GLBT Week in Review February 29, 2012
BY ANN ROSTOW
Latest DOMA Ruling A Gem
Last week as we went to press, I had to scurry around like a mouse in the kitchen in order to come up with a couple paragraphs on U.S. District Judge Jeffrey White’s decision to strike the Defense of Marriage Act. Thanks for waiting until just after I filed my weekly column before releasing your ruling, Judge. And while I’m at it, thanks for one of the most incredible gay rights opinions ever delivered by a federal court.
California GLBT readers should know that their legal options have long been circumscribed by a 1990 Ninth Circuit decision called High Tech Gays v. Some Official Defense Agency That I Can’t Recall. In that case, the federal appellate court that creates binding federal law for many western states decided that equal protection claims based on sexual orientation should be analyzed under the easiest legal standard. The high tech gays in question, who were trying to get security clearances, were out of luck, as were the other gay litigants who brought discrimination claims to federal courts within the Ninth Circuit’s jurisdiction.
Last Wednesday, Judge White ruled that High Tech Gays is no longer good law, arguing that intervening Supreme Court and Ninth Circuit decisions have eviscerated its core reasoning. Among other things, High Tech Gays relied heavily on Bowers v Hardwick, the antigay sodomy ruling that was overruled by the High Court in Lawrence v Texas.
Even when a decision like High Tech Gays seems obsolete however, it’s not up to the lower courts to knock the precedents off their pedestals. Judge White’s opinion was rare in this regard and it will be fascinating to see if the Ninth Circuit will finally disavow this outdated decision in print when it comes time to review White’s ruling.
Judge White went on to say that sexual orientation discrimination should indeed be evaluated under a strict legal test, a test that for all practical purposes means that discriminatory laws like DOMA will fail. In a footnote, he also wrote that marriage is a fundamental right for both straight and gay couples.
The plaintiff in this case, Karen Golinski, married her wife Amy during California’s window of opportunity in 2008. She then asked her federal employers for spousal benefits, which to make a complicated story simple, were denied based on the Defense of Marriage Act. Judge White, who struck DOMA under both the strict and easy legal standards, is the second federal judge to overturn the key section of the 1996 anti-marriage law. In July 2010, U.S. District Court Judge Joseph Tauro did so in a case brought by several married Massachusetts couples who seek federal recognition.
Judge Tauro’s ruling is now under review by the U.S. Court of Appeals for the First Circuit, where oral arguments are scheduled for April 4. In his decision, Judge Tauro took a more familiar route to a gay rights victory, deciding that since DOMA failed to pass the lowest standard of legal review, there was no need to delve into whether or not gay bias should be subjected to a tougher analysis. Indeed, this is the preferred way for courts to arrive at a positive ruling on gay rights without stirring the legal pot. That’s why Judge White’s decision was so courageous.
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Now Voyagers
I’ve been accused lately of focusing on marriage and writing turgid columns that plod tediously from one legal recap to the next. No more! I hereby declare the rest of this column a marriage-free zone, with the possible exception of the news that Maryland’s governor, Martin O’Malley, will sign marriage equality into law on Thursday. As you know, we expect ballot initiatives designed to overthrow marriage rights to pop up in both Washington and Maryland, so our efforts are not yet complete.
Still, February was a pretty incredible month on the front lines of marriage n’est-ce pas?
Meanwhile, I was watching a trashy true crime show on one of those fringe cable channels when I was appalled to see it being hosted by Commander Riker of Star Trek Next Generation. I can’t remember the actor’s name, but surely it hasn’t come to this. Considering that Star Trek NG is replayed daily ad infinitum, I would think that he’d have royalties coming out of his ears.
When I complained to Mel about what I felt was something of an insult to me as a Star Trek NG fan, she pointed out that Captain Picard is the voice on those National rent-a-car ads! I hadn’t noticed, but it’s true. He’s gone from “Make it so,” “In my ready room,” and “Earl Grey. Hot,” to: “You Go, Business Pro, You Go!” I feel a bit defeated.
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African Queens
In actual non-marriage news, the city of St Petersburg has passed a law forbidding the promotion of sodomy, lesbianism, bisexuality and transgenderism in a move that has something to do with national politics in Russia. We are urged to boycott the area, and I for one am canceling all my upcoming trips.
And while we’re on the subject of bad foreign laws, Uganda has brought its anti-gay bill back from the dead, although the latest version does not call for capital punishment, nor does it criminalize people who fail to report gays and lesbians to the authorities.
You know what? I’m canceling my trips to Uganda as well, along with my plans to visit Cameroon (where 10 women were arrested for being gay last week) and Liberia (where a measure was introduced to make homosexuality a first degree felony punishable by a decade behind bars). I hear Baltimore is nice in the springtime.
