News For the Week Ended July 6, 2011
BY ANN ROSTOW
Ninth Circuit Ends Don’t Ask Don’t Tell Enforcement
Well, here’s some welcome news that naturally arrived just after I wrote this column. Today, Wednesday, the U.S. Court of Appeals for the Ninth Circuit reinstated an injunction against enforcing Don’t Ask Don’t Tell, effectively ordering the government to halt the discharge of gay soldiers and sailors.
I know, I know. The law has been repealed in Congress and is nearing the end of a long process to kill it for good. Indeed, the administration asked this court to just shelve the whole Don’t Ask lawsuit until the certification process was finished and the President signed off on the final repeal.
The court said no, agreeing with our side that as long as the law is technically in force, the lawsuit that challenges its constitutional status should continue. Today, the court issued a two-page note, barring enforcement of Don’t Ask, noting that since the law is almost dead anyway, the injunction should not be much of a hardship for the administration.
It’s taken forever for us to finally bury Don’t Ask. We’ve had the service, the wake, the memorial, the funeral procession. For God’s sake, let’s lower the coffin. This injunction can’t hurt.
--
The Charge of the Justice Department
So, I actually have a really big story this week. I think it’s even bigger than that injunction, but I had to lead with the breaking news. You may have already read that the Obama administration filed a legal brief in our favor in one of our six or seven major federal cases against the Defense of Marriage Act. (The Golinski case in Northern California if you must know.)
So what, you ask? Didn’t they tell us six months ago that they think DOMA is unconstitutional?
Well yes, as a matter of fact they did. And they also announced that they would no longer defend the law in court. But listen! They never said they’d hop over to our side and argue forcefully against the Defense of Marriage Act before these judges! And that’s what they’ve done.
It’s as if we’ve been fighting the Christian right in the streets for years, with mounted police hitting us back. In February, the police decided to stay out of the fight and withdrew their troops. But now, suddenly, the police are back, fully armed, and leading the charge on our behalf.
It’s enough to make you almost feel sorry for the House Republicans and their hapless DOMA lawyers. Almost.
The weight of the Justice Department is substantial. So much so that when that weight was lifted from the other side of our gay rights legal debates, we got a tremendous lift. Now the power of the U.S. government has not simply been taken away from our ideological opponents. It’s been added to our own. This is really incredible news.
There’s more if you care to delve into a little legal detail.
First of all, this 31-page brief was not just “pro gay,” it was one of the most forceful briefs I’ve ever read and that includes everything produced by Lambda, the NCLR, GLAD, the ACLU and all our legal eagles.
Second, it did not just argue that DOMA is unconstitutional. It made a terse, aggressive and adamant case for the idea that all laws discriminating on the basis of sexual orientation are inherently unconstitutional, unless there’s a solid justification for the law that is not based on prejudice. Can you think of an anti-gay law that isn’t based on bias? Neither can I.
I’ve bored many of you in the past by going on at length about suspect classes, heightened legal scrutiny, blah blah blah. But basically, laws that discriminate on the basis of race, gender, and other “suspect” classifications are subjected to a more searching legal analysis. What the government is now arguing is that sexual orientation should also be a suspect classification.
This is the most fundamental gay rights argument anyone can ever make. You can win a gay rights case without winning the argument about suspect classification and heightened scrutiny. But for all practical purposes, you cannot lose a gay rights case if you win that threshold question.
Even gay friendly courts are scared to rule on heightened scrutiny for fear of setting a precedent that will force lower courts to automatically rule for our side in future cases. They solve the dilemma by ruling that we win under any standard of legal review, ergo there’s no need to go into the general issue of which standard should apply.
We’ve been happy to win cases under any standard. But still, it’s time for the bobbing, ducking and weaving to come to an end. And who’s up there demanding federal courts to reach this critical issue? The U.S. government.
As I wrote last week, anyone who is still claiming that Barack Obama has neglected our community is simply off base. He has gone far far beyond anything we could have imagined in terms of legislation or executive orders. And he’s done so, under the political radar, through his legal policy.
