News for the Week Ended October 5, 2011
BY ANN ROSTOW
No Prop 8 Repeal in 2012 For Equality California
So, it seems as if Equality California has decided not to go back to the ballot in an effort to repeal Prop 8 next year. The lobby group sent out an email on Wednesday unveiling an “exciting new public education project” called “The Breakthrough Conversation.” A few paragraphs into this thrilling announcement, the group mentioned that they will not be leading a repeal campaign next year. Elsewhere, Equality California cited public opinion and the economic situation as two of several reasons they nixed repeal.
A couple of years ago, as you recall, the California GLBTs were debating whether to put a Prop 8 repeal on the ballot in 2010 or 2012. As the months went by, a divided community decided not to mount a campaign in 2010. Then, as the Prop 8 lawsuit promised to solve all our Prop 8 problems without any effort on our part, everyone kind of fell back.
With the lawsuit sidetracked over the question of standing, Equality California resumed deliberations on whether a 2012 Prop 8 repeal campaign was feasible, winnable, and popular. After several town hall meetings throughout the year, the answers appear to be no.
I think they’re right. A loss at the 2012 ballot box would set us back tremendously, particularly if the margin was wider than Prop 8’s three-point win in 2008 (or whatever it was). And given that conventional wisdom tells us Republicans have more energy than Democrats heading into next year’s election, why take the chance? The Prop 8 case may be moving at a sluggish pace, but it is moving and could in theory be settled a year from now.
Plus, as Equality California points out, we might be gaining at the polls, but it’s not at all clear that a solid majority of state voters would agree to send Prop 8 into the dustbin of history. As for “The Breakthrough Conversation,” I confess I didn’t read the details. I’m sure it’s a fine idea.
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Don’t Ask Case Dismissed As Moot
The U.S. Court of Appeals for the Ninth Circuit issued an irritating decision last week, dismissing the challenge to Don’t Ask Don’t Tell as moot, and vacating the lower court ruling that struck the statute as unconstitutional last year. “Vacating” is a legal term for taking a magic wand and making U.S. District Court Judge Virginia Phillips’ powerful gay rights opinion disappear in a puff of smoke as if it never existed.
I know you’re wondering why the hell this makes a whit of difference, given that Don’t Ask Don’t Tell is officially off the books. But listen. There’s nothing to stop another Congress or another president from restoring some kind of military ban. A big thumbs down in the law books would serve as a deterrent, and now the prospects for that helpful precedent are gone.
What’s a “whit?” I’ll look it up in a minute. You know what else I don’t know? I don’t know what the “G” means in “3G” or “4G.” And I also don’t know how the word “props” became a synonym for “praise.” It’s short for something, but what?
I’m back. I spent far too long looking up “whit,” which is not a thing but just a word meaning teeny tiny bit. That’s disappointing. I was hoping it was a little bird or a fig seed or something. As for the “G,” it stands for “generation.” Another disappointment. And “props” is short for “propers,” which is a slang term for “proper respect” popularized in the Aretha Franklin song. Now that’s good to know, don’t you think? Did you know that? Oh, don’t be smug about it.
Returning to Don’t Ask Don’t Tell, here’s the really annoying aspect of the Ninth Circuit’s decision. Adding insult to injury, Judge Diarmuid O’Scannlain penned a ten-page concurring opinion of his own, ripping the Supreme Court’s decision in Lawrence v Texas.
Lawrence, which struck sodomy laws and reversed the hideously antigay precedent of Bowers v Hardwick, was surely a high point in gay legal history. But while the decision strongly suggested that gay men and women enjoy a fundamental right to personal autonomy, Justice Kennedy never came right out and said so. As such, conservative courts have been able to dismiss Lawrence as a little more than a narrow ruling on criminal law with no consequences for gay rights cases in general.
Judge Phillips, who relied on Lawrence for much of her due process analysis, was thus subjected to withering scorn from O’Scannlain, a 70-something Reagan appointee who wrote that he would have reversed Phillips on the merits had the case continued. So who knows? Maybe instead of losing a good precedent, we dodged a bullet. Maybe we would have lost had this panel allowed the appeal to go forward.
