First Circuit Strikes Heart of DOMA

First Circuit Strikes Section Three of DOMA in Massachusetts Cases

On Thursday, May 31, the U.S. Court of Appeals for the First Circuit struck the main section of the Defense of Marriage Act in a unanimous three-judge decision. Ruling in two related cases, the panel said that the federal government’s refusal to recognize legal gay marriages from Massachusetts and elsewhere violated the equal protection rights of those married couples, and represented an impermissible intrusion into state affairs by Congress.

At the heart of the opinion, drafted by Bush One appointee Michael Boudin, was the lack of a common sense rationale for the statute. Boudin was sympathetic to lawmakers’ desire to preserve long standing tradition. But in the context of the last 50 years of legal precedents, he wrote, tradition alone was not enough to justify a law that strips hundreds of rights and benefits from a vulnerable class.

Boudin declined to analyze the statute with heightened legal scrutiny, noting that First Circuit precedent mandates that courts in the region evaluate gay rights claims under the lowest standard of legal review. That said, Boudin employed a more searching version of the low legal test (“rational basis plus” if you will) that falls somewhere in between the low and intermediate level of review.  

The decision was stayed, pending appeal by the House Republicans who are defending the 1996 law. The Obama Justice Department decided last year that sexual orientation discrimination was presumptively unconstitutional, and declined to support DOMA in court, passing the buck to the House. The House Republicans will have the choice of appealing to the full appellate court, or directly to the U.S. Supreme Court.

And now for the speculation. Striking Section Three of DOMA does not mandate national legalization of marriage. It merely requires the government to treat all legal marriages equally. Many Supreme Court observers think the nine justices could easily agree with Boudin’s panel and other federal judges who have ruled that government marriage discrimination is unconstitutional.

But take a look at the other federal case en route to the High Court. The Prop 8 case, which could indeed jeopardize the marriage laws of all fifty states, is now pending in the Ninth Circuit, where judges are deciding whether or not to accept a full court appeal.

If you were the lawyer for the House Republicans, which case would you want to see reach the Court first? Clearly, it would be the Prop 8 case, where marriage opponents have a much better chance of success. With that in mind, one would expect the House to appeal today’s decision to the full First Circuit as a delaying tactic. Such a move would also give the House two bites at the reversal apple, rather than one.

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Federal Judge Nails DOMA

(Note that this column was written the day before the First Circuit ruled against DOMA. I posted it late.)

Last Friday, Oakland-based U.S. District Court Judge Claudia Wilken delivered yet another blow to the Defense of Marriage Act, ruling that the 1996 federal marriage ban violated the equal protection rights of several gay employees of the state of California.

I know what you’re thinking. How many damn marriage cases are going on out there and how do we keep them straight, so to speak? Well, that’s what you get for skipping over my semi-regular gay marriage case summaries, now isn’t it?  

Let’s make it simple. There are now four main cases at the federal appellate level. One, the challenge to Prop 8 (waiting for full Ninth Circuit to decide whether or not to take appeal); two, the Massachusetts DOMA case (fully argued and waiting for ruling from three-judge First Circuit panel); three, the Golinski DOMA case (Ninth Circuit three-judge panel will hear arguments in September); and now number four, the Dragovich case just decided by Judge Wilken, which will soon be appealed to the Ninth Circuit as well.

In addition, we have two DOMA challenges at the trial level in federal courts that could be decided any time. Those are the Pedersen case in Connecticut and the Windsor case in New York. Both these lawsuits will wind up before the U.S. Court of Appeals for the Second Circuit once opinions are announced.

Finally, we have a whole bunch of recently filed federal cases. One case challenges the Defense of Marriage Act on behalf of married gay servicemembers. Another DOMA case was filed on behalf of binational couples. And Lambda Legal just filed a Prop 8-style case against the state of Nevada, arguing that the state’s antigay constitutional amendment violates the U.S. Constitution.

A couple of observations, if you will: First, we are batting a thousand. We have won all four of these cases at the trial level, and we’ve won the Prop 8 case at the appellate level as well. Our success is due to our superior arguments, the backing of the Obama administration in the DOMA cases, and our choice of courts. 

Second, make note of the difference between the DOMA cases and the challenges to state law in California and Nevada. Both types of litigation involve the right to marry, but the legal issues are distinct in many ways and the DOMA cases will be easier to win at the Supreme Court. 

As for our most recent victory, Judge Wilken had already signaled her distaste for the Defense of Marriage Act in previous case rulings. In this lawsuit, the state of California was blocked from offering longterm care benefits to gay spouses and partners due to federal rules linked to the Defense of Marriage Act. 

Not only did Judge Wilken trash DOMA as unconstitutional, she also struck a related federal tax statute. That a new development, involving a bureaucratic intricacy that I have not bothered to research in detail, ergo we will leave it vague. It sounds like a good thing though, doesn’t it?
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Illi-Noise

As if our federal cases weren’t hard enough to track, Lambda Legal and the American Civil Liberties Union have just filed twin freedom-to-marry suits in Illinois state court. 

Say what?

Back in the day, prior to our explosion into the federal courts, our legal eagles deliberately focused their efforts on state court cases. We filed suit in Massachusetts, in Vermont, in Connecticut, in New Jersey, in New York, in California, in Iowa, in Oregon, in Washington; we filed suit just about everywhere where we thought we had a good chance of winning marriage equality.

But, it’s been awhile since we’ve gone this route. Now, we’re back in the state court game, seeking rights in the Land of Lincoln. Illinois allows civil unions, and it is one of the 28 states that have not passed a constitutional amendment defining marriage.
  
Like their counterparts in the federal courts, these cases take a long time. All the briefs, all the arguments, the lower court, the appellate court, the state supreme court. Years go by. Still, it’s interesting to see that our community’s legal guns are firing on all cylinders. 

Lambda also has a state case in New Jersey, where we are essentially re-litigating the marriage case that we half won and half lost back in 2005. Back then, the feckless New Jersey Supreme Court ducked its responsibility by ruling that gay couples deserved equal treatment, but that the word marriage wasn’t essential to that equality. Now, Lambda is forcing the state court to decide whether or not the state’s second-class civil union status comports with that 2005 ruling. The answer will be “no,” but it looks as if we’ll have to wait until 2013 or 2014 to hear it.

