RIP Sarria

GLBT Fortnight In Review, August 21, 2013

BY ANN ROSTOW

 

RIP Sarria

 

I’m sure San Francisco readers have heard about the death of Jose Julio Sarria, The Widow Norton, who died of cancer in New Mexico at the age of 90 the other day. When I lived in the Bay Area in the 1990s, Sarria was considered a colorful character in our community, always good for a flamboyant laugh. But when you consider what this man did for gay rights and gay visibility at a time when we were universally despised and ridiculed, you recognize that beneath the stereotypical diva persona was a tough activist, with the type of courage a Navy SEAL could only aspire to match.

 

Luckily, none of us in younger generations need face the waves of hatred that washed over our predecessors. For all that we have to complain about (and we still have quite a bit) the world has moved far beyond those days, and we have people like Sarria to thank for that.

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Land of Enchantment Stepping Up

 

And speaking of New Mexico, the Clerk of Dona Ana County has decided to offer marriage licenses to same-sex couples, even as litigation continues to move through the state court system. You may recall that a clerk in Pennsylvania did the same thing last month, triggering a lawsuit from the powers that be in the Keystone State.  In New Mexico, however, the rogue move has legal foundation in an opinion from the state Attorney General, asking the state high court to declare bans on marriage unconstitutional.

 

Recently, the New Mexico supremes refused to fast track the two marriage equality cases that are now pending in lower state court. The decision to effectively delay the cases led Clerk Lynn Ellins to determine that same-sex couples in her county should not have to wait a year or longer to tie the knot, particularly now that the Supreme Court has struck the Defense of Marriage Act.

 

The High Court’s DOMA ruling has no technical bearing on state law, since it only concerned the question of whether the federal government has the right to discriminate between gay and straight married couples. But there’s no question that its underlying support for equality has had a broad impact on public officials and other courts. And, well, let’s just say that it feels as if the High Court’s twin rulings have tipped the playing field in our direction.  

 

Hawaii, meanwhile, is the latest state to begin a hard push towards legalizing marriage by legislative action. Hawaii is, of course, the birthplace of court-ordered marriage equality, even though the pro-gay decisions of 1993 and 1996 were rebuffed by voters. But the Hawaii voters who amended their constitution in the late 1990s did not pass the usual type of marriage ban. Instead, the constitutional amendment allowed the legislature to declare that marriage was a heterosexual union. That means that the legislature can reverse itself without violating the antigay amendment, and it looks as if they will work towards that goal this fall.

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My Summer Vacation

 

You know, there are other gay marriage stories floating around this week, but the plot lines remain the same. We want equality. Many people agree that equality is right and inevitable. We are making progress in courts and legislatures.

 

That said, why belabor the details? Instead, let me tell you about our trip to the Solheim Cup in Parker, Colorado last week. A couple of years ago we went on an Olivia cruise, and there were moments last week that reminded me of an Olivia cruise on land. That said, we wished Olivia had been in charge of logistics because much of the week devolved into a zoo of long lines, long waits, long walks and unnecessary mishaps.

 

We tromped around this lengthy golf course in 95 degree heat at an altitude of God knows how high until we approached cardiac arrest. We had no idea what was happening because there were very few signs. When we arrived at a green, we were quickly displaced by more aggressive fans who blocked any view of the players. When we splurged on the special bar pavilion, they stopped checking passes so the whole place was overrun and the bar lines were 45 minutes or longer.

 

We had a horrible meal at an expensive French restaurant. The next night, after one too many gin and tonics, Mel and I had one of our rare fights because I could not decide on a restaurant. She suggested I drop her off at the hotel and “go wherever I liked.” We ended up eating cheese and pouting in our hotel room. (At least it was cheaper than the French place.)

 

To top it off, as many of you golf fans are aware, the American team was quickly in the hole and wound up losing by the largest margin in the history of the Solheim Cup. Our car rental was double the expected price. The hotel pool was set at the temperature of the hot tub. And we got continually lost, even after four or five days of driving the same route. That said, there were a lot of lesbians! I love lesbians, but not even our many sisters could save this trip from near disaster.

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Most Annoying State Ever

 

So, I think I read that Thailand was considering marriage equality. As I implied earlier, I’m kind of tired of endless marriage news, so I did not read carefully. Plus, I associate Thailand with child prostitution and soapy tasting lemon grass, so whatever. Still, it would be nice.