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Tough Break For Bi-National Couple
Speaking of precedents and Justice Kennedy, we have none other than Tony himself to thank for a 1982 Ninth Circuit opinion that says bi-national married gay couples may not sponsor their spouses for immigration. The old case was brought by a couple who somehow managed to marry in Colorado, thanks, one imagines, to ambiguous law and a friendly clerk. Regardless of whether the marriage was formally recognized, the federal appellate court ruled that a same-sex spouse did not qualify as a legal relative.
True, that was nearly 30 years ago. But no matter. All federal courts within the vast jurisdiction of the Ninth Circuit are still obliged to follow along like lemmings. Nor does the passage of Defense of Marriage Act change the analysis or undermine the precedent. As such, a married California couple recently lost their attempt to avoid deportation of the foreign spouse.
Although the U.S. government refused to argue on behalf of the Defense of Marriage Act (and indeed, argued that DOMA was unconstitutional) lawyers for the House of Representative jumped into action to make sure the happy couple could still be forced to choose whether to live separately or move to some other country.
But the Obama administration wasn’t completely absent from the case. The men had also claimed that the deportation constituted sex discrimination, so the Justice Department filed their own briefs to contest that notion. Was that really necessary?
Why on earth would the Justice Department bother to bolster the case against this bi-national couple, given the Obama administration’s new legal policy on sexual orientation discrimination?
To refresh your memory, that policy essentially says that sexual orientation discrimination is presumptively unconstitutional. So, although it may be true that “sex discrimination” is not really at the heart of the discrimination faced by this bi-national couple, it’s certainly true that the unfair treatment of married gay immigrants amounts to the type of discrimination that Obama and company have formally denounced.
It’s as if Obama told me his administration would defend to the death my right to ride an Arabian stallion naked down the streets of Austin, but then sided with the prosecution when I was arrested for riding a motorcycle in a bikini. What gives?
I know that’s not a perfect analogy, but I wasted fifteen minutes trying to come up with something, and time is not waiting for me. Plus, it’s a pretty good analogy. Sometimes life forces you to abandon the perfect for the pretty good lest life itself pass you by. Not to mention that I already typed it in, and as loyal readers know, I follow the Omar Khayyam rule. The moving finger writes, and having writ, moves on. Nor all thy piety nor wit shall lure it back to cancel half a line.
Speaking of Obama, you probably heard that the POTUS spoke for twenty minutes at the Human Rights Campaign national dinner last Saturday. I read his remarks. It seemed like a good speech, and it was nice of him to drop in on our community. Other than that, there’s not much to say. I don’t have particular propers for the prez, but nor do any criticisms come to mind.
--
Breaking News! Republicans Don’t Like Us
What else is new? I gather that we are communally incensed at Herman Cain, who recently said being gay is a “choice.” I’m sorry, but I don’t really care what Mr. Cain has to say on this or any other subject. Plus, why is this worse than a pompous egotistical gasbag named Newt Gingrich, who told an audience in Iowa that same-sex marriage is a “temporary aberration that will dissipate,” and which “fundamentally goes against everything we know.”
It’s not as if I care what Newt says any more than I listen to Herman. It’s just that Newt bothers me to a far greater extent. His lazy campaign style. His self-importance. The fact that he dismisses marriage equality for gay couples after cheating on two of his three wives and divorcing one of them during her cancer treatment. His hypocritical holier-than-thou attacks on Bill Clinton while he himself was having an affair with an aide. His half million dollar Tiffany line of credit that he shrugs off like Marie Antoinette. His grandiose narcissism. I must say I feel a little frisson of happiness every time I see his poll numbers.
Hey. It’s not as if any of these Republican candidates have expansive views of gay rights. I suppose Jon Huntsman ranks at the top due to his support for some partner rights when he was governor of Utah. As for everyone else, they’d be happy to put us in shrink wrap like old sweaters and send us to the back of the closet.