Had enough of legal news? Me too! 
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Feck It All

For the record, I looked up “feckless” in order to check on the word “feck,” which would be fun to use. Turns out that “feck” is an old Scots word for “effect.” 

I was hoping for something more arcane. But while I was searching, I did stumble upon the word “femerell,” which refers to the “lantern, louver, or covering placed in the ridge of a hall roof for the purposes of ventilation or letting out the smoke of a fire kindled on a central hearth.” 

I was about to write “moving on,” but I am wondering something. Why would a “lantern” or a “cover” act as a ventilator? A cover would keep the smoke in, and a lantern would serve no related purpose whatsoever. Who came up with this confusing definition?

Moving on, it looks as if the bad guys in Maryland have amassed enough petitions to put a measure on the November ballot to repeal our marriage rights. Our despicable foes submitted twice the requisite number of names, crowing and patting themselves on the backs all the while. Miserable crumbs of humanity.

I know it was expected, but it’s still irritating. Our side is happy about polls that indicate some 57 percent of Crab State denizens approve of same-sex marriage, while 37 percent oppose equality. That said, I’m not falling into the optimism trap based on those numbers considering our much-ballyhooed history of defeat at the ballot box.

This seems a good moment to remind everyone that we won a statewide marriage vote in Arizona in 2006 by a three-point margin. Arizona came right back at us in 2008 and passed a different version of the marriage ban, but my point is this: We won one. So here’s a message to the media. Stop saying that the gay community has never won a statewide vote on marriage! It’s inaccurate. Doesn’t that bug you?
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Wither Washington?

Over in Washington State, where marriage equality was also passed in the last legislative session, antigay groups are reportedly very close to gathering enough signatures to force a repeal vote this fall. They don’t seem to have quite the momentum of their bad buddies in Maryland, but our side nonetheless believes that they’ll collect the magic number by their June 6 deadline. If not, marriage will become legal in the state on June 7.

The gay community won a statewide election in Washington in 2009, when voters refused to repeal the state’s domestic partner law by a 53-47 margin. We can only hope and pray that the “m” word doesn’t cost us those critical three or four points this time around. 

Adding to the excitement is a parallel effort to qualify a constitutional amendment for the ballot that would define marriage as a union of one man and one woman. As I mentioned a few weeks ago, if this atrocity also qualifies, voters will have to vote yes on one of these things and no on the other. I know that this challenge appears well within the grasp of a small child, but these are the tricky little details that seem to perplex our fragile electorate. Personally, I’m hoping that our community and allies can deploy their intellectual advantage to positive feck in this context. 

(I’m not sure that worked. But I had to try.) 

The amendment petitions are due at some point in July and require over 300,000 signatures, so there’s a chance we’ll wind up with only one antigay measure on the Starbuck ballot. We’ll see.
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Hate Means Having to Say You’re Sorry
 
I just read that several thousand protesters come out to scold North Carolina preacher Charles Worley, the guy who suggested that gay men and women be put in separate concentration camps for the rest of their lives, thus ensuring that none of us have any progeny to carry on the gay gene. Talk about the intelligence gap between antigay activists and everyone else. Did Mr. Worley really believe all our parents were gay like us? 

I suppose Worley’s Mother’s Day suggestion was half in jest, but still. The man deserves all the protesters we can muster. I would still have preferred that our North Carolina civil rights energies had revved up for the April amendment vote rather than this. Too late now. 

And in other news updates, we got an apology from Rutgers webcam spy, Dahrun Ravi, who is about to start his 30-day prison sentence for the homophobic antics that helped trigger the suicide of his gay roommate, Tyler Clementi, in late 2010.

“I accept responsibility for and regret my thoughtless, insensitive, immature, stupid and childish choices,” Ravi said in a statement. “My behavior and actions, which at no time were motivated by hate…were nonetheless the wrong choices and decisions. I apologize to everyone affected by those choices.”

As far as Ravi is concerned, I’m satisfied. The stupid kid is only 20 years old. As for the sustained, systemic social pressures on gay youth that led Clementi to jump off the George Washington bridge, not so much.
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Guess Who’s Coming to Dinner?

Here’s something. Jennifer Chrisler, head of the Family Equality Council, has invited Family Research Council head honcho Tony Perkins to dinner at her house.

Last week, Perkins told a CNN host that he had never been to the home of a gay couple, in part because no one had ever invited him. Up jumped Chrisler, who asked him to join her wife and twin ten-year-olds around the family dinner table. Perkins and his wife accepted the invitation and the gang is planning to set a date.

Meanwhile, Seattle-based activist Dan Savage invited National Organization for Marriage chief, Brian Brown, over to his house for a family dinner and videotaped debate. Brown also said yes. 

Could this be a trend? 

Dan Savage was the instigator of the viral “It Gets Better” project, a huge collection of encouraging Youtube videos directed at bullied gay youth. Maybe Dan and Jennifer will inspire a national series of dinner parties where far right activists break bread with Ozzie and Harry gay couples. 

Austin, Texas, is not exactly flush with antigay leaders, but I suppose I could find one to ask to dinner if I looked hard enough. But who in North Carolina has the balls to invite Charles Worley over for an evening of GLBT family fun? C’mon! Someone has to step up to the dinner plate.

Finally, with only a few words left, I was going to tell you about the church in Indiana where a four-year-old sang a song with the line:  “ain’t no homos gonna make it to heaven,” to the delight of the cheering crowd. Someone caught it on a cell phone video and it makes your skin crawl.

But instead, let’s end our column on a high note, with news that a ten-pound Pomeranian who fell off a boat into the Chicago river was found safe and sound at a city intersection. The dog, “Tank,” was wearing a life jacket when he took a dive during a weekend boating trip. His disconsolate owners asked the public for help, and sure enough the hardy pup made it to shore, where a good Samaritan saw that he returned home, refusing a $500 reward in the process.

Life is good.
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A new version of Ann’s column is available every week at sfbaytimes.com. You can reach her atarostow@aol.com.

Criminal Minds

Criminal Minds

I was casting around for my top GLBT news story of the week, when I found myself drawn to a lengthy headline that shouted “Read Me!” on a sidebar near some important article about, say, the decision by the Ninth Circuit to deny immediate en banc review in the Golinski DOMA challenge.

Here it is from the New York Daily News: “Man who beheaded, ate, fellow passenger on Greyhound bus believed he was attacking alien, mental health advocate says.” Woah, Nelly! 