 

I suppose I must add that the New Jersey marriage lawsuit was argued in lower state court on August 15. I’m frustrated by this open-and-shut case, which continues to crawl laboriously through the Garden State courts, even as the outcome is not in dispute. As you may recall, the New Jersey Supreme Court has already ruled that gay couples must be given the same benefits as their heterosexual neighbors. The pathetic civil unions that were put in place to achieve this goal are clearly insufficient to meet the test of “equality.” And yet the state supreme court has forced us to litigate this complaint from scratch, starting with the lower courts and eventually returning to the justices.

 

It’s not fair! Let’s imagine that I sued you for $100 and the New Jersey Supreme Court ruled that you must pay. Instead of complying, you only give me $50. I go back to the Supreme Court to demand that the justices enforce the original ruling, but instead of backing me up, they make me file a new lawsuit to get the full amount. That’s exactly what has happened over the last several years in New Jersey and it’s more than infuriating. Add to that the fact that the legislature has also passed marriage equality, only to see it vetoed for no reason by Chris Christie, and you can put New Jersey at the top of the list of States That Should Have Marriage Equality But Don’t Due To Public Cowardice.

 

Christie did sign the ban on reparative therapy recently passed by the legislature the other day, but so what? Are we supposed to give him a nice pat on the back? I don’t think so.

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Juliet and Juliet Sage Continues

 

Do you remember the story of Kaitlin Hunt, the teenaged Florida girl charged with some horrible sounding sex crime for having a love affair with a younger classmate? Since the girls were something like 14 and 18, the tryst violated some state law and Kaitlin found herself facing jail and sex offender status. The DA offered a deal that would have given Kaitlin a couple of years of house arrest and would not have forced her to become a sex offender, but the Hunt family declined the deal.

 

Kaitlin became a cause celebre in the GLBT community, complete with a Facebook page championing her unfair dilemma. And it was unfair. Teenagers, whether gay or straight, should not be threatened with prison for having affairs for God’s sake. It’s crazy. What should the age range be? I don’t know. Five years maybe? But in any event, we (the gay community) also felt instinctively that Kaitlin was also being targeted because she and her friend were lesbians.

 

As you may know, so-called Romeo and Juliet laws exist to make sure that innocent teens don’t suffer the same fate as older predators. In the past, we’ve seen cases where Romeo and Juliet laws don’t apply to gay teens, and at first I assumed this was the situation in Florida. But in fact, Florida’s Romeo and Juliet law applies to everyone, including Kaitlin. The law, which covers consensual affairs between kids 14 and older who are involved with someone within four years of their age, simply allows the prosecutor to offer exactly the deal that was offered to Kaitlin, to wit a period of house arrest with no sex offender status.

 

The question remained as to whether Florida had historically turned a blind eye to straight teen “offenders,” but I haven’t read anything to suggest that this was the case. Ergo, although the situation was absurd, it did not appear to be antigay.

 

But we still supported Kaitlin, because c’mon! We’ve all been there. The girls were in love, and there’s nothing like being in love when you’re a teenager. It’s insane. I remember when my first love broke up with me, I decided I would quit college, move to her house and lie outside on the street for days and nights if necessary until she changed her mind. (It never occurred to me that this course of action might render me less attractive as a potential girlfriend. And no, I did not follow through with the plan.)

 

So here’s the latest. Kaitlin, who has been waiting for the next developments in her case, has been arrested and tossed in jail for violating the court’s requirement to avoid contact with her girlfriend. Instead of keeping her head down, she has been texting and sexting hundreds of messages, news reports say. The DA has now withdrawn any and all plea deals and is charging ahead towards trial. Kaitlin, Kaitlin, Kaitlin.

 

As we mentioned, a teenager in love is not in possession of a right mind, particularly a lesbian if you’ll permit me to generalize. Asking Kaitlin to avoid contact was like asking a hungry dog to stay away from the T-bone you just placed in his dish. But still. Honey, could you have just sucked it up for a few weeks until this ordeal was behind you? As for the DA, do you really want to put this kid behind bars? Is that why you went to law school?

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Young Love

 

Finally, speaking of prison, my friend and colleague Kim Corsaro inspired us to watch the first season of Orange is the New Black on Netflix. It’s one of those potato chip series, much like Homeland and House of Cards, that you can’t stop consuming from one episode to the next even as the clock strikes midnight and later.

 

It almost, and I repeat almost, made me want to go to prison myself. I can only hope that if Kaitlin is sent away, she emerges with a fabulous book or movie deal, assuming she’s a good writer. Surely Hallmark or Lifetime will consider an offer.