--
Will SCOTUS Take Gay Case?
My buddies at Lambda tell me that the Supreme Court may consider their petition to review a Louisiana birth certificate case at their October 11 meeting. This is a strange and fascinating case that pits two out-of-state men who jointly adopted a baby boy against state bureaucrats who spitefully refuse to issue a revised birth certificate.
States routinely issue new birth certificates to adoptive parents, a key document that allows the parents to enroll the kid in school, get him or her a passport, travel together, and whatever else you can think of that requires official papers. But because Louisiana doesn’t like gay adoptions, they won’t put both fathers on the certificate. They’ll put one man on, but not two.
The men sued, and the state lost twice in federal court. Then, in a bizarre opinion that touched on unrelated issues and misread the Full Faith and Credit Clause, the full Fifth Circuit overturned the rulings and came down in favor of Louisiana. Lambda then asked the High Court to take review.
Although the Supremes reject most petitions that come their way, they might just take this one. Why? Because another federal appellate court ruled in favor of gay parents in a similar case, creating a division in the circuit courts which often forces the High Court to take a stand.
We’ll see. I hope they accept review because that Fifth Circuit opinion was twisted. I can’t imagine any of the justices agreeing with its reasoning save the incomprehensible Sam Alito, the man who makes Thomas and Scalia look good.
--
Pigging Out
I don’t have the space to go into another story, so I’ll complain, if I may, about the New York Times Sunday Magazine, which featured a pretentious section on food.
Among the snippets was a man telling us how to make a good cup of coffee, a ludicrous exercise that involved spending hundreds on a high tech grinder, using special fresh beans and throwing away any old ground coffee that might have been ground yesterday rather than two minutes ago.
Then there was the fellow who waxed dreamily about the morning he went with his farmer friend to kill a pig and drink the warm arterial blood. Something about being close to nature and sensing vitality and participating in the slaughter of ones food. Spare me.
Poor pig. As for me, I can only eat bacon and ribs if I do not contemplate the pain and butchery that brought them to my plate. Fortunately, I can do that!
BY ANN ROSTOW
No Prop 8 Repeal in 2012 For Equality California
So, it seems as if Equality California has decided not to go back to the ballot in an effort to repeal Prop 8 next year. The lobby group sent out an email on Wednesday unveiling an “exciting new public education project” called “The Breakthrough Conversation.” A few paragraphs into this thrilling announcement, the group mentioned that they will not be leading a repeal campaign next year. Elsewhere, Equality California cited public opinion and the economic situation as two of several reasons they nixed repeal.
A couple of years ago, as you recall, the California GLBTs were debating whether to put a Prop 8 repeal on the ballot in 2010 or 2012. As the months went by, a divided community decided not to mount a campaign in 2010. Then, as the Prop 8 lawsuit promised to solve all our Prop 8 problems without any effort on our part, everyone kind of fell back.
With the lawsuit sidetracked over the question of standing, Equality California resumed deliberations on whether a 2012 Prop 8 repeal campaign was feasible, winnable, and popular. After several town hall meetings throughout the year, the answers appear to be no.
I think they’re right. A loss at the 2012 ballot box would set us back tremendously, particularly if the margin was wider than Prop 8’s three-point win in 2008 (or whatever it was). And given that conventional wisdom tells us Republicans have more energy than Democrats heading into next year’s election, why take the chance? The Prop 8 case may be moving at a sluggish pace, but it is moving and could in theory be settled a year from now.
Plus, as Equality California points out, we might be gaining at the polls, but it’s not at all clear that a solid majority of state voters would agree to send Prop 8 into the dustbin of history. As for “The Breakthrough Conversation,” I confess I didn’t read the details. I’m sure it’s a fine idea.
--
Don’t Ask Case Dismissed As Moot
The U.S. Court of Appeals for the Ninth Circuit issued an irritating decision last week, dismissing the challenge to Don’t Ask Don’t Tell as moot, and vacating the lower court ruling that struck the statute as unconstitutional last year. “Vacating” is a legal term for taking a magic wand and making U.S. District Court Judge Virginia Phillips’ powerful gay rights opinion disappear in a puff of smoke as if it never existed.