Like you, a barrage of questions flooded my mind. Could this be true? How do you behead someone on a bus without being restrained by fellow passengers? How then, do you have time to eat your victim? If you had to kill an alien, why would you then eat him or her? And of course, why haven’t we heard about this horrific incident?

Well, the story seems to be true. Vince Li, a Chinese man who immigrated to Canada with his wife in 2001, was riding along the highways of Manitoba back in 2008. His doomed seatmate, 22-year-old carnival worker Tim McLean, was listening to music with his eyes shut when the voice of God told Li to, ah, take lethal action.

As Li started stabbing McLean, the bus stopped and the other passengers fled, leaving our deranged hero to his own devices. While waiting for authorities, Li managed to carve up parts of his victim and eat them. He also sawed off McLean’s head (with a knife!) and “displayed” it through the window. 

Mr. Li has since been treated for schizophrenia at a Canadian mental hospital and has reportedly recovered. He is back in the news now that a judge has given him permission to wander around on chaperoned trips to the nearby town of Selkirk. According to the referenced “mental health advocate,” Li “now understands that schizophrenia is a mental illness which plays tricks on the brain. He knows that the medication works to keep the voices away.”

Hmmm. I’m a rational human being and I recognize that mental illness could strike any one of us. But I’d still like to see Mr. Maniac locked up nice and tight for the indefinite future. Plus, doesn’t every psychotic killer have his or her share of loose screws? We don’t give them a few pills and send them over to Main Street for a day of shopping and a strawberry milkshake. Yet apparently, Mr. Li is expected to gain more freedom as time goes by, and may even be released one day. Yikes.
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Bad God, No Virgin

I see I’ve spent far too much time belaboring this irrelevant, albeit captivating, subject. I was struck by the fact that Li was a Christian, and that “God” was the one who ordered the grotesque hit on Tim McLean. 

Few would suggest that Li’s actions were an example of religious expression, but to return to a recent theme, there’s not a whole lot of theoretical difference between God-ordered murder and some of the other muffin-headed efforts to cloak hatred in religious garb. 

Consider Mississippi state representative and Baptist minister Andy Gipson, who recently told his Facebook friends that gay men are unnatural and disease ridden, citing the numbers of a Leviticus verse that suggests that men who have relations with other men “are to be put to death.” 

In response to the ensuing outrage, Gipson said that he could not, and would not, “apologize for the inspired truth of God’s Word,” adding that he does not actually believe gay men should be executed.

Hey, Gipson has every right to believe that both testaments of the Bible contain the literal word of God. But there’s no reason for everyone else to bow and scrape before his “constitutionally protected right to freedom of religious expression.” The man’s a nutcase bigot. Not as bad as Vince Li, I admit. But he deserves no more respect for his disturbed notions than does the man who beheaded a sleeping bus passenger in the name of God. 

The same premise applies to the Catholic bishops who are suing the government for ordering insurance companies to offer contraception without a co-pay to all female employees. 

“But but but, it’s our faith!” 

Nonsense. It’s your policy. It’s your schizophrenia. It’s your bigotry. It’s whatever. There’s nothing sacred about it.
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Prison Camp, Anyone?

Let’s take one last example. (Please!) A Baptist minister in North Carolina, the Rev. Charles Worley, told his flock the other day that gay men and lesbians should be rounded up and separately quarantined behind electric fences. Food should be dropped into the pens, and in due time, all the gay people will die out because they can’t reproduce.

By the way, does this man believe that all the gay people in the world were conceived by gay men impregnating gay women? Now there’s a scenario that would truly kill us off in a generation. 

Worley has not commented since his Mother’s Day sermon, but one of his parishioners, Joe Heafner, told the local press that Worley “takes a strong stand on the Bible and what it says, but he loves people. I’ve never seen a man who cared more for his people, cares for all people, whether they were members here or not.” 

Wouldn’t you love to be a fly on Heaven’s Gate when some of these fools come strolling up to St. Peter’s lectern?  

But let’s be honest. Would it really be so bad to live for free on a massive lesbian compound? Build a nice cocktail lounge, parachute in a case or two of vintage Champagne every few days, install a few pools and hot tubs, and it would work for me. 
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Tedious Court Schedules Await

I think I mentioned earlier that the Ninth Circuit has declined to move directly to a full appellate court hearing on one of our main challenges to the Defense of Marriage Act. Well, that was a long-shot motion by the Obama Administration (who is on our side in this case) and its defeat is not such a big deal. All it really means is that our excellent lower court ruling in the case of federal attorney, Karen Golinski, will be considered by a three-judge panel, as is the norm. Oral arguments will be scheduled for September.

Meanwhile, recall that the Prop 8 case has already been heard by a three-judge Ninth Circuit panel, and that the bad guys have asked the full court to hear an appeal of our February victory.

So, we’re all just sitting around waiting to find out whether or not the court will empanel an 11-judge group to reconsider the constitutional status of California’s ban on marriage equality. I have no idea how long it will take for the active judges on the Ninth Circuit to make this decision. And of course, if they decide to go ahead, we’ll then have to sit through a year or more of additional litigation.  

As for Golinski, once the three judges rule early next year, that case is also likely to make its way to the full Ninth Circuit. 

Over in Boston, oral arguments were heard in early April on another federal DOMA challenge, so we’re waiting for a decision from the U.S. Court of Appeals for the First Circuit. Assuming that this decision is also sent to the full First Circuit, it may be quite a long time until any of our marriage-related suits reach the Supreme Court.

I know that the media keeps suggesting that marriage equality will reach the nine justices in short order. But at this rate, that short order could easily turn out to be 2014 at the earliest.
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It’s Raining Penguins, Alleluia

Now, what else do we have on our list, you wonder? For one thing, we have a zillion more confusing polls on whether or not Americans support same-sex marriage. Without repeating last week’s rant about polls, let me just say that these surveys remind me of the Romney v. Obama polls announced by breathless pundits on what feels like a daily basis.

Hello Pundits! It’s May for God’s sake. These polls are one rung up from meaningless on the long ladder to Election Day. Report them if you will, but spare us the excited commentary. 

As for the marriage polls, as I said last week, they too are all over the map, although the general trend in our favor is welcome. Frankly, as long as voters from California to North Carolina continue to reject marriage equality at the ballot box, I will continue to reject their alleged majority support. When voters in Maine, in Washington, in Maryland and in Minnesota cast their ballots in our favor, I’ll be impressed. 