 

And now, I find myself with another paragraph to write. Not enough space for a new topic, and yet it’s too soon to draw this column to a close. Oh, but here’s a perfect tidbit for the Bay Area reader. In fact, maybe you already know that Steve Young and his wife are supporters of same-sex marriage, and even put a “No on Prop 8” sign on their lawn back in 2008.

 

Now, the masterful Mormon quarterback and his wife are scheduled to speak to gay Mormons at a conference in Salt Lake City, in part because Steve’s wife’s brother is gay. Did you already know that? Sorry, it takes time for these things to travel to Central Texas.

 

Hey. Speaking of Steve Young, are you ready for some football?

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arostow@aol.com

The Heat Is On

GLBT Fortnight in Review, August 7, 2013

BY ANN ROSTOW

 

The Heat Is On

 

August in Central Texas is not a happy time. You know those scenes in horror movies where the scientists are working at the South Pole and have to plod from one metal building to the next in order to confer with a colleague? The laborious hundred yard trek takes forever. Their breath freezes. Their faces and beards are covered with ice. And their colleague has been half eaten by a mutant Arctic spider, so the whole errand was pointless in the first place. Austin in deep summer is just the same except in reverse and (as a rule) without the mutant spiders.

 

But at least I have the small solace of being able to enjoy my annual use of the word “canicula,” which is one of those words that becomes pretentious if tossed out more than once or twice a year. (Mentioning the word itself outside of its use in context doesn’t count.) I haven’t decided whether to use it this week or in the next column. We’ll see where it might apply. But I know it’s available, just waiting for me. The pleasure is akin to writing about an event that destroyed 10 percent of some population and being able to use the verb “decimate” with complete accuracy even as it defies its common definition.

 

Normally, the torpor that settles into the depth of the canicula saps the energy from our GLBT news, leaving us with a desiccated hull of old stories and dry statistics. But not this year. The High Court’s gay rights decisions in late June have flowered into many blossoms of new court cases, new legislative optimism, and new attitudes across a range of public forums. The twin victories have strewn a potent fertilizer on GLBT issues across the land, and it seems as if every case and controversy is taken seriously and/or reviewed in our favor. If I can extricate myself from this labored analogy, I’ll compile some examples.

 

For one thing, it feels as if we are winning the sort of legal disputes that used to be aborted by the first court that took a look. You may remember the two Ohio men, who convinced a judge to order the state to recognize their Maryland marriage on an impending death certificate last month. (One of the men is dying.) This month, a federal court in Pennsylvania has ordered a law firm to pay a death benefit to the widow of one of their lawyers who died of cancer. Previously, that death benefit of about $50,000 was earmarked for the dead woman’s parents, who disapproved of her same-sex marriage.

 

The House Republicans who defended the Defense of Marriage Act across the board have now abandoned any and all legal activities, period. They have withdrawn from all pending cases even though they could theoretically have developed alternative anti-marriage arguments in the wake of the Windsor ruling.

 

Public support of gay rights and marriage equality is growing or holding steady in the aftermath of the decisions. Politicians are either jumping on the marriage bandwagon, ducking the subject, or issuing vague remarks that would have been hailed a decade ago as a sign of progress. A raft of new lawsuits have been filed by our legal eagles, as well as another handful by individuals acting on their own. A county official in the Philadelphia area has begun offering marriage licenses in defiance of state law, and although that action is heading for the courts, the move feels less like a symbolic gesture ala San Francisco in 2004 and more like a harbinger of future state policy.

 

Is a backlash, or a mini-backlash in our future? I don’t think so. Instead of two steps forward and one step back, we seem to be moving ten steps forward and six inches back, an encouraging pace indeed.

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There Oughta Be a Law

 

The sheriff of East Baton Rouge has apologized for a prolonged park sting operation in which a dozen or so men were arrested for soliciting a felony under the Louisiana sodomy law. After the High Court struck sodomy laws as unconstitutional, they still remained on the books in states, like Louisiana and Texas, where lawmakers simply refused to repeal them on principle. Of course the sodomy statutes were unconstitutional. But apparently, that didn’t stop the Yahoos in East Baton Rouge from sending undercover cops into the park for a two-year sting fest.

 

Once the men were arrested, the charges were subsequently dropped by district attorneys familiar with the notion that unconstitutional statutes no longer carry penalties. But they were arrested nonetheless! Not a pleasant process, I’m sure.    

 

In an even stranger case, the distasteful Virginia Attorney General and gubernatorial candidate, Ken Cuccinelli, is trying to restore a version of his state’s flat ban on anal and oral sex that would only apply to 16 and 17 year olds.