By the way, I’m watching MSNBC with the sound off again and they’re showing the welcome home kiss for the gay veteran for the zillionth time. Yes, it makes a nice visual representation of the end of Don’t Ask Don’t Tell, but I’m tired of it. I’d rather watch the bumbling waiter who dropped a tray of beers on Angela Merkel, but that was yesterday’s replay du jour.
Here’s what really bugs me about having cable news on in the background of my life. It’s when I glance up and catch the last several words of an intriguing scroll, yet I never manage to see the whole line. Instead I get snippets like: “…left the magic salad bowl in his garage,” or: “…popular star was only 36,” or: “…common product causes sudden death in women over fifty.” It happens all the time.
I think I’ll get out one of our good beer glasses and pour myself a lager. The Merkel spill has inspired me. You know the kind. Shaped like a cone with a narrow base. I think I have a few bottles of Landshark in the back fridge.
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Despicable Him
Any Catholics out there? Here’s the story of a woman in Gaithersburg, Maryland, who was refused communion at her mother’s funeral. Barbara Johnson and her partner arrived early at the church, where the priest, Rev. Marcel Guarnizo, learned of their relationship.
When it came time for communion, Johnson was the first to approach the rail, but the priest covered the sacraments with his hand and told her she could not participate because she was not without sin. He then left before the end of the service and skipped the graveyard ceremony, leaving them without a priest at the burial.
Johnson’s mother was a devoted Catholic, and having a priest at the grave matters to the children of devoted Catholics. Not to mention having a priest who stays through the funeral service and delivers the sacraments without public posturing, lecturing family members, or taking it upon himself to personally excommunicate perceived sinners in a fit of pique.
I gather the man will be disciplined by higher ups in his area, but as far as Johnson is concerned, the damage is done. You only have one funeral for your mother.
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Heaven Can’t Wait
Remember the story about the Mormons who were “converting” dead Jews by entering their names into some Mormon website? For some reason the story is back in the news, I think because Holocaust survivor Elie Wiesel asked Mitt Romney to get his name off the list. Romney’s campaign kicked the can to the Mormon church, but the dust up was enough to inspire activist Dan Savage to create a website where you can turn a dead Mormon gay.
The site is linked to a list of dead Mormons, so if you don’t know one yourself, you can just click and a name will emerge. In truth, the Mormons don’t “convert” dead people. They just add their names to a register so that the dead person can join up in the afterlife if he or she so chooses. I must say that I agree with the logic of lawyer and cyberpundit Eugene Volokh, who notes that if Mormons are correct in their eschatology, the people on the Mormon list are better off for eternity. If the Mormons are wrong, no real harm done. It’s just a name on a list. I gather that Elie Wiesel disagrees.
As for turning the dead Mormons gay, I’m not convinced that we have a sexual orientation on the Other Side. And if we do, I’m not sure I want a bunch of sanctimonious Mormons joining the Sapphic traffic in that Big Dyke Bar in the Sky crying into their Virgin Marys about how sinful we all are. Hello, Girlfriend? We’re in fracking paradise. Have a shot for God’s sake.
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NOM That Donor
MSNBC just did a story on Barbara Johnson, our friend from the earlier item who was denied communion. A text box at the bottom said gay activists were outraged by the incident, which is good. I didn’t see it in time to turn up the sound, but I can’t tell you that the Archdiocese said the priest’s behavior was Not Okay.
Let’s see what else is new. In a slight violation of my pledge to avoid marriage and law, I should tell you that the U.S. Supreme Court has declined to review a First Circuit ruling forcing the National Organization for Marriage (NOM) to reveal its donors under Maine election law.
Back when we were fighting for Maine marriage in 2009, NOM contributed a bunch of money to the other side’s campaign organization. The organization, Narrowminded Maine People Who Hate Gays, reported the NOM donations as the law required, but NOM itself refused to say where it got the cash, rendering the whole concept of financial disclosure meaningless.
The good guys sued and won what is now officially a final victory in the First Circuit, so NOM will be forced to show its hand. Here’s hoping that the legal ordeal makes some deep-pocketed NOM contributors think twice about writing a check in the future. These days, it’s not cool to see your name on the GLBT community’s Enemies List. Yes, we have one. And no, it’s not illegal or unconstitutional. We have every right to confront people who finance anti-gay campaigns.
Davy Jones died!
If you don’t know the name, never mind.
Oh, and a giant asteroid is heading for Earth in 2014. Watch out everyone. Let’s all scream as one. Ready?
Aaaaaaaaaaaaaaaaaaahhhhhhhhhhh!
If the asteroid doesn’t get us, I just learned that prescription sleeping pills triple your risk of cancer and heart attacks and may even be as dangerous as smoking.
Why do we even bother to struggle through the day? What with the end of the Mayan calendar next December and the rest of it, Davy Jones may be the lucky one, slipping off to the beyond with a peaceful coronary rather than sticking around for the apocalypse with the rest of us suckers. Pass the Ambien and sign me up with the Mormons just in case.
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