We also have news in Gay Penguin Land, where kindly zookeepers in Spain have given a fertilized egg to a same-sex couple who builds an empty nest every year. I should look up their names, which as usual, are cute. But the upshot of the story is that the penguins are very happy and taking very good care of their egg. 

Why penguins? I know we have the occasional gay sheep or lesbian monkey, but I think we can agree that penguins are the gayest of all God’s creatures with the possible exception of women’s basketball fans.

And a federal judge in Ohio has ordered the Wayne Local Schools to let students wear T-shirts that say: “Jesus Was Not A Homophobe.” The district will also shell out $20,000 in damages and costs to the activist student, Maverick Couch, who settled his First Amendment case last month for that amount with the help of Lambda Legal.   
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Crab Dreaming

I probably should have led this column with a unanimous decision out of the high court of Maryland, where the justices ruled that same-sex marriages from out of state should be recognized for the purposes of divorce. The court did not address any constitutional issues, nor did the justices take the matter beyond the narrow context of divorce. But still, it was another step in the right direction.

As for marriage equality itself in the Soft Shell Crab State, all the articles I stumble upon are assuming that antigay groups will indeed gather enough names to let voters decide whether to repeal the state’s new marriage law before it even comes into effect. So, barring any surprises, the future of marriage rights is in the hands of the electorate. If the repeal fails, marriage will become legal on January 1.

Over in Washington, the antigay Preserve Marriage Washington says it has 116,000 names, and needs another 20,000 or 30,000 by May 31 in order to qualify a marriage repeal for the November ballot in the Starbucks State. I think they actually need 120,000 qualified names by the first week in June. But that means they have to amass a cushion, and they have to collect the petitions in time to organize the submission.  

You know, I would give a small fortune for someone to grill me a fresh soft shell crab, slap it on a floured roll with a touch of tartar sauce and a squeeze of lemon, turn on a soundtrack of screeching sea gulls and pour me a cold glass of Muscadet. 
 
Why is that so much to ask? 
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One Month in Jail for Rutgers Mean Boy

Did I mention that the nasty piece of work who spied on his gay Rutgers roommate was handed a 30-day-sentence, plus fines and community service? Dharun Ravi was facing up to ten years behind bars for his abuse of Tyler Clementi, a gay student who committed suicide after Ravi used a web cam to spy on him while he was alone in the room with another man.

But despicable as this Ravi guy appears, his behavior does not merit a decade in prison and he cannot be directly blamed for Clementi’s decision to jump off the George Washington Bridge. Ravi was an immature jerk. Clementi, an insecure loner only recently out of the closet. Both were college freshmen however, a fragile status and a time in our lives when tragedy can lurk just around the corner for any one of us.
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A new version of Ann’s column is available every week at sfbaytimes.com. You can reach her at arostow@aol.com.

 

Politically Correct?

GLBT Week in Review, May 16
BY ANN ROSTOW


Politically Correct?

I never thought I’d see the day that I would shrug off news coverage of marriage equality with an attitude of  “yeah yeah whatever,” but last week it happened! My favorite subject, once ridiculed, then marginalized, and later compartmentalized into a gay issue, has become the conversation du jour—dominating the media for a solid week. 

Back and forth the pundits went, speculating on whether or not President Obama’s newly articulated support for equality will help or hinder him on the campaign trail. Typically, the TV hosts found a spokesperson for each side of the fence. And while normally I’d call that a cop out, in this case the often disingenuous “search for balance” is justified. We simply don’t know how Obama’s marriage position will play out among voters.

I was one of those GLBT journalists who thought the President could easily keep his true convictions in the closet until after November. Why take the risk? First, he has our community’s votes already. Second, everyone knows he backs same-sex marriage anyway. And finally, just over a tenth of the electorate consists of Independents who oppose same-sex marriage rights. Put enough of those swing voters in swing states and they might turn the election. 

But Obama’s courage has put me to shame. And since he and his advisors are presumably sharp strategists, I can only hope that they agree that the President will improve his chances by making a strong stand. Indeed, with our community putting on the pressure, Obama could have looked calculating had he ducked the issue for the next six months.

Here’s the most important result of last week’s decision. The question of marriage equality has evolved, if you will, from a fight between GLBT activists and the religious right, into a partisan battle between Democrats and Republicans. 

With the exception of Democratic candidates in red or purple states, major Party leaders (including Harry Reid and Steny Hoyer) have fallen into line behind the President, and the Party platform is now likely to include a marriage equality plank. Other Democrats, who have been struggling to walk a fine line between “equal rights for all” and “the right to marry,” will now find it much easier to join Obama on the solid ground of marriage equality. 
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And The Survey Says?

One thing that has struck me over the last week is the incoherence of national polling on marriage equality. Haven’t you noticed? Every survey spins out a different message. Only 38 percent back marriage equality in one poll. But it’s 51 percent in the next one. 

Much of the confusion reflects different questions and it’s clear that some respondents keep their true feelings to themselves. Witness the 61-39 antigay vote in North Carolina, where polls told us that a majority supported either marriage or civil unions. Um, either those polls were a bunch of hooey, the voters didn’t understand the amendment, or the famous Bradley effect went viral throughout the state.

The Bradley effect, by the way, is the aforementioned tendency for people to give politically correct answers to pollsters before going right ahead and making a bigoted vote as was seemingly the case in the 1982 California governor’s race between Tom Bradley and George Deukmejian. Interestingly, Deukmejian was closing the gap as the election approached, so the polling may not have been as anomalous as it seemed at the time. Nevertheless, the phenomenon is a constant in gay elections and the “Bradley” moniker has stuck, rightly or wrongly.  

Whether the polls are accurate or not, the trend in our favor is indisputable, as is the demographic shift that shows younger voters entering the electorate on our side as older voters take their antigay views to the Great Beyond. These numbers led George W Bush’s former pollster Jan van Lohuizen to dash off a memo to Republican candidates last week, warning them to put on the kid gloves when discussing marriage rights.
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Newport News

In other exciting developments, Colorado Republicans managed to kill a civil unions bill that would have won had it been given a vote. And Rhode Island governor Lincoln Chaffee invited marriage equality into the Yacht Club State through the back door by signing an executive order recognizing same-sex marriages. 

Yes, we’re still on that subject. 