I know you’re wondering why the hell this makes a whit of difference, given that Don’t Ask Don’t Tell is officially off the books. But listen. There’s nothing to stop another Congress or another president from restoring some kind of military ban. A big thumbs down in the law books would serve as a deterrent, and now the prospects for that helpful precedent are gone.
What’s a “whit?” I’ll look it up in a minute. You know what else I don’t know? I don’t know what the “G” means in “3G” or “4G.” And I also don’t know how the word “props” became a synonym for “praise.” It’s short for something, but what?
I’m back. I spent far too long looking up “whit,” which is not a thing but just a word meaning teeny tiny bit. That’s disappointing. I was hoping it was a little bird or a fig seed or something. As for the “G,” it stands for “generation.” Another disappointment. And “props” is short for “propers,” which is a slang term for “proper respect” popularized in the Aretha Franklin song. Now that’s good to know, don’t you think? Did you know that? Oh, don’t be smug about it.
Returning to Don’t Ask Don’t Tell, here’s the really annoying aspect of the Ninth Circuit’s decision. Adding insult to injury, Judge Diarmuid O’Scannlain penned a ten-page concurring opinion of his own, ripping the Supreme Court’s decision in Lawrence v Texas.
Lawrence, which struck sodomy laws and reversed the hideously antigay precedent of Bowers v Hardwick, was surely a high point in gay legal history. But while the decision strongly suggested that gay men and women enjoy a fundamental right to personal autonomy, Justice Kennedy never came right out and said so. As such, conservative courts have been able to dismiss Lawrence as a little more than a narrow ruling on criminal law with no consequences for gay rights cases in general.
Judge Phillips, who relied on Lawrence for much of her due process analysis, was thus subjected to withering scorn from O’Scannlain, a 70-something Reagan appointee who wrote that he would have reversed Phillips on the merits had the case continued. So who knows? Maybe instead of losing a good precedent, we dodged a bullet. Maybe we would have lost had this panel allowed the appeal to go forward.
--
Tough Break For Bi-National Couple
Speaking of precedents and Justice Kennedy, we have none other than Tony himself to thank for a 1982 Ninth Circuit opinion that says bi-national married gay couples may not sponsor their spouses for immigration. The old case was brought by a couple who somehow managed to marry in Colorado, thanks, one imagines, to ambiguous law and a friendly clerk. Regardless of whether the marriage was formally recognized, the federal appellate court ruled that a same-sex spouse did not qualify as a legal relative.
True, that was nearly 30 years ago. But no matter. All federal courts within the vast jurisdiction of the Ninth Circuit are still obliged to follow along like lemmings. Nor does the passage of Defense of Marriage Act change the analysis or undermine the precedent. As such, a married California couple recently lost their attempt to avoid deportation of the foreign spouse.
Although the U.S. government refused to argue on behalf of the Defense of Marriage Act (and indeed, argued that DOMA was unconstitutional) lawyers for the House of Representative jumped into action to make sure the happy couple could still be forced to choose whether to live separately or move to some other country.
But the Obama administration wasn’t completely absent from the case. The men had also claimed that the deportation constituted sex discrimination, so the Justice Department filed their own briefs to contest that notion. Was that really necessary?
Why on earth would the Justice Department bother to bolster the case against this bi-national couple, given the Obama administration’s new legal policy on sexual orientation discrimination?
To refresh your memory, that policy essentially says that sexual orientation discrimination is presumptively unconstitutional. So, although it may be true that “sex discrimination” is not really at the heart of the discrimination faced by this bi-national couple, it’s certainly true that the unfair treatment of married gay immigrants amounts to the type of discrimination that Obama and company have formally denounced.
It’s as if Obama told me his administration would defend to the death my right to ride an Arabian stallion naked down the streets of Austin, but then sided with the prosecution when I was arrested for riding a motorcycle in a bikini. What gives?
