First Circuit, which includes the Boston area, has previously ruled that gays and lesbians are not a suspect class, and do not qualify for heightened legal scrutiny on this basis.

This precedent added weight to the government’s position. But last November, GLAD and the ACLU filed two more DOMA challenges on behalf of couples from Vermont, Connecticut, New York and New Hampshire. Filed in Connecticut and New York, the cases fall under the jurisdiction of the U.S. Court of Appeals for the Second Circuit, where there is no previous ruling on the protected status of gay men and women.

In these cases, the administration would have been required, not simply to fall in line behind established precedent, but to affirmatively argue that sexual orientation does not satisfy the requirements of a suspect class. This, Obama and company have now refused to do. And indeed, the government has gone much further, stating that it is the position of the President and the Justice Department that sexual orientation should indeed be protected, and as such, subjected to a high legal standard.

The government goes on to acknowledge that the Defense of Marriage Act does not pass the higher constitutional tests, which shift the burden of proof to the defendant and which require, in their strictest form, that a law be narrowly tailored to serve a “compelling” public interest.

Holder’s letter, delivered to House Speaker John Boehner, says that the government will be prepared to present the theoretical case for DOMA under the rational basis standard if the courts in the Second Circuit request such a filing. The district judges might do so to cover their bases, but it’s hard to imagine that they or the federal appellate court would actually rule against both the plaintiff couples and the government of the United States. Indeed, the legal arguments against gay rights in this and other contexts are so weak, that it takes the power of the status quo and the weight of the state to tip the scales of justice against logic, reason and the history of American constitutional law.

As for the Massachusetts cases (now on appeal after a gay rights victory at the district court level) Holder wrote that the government will urge the First Circuit to use a high level of scrutiny. Those cases are in the briefing stage, with GLAD’s reply to the government briefs due on March 1. I’m guessing that the Justice Department will issue a supplemental brief, or perhaps use their final brief to expound on suspect class status. Oral arguments will follow in a few months, and the appellate panel would normally rule three to six months after that.

It’s likely that a conservative Congressional faction will hire lawyers to defend the Defense of Marriage Act, but I’m not sure of the procedure for such an intervention. Holder writes that Justice Department attorneys “will also notify the courts of our interest in providing Congress with a full and fair opportunity” to participate in the Second Circuit litigation. And a statement from the Gay and Lesbian Advocates and Defenders indicates that “either chamber may step in and appoint counsel to defend DOMA.”

The deadline to file a motion to dismiss in the Second Circuit area cases is March 11. And while we know the administration will let the deadline lapse, we will soon see who (or what) will attempt to ride to DOMA’s defense. Meanwhile, the Obama administration says it will continue to enforce the Defense of Marriage Act until the law is struck by courts or repealed.
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Speechless in Austin

The impact of Obama’s decision goes well beyond this case or that one. By embracing the use of higher scrutiny for gay rights cases, his administration effectively has switched to our side on any and all gay civil rights cases against the United States from now to the end of his administration.

The implications are staggering, and for all our complaints about the President’s lack of interest or energy in defending gay rights, he has, in one fell swoop, become the fiercest of champions. Only a hard right ruling from the U.S. Supreme Court could block our way, and of course, there lies the fear.

Forgetting about the Second Circuit cases for the time being, I’m unclear as to whether a group of Congressional bad guys can insinuate themselves into the First Circuit lawsuits at this juncture. After all, the administration is still involved as an appellant in the Massachusetts cases, and although they have now pledged to urge a pro-gay ruling, they have not created a vacuum by abandoning their role in the contest.

Assuming we emerge the winner in the First Circuit, the Obama administration would not appeal the result. In theory, marriages in Massachusetts would be then be recognized by the federal government, and I can’t begin to guess how DOMA would be enforced in one section of the country, but not elsewhere.

Would there be a mechanism to bring such an untenable result to the High Court for resolution? Maybe. I don’t know.

As for the Second Circuit cases, assuming Congress is allowed to defend the law, and assuming again we win down the road, there would certainly be an appeal to the High Court and I imagine the justices would have to accept it.

It’s possible the Court could strike DOMA without taking a stand on suspect classifications. But I can’t see Anthony Kennedy agreeing to a dramatically antigay ruling that simultaneously upholds DOMA and denies constitutional protections based on sexual orientation. And if the Court were to agree with Obama on heightened scrutiny, it would be game, set and match.

There’s another option for the federal appellate courts, including the justices, and that is to fall back on a vague type of legal evaluation, sort of a heightened rational basis test, where laws that trample on gay civil rights are given just a little extra attention, but gays are not elevated to a suspect class. If they heard our case today, such a compromise wouldn’t surprise me. But a year or two from now, the looming shadow of history’s future verdict on gay rights may be enough to push Kennedy and maybe Roberts over the edge into a gay version of Brown v Board.
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Lawyers Ask Ninth Circuit To End Stay on Gay Marriages

Just after the Holder letter was released, the lawyers from the Olson Boies team asked the U.S. Court of Appeals for the Ninth Circuit to revisit the stay of Judge Vaughn Walker’s August ruling in the Prop 8 case.

As you recall, Judge Walker struck Prop 8 as unconstitutional and ordered marriages be resumed for gay couples in the Golden State. His order was stayed by the Ninth Circuit pending what was supposed to be a speedy appeal.

But it hasn’t been speedy and after last week, we now know that it’s going to drag on for a couple of years. First, the California Supreme Court must address the side issue of whether or not the Prop 8 proponents have standing to represent their side in court under state law. That should take the rest of this year. Then, the Ninth Circuit panel must decide whether or not the proponents have standing to appeal under federal law. There goes another three to six months. After that, who knows what further machinations will extend the case?

Given the delay, our lawyers argue, and given the fact that the Obama administration now believes a federal ban on marriage recognition is unconstitutional, it’s appropriate to reconsider whether or not to put Judge Walker’s order on hold for such a protracted period of time.

Obviously, the Obama administration was not involved in the Prop 8 suit, which was filed against the State of California. So their revised thinking on the level of legal scrutiny that applies to gay rights cases is irrelevant. But then again, it’s not irrelevant, and it will have a profound impact under the surface of many other gay cases that don’t directly involve the federal government.
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In Other News

All in all, it’s been a momentous day.

Lost in the banner headlines is the Hawaii Civil Union bill that now heads to the friendly governor’s desk for signature.

Even more dramatic is the committee vote in the Maryland senate that will send a marriage equality bill to the floor of the senate for a critical vote on Thursday. Marriage equality is expected to pass the House of Delegates if it can make it through the senate. In the senate, we have exactly the 24 votes we need to pass the bill, barring some last minute reversal.

Perhaps you’re wondering why I capitalized House of Delegates, but left senate in regular type. It’s because I generally use lower case for state legislative bodies, but House of Delegates just begs to be capitalized.

At any rate, we can now watch for the other big news that will develop over coming days; to wit the backlash over Obama’s announcement. Will it be muted? Or will it turn into a full-fledged national gay bashing session? Either way, it will be worth watching.
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arostow@aol.com