In 2007, Rhode Island Attorney General Patrick Lynch issued an opinion (much like Eliot Spitzer did in New York back in the day) interpreting state law to mandate marriage recognition for gay couples. You may not be able to marry in Rhode Island. But hop over the border to Massachusetts or Connecticut and presto! You’re married in Rhode Island. Sort of. 

Now, Governor Chaffee’s order means that state agencies have a clear directive to treat married gay couples the same as straight ones. It’s not as satisfying as legalizing marriage, but it’s not chopped liver.

What’s wrong with chopped liver anyway? A bit of research suggests that the dish became a pejorative a) because people don’t like it, or b) because it’s a side dish. 

Well it can’t be the second option, otherwise we’d be able to say things like: “What am I? Cole slaw?” And the first option doesn’t make much sense either, does it? I mean “chopped liver” isn’t universally disliked. Why not: “What am I? Okra?”  That would work on both counts, a slimy, tasteless and generally disgusting side dish.

 I also learned that “schmaltz” actually means “fat,” usually duck fat or chicken fat (used for preparing chopped liver). Hmmm. We’ll have to think about that one--- on several levels.
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Who Moved My Meat Thermometer?

After several hours of squinting at my dark computer screen, I just found a button (F2) that backlit the display. Who knew? I really hate becoming a technological imbecile, particularly considering the fact that I began my career on the cutting edge of the information industry, working for an online money market news and data company in the late 1970s. (We called it a “computerized information system” and it ran through dedicated phone lines.) 

Don’t worry. I have no intention of rambling down memory lane. That said, I am not really in the mood for my gay news agenda, which includes the ins and outs of two pending bills in the House, more blather (from me) on marriage equality, a return to the Connecticut Supreme Court decision on workplace discrimination that I skipped over last week, and the Virginia legislature’s decision to reject a very qualified gay judicial nominee because he has publicly advocated an end to Don’t Ask Don’t Tell.

Sounds like a hard slog, doesn’t it? 

I’m also hungry, so I took time out to scavenge in the kitchen. There, I found a pack of ravioli in the refrigerator that says: “use or freeze by April 27.” Ooops. Being the sort of person who eats things off the floor, when appropriate, I decided to prepare the aging pasta. I dutifully proceeded to read the directions, which suggested that the ravioli be boiled three or four minutes, or to “an internal temperature of 165 degrees.”

What’s wrong with these people? I’m speaking of the people who write inane things on packaging, like “not for human consumption” on cans of motor oil. How can someone measure the internal temperature of a ravioli? I suppose it’s possible, but who would do so? No one. So why include this useless detail?

For the record, after a time-consuming search I dug out the meat thermometer, and even after six minutes those things were only 140 degrees but I took them off the stove anyway.  I mean, really. It’s not as if they were filled with raw blowfish. They were “five cheese.” 
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House Sitting

Moving on, the Obama Administration has issued a statement on the House version of the National Defense Authorization Act, which has passed the Armed Services Committee and will probably win a floor vote Wednesday evening. 

Among the long list of complaints is the section that would prohibit same-sex weddings on military bases, even in states where marriage is legal. Another section that meets with Obama’s disapproval would allow military authorities to overlook otherwise impermissible personnel actions when based on religious or moral beliefs.

The administration has a host of other problems with the bill, and while no one section would be a deal breaker, Tuesday’s statement threatens a veto unless most of the objections are resolved. You may recall that the antigay stuff was removed from the Senate version of the Defense budget, but it managed to squirm its way back in once it returned to the House. I don’t follow the Hill that closely, but I assume the Senate will block the antigay provisions again. I hope so.

We also have problems with the House version of the Violence Against Women Act, a statute that has been reauthorized without incident for nearly 20 years. Gone now, are protections for Native Americans, immigrants and lesbians, omissions that combined to earn a veto threat from the President.

I gather that the bill’s author has since added back the Native Americans and the immigrants, but refuses to add a provision against sexual orientation discrimination. I can’t remember her name, sorry. But I did hear her explain that there’s no need to make a reference to every group because the bill “covers everyone.” Does that work for you? Why add back two other groups and leave the battered lesbians out in the cold? 

Again, I assume the Senate will fix the problem. They’ve already reauthorized an intact version of the bill. We’ll see, A House vote is also scheduled for Wednesday night.
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God Help Us

So, in the category of people I don’t know who say mean things about gays, I can now add Manny Pacquiano, a boxer and Filipino politician who I guess I may have vaguely heard of in the past. Mr. Pacquiano recently opined that:

“God only expects man and woman to be together and to be legally married, only if they so are in love with each other. It should not be of the same sex so as to adulterate the altar of matrimony, like in the days of Sodom and Gomorrah of Old.”  

This is why I have long since given up repeating bizarre homophobic quotes. It’s pointless. Pacquino modified his comment, the Washington Post reports, adding that he’s “not against gay people,” but simply believes that “same-sex marriage is against the law of God.” 

But I’m including this item because I’m sick of people getting away with rank bigotry by attaching their political positions to “God,” as if “God” is a specific entity who has set down uncontested rules and regulations for a civil society. All you have to do is toss out the G-word and everyone is obliged to “respect your religious convictions.” Why?

I think that God (if He cared about such things which He doesn’t) would want us to pass the Senate version of the Violence Against Women Act. I think He would oppose the Ryan Budget. I think He would call for the development of a European Central Bank with the power to issue bonds and manipulate the Euro, because my God is smart. I think He would let the Bush tax cuts expire. 

But do I go around expressing my views as a function of religious faith? Do I demand some extra measure of deference for these positions based on their theological roots? No, I do not! 

Well, I’m only joking in a sense, because as I mentioned in parentheses, no one can turn a transcendent mystery into a bleak repository of mundane dos and don’ts.  But that’s what our friends on the Christian Right do all the time, not just with gay issues, but with everything. Their “God” wants conservative justices on the Supreme Court, Palestinians out of Jerusalem, an end to the capital gains tax, and the abolition of the Department of Education. Doesn’t their God have anything better to worry about? 

You shouldn’t be able to say that God supports conservative Republicans and then accuse all the Democrats of trampling on your “religious freedom.” But they get away with it time and again. My God is disgusted with all of them. 
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Obama Says Yes to Marriage Equality

GLBT Week in Review, May 9, 2012
BY ANN ROSTOW


Obama Says Yes to Marriage Equality

With Wednesday’s announcement by President Obama, marriage equality has gone mainstream. No longer an issue for the left side of the Democratic party, equality is now the party line. In his interview with ABC’s Robin Roberts, Obama confirmed that his “personal” view is that same-sex couples should be able to marry under the law.