--
Fingers Betray Penis Size
So here’s a mystery that consumed me with curiosity all day yesterday. Do you remember that there was a great ruling out of a bankruptcy court in LA about two or three weeks ago?
I wrote about it, but you may have seen “joint bankruptcy” in the headline and skipped it. I know your type. You’ll read about penis size, but when there’s a meaty legal opinion to dissect you’re nowhere to be found.
For the record, men with a low ratio between the size of their index and ring fingers have big baskets. Check it out on your right hand. I suppose you’re looking for equal lengths, right? A low ratio would be one to one.
Ladies, we already know that a ring finger longer than our index finger means we’re gay. Seriously, this works most of the time. The whole phenomenon has something to do with hormones in the womb, although it seems weird to me that such hormones would involve themselves in the stature of specific fingers.
Getting back to the bankruptcy case (and please stay with me this time) the ruling in favor of two gay married men who wanted to file bankruptcy together was noteworthy for two reasons. First, the judge ruled that the Defense of Marriage Act (which barred them from joint filings) was unconstitutional. Normally bankruptcy judges don’t mess with constitutional issues. And second, the ruling was joined by 19 other judges in the central California district.
At the time, the House Republicans decided not to appeal the anti-DOMA decision, even though they are supposedly running around from court to court to bolster the law. Under the circumstances, I thought the case was over; a victory for destitute gay couples throughout the valley. Hurray!
Then yesterday, I noticed to my shock and horror that someone had indeed filed a five-page motion for leave to appeal this ruling in federal court. Guess who it was?
It was the Justice Department, represented by the U.S. Trustee! The U.S. Trustee is a legal term for some guy who fills some important federal role in a bankruptcy case and who works for the Justice Department.
You remember the Justice Department from our first story, right? The brave government lawyers who issued the amazing defense of gay rights and condemned the Defense of Marriage Act in brilliant legal prose? Why then, would the same people be begging to reverse an anti-DOMA ruling in another federal venue?
Was it a rogue trustee? A miscommunication? Some technicality of bankruptcy law? Was it perhaps an arm of the House Republicans reaching out to manipulate the trustee?
I still don’t know the answer, but my secret sources tell me that the request to appeal will be shortly withdrawn on direct orders from Washington. If true, that sounds like the whole thing was a misunderstanding. I’m still curious about the circumstances of the (perhaps accidental) appeal. I’ll let you know if I find out any more dirt.
--
Prop 8 In 2012?
What else shall we talk about? I feel I should apologize to Casey Anthony for describing her as “the woman who killed her daughter.” Looks like she may not have been guilty after all. Sorry Casey. I followed the Casey Anthony trial about as closely as Casey Anthony followed the Karen Golinski DOMA case, so I can be forgiven. It wasn’t hard to assume she was guilty when all I kept hearing was snippets on MSNBC about “the smell of human decomposition,” “duct tape,” “chloroform” and other disturbing sound bites. I mean, someone murdered the little girl, right?
I gather that activists in Maryland and Maine are gearing up for more marriage fights, inspired by our excellent adventure in the New York legislature.
And speaking of marriage ballot wars, are we going to put a Prop 8 repeal on the 2012 ballot in California?
Equality California is conducting town hall meetings to sound out the community, but the pros and cons seem to be evenly matched. Polls suggest there’s roughly a fifty-fifty split among voters. But if you add standard religious exemptions to the language the polls swing in our favor.
Either way, do we really want to risk another electoral defeat in California? And what would that do to our current lawsuits?
Do we have the money, energy, and organization for another statewide election? I don’t know.
The Prop 8 lawsuit is mired in technicalities for the rest of this year and into 2012. But it might be resolved late next year, or early 2013. The most likely scenarios would restore marriage rights in California and strike Prop 8 as unconstitutional. Shouldn’t we wait and see?
That said, we’re “activists,” not “sitting around to see what happenists.” A victory at the ballot box would reverberate around the country and strike a body blow to the religious right that might finally knock them cold.