I know that’s not a perfect analogy, but I wasted fifteen minutes trying to come up with something, and time is not waiting for me. Plus, it’s a pretty good analogy. Sometimes life forces you to abandon the perfect for the pretty good lest life itself pass you by. Not to mention that I already typed it in, and as loyal readers know, I follow the Omar Khayyam rule. The moving finger writes, and having writ, moves on. Nor all thy piety nor wit shall lure it back to cancel half a line.
Speaking of Obama, you probably heard that the POTUS spoke for twenty minutes at the Human Rights Campaign national dinner last Saturday. I read his remarks. It seemed like a good speech, and it was nice of him to drop in on our community. Other than that, there’s not much to say. I don’t have particular propers for the prez, but nor do any criticisms come to mind.
--
Breaking News! Republicans Don’t Like Us
What else is new? I gather that we are communally incensed at Herman Cain, who recently said being gay is a “choice.” I’m sorry, but I don’t really care what Mr. Cain has to say on this or any other subject. Plus, why is this worse than a pompous egotistical gasbag named Newt Gingrich, who told an audience in Iowa that same-sex marriage is a “temporary aberration that will dissipate,” and which “fundamentally goes against everything we know.”
It’s not as if I care what Newt says any more than I listen to Herman. It’s just that Newt bothers me to a far greater extent. His lazy campaign style. His self-importance. The fact that he dismisses marriage equality for gay couples after cheating on two of his three wives and divorcing one of them during her cancer treatment. His hypocritical holier-than-thou attacks on Bill Clinton while he himself was having an affair with an aide. His half million dollar Tiffany line of credit that he shrugs off like Marie Antoinette. His grandiose narcissism. I must say I feel a little frisson of happiness every time I see his poll numbers.
Hey. It’s not as if any of these Republican candidates have expansive views of gay rights. I suppose Jon Huntsman ranks at the top due to his support for some partner rights when he was governor of Utah. As for everyone else, they’d be happy to put us in shrink wrap like old sweaters and send us to the back of the closet.
--
Will SCOTUS Take Gay Case?
My buddies at Lambda tell me that the Supreme Court may consider their petition to review a Louisiana birth certificate case at their October 11 meeting. This is a strange and fascinating case that pits two out-of-state men who jointly adopted a baby boy against state bureaucrats who spitefully refuse to issue a revised birth certificate.
States routinely issue new birth certificates to adoptive parents, a key document that allows the parents to enroll the kid in school, get him or her a passport, travel together, and whatever else you can think of that requires official papers. But because Louisiana doesn’t like gay adoptions, they won’t put both fathers on the certificate. They’ll put one man on, but not two.
The men sued, and the state lost twice in federal court. Then, in a bizarre opinion that touched on unrelated issues and misread the Full Faith and Credit Clause, the full Fifth Circuit overturned the rulings and came down in favor of Louisiana. Lambda then asked the High Court to take review.
Although the Supremes reject most petitions that come their way, they might just take this one. Why? Because another federal appellate court ruled in favor of gay parents in a similar case, creating a division in the circuit courts which often forces the High Court to take a stand.
We’ll see. I hope they accept review because that Fifth Circuit opinion was twisted. I can’t imagine any of the justices agreeing with its reasoning save the incomprehensible Sam Alito, the man who makes Thomas and Scalia look good.
--
Pigging Out
I don’t have the space to go into another story, so I’ll complain, if I may, about the New York Times Sunday Magazine, which featured a pretentious section on food.
Among the snippets was a man telling us how to make a good cup of coffee, a ludicrous exercise that involved spending hundreds on a high tech grinder, using special fresh beans and throwing away any old ground coffee that might have been ground yesterday rather than two minutes ago.
Then there was the fellow who waxed dreamily about the morning he went with his farmer friend to kill a pig and drink the warm arterial blood. Something about being close to nature and sensing vitality and participating in the slaughter of ones food. Spare me.
Poor pig. As for me, I can only eat bacon and ribs if I do not contemplate the pain and butchery that brought them to my plate. Fortunately, I can do that!
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