For years, progressive politicians have had the leeway to have their cake and eat it too, advocating for equality through civil unions, but drawing the line at the word “marriage,” as if the core problem for gay couples was access to insurance benefits or hospital visitation.

But the broad balance beam of “civil unions” has narrowed over the last few years into an impossible tightrope. After all the court cases, all the campaigns and all the public debate, no one can seriously deny that the word “marriage” is part and parcel of the institution of marriage. You can’t have one without the other. The idea of “equality” for gay couples outside the institution and the word is an oxymoron.

Ironically, Obama was already on record in support of marriage equality through his Justice Department. Administration lawyers have vehemently argued on behalf of same-sex couples in numerous legal briefs that carry the President’s implicit stamp of approval. It has long been obvious to everyone on both sides that Obama was merely trying to waffle for political purposes, not to win over anyone on the far right, but to avoid alienating a subset of the electorate in the middle ground, including socially conservative minorities. In a close election, those voters might make the difference in a swing state or two.

Now, thanks to Joe Biden’s comments on Meet the Press, along with the 61-39 North Carolina vote in favor of the antigay Amendment One on Tuesday, Obama has been forced to take a clear position. The pressure to do so from the gay community and the mainstream media would have remained relentless. And instead of appearing sympathetically vague, the President was at risk of looking disingenuous and crafty. The better strategy appeared to be to embrace the issue and focus attention on GOP prejudice.

Obama’s decision could act as a sort of release mechanism, giving the green light to other moderate Democrats on the teetering tightrope to move to solid ground. Former Virginia Governor Tim Kaine, for example, was asked about marriage equality earlier on Wednesday morning.

“The underlying issue,” said Kaine, “is should committed couples have the same legal rights and responsibilities? And the answer to that is an unequivocal yes.” Much as I like Tim Kaine, the underlying issue is whether gay couples should be treated equally under the law, period. Kaine’s answer is itself an equivocation, and one which may be more difficult to get away with in the future, thanks to Obama.
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What Now?

The question we face now is whether, or to what extent, the 2012 campaigns will deploy this issue. The country is split down the middle on marriage equality. But a sizeable majority supports gay couples rights through marriage or civil unions.

Will the Democrats now starting making the case that civil unions are not enough? And what will the Republicans do? They can’t really afford to denigrate gay couples in general, a stance that would only play to their base while alienating many in the middle. I’m guessing that it’s the Republicans who must now duck the issue with vague comments about tradition while trying desperately to change the subject.

Some GOP strategists will no doubt be encouraged by the vote in North Carolina on Tuesday. But the dynamics of gay rights politics are complex, while gay ballot measures are frustratingly simple. Ballot measures force people who haven’t really thought about gay rights to take a yes or no vote on a gut level question: “Do you support marriage?” Who doesn’t!

A sizeable chunk of the electorate, including many voters who don’t “hate gays,” instinctively vote for the status quo. It’s the default vote on gay marriage, which is why we lose by larger margins that one would expect.

But will these voters mass against Obama based on this issue next fall? Not necessarily. Many of these voters are torn on the subject as well, and while they may have voted for “tradition” last Tuesday, that doesn’t mean that they’ll vote for overt bigotry if that’s what Republicans offer them next fall.
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Told You So

Okay. We could talk about this for the whole column, but we have to cover the North Carolina vote.

The 22-point lead for the Tarheel antigay marriage amendment looked to be between five and ten points higher than pre-election surveys suggested, mirroring the poll bias we’ve seen in past gay rights contests. A certain percentage of antigay voters lie to pollsters, presumably out of some kind of shame, so keep that in mind this November when predicting the outcome of marriage votes in Minnesota, Maine and (we assume) Maryland and Washington.

But honestly, this was not a surprise. I’ve read some talk in the press about how Gay Inc. dropped the ball by not pouring more cash and effort into the North Carolina fight. Then again, with limited resources, perhaps it’s strategically wiser to focus on states where we have a better chance to win. In theory, I agree with the Courage Campaign that we should “leave no state behind.” Thinking pragmatically, however, we have to pick our battles.

Because of the scope of the amendment, North Carolina’s municipal governments and state institutions will likely face the choice of dropping all forms of gay couples recognition or going to court.

Even though it was expected, it was depressing nonetheless. Once again, we saw a two-to-one vote in favor of the amendment from the African American community, telling us that the predominately white mainstream gay groups must do more to reach out to minority groups.

I saw one African American leader on TV asking where the Human Rights Campaign was during the rallies for Trayvon Martin. But hello? If HRC could wave a wand and mobilize a bunch of gay people with rainbow signs, they would. They don’t have that kind of power, and I’m guessing a lot of gay men and women were in those crowds on their own volition anyway.

What do we do about it? I don’t know. I do know that the racial divide on same-sex marriage is less about race and more about religion. I also know that the public face of the fight for gay rights is most often a successful white male, so maybe that contributes to our lack of minority appeal.
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Holder On the Spot

Before I continue, I read on Lisa Keen’s news service that Attorney General Eric Holder will be called up for Congressional hearings next month to explain, among other things, the Justice Department’s stance on the Defense of Marriage Act.

For all the hoopla surrounding marriage equality, few people seem to have noticed that Holder and company aren’t simply “refusing to defend DOMA.” They are actively arguing against it.

Indeed, even when the Justice Department announced its new gay rights jurisprudence in February of 2011, most reporters focused on their decision not to defend the Defense of Marriage Act. But what Holder (and Obama) actually said at the time went far beyond the fate of a single statute. They said that sexual orientation discrimination should be held to heightened legal scrutiny, a standard that assumes that gay bias is unconstitutional and forces a defendant to prove that prejudice was not the motive behind a law or policy.

This far-reaching position effectively puts the Justice Department on the side of gay rights plaintiffs in any federal case against the United States. And because it’s just administration policy, it will simply vanish if Obama is defeated.