Personally, I go back and forth but if pressed, I’d avoid a repeal election out of a combination of laziness and optimism for the lawsuit.
--
Annoyed By Bill Keller
Here’s something I found irritating in the Sunday edition of my beloved New York Times. Executive Editor Bill Keller wrote a clueless essay on same-sex marriage, musing about how the whole national debate would be solved if the government would issue “civil unions” and the churches would sanctify “marriage.” Keller acknowledged that such an idea is impracticable for many reasons, but wandered blithely through his proposal nonetheless, with an air of “wouldn’t it be loverly.”
First of all, Bill. You are the ten zillionth person who has suggested exactly this solution, so why are you writing this? Did you think it original? If so, you obviously don’t have much of a background in the same-sex marriage arena and perhaps you should leave it alone or check with some gay person on staff.
Second, as has been pointed out to the ten zillion people before you, this clever “solution” is no different from legalizing marriage equality. Of course the government should have a one-size fits all civil something for gays and straights alike. And of course churches should do their own thing. Under the “civil unions for all” idea, both gay and straight couples would be “married” in the church and “civil unioned” by the state. But since you can’t legislate the use of vocabulary, we would all be married, period.
The idea that the government would change a word on a piece of paper and thereby make everyone happy is ludicrous. Everyone would use the “m” word anyway and the religious right would be just as pissed off as ever.
Finally, it’s a myth that there is a sharp divide between religious and civil marriage. No one gets married in a church but doesn’t bother with a civil marriage license. Churches can’t marry people. They can solemnize a marriage, and of course, they can do so for both straight and gay couples.
Our fight for marriage equality seems at times to be a semantic dispute with traditionalists over the “m” word. But it’s actually a fight over the “e” word, equality, which the “m” word represents. So yes, giving everyone civil unions would be fine in theory. But if you do that, changing the terminology is irrelevant and needless. It’s not a lofty compromise. It’s sophistry.
I feel so much better now.
--
arostow@aol.com
Reproduction with permission only.
BY ANN ROSTOW
Ninth Circuit Ends Don’t Ask Don’t Tell Enforcement
Well, here’s some welcome news that naturally arrived just after I wrote this column. Today, Wednesday, the U.S. Court of Appeals for the Ninth Circuit reinstated an injunction against enforcing Don’t Ask Don’t Tell, effectively ordering the government to halt the discharge of gay soldiers and sailors.
I know, I know. The law has been repealed in Congress and is nearing the end of a long process to kill it for good. Indeed, the administration asked this court to just shelve the whole Don’t Ask lawsuit until the certification process was finished and the President signed off on the final repeal.
The court said no, agreeing with our side that as long as the law is technically in force, the lawsuit that challenges its constitutional status should continue. Today, the court issued a two-page note, barring enforcement of Don’t Ask, noting that since the law is almost dead anyway, the injunction should not be much of a hardship for the administration.
It’s taken forever for us to finally bury Don’t Ask. We’ve had the service, the wake, the memorial, the funeral procession. For God’s sake, let’s lower the coffin. This injunction can’t hurt.
--
The Charge of the Justice Department
So, I actually have a really big story this week. I think it’s even bigger than that injunction, but I had to lead with the breaking news. You may have already read that the Obama administration filed a legal brief in our favor in one of our six or seven major federal cases against the Defense of Marriage Act. (The Golinski case in Northern California if you must know.)
So what, you ask? Didn’t they tell us six months ago that they think DOMA is unconstitutional?
Well yes, as a matter of fact they did. And they also announced that they would no longer defend the law in court. But listen! They never said they’d hop over to our side and argue forcefully against the Defense of Marriage Act before these judges! And that’s what they’ve done.
It’s as if we’ve been fighting the Christian right in the streets for years, with mounted police hitting us back. In February, the police decided to stay out of the fight and withdrew their troops. But now, suddenly, the police are back, fully armed, and leading the charge on our behalf.
It’s enough to make you almost feel sorry for the House Republicans and their hapless DOMA lawyers. Almost.
