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.