GLBT Fortnight in Review, March 6, 2013
BY ANN ROSTOW
The Eight State Solution
As the clock ticked down on the deadline to file a brief with the Supreme Court against Prop 8, Obama’s Justice Department came through with flying colors. They were not obligated to weigh on the case against California, and indeed the United States is already a party to our other big case, the challenge to the Defense of Marriage Act, so it’s not as if Obama and company have stayed on the sidelines in the marriage wars. But as the President remarked in a press conference, Obama felt that his administration had a responsibility to take a stand on a major question now pending before the High Court.
As you know, while the DOMA challenge asks only if the federal government has the right to ignore the legal marriages of gay couples in Massachusetts and the other eight marriage states, the Prop 8 case asks the deeper question of whether states can withhold marriage at all. As such, it’s the more profound piece of litigation, and to some, the more dangerous. Many activists, who recognize that things are improving quickly in this country, still wonder whether the Court is prepared to strike the laws of some 40 states next summer.
The answer to that is probably no. But the Court can define the question in more manageable terms, as did the Justice Department in its February 28 brief. Assuming that the Court actually deals with the core of the case rather than tossing it on procedural grounds (a possibility), the justices can avoid the gay marriage superhighway with one of two narrow roads.
The Ninth Circuit’s road limited the case to California, the only state that has authorized marriage equality, let it ride for six months, and then taken it away through a public vote. The 2-1 majority ruled that such a maneuver at the expense of a particular group of people was unconstitutional in any context. In a sense, that opinion did not even turn on gay rights or gay marriage.
The Justice Department has taken a more expansive route. After establishing that gay bias should be evaluated under heightened legal scrutiny, Obama and company insist that a state may not offer all the rights of marriage while reserving the word and the status for heterosexuals. Under heightened scrutiny, a state must provide a solid justification for discriminatory actions. Clearly, no important state interest is served by creating a separate terminology for no purpose other than to demean gay couples.
Significantly, the Justice Department’s rationale also condemns the laws of seven other states that offer all the rights of marriage save the name. Were the High Court to follow Obama’s lead, the states of Oregon, Illinois, Rhode Island, Hawaii, New Jersey, Delaware and Nevada would also have to upgrade to marriage. Not coincidentally, many of those states are poised to fall into the equality column on their own.
It’s likely that the High Court will allow the Solicitor General a few minutes to argue against Prop 8 at the March 26 hearing. That’s usually the procedure when the United States offers an amicus brief in a major case. And make no mistake about it, the decision to weigh in as a friend of the court will have a significant impact on the Court’s deliberations. Further, had Obama taken no action, that caution would have sent a message as well, signaling a yellow light that could have influenced the DOMA case at the same time.
Anyway, it’s good news. Don’t forget that since Obama’s day job used to be “Professor of Constitutional Law,” the Court is likely to take his briefs without salt.
The DOMA case will be argued the morning of March 27. The Court’s opinions are likely to be announced in late June.
--
Illinois on the Threshold
So, speaking of those other seven states where marriage might be just around the corner, Illinois is leading the pack with nothing but a house vote standing in our path. That’s going to be a close vote, however, and it’s not clear exactly when the measure will be brought to the floor. Soon, I think.
Over in Rhode Island, we’re just waiting for a senate vote, another iffy prospect with another vague timetable. Still, both these states are led by friendly governors with pens in hand waiting to sign a marriage equality bill.
As for the other five states on the fast track to marriage equality, Delaware activists keep talking about passing marriage rights this session, although I can’t tell you when that will happen. Last week, our side commissioned a poll that revealed a 17-point margin in favor of equality. That said, I’m not sure how the questions were phrased.
“Do you think same-sex couples should be treated with dignity and respect? Or do you think they should be branded with a triangle and thrown into a muddy pit?”
Oh, I’m sure there’s a majority in favor of marriage rights in Delaware. I’m just not sure we have a 17 percent lead.
As for Oregon, I already told you that we’re planning a 2014 campaign to overturn the state’s constitutional ban on marriage. And in New Jersey, where the legislature passed marriage equality a year or so ago, we have until January of 2014 to override Governor Christie’s 2012 veto. You may recall that Christie suggested at that time that a public vote would be a preferable way to settle the issue of marriage equality, commenting that he was sure black Americans would have preferred a public vote back in the day rather than suffering through a long and violent struggle for civil rights. I don’t have the 1950 polling data on civil rights at my fingers right this second, but if memory serves it fell just short of majority support.
Nevada and Hawaii are not on the brink of legalizing marriage equality, but they are both in the middle of an interesting federal lawsuit. Our legal eagles filed Prop 8-type lawsuits in federal court against both states, and in both cases, we lost at trial. Those suits have been consolidated on appeal to the U.S. Court of Appeals for the Ninth Circuit, and there they sit for the moment as the High Court reviews the very same issues. If the Supremes rule on the merits of Prop 8, they will no doubt settle Nevada and Hawaii cases at the same time.