The weight of the Justice Department is substantial. So much so that when that weight was lifted from the other side of our gay rights legal debates, we got a tremendous lift. Now the power of the U.S. government has not simply been taken away from our ideological opponents. It’s been added to our own. This is really incredible news.
There’s more if you care to delve into a little legal detail.
First of all, this 31-page brief was not just “pro gay,” it was one of the most forceful briefs I’ve ever read and that includes everything produced by Lambda, the NCLR, GLAD, the ACLU and all our legal eagles.
Second, it did not just argue that DOMA is unconstitutional. It made a terse, aggressive and adamant case for the idea that all laws discriminating on the basis of sexual orientation are inherently unconstitutional, unless there’s a solid justification for the law that is not based on prejudice. Can you think of an anti-gay law that isn’t based on bias? Neither can I.
I’ve bored many of you in the past by going on at length about suspect classes, heightened legal scrutiny, blah blah blah. But basically, laws that discriminate on the basis of race, gender, and other “suspect” classifications are subjected to a more searching legal analysis. What the government is now arguing is that sexual orientation should also be a suspect classification.
This is the most fundamental gay rights argument anyone can ever make. You can win a gay rights case without winning the argument about suspect classification and heightened scrutiny. But for all practical purposes, you cannot lose a gay rights case if you win that threshold question.
Even gay friendly courts are scared to rule on heightened scrutiny for fear of setting a precedent that will force lower courts to automatically rule for our side in future cases. They solve the dilemma by ruling that we win under any standard of legal review, ergo there’s no need to go into the general issue of which standard should apply.
We’ve been happy to win cases under any standard. But still, it’s time for the bobbing, ducking and weaving to come to an end. And who’s up there demanding federal courts to reach this critical issue? The U.S. government.
As I wrote last week, anyone who is still claiming that Barack Obama has neglected our community is simply off base. He has gone far far beyond anything we could have imagined in terms of legislation or executive orders. And he’s done so, under the political radar, through his legal policy.
--
Fingers Betray Penis Size
So here’s a mystery that consumed me with curiosity all day yesterday. Do you remember that there was a great ruling out of a bankruptcy court in LA about two or three weeks ago?
I wrote about it, but you may have seen “joint bankruptcy” in the headline and skipped it. I know your type. You’ll read about penis size, but when there’s a meaty legal opinion to dissect you’re nowhere to be found.
For the record, men with a low ratio between the size of their index and ring fingers have big baskets. Check it out on your right hand. I suppose you’re looking for equal lengths, right? A low ratio would be one to one.
Ladies, we already know that a ring finger longer than our index finger means we’re gay. Seriously, this works most of the time. The whole phenomenon has something to do with hormones in the womb, although it seems weird to me that such hormones would involve themselves in the stature of specific fingers.
Getting back to the bankruptcy case (and please stay with me this time) the ruling in favor of two gay married men who wanted to file bankruptcy together was noteworthy for two reasons. First, the judge ruled that the Defense of Marriage Act (which barred them from joint filings) was unconstitutional. Normally bankruptcy judges don’t mess with constitutional issues. And second, the ruling was joined by 19 other judges in the central California district.
At the time, the House Republicans decided not to appeal the anti-DOMA decision, even though they are supposedly running around from court to court to bolster the law. Under the circumstances, I thought the case was over; a victory for destitute gay couples throughout the valley. Hurray!
Then yesterday, I noticed to my shock and horror that someone had indeed filed a five-page motion for leave to appeal this ruling in federal court. Guess who it was?
It was the Justice Department, represented by the U.S. Trustee! The U.S. Trustee is a legal term for some guy who fills some important federal role in a bankruptcy case and who works for the Justice Department.
You remember the Justice Department from our first story, right? The brave government lawyers who issued the amazing defense of gay rights and condemned the Defense of Marriage Act in brilliant legal prose? Why then, would the same people be begging to reverse an anti-DOMA ruling in another federal venue?