 

Let’s back up for a minute. The Virginia sodomy ban, which applied to everyone, was effectively struck by the High Court along with all the other state bans on consensual non-commercial sex. But naturally, it remained on the books as a symbol of the Loving State’s commitment to, ah, traditional intercourse.

 

Along comes a 47-year-old guy, who sounds like a bit of a sleazebag frankly, who tried to convince a 17-year-old girl to give him a blow job. Since the age of consent is 15, the man broke no law in his efforts. Nonetheless, he was charged under a law that makes it a felony to solicit a minor to commit a felony. The girl was a minor, but the suggested underlying felony was based on the technically defunct sodomy law. Nevertheless, he spent a year in jail and had to register as a sex offender.

 

In March, the U.S. Court of Appeals for the Fourth Circuit ruled in favor of Mr. Blowjob and told Virginia to shove its sodomy law where the sun don’t shine, Cuccinelli has appealed to the U.S. Supreme Court, arguing that the state law could survive the Lawrence decision if it applied only to minors under 17, but above the age of consent. Following this line of thinking to its logical conclusion, Cuccinelli’s Virginia would allow a high school junior to have intercourse, but not oral sex--- regardless of sexual orientation by the way.

 

I can’t imagine that the justices would bother with Cuccinelli’s appeal, but still! The man’s a freak. Keep an eye on the election this November and hope that Terry McAuliffe can pull out a win. Last month, the Democrat led Cuccinelli by a few points.

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Cold War

 

The biggest GLBT news story this week is one that we will be talking about for the next six or seven months. I am sort of sidestepping the discussion only because I know it will be a major topic of debate for the near term.

 

I’m talking, of course, about the Winter Olympics in Russia, where just a few months ago, the country instituted a nationwide ban on pro-gay “propaganda,” a law that prohibits pride demonstrations, gay civil rights statements or writings, rainbow flags, or anything else you can think of.

 

What do we do about this? It feels too late to change the location. And we know from experience that Olympic boycotts are problematic. Olympic rules, in turn, forbid political statements at the games, so athletes who protest might run into sanctions. Or would they? Although the Olympic officials have been dithering around, I would think that in this situation they could simply turn a blind eye to any athlete who wears a rainbow pin or defies the law in a gesture of solidarity.

 

Meanwhile, the International Olympic Committee claims that Russian officials have assured them that the law will not be enforced against visiting athletes. Really? The St. Petersburg politician who authored the first “no promo homo” law in his own city insists that the law’s the law and no one can ignore it. That said, he might just be a rightwing blow hard with no influence on the situation.

 

Some are calling for a boycott of Russian vodka, Stoli in particular. The brand is owned by a Luxembourg-based parent company, but the ingredients are still Russian and hey, it’s a matter of principle. We’re also boycotting Russian products in general, so you can say goodbye to the little nesting dolls and go buy your caviar from Iran.

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I Heart Uruguay

 

So, Uruguay did legalize marriage equality the other day. I was confused about that, but the news is good. And the full U.S. Court of Appeals for the Third Circuit has ruled that the middle school girls who were disciplined for wearing plastic bracelets reading “I (heart) boobies” can continue sending their coy breast cancer message.

 

The school in question argued that the bracelets were too provocative for middle school and could lead to other, more salacious bracelets, operating under cover of the First Amendment. Schools do have the power to regulate disruptive clothing to an extent, but the courts have determined that the booby bracelets are simply not that big of a deal. Further, the Third Circuit judges ruled, the school is not allowed to prohibit a political statement based on the fear that some other sexier manifestation might arise. Presumably, if an “I (heart) big dicks” bracelet were to circulate, the school could take action at that time.

 

The news is interesting to us, obviously, because the tension between schools and First Amendment rights so often rises to the surface in gay cases. This time it’s a breast cancer bracelet. Next time, it could be another gay rights T-shirt and a school that claims erroneously that such shirts bring sex into the classroom.

 

Oh, and how about this little vignette? Apparently, back in late June, the driver of an airport shuttle in Albuquerque made a gay couple go sit in the back of the bus because they were holding hands and singing. The owner of the shuttle company suspended the driver and apologized to the men, and the mayor has called the driver’s behavior “inappropriate.” See? It’s just as I was saying at the start of this column. This sort of incident would have been ignored or laughed off a few years ago. Now, even the mayor feels obliged to speak out.

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Christians Behaving Badly

 

While we’re in New Mexico, keep an eye out for a key