Shocking Victory in New Hampshire

GLBT Week in Review, March 28, 2012
BY ANN ROSTOW



Shocking Victory in New Hampshire

First of all, I must apologize for failing to anticipate last week’s amazing marriage vote in the New Hampshire house. Every report had indicated that the GOP majorities in the house and senate would indeed vote to repeal marriage equality in the Granite State. The big question was whether the lawmakers would subsequently be able to override a veto from Governor John Lynch.

Instead, as the last issue of the Bay Times went to press, the bill to repeal marriage failed by a large margin. I’ve been off the news grid for a week, and I still can’t determine why the outcome was so unexpected. I probably could spend a few hours trying to track back this morning, but what the hell. We won! Somehow.
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U.S. Asks Full Ninth Circuit To Review DOMA Case

Meanwhile, the big marriage news this week is the Justice Department’s reaction to last month’s expansive trial court ruling striking the Defense of Marriage Act in the case of federal attorney Karen Golinski.

In February, San Francisco-based U.S. District Court Judge Jeffrey White not only struck DOMA as unconstitutional, but he also gave the back of his hand to (theoretically) binding Ninth Circuit precedent.

A couple of decades ago, the Ninth Circuit ruled that sexual orientation discrimination did not rise to the level of race bias or religious discrimination, and should be analyzed under the easiest legal standard. Normally, all federal judges within the jurisdiction of the Ninth Circuit would be oblige to follow this reasoning in lockstep, but Judge White argued that the precedent, High Tech Gays versus Some Forgettable Government Agency, was no longer valid in the wake of Lawrence v Texas and other developments over the years.

The Justice Department agrees with Judge White, and has asked the Ninth Circuit to skip over the usual three-judge panel and proceed directly to a review by the full court, an 11-member panel. In order to toss High Tech Gays into the official dust bin of outdated jurisprudence, the entire court must agree, ergo, the government wants the Ninth Circuit to cut to the chase and schedule a quick and definitive appeal rather than let the case play out over months and months.

If the Ninth Circuit agrees, oral arguments would be heard in September, and a ruling could emerge early next year, putting this case on track for a date with the Supreme Court in their 2013-2014 session.

Woah Nelly! I hear you crying. What about the Prop 8 case? What about the challenge to DOMA coming out of the First Circuit? Will this case leapfrog the pack and jump to the front of the line?

Maybe. As you recall, we just won a ruling from a three-judge Ninth Circuit panel in the Prop 8 case, and the other side has asked the full court to hear an appeal. So, we now have not one, but two motions requesting en banc consideration of gay rights pending before the court. The cases can’t be consolidated, since they present different constitutional questions. But it will nonetheless be fascinating to see whether the court takes one, both or neither.

Over in the First Circuit, a three-judge panel will hear oral arguments next week in a challenge to DOMA brought on behalf of several Massachusetts couples. If these judges rule this summer, that case could also be appealed to the full First Circuit. Or, it could go straight to the Supreme Court.

In other words, who the hell knows which case will be the first to make it to Washington? All I can say is that these three cases are heading in the same direction, and most GLBT legal strategists want one of the DOMA cases to reach the nine justices first.
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NOMskull Strategy

The GLBT blogosphere is lapping up the confidential strategic memo that the antigay National Organization for Marriage was required to make public for a court case the other day. As you’ve probably read, crafty NOM operatives decided to pit Democratic blacks and Hispanics against the gay community, hoping that gay activists would get really mad and trigger a race-based rift among the constituencies on the left. It’s kind of Manson-esque if you think about it.

It’s true that a social conservative thread runs through the African American church-going contingent. But first, it’s not monolithic. And second, gay activists have responded, not by screaming about bigotry, but by reaching out to other black leaders and trying to make the case for equality to everyone. So, um, the plan has not worked.

Further, the notion that NOM and others of their ilk would be grasping at straws to generate some kind of support for their hate-based views is not exactly earth shattering news. I put nothing past them, the scoundrels!

I would have loved to have been a fly on the wall when they heard the vote out of New Hampshire last week. There’s a sense of inevitability about the slow but steady advance of marriage equality around the country, so the specter of a state rolling back marriage rights was alarming.

I imagine them gleefully arranging the Champagne bottles on the conference table while monitoring the vote. Gradually their faces fall as defeat becomes apparent. What the heck happened? A surly aide opens one of the bottles in disgust, mumbling that he needs a drink. Gloom pervades the room. Delighted, I alight on a small puddle and dip my proboscis into the bubbly residue. It’s Krug!
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New Customs

The Obama administration is preparing to (maybe) issue an historic executive order than would prevent the federal government from doing business with companies that discriminate against GLBTs. Most large employers and federal contractors already provide such protections, but according to a (UCLA) Williams Institute study, the order would improve the status of some 16 million workers who are not covered under company policies.