Was it a rogue trustee? A miscommunication? Some technicality of bankruptcy law? Was it perhaps an arm of the House Republicans reaching out to manipulate the trustee?
I still don’t know the answer, but my secret sources tell me that the request to appeal will be shortly withdrawn on direct orders from Washington. If true, that sounds like the whole thing was a misunderstanding. I’m still curious about the circumstances of the (perhaps accidental) appeal. I’ll let you know if I find out any more dirt.
--
Prop 8 In 2012?
What else shall we talk about? I feel I should apologize to Casey Anthony for describing her as “the woman who killed her daughter.” Looks like she may not have been guilty after all. Sorry Casey. I followed the Casey Anthony trial about as closely as Casey Anthony followed the Karen Golinski DOMA case, so I can be forgiven. It wasn’t hard to assume she was guilty when all I kept hearing was snippets on MSNBC about “the smell of human decomposition,” “duct tape,” “chloroform” and other disturbing sound bites. I mean, someone murdered the little girl, right?
I gather that activists in Maryland and Maine are gearing up for more marriage fights, inspired by our excellent adventure in the New York legislature.
And speaking of marriage ballot wars, are we going to put a Prop 8 repeal on the 2012 ballot in California?
Equality California is conducting town hall meetings to sound out the community, but the pros and cons seem to be evenly matched. Polls suggest there’s roughly a fifty-fifty split among voters. But if you add standard religious exemptions to the language the polls swing in our favor.
Either way, do we really want to risk another electoral defeat in California? And what would that do to our current lawsuits?
Do we have the money, energy, and organization for another statewide election? I don’t know.
The Prop 8 lawsuit is mired in technicalities for the rest of this year and into 2012. But it might be resolved late next year, or early 2013. The most likely scenarios would restore marriage rights in California and strike Prop 8 as unconstitutional. Shouldn’t we wait and see?
That said, we’re “activists,” not “sitting around to see what happenists.” A victory at the ballot box would reverberate around the country and strike a body blow to the religious right that might finally knock them cold.
Personally, I go back and forth but if pressed, I’d avoid a repeal election out of a combination of laziness and optimism for the lawsuit.
--
Annoyed By Bill Keller
Here’s something I found irritating in the Sunday edition of my beloved New York Times. Executive Editor Bill Keller wrote a clueless essay on same-sex marriage, musing about how the whole national debate would be solved if the government would issue “civil unions” and the churches would sanctify “marriage.” Keller acknowledged that such an idea is impracticable for many reasons, but wandered blithely through his proposal nonetheless, with an air of “wouldn’t it be loverly.”
First of all, Bill. You are the ten zillionth person who has suggested exactly this solution, so why are you writing this? Did you think it original? If so, you obviously don’t have much of a background in the same-sex marriage arena and perhaps you should leave it alone or check with some gay person on staff.
Second, as has been pointed out to the ten zillion people before you, this clever “solution” is no different from legalizing marriage equality. Of course the government should have a one-size fits all civil something for gays and straights alike. And of course churches should do their own thing. Under the “civil unions for all” idea, both gay and straight couples would be “married” in the church and “civil unioned” by the state. But since you can’t legislate the use of vocabulary, we would all be married, period.
The idea that the government would change a word on a piece of paper and thereby make everyone happy is ludicrous. Everyone would use the “m” word anyway and the religious right would be just as pissed off as ever.
Finally, it’s a myth that there is a sharp divide between religious and civil marriage. No one gets married in a church but doesn’t bother with a civil marriage license. Churches can’t marry people. They can solemnize a marriage, and of course, they can do so for both straight and gay couples.
Our fight for marriage equality seems at times to be a semantic dispute with traditionalists over the “m” word. But it’s actually a fight over the “e” word, equality, which the “m” word represents. So yes, giving everyone civil unions would be fine in theory. But if you do that, changing the terminology is irrelevant and needless. It’s not a lofty compromise. It’s sophistry.
I feel so much better now.
--
arostow@aol.com
Reproduction with permission only.
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