Supreme Court or Bust

GLBT Week in Review June 6, 2012
BY ANN ROSTOW


Supreme Court or Bust

Amazingly, our two most significant federal gay rights lawsuits have now both exhausted their runs through the lower courts and will be appealed to the U.S. Supreme Court within the next 90 days.

Woah Nelly!

It’s true! Last Thursday, a three-judge panel of the U.S. Court of Appeals for the First Circuit unanimously struck the Defense of Marriage Act as unconstitutional. With only five active judges on the First Circuit, the House Republicans are expected to appeal to the High Court within the mandatory three-month window.

Then on Tuesday, the full Ninth Circuit declined to review our Prop 8 victory, forcing the Prop 8 proponents to look to Washington as well. Several conservatives on the appellate court joined a frustrated dissent, bemoaning the foreclosure of judicial dialogue on the subject of California marriage equality. Sorry guys. Your role in the case is over.

These two marriage cases are quite different. The first, filed by the Gay and Lesbian Advocates and Defenders on behalf of several married couples in Massachusetts, demands only that the federal government treat gay and straight marriages the same. The second, filed by opponents of Prop 8, can be construed to demand marriage equality throughout the United States.

In light of the all-or-nothing potential of the Prop 8 case, many GLBT strategists would prefer that the Supreme Court hear the DOMA challenge and decline the Prop 8 petition. Yes, the Supreme Court will eventually decide whether or not marriage is a fundamental right for same-sex couples along with everyone else. But if such a question is posed prematurely, the answer might set us all back for decades.

Interestingly, our legal friends, Ted Olson and David Boies, now agree with this conventional communal wisdom, announcing that they will oppose any petition to send the Prop 8 case to the nine justices. You may remember that our Prop 8 team originally wanted the case to hit the High Court as soon as possible, much to the concern of the Gay Law cohort.

Given the timing, the High Court will probably consider these petitions at the start of their next session in October. If they accept one or both, the rulings would be expected about a year from now, at the end of their 2012/2013 term.

At this point, I have to admit that all my Supreme Court speculation has been wrong. Were I the type to do such a thing, I would insert a frowny face emoticon at this moment.

First, I thought the full Ninth Circuit would agree to review the Prop 8 opinion, adding a year or so to that litigation. Wrong.

Second, I thought the House Republicans defending DOMA would ask the full First Circuit to rehear the Massachusetts case. Not only wrong, but uninformed. Apparently, the First Circuit only has six active judgeships, of which one is vacant, so the very concept of the full First Circuit is a bit of an oxymoron. Who knew? Actual lawyers I suppose. Bully for them.

But here’s my point. I’ve been assuming that the bad guys want to delay these cases as much as possible, hoping that Mitt Romney is elected and subsequently gets a High Court pick in his first year or two. Now we know that, barring unforeseen events, this is the Court that will decide our near-term fate. That’s good for us.
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On a Roll

Here’s what else is good for us. It’s been a long time since we’ve lost a major gay rights case (knock on wood) whether it’s been in federal court, or state court. Three lower federal courts have struck the Defense of Marriage Act. Another has struck Prop 8. And now, two federal appellate courts have ruled in our favor.

Meanwhile, we’ve won all sorts of other victories. Bankruptcy judges have ruled that DOMA should not prohibit joint bankruptcies. State courts have allowed same-sex divorces in states without marriage equality. We’ve won discrimination and parenting cases around the country. This week, a New Mexico court ruled against a wedding photographer who refused to work for a same-sex couple on religious grounds. Every week there are state cases that I don’t even bother to cover now that gay and trans rights victories have become routine.

Add to that the legislative victories for marriage this year in Washington, Maryland and New Jersey. The first two must survive repeal votes this fall. The last one was vetoed by Chris Christie.

Finally, don’t underestimate the impact of President Obama’s decision last year to treat sexual orientation discrimination as presumptively unconstitutional. His personal statement in favor of marriage equality was nice as well, but his legal policy has been a phenomenal, and under appreciated, ace in the hole for GLBT lawyers.

So we head to the Supreme Court with a powerful wind at our back. As you probably know, it takes four justices to agree to hear a case. To simplify the situation, the four left-leaning justices will vote in favor of a petition if they think Justice Kennedy is on their side, and vice versa.

I read that Justice Kagan might have to step aside for the DOMA case due to her participation in the matter back in the day when she was Solicitor General. But other analysts don’t think she has any real obligation to do so. And even if she does recuse herself, a four-four tie in that case would uphold the lower court victory.

Keep in mind that several other DOMA lawsuits lurk just behind the Massachusetts case and will see rulings this year. I had also speculated that the Supreme Court might wait for some of these other circuits to weigh in on DOMA before accepting review, but our victory removes that option. That said, strong opinions in the other cases would add tremendous weight to our High Court arguments.

I haven’t mentioned the companion to the Massachusetts case, a DOMA suit brought by the State of Massachusetts that has been argued at the same time. This case, which we also won last week, brings up states’ rights issues of law that don’t fall squarely into the rubric of same-sex marriage. Still, the more defeats for DOMA, the better.
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With Enemies Like These, Who Needs Friends?