This is one reason why our calls for Obama to come out plainly in support of marriage equality appeared to lack context. It seemed as if many gay activists hadn’t really recognized what our constitutional lawyer President has done on our behalf. He’s done it below the radar. But it shouldn’t be below our radar as well. Obama should get credit, not just for his words this week, but for his actions last year.
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There’s Something About Connecticut

I seem to have written well over half this column without a trace of levity or any amusing asides. And I was just about to launch into a ruling from the Connecticut Supreme Court that illustrates the hazards of having separate laws for gay people rather than adding “sexual orientation” to the existing statutes that cover everyone else.

Obviously that discussion would have given me a launching pad for another rant against the Employment Nondiscrimination Act, and I would have filled paragraph after paragraph with yet another turgid polemic on the subject.

I will spare you!

So, I put the top down on my old convertible the other day and it jammed in the down position after I forced a box of wine bottles into a little space in the trunk. Fast forward to one o’clock in the morning and I awoke to the sound of distant thunder.

I went out and fooled with the car for about ten minutes as the storm approached, and then Mel came out and told me to drive to the abandoned gas station down the block and park under a roof. To make a long story shorter, we sat there for two hours in the middle of the most terrifying thunder storm I’ve every encountered. Huge bolts of lighting. Shockingly loud claps of thunder. Driving rain. A nearby transformer exploded. Hail clattered. Wind roared. We were cold and soaked and I came close to bursting into tears. I was convinced we’d be hit by lightening or killed by a tornado. It was God awful.

Mel and I don’t have particular gender roles, but I felt like the “little woman” who had to be repeatedly reassured. It seems that Kansas girls like Mel are not afraid of violent weather. Normally, I’m not either, but this was ridiculous.

She could have just told me to come back inside. But that’s what marriage is all about. Getting up in the middle of the night to save your partner’s car from permanent damage by sharing two hours of abject misery. Sitting by a bedside. Going to a boring work party. Killing a spider. Remembering where she put her keys. And our opponents are still speculating about gay men and women marrying farm animals.

Obama’s decision to back equality was reportedly based in part on knowing gay couples. Certainly, the fast-moving American shift in favor of marriage equality is based on exactly the same thing, the realization that gay couples are no different than straight couples. There might be something “immoral” about two guys hooking up for anonymous sex in an alley (depending on your point of view). But that gay paradigm is a thing of the past. There are battles left to be fought, but the war is over and Republicans will promote homophobia at their peril.

Lastly, I have to think that Obama’s announcement played into his image as a strong leader, unafraid to take a controversial stand or make a tough decision. Never mind that the President ducked the issue in the past. When push came to shove, he pushed, or shoved if you will, and took a stand. Mitt Romney’s stand? He’s in favor of hospital visitations.

Will marriage equality become a significant 2012 campaign issue? Will it lead to reelection? Will it cost Obama the election? I understand that Obama once wrote that he worried about whether he would be on the wrong side of history in the marriage debate. That’s a question that he has settled this week.
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The Gay Guy Leaves Romney Campaign

GLBT Week in Review
May 2, 2012
BY ANN ROSTOW


The Gay Guy Leaves Romney Campaign

I really don’t care a great deal about Richard Grenell, Mitt Romney’s short-lived openly gay foreign policy spokesman, but I think his fifteen minutes of fame are somewhat instructive. No sooner had we all learned that the Romnster hired a gay advisor for the general election, the man was gone, resigning last weekend as the Romney campaign reportedly begged him to stay.

Grenell, who previously served as press liaison for UN Ambassador John Bolton, was hired a couple of weeks ago much to the chagrin of Romney’s conservative base. He also roiled the waters a bit with his semi-humorous tweets at the expense of women on both sides of the aisle, including the comment that Callista Gingrich “snapped on” her hair every morning. (Loved it, Ric.)

Indeed, I instantly jumped to the conclusion that Grenell had been ousted for being a public misogynist, but that appears to be wrong. According to Washington Post writer Jennifer Rubin, who broke the story of Grenell’s departure, the man was simply fed up with being relegated to the back shelf of the closet during his first ten days on the job. Faced with far right criticism, the Romney camp never defended Grenell, nor did they put him to work either on or off the camera.

In short, the feckless Mitt tried to have his cake and eat it too, winning centrist credit for hiring a gay man while keeping his token recruit safely out of sight. Now, antigay conservatives are taking credit for getting rid of Grenell, while Romney and company look as if they caved in to far right pressure even though they sort of didn’t. All in all, a pathetic display, n’est-ce pas?
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Swans’ Way

Oh. Here’s something nice. Two lesbian swans have returned to Boston’s Public Garden this week after spending the winter at a zoo. I gather, from reading more than the headline, that all the local swans spend the winter at a local zoo so this is not actually “gay” news. But still. The swans, Romeo and Juliet, were outed back in 2005 when park officials investigated why their eggs weren’t hatching. Turned out the nesting swans were both female, and since we all know that swans mate for life, the pair have become icons of the lesbian animal world.

Park officials said it’s hard to tell if a swan can really be called a “lesbian.” That said, the couple was observed at a local Home Depot having what appeared to be a squawking dispute near the bean straw display. They also took an unapproved trip to Chestnut Hill for the first round of the ACC Women’s basketball tournament in early March and were picked up at Fran’s Place on the Northshore after zookeepers received an anonymous tip. A zoo assistant reported that both swans smelled of alcohol and cigarettes on their return.
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Let There Be Light

So. Several stories that I’ve been ignoring of late have come to the fore this week. Tennessee politics anyone? I thought not. How about more idle speculation on the North Carolina marriage vote? No? Well, perhaps you’ve been wondering why this column has failed to report on the lesbian den mother who was banned from participating in her son’s scout troop last month.

I think you understand my dilemma. But before we begin, here’s something I’ve been wondering about. Why don’t the police on TV crime shows ever turn on the goddamn lights when they go into people’s homes to look for stuff? Have you noticed this?

Instead of flipping on the electricity. they pull out their tiny flashlights and wander around looking at desks or bookshelves. And let me be clear. They do this after they have already made sure no bad guys are in the house, so they don’t have any excuse for it. Also, it annoys me that everyone’s house or apartment is always perfectly neat with the exception of deranged suspects who might have a pizza box or two in the kitchen.

I mean really. The CSI team will find two empty wine glasses on the table.

“Sarah. Take a look at this.”

“Looks like she had company.”

You know what? I’ve got at least five dirty wine glasses floating around this house right now, and I drank from them all. I just haven’t gotten around to washing them. What’s going to happen if I get murdered?

“Sarah, Take a look at these.”