But here’s a big “if:” Let’s imagine that the High Court dispenses with the Prop 8 case on standing issues and never reviews the meat of the matter. Guess which case moves up to the top of our list of groundbreaking marriage equality litigation? This one. It’s running under the news radar for the moment, but the Hawaii/Nevada case could wind up in the history books as the Brown v Board of gay rights.
--
With Friends Like These
So, the Obama brief was the top headline in marriage news this week. But running a close second were the briefs filed by many of the largest corporations in the United States in favor of marriage equality. One brief, filed as a friend of the court in the DOMA case, included nearly 250 big companies, arguing that the rift between state and federal marriage policies hurts their ability to attract and compensate top talent. The other one, filed in the Prop 8 case and signed by 100 corporations, also focused on employment and steered clear of constitutional issues.
It’s unusual for the business community to weigh in before the Court on a so-called social issue. And it’s unprecedented for the nation’s big employers to take a unilateral stand. There were no corporate briefs for the other side in either case, and although some conservative religious business owners surely oppose marriage equality, the pragmatic arguments in favor of seamless equal rights across state lines are compelling. Just as one example, imagine that one of your top Vice Presidents is married to a gay spouse in New York and you want to transfer him to Texas. You know what? He’s likely not happy about that, and as a boss, you really can’t ask him to give up his marriage for his job.
Will it have an impact on the Court? I think so. I also think the brief filed by dozens of notable Republicans in favor of marriage rights will make a little dent. Obviously, the justices pay more attention to the legal arguments and the official briefs written by the parties themselves. But even though the friends of the court are standing on the sidelines, you can’t help but notice that all of America is standing by our side, while the riff raff and the far right stand alone in their little corner.
--
Yum, Not
Before we go on, I just took a break to read the paper this morning only to discover an irritating article about how to adjust your snacking habits in order to lose weight and improve your health. Here’s the direct quote that I found most annoying:
“Enjoy high protein snacks such as a cup of fat-free, no sugar added plain Greek yogurt and six walnut halves; 3 ounces of grilled chicken breast (no skin); a hard-boiled egg; or one tablespoon of peanut butter on a celery stick.”
First of all, the verb “enjoy” does not belong at the beginning of that list. Second, none of the aforementioned suggestions qualifies as a “snack.”
When you “enjoy” a “snack,” you’re reheating the last slice of last night’s pizza, you’re not boiling up an egg or pulling the plain fat-free yogurt out of the fridge. Indeed, the plain yogurt is meant to be left on the back shelf for several months and then thrown out with the rest of the unpleasant but healthy foods that you bought on a whim (thanks to articles like this one) and subsequently rejected. The other day I threw out a year-old bag of raw flax seed that fell under this category.
Back in my youth, I used to diet simply by limiting my calories. Ten raw oysters and a vodka gimlet or two for lunch. A couple of snifters of cognac for dinner. Throw in a dozen cups of black coffee and a pack of cigarettes and the day was a success. I actually know this because I recently found a little book I used to track my calories when I was in my mid-twenties. The previous entry was marked with three stars because it was under 1,000. Bravo! Oh, and for the record, this system worked.
--
Mystery Surrounds Murdered Gay Pol
What else is new, you wonder? Well, I keep stumbling over an article about two men who got kicked out of a mall somewhere for kissing. Then, there’s the news that several potential NFL rookies were asked about their sexual orientation during the recent pro football tryouts.
But the most disturbing development concerns the murder of openly gay mayoral candidate Marco McMillian, 34, whose body was found in a levee near his hometown of Clarkesdale, Mississippi, last week. Although the media has suggested that McMillian’s body was beaten and burned, the New York Times reports that the cause of death is still unclear. According to the coroner, the Times reports, McMillian had a black eye and a few small burn marks, but none of his injuries would have killed him.
Was it a hate crime? It’s possible that the answer could be no. After all, gay men and women can get murdered just as randomly as anyone else. Still, it makes you wonder when a public figure of sorts gets killed in a small conservative town. Police have arrested 22-year-old Lawrence Reed, who was found driving McMillian’s SUV, but they seem to think the murder was “personal.” According to reports, McMillian and Reed had been seeing each other for a short time.
The National Black Justice Coalition has asked the U.S. Justice Department to investigate the murder as a hate crime, either racial or gay. Since both men are African American, it seems more likely that the killing could have been a case of gay panic. In any event, the GLBT community has lost a rising political star from a part of the country where gay leaders are few and far between.
--
arostow@aol.com
No comments:
Post a Comment