It’s fairly clear by now that the Employment Nondiscrimination Act is not exactly on a fast track to Congressional passage. Indeed, the idea of a stand-alone gay workplace bill is one whose time has come and gone. One of these days, we will simply add sexual orientation and gender identity to the list of categories protected against job bias under current federal law, a list that includes the usual classes of race, national origin and religion.

In this same vein, Obama is reportedly on the verge of adding sexual orientation and gender identity to the text of a 50-year-old executive order that already bans discrimination by federal contractors. It won’t end workplace bias for everyone, but it’s a significant step in the right direction.

In other steps in the right direction, the government announced that same-sex families returning from international destinations will soon no longer have to fill out separate customs forms. Yay!

It’s a small thing, but these small things are tremendously irritating. Mel and I just went through this last month. At first I decided to hand in one form, because the form said “one per family” and we were married in California back in 2008. Then, with the same courageous instinct that led me to file my federal taxes as “single,” I thought twice. Why poke a stick at the customs official? What if he or she decides to go through my stuff as punishment for our rebellious political gesture?

We filled in two forms. It’s just a form. Whatever. But it was an annoyance. A reminder that our marriage means nothing to the federal government. And now that annoyance is virtually gone. We can smuggle together!

If you care, the new policy will sidestep the Defense of Marriage Act by allowing partners who live in the same house to use a single declaration, regardless of whether they are married or not.
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High Road for High Court

I was happy to see that the Supreme Court let stand a Seventh Circuit ruling that struck Wisconsin’s anti-trans inmate law. Wisconsin lawmakers had passed legislation denying hormone treatment to transmen and women in prison. In August, the U.S. Court of Appeals for the Seventh Circuit ruled that the law amounted to cruel and unusual punishment, a decision that Wisconsin appealed to the Supreme Court. Last week, the justices declined review, settling the matter in favor of the transcons.

In other news, I couldn’t help but notice that the latest British budget calls for a 20 percent tax on “Cornish pasties,” some kind of only-in-England junk food that sounds pretty disgusting. At any rate, the common folk are up in arms about the class warfare, particularly after the top finance guy said he hasn’t eaten a “pasty” in ages. Talk about a snob!

Actually, I’d eat a pasty right about now if there was nothing else in the cupboard. I’m starving. I think I’ll ring for the kitchen maid.

And speaking of the National Organization for Marriage, House Speaker John Boehner has appointed one of NOM’s founders to a post on some horrible commission. I’ll look up the name, but it’s something like the International Religious Freedom Commission, and it was initiated by a 1998 law with a similar name.

The Commission, which thankfully appears to have little influence on American policy, includes members appointed by the President, as well as leaders of both parties in Congress. Speaker Boehner appears to have wasted his pick on Robert George, one of the most extreme representatives of this country’s antigay cohort.

Like everyone, I’m a big fan of religious freedom. But what will it take for people to recognize that gay rights are not an assault on “religious freedom?” I’m sure many devout people think drinking and card playing are Satanic evils, but that doesn’t mean they get to outlaw these activities for the rest of us. Likewise, if you think being gay is a sin, don’t be gay. Your viewpoint, however, does not mean that you get to set policy for the entire country. Why does anyone continue to give credence to this absurd polemic?
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The Help

I’ve rung for Myrtille several times with no response, and finally I had to go back to the kitchen myself to see what on Earth was going on. The kitchen was empty. Cook was gone. No sign of Myrtille. I made myself a Kir Royale and found some raw almonds, but really, this is unacceptable behavior, even from a fantasy domestic staff. If they were real, I’d dismiss them on the spot with no severance--- Mitt Romney style.

Meanwhile, I was going to elaborate somewhat on the recent ruling by the European Court on Human Rights that appeared to limit the right to marry.

The Court has already said (in 2004) that the European Convention on Human Rights does not mandate marriage equality, although obviously it allows it. Then, a week or so ago, the Court said that a French lesbian who was trying to adopt her partner’s daughter was not a victim of marriage discrimination. It’s not exactly groundbreaking law, although it does seem disappointingly cautious, n’est-ce pas?

I personally don’t offer benefits to my fantasy domestic staff, but I did pay for an expensive dental implant for the butler’s partner’s son. He lost a bicuspid trying to ride a bronco at last year’s rodeo, and you know what? I like the kid. I didn’t want him to go through life looking like a hillbilly and after all, it’s only money. I did dock Branson’s Christmas bonus. But that was also because, like Myrtille, Branson never comes when I ring for him.

Oh, I was going to mention that Madonna is going to St. Petersburg on tour this summer, and she has pledged to defy the city’s bizarre ban on any speech that promotes homosexuality. I think I’m going to revert to calling this city Leningrad for the indefinite future.
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Ann’s column is available every week at sfbaytimes.com. You can reach her at arostow@aol.com.