“Yeah. I noticed one in the bedroom and another on the floor of the closet.”

“She must have had half a dozen people over here last night!”

“Look at these dirty towels. She hasn’t done laundry in days.”

“But why?”

“That’s what we’re here to find out.”
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Raleigh The Troops

Okay. Enough frivolity. Perhaps you recall that our latest antigay marriage ballot vote is coming up next Tuesday in North Carolina. So far, I’ve seen nothing but depressing polls that suggest we will once again lose, and that the Cancer State will join the crowds of states with a ban on same-sex unions engraved in their constitutions.

Lately, however, I’ve read a few encouraging articles hinting that there might be some slim chance of an upset victory for our side. The North Carolina measure could also outlaw various partner arrangements and might undermine domestic violence laws that cover unmarried men and women who live together. Polls show that a majority of voters support civil unions or domestic partnerships, so in theory, if these voters recognize the broad threat implicit in the marriage measure, they’ll vote no.

But at the risk of throwing cold water on our feverish hopes, let me make two points. First, the fine citizens of North Carolina don’t, and won’t, recognize the nuanced implications of their “save traditional marriage!” votes. Wishing and hoping for a sophisticated electorate doesn’t produce one.

Second, before every antigay ballot vote, there are always last minute articles claiming that we still have a chance to win, but we never do. I’d be delighted to be proved wrong, but I don’t think North Carolina will be the scene of any humbling forecasting errors on my part.

We’ll see, of course. Maybe I’m just tired of jumping like a hungry puppy for every morsel of optimism that someone dangles at GLBT journalists on the eve of a gay vote. The juicy tidbits invariably vanish, leaving us digging for unappetizing slops in the troughs of failure and discontent. Not this time! Not in North Carolina.

To give you an example, here’s a headline off the Washington Post blog that reads: “Gay Marriage Battle Down to Wire in North Carolina.”

Read further, and the item cites a Public Policy Polling survey, released on May 1, that shows Amendment One winning by 55-41. Sorry, folks. That doesn’t sound like a close race to me. We have an advantage in ready cash, so we may be able to outspend the other side in the final days. But unless my first grade math fails me, we’re down by 14 points.
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Better Luck Next Time?

I have higher hopes for our fight against a marriage amendment in Minnesota, where we have until Election Day this fall to push a majority of voters to our side. One article indicated that the amendment’s chances are evenly split within the margin of error, a turn of phrase that leads me to assume that we are down by three or four points. As in North Carolina, we have more money. And we also appear to have more enthusiastic grass roots support.

We also have a bit of a rogue gay marriage lawsuit, now at the state trial court level in Hennepin County. This is not a Gay Inc.-Approved lawsuit, which traditionally means that it doesn’t have much of a chance of success. But you know what? Our legal progress of late is such that even the rogue cases may eventually prove winnable.

This particularly lawsuit was filed in 2010, and tossed out of court on the basis of the famous 1971 Minnesota state marriage case, Baker v Nelson, a defeat which has continued to plague us for over four decades. The plaintiffs appealed, and the state Court of Appeals helpfully ruled that Baker was no longer good law. Last month, the state supreme court declined to review that decision, so the case has now returned to the lower court for trial.

I’m guessing that gay strategists feel it unwise to be pursuing a freedom-to-marry case during an anti-marriage campaign. After all, you can’t argue that a marriage amendment is “unnecessary,” when pending litigation is there for all to see just exactly how “necessary” an amendment might be.

(If you hate same-sex marriage, constitutional amendments are absolutely necessary and it’s disingenuous for marriage equality supporters to suggest otherwise. But more importantly, it’s alarming when people on our side attempt to play a shell game with ballot campaigns. Anti-marriage amendments aren’t “unnecessary,” they are wrong.)

Whatever their reasons, community strategists have not encouraged this lawsuit. At this rate, however, the case will still be mired in the courts by the time Minnesotans go to the polls, and who knows? Perhaps a struggle for equality featuring real people will tweak a heart string or two.
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Don’t Say Goat

So I did sort of promise to talk about Tennessee politics. The Volunteer State was considering a “Don’t Say Gay” type law that would have ordered public schools to steer clear of any mention of sexual orientation. After months of headlines, all of which I ignored, the bill was shelved and killed at the last minute. This confirmed my general policy of not covering pending state legislation until the final word on the subject is spoken.

However, the same insidious concept is back in business in the Missouri legislature, where one supporter said something about how kids should be learning about math and reading, not about how Billy is in love with a goat.

I could look up the speaker and the quote, but I’m not sure I have the energy. Okay. It was 64-year-old Dwight Scharnhorst (R-St. Louis), whose exact words were: “There’s no need to talk about Billy wanting to marry a goat.”

I was only half joking when I said I lacked the energy to look up Mr. Scharnhorst and his sophomoric remark. By the way, I couldn’t help noticing that Rep. Scharnhorst never graduated from college, so perhaps it’s a compliment to describe him as “sophomoric,” a niveau that appears to represent the pinnacle of his educational achievement. But I do feel a genuine mental weariness these days when I encounter the sort of mindless insult that once provoked shock and awe.
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Last Day at the Zoo

Sorry about the lesbian den mother. We’ll keep an eye on her activities in the future. I was also going to cover a satisfying victory in a federal court in Western Kentucky, where a judge slammed a state government agency for firing a gay man in a clear case of unconstitutional discrimination.

My focus, however, has shifted away from GLBT news to Newt Gingrich, who will reluctantly release his helium filled presidential ambitions to the wind in about five minutes. I have turned on MSNBC in giddy anticipation, and am now looking at a woman with grotesque leathery skin and a disfiguring fake tan.

Well, I just spent nearly 30 minutes listening to the tubby has-been present a lovely tribute to himself, a grandiose farewell, as if an epic battle had been waged but heroically lost. Newt has all the self-awareness of the woman with the horrific tan, who (I’m guessing) imagines that she looks sexy, healthy and rich.

Finally, while I was saying goodbye to Newt, a first-term Republican in the Missouri state legislature, Zack Wyatt, came out of the closet and called for the defeat of the aforementioned “Don’t Say Goat” bill.

“Today, I ask you all to lead, to stand up for freedom and individual rights,” said Wyatt. “Today I ask you stand with me as a proud Republican, a proud veteran and a proud gay man who wants to protect all our kids from bullying in the schools.” Good for him.