As if all this excitement isn’t enough, we have an interesting development in Illinois, where Lambda and the ACLU filed two separate freedom-to-marry lawsuits in state court last week.

Over the weekend, Illinois Attorney General Lisa Madigan announced that she would intervene in the cases… on behalf of the same-sex couples. Thanks Lisa!

Meanwhile, the official defendant, Cook County Clerk David Orr, said in a statement that he hoped the lawsuits would result in “equal marriage rights for all.”

Hello? Who is going to defend the state’s statutory ban on same-sex marriage? I suppose Clerk Orr will have to do so, although as a supporter of marriage equality he’d be a reluctant champion. But what if he refuses?

Unlike the Prop 8 lawsuit, where courts gave the initiative proponents the right to defend their marriage ban, there’s no proposition or amendment here to defend. There is only an act of the legislature. Would a handful of conservative lawmakers seek permission to take the antigay side? Could they win standing to jump into the case? We will see.
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Dead Cat Bounce

You know, I think I owe all readers an apology for my scanty reporting on the latest gay cannibal, Canadian porn star Luka Rocco Magnotta, who was captured this week googling himself in a Berlin coffee house.

The 29-year-old psychopath allegedly murdered his Chinese lover, Jun Lin, in Montreal last month. Magnotta carved up his victim, ate some of his corpse, performed some acts of necrophilia, and sent chunks of the remains to Canadian politicians.

Magnotta then reportedly skipped town, and spent a couple of days in Paris before winding up in Germany.

And here’s an update that makes me feel even worse about my lackluster cannibal coverage. I accidentally lost my news screen on the Magnotta story, and when I googled “cannibal” in order to get it back I ended up reading about a different maniac, Rudy Eugene, who has also been scarfing down manflesh in his spare time.

Eugene, aka the “Miami Zombie,” beat a 65-year-old homeless man, Ronald Poppo, and began eating Poppo’s face before he was shot by police over Memorial Day weekend. Eugene was naked during the 20-minute daylight attack, which was witnessed by everyone who was driving down the MacArthur Causeway at the time.

One of his girlfriends told the press that Eugene was a “sweet loving gentleman” who must have been on drugs, or alternatively, under a voodoo curse.

For the record, Poppo is recovering but faces months of reconstructive treatment.

Returning to Magnotta, briefly, I read here (in the Daily Beast) that the man also posted videos of himself on the Internet killing kittens. For some reason, I am more horrified by the kittens than the cannibalistic murder. I’m not proud of this.

Indeed, the kittens exhausted my tolerance for this gruesome subject and I clicked on a sidebar headline that read: “The 30 Fattest Birds on the Planet.” There, aside from a bunch of really fat birds with their little beaks barely discernable amidst the bird blubber, I found a whole new set of intriguing sidebar headlines.

I was torn between “Some Guy Turned His Dead Cat Into a Helicopter” and “36 Animals That Are Kinda Sexually Attracted To You.” Choosing the former, I was at once back where I started (sad things about cats) and quickly switched to “20 Sloth Smiles, Revealed!” Now, after a few minutes of looking at really sweet, happy sloths, I feel somewhat better about myself and the world in general.
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It’s All So Gay

I’m watching the French Open and feeling glum about the other news stories on my list. There’s nothing bad about them. They just don’t thrill me considering the blockbuster events of the week.

I mean, really. Someone else says John Travolta is gay. The ACLU is going to bat for a high school kid who was told to take off an antigay T-Shirt, illustrating once again the civil libertarians’ even-handed focus on the First Amendment.

Obama issued a Pride statement. Jason Alexander had to apologize for saying that cricket is a “gay sport.” Personally, I think he has a point. The white summer suits with the ties tucked under the third button. The jaunty straw hats. The neatly trimmed grass. The handsome boys watching from the sidelines. Gin and tonics between, um, let’s call them innings. It’s an elegant sport, a languorous diversion for a timeless British afternoon. Like most Americans, I still don’t understand how it’s played, but I think it’s sort of gay anyway.

What else? I think a water polo coach who was fired from a California school for being gay has sued, and some library in Utah removed a book about lesbian families.

Oh, and a New York appellate court ruled that calling someone “gay” is not an act of defamation, which requires that the name-caller make an accusation that is generally considered a bad thing. If someone calls me a “thief,” I can sue. If they call me a “vegetarian,” I can’t. Saying someone is “gay” is now more like the latter than the former, which is a good thing.

Finally, we have a gay super hero, Green Lantern. This Green Lantern is from a parallel Earth, so he’s not the old Green Lantern we know and loved, who remains straight.

To be honest, I have no knowledge of either version. Some quick research tells me that the Green Lantern is a member of the Justice League of America, and has a special ring that gives him power. The ring has to be recharged by a special lantern, hence the name. I’m unclear on why the gay Green Lantern has to be from a different Earth, but I lack the patience for further study.

Maybe we can discuss it next week, if nothing more interesting comes up.
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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.