Live Free or Die? Really New Hampshire?

GLBT Week in Review, March 22, 2012
BY ANN ROSTOW


Live Free or Die? Really New Hampshire?

Before we get started this week, let me tell you about something I noticed on my favorite appellate law blog (Howappealing.law.com). The case in question has no bearing on our community’s historic fight for justice. I think it has something to do with laptop searches. At any rate, the U.S. Court of Appeals for the Ninth Circuit just agreed to rehear this case en banc, meaning that the previous three-judge ruling is to be tossed out, and 11 new judges will revisit the issues.

And here’s the clincher: the original decision was issued nearly a year ago! Can it really take a whole year for the full court to decide whether or not to accept review of a panel decision? Could we be waiting until next spring before the Ninth Circuit even decides whether or not to take the Prop 8 case? I mean, I knew it would take at least a couple of months before we saw the next big Prop 8 case headline, but now I’m worried.

Meanwhile, perhaps you’ve heard that the New Hampshire house will finally take a vote on repealing marriage rights. As a matter of fact, the house vote is later today and while the repeal is expected to pass both chambers, we’re all looking to see if the bad guys have a veto proof majority. Governor John Lynch has pledged to pull out the red pen, but New Hampshire has elected an awful lot of conservative Republicans since the good old days of 2010, when marriage was legalized in the Granite State.

The crafty pols over there are also planning to put some kind of non-binding marriage question to the voters, a kind of “heads you lose, tails I win” deal that amounts to nothing more than an expensive public opinion poll. This allows the antigay side to preen about putting the issue to the people, while making sure that our people can’t retain or restore marriage rights through their vote. Bastards!

I don’t know what will happen in the next few months in New Hampshire, but I know there’s a ton of antigay money flowing towards the coffers of nervous lawmakers. In another irony, the National Organization for Marriage has now come out “in favor of civil unions” for gay couples, simply because the repeal law would replace marriage equality with the pre-existing civil union law.

Finally, this scheme, if successful, exactly tracks the narrow Prop 8 scenario that was ruled unconstitutional by the Ninth Circuit. It calls for the state to strip gays and lesbians of the word “marriage,” without altering rights and benefits. As such, the only purpose to such an effort is rooted in hostility and is therefore impermissible.
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Depose This!

Here are the things I’m sick of: The GOP primary race, Tim Tebow, Apple, the Keystone pipeline and those dorky oreo commercials that show a bunch of adults playing with cookies in order to capture their inner child. I suppose I must have a fastidious streak, but I’ve always been repelled by fellow diners who toy with their food. My biggest pet peeve is taking a spoonful of ice cream or some other soft dessert and sliding half of it into one’s mouth while leaving half of it uneaten and still on the spoon for all to see. Likewise, licking the interior of an oreo has also been a lifelong source of disgust, along with “dunking” things into coffee or milk.

Just eat it, people.

Of course, I have no problem with dipping a rough cube of sugar into a snifter of Calvados, but that’s quite different.

So, where were we? GLBT news, bien sur.

Here’s a new marriage conflict. According to New York Law Professor Art Leonard, a judge in Delaware was recently obliged to determine whether a man who married his husband in California in 2008 enjoys spousal privilege in the Corporate Tax Headquarters State.

Delaware’s civil unions went into effect last January, providing all the benefits of marriage to gay partners, and recognizing partners and spouses from out of state. But does that mean the spousal privilege began last January? Or did it begin back in 2008, when the two men were married?

After a hearing and deliberation, Judge Joseph Slights III decided that the privilege dates from the marriage itself. Although the husband can be deposed (in a workplace discrimination suit) he will not be required to answer any questions concerning his private conversations with the plaintiff after their wedding date.

I like this case because it’s another illustration of the tangled web we weave when first we practice to, um, institute a hodgepodge of different laws and policies for same-sex couples throughout the country

You’re married in one state, and not the other. You’re married as of one date in one state, and recognized as of another elsewhere. You have state pension sharing, but not federal. You file joint taxes under one law, but in order to do so, you have to create an imaginary joint federal form to calculate various numbers before filing individual federal taxes. You get married in one state, and can’t get divorced where you live.

My theory is that the more complicated it gets, the sooner the country will get around to integrating marriage equality. Oh, by the way, the Maryland high court is set to hear a lesbian divorce case. We’ll watch it for you.
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Texas, My Texas

Meanwhile, Professor Leonard had another interesting case on his blog, this one concerning a “slanderous” attack on a man in Texas, who was accused of being gay during a public fight in a restaurant. The man, apparently straight, sued and won both in lower court and at a state appellate court. The case now goes before the Texas Supreme Court with this question at its heart: is it slanderous to call (or imply) that someone is gay?

As Leonard explains, the definition of “slander per se” is an accusation that must: “(1) impute the commission of a crime; (2) impute contraction of a loathsome disease; (3) cause injury to a person's office, business, profession, or calling; or (4) impute sexual misconduct.

Before the Supreme Court ended sodomy laws in 2003, a Texan would be able to argue slander under items one and four. But what about now? Being gay is no longer criminal, it’s not misconduct, nor is it a disease. So can you really still say that the charge itself would automatically cause injury to your profession?

And what kind of injury would that be? Note that a slanderous statement that actually costs you money or business is dealt with under a different slander law and is not necessarily “slander per se.” In other words, in order for the charge to stand, the court must believe that the very hint of homosexuality is an injury by itself regardless of whether or not one can show specific harm. I’d like to think that my state has evolved over the years, but then again, this is Texas so we’ll have to see.

Just to give you an idea, today’s Metro section in the Austin paper informs me that a major intersection at Congress and 11th will be closed to traffic today so that finalists in the Junior Market Steer Show can corral a dozen steers into some makeshift enclosure. Say what? I hadn’t planned on going downtown, but is this really necessary?

Oh, and Tim Tebow is giving a speech in one of the Austin suburbs next week at an Easter thing so officials are expecting 20,000 people to show up.

Finally, there’s a controversy over the Texas policy of shooting wild burros in a state park along the Mexican border. The state had been killing the animals because they were “hogging water.” A few years ago, the public heard about it and got mad, so Texas said that the Peaceful Valley Donkey Rescue group could take over the control of the population. After two years, the apparently incompetent Peaceful Valley Donkey people failed to rescue a single burro, so the state resumed shooting the poor beasts until the Humane Society stepped in with a plan the other day.

Hogging water? There are only 300 of these donkeys in the park to begin with! How thirsty can they be? Did Texan officials really think that shooting a few dozen hapless donkeys in Big Bend would help relieve the worst drought in state history? Actually, if memory serves, Rick Perry asked us all to pray for rain at some point last year, and he was serious. I’m surprised they didn’t hold a big rain dance. They could have closed off all of Congress Avenue and brought Tim Tebow in to lead the crowd.
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How Much Prison Time for Ravi?

So, the other day I tossed out a comment on Rutgers cyberspy, Dharun Ravi, suggesting they toss him naked into a cell, turn on a camera and throw away the key.

Um, they didn’t go that far, but still, the sick son of a bitch is now facing ten years in prison for setting up a webcam to post videos of his gay roommate in bed with another man. As you know, the roommate, Tyler Clementi, jumped off a bridge to his death a few days later.

But ten years?

I’m guessing Ravi won’t be sentenced to the maximum term, but I agree with New York Times op-editorialist, Emily Bazelon, that a decade behind bars does not fit the crime. Without Clementi’s suicide, the offense would be a misdemeanor. So the question is, to what extent can we tie a suicide to the bully who provided the final push?

To what extent can we prosecute the mean girls who ruthlessly target an unpopular student or the macho jocks who hurl slurs at their gay-acting teammate? Do we base our decision on the fortitude of the victim? Do we come down hard when the victim commits suicide but settle for a stern lecture when the victim simply complains and goes on with his or her life?

In truth, neither alternative seems right. The rap on the knuckles ignores the emotional violence of the offense. Yet throwing the book at the bullies who trigger a suicide overlooks the pre-existing fragility that leads a kid to that kind of despair. Whatever the bully did, his or her actions were only part of a complex history that culminated in tragedy. We can’t throw criminal charges at the many bullies who came before, but does that mean we can throw them all at the last bully in the line?

Don’t get me wrong. I believe in hate crime enhancements. I despise Dharun Ravi and others of his ilk. And I also think that bullying that leads to suicide should be treated more harshly than other abuse. But we shouldn’t have a big gap that effectively bases the punishment for an individual on the victim’s response.
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Rock Chalk

So, what else you ask? The European Court of Human Rights issued a disturbing anti-marriage ruling the other day, which depressed me so I didn’t read it. Basically, it said ECU member states have no fundamental obligation to provide equal marriage rights.

Stop the presses! Tim Tebow is going to the Jets.

Jimmy Carter came out in favor of marriage equality, which was nice of the old POTUS. The Gay and Lesbian Advocates and Defenders will argue before the First Circuit next week in our leading DOMA challenge. The State Department condemned some anti-gay rhetoric from Ellen Johnson Sirleaf, the Nobel Prize winning President of Liberia, also nice. Oh, and Barrack Obama came out against North Carolina’s antigay marriage amendment, which is coming up for a vote in May. This is a good development, since he’s been mute on our previous contests. I hope he speaks more forcefully as the fall elections approach.

Finally, did you happen to catch that Kansas Purdue game the other night? In our (previously mentioned) Jayhawk frenzy, we put post it notes reading “Go Kansas!” on the dogs. I think that pushed us over the top.
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Ann’s column is available each week on sfbaytimes.com. You can reach her at arostow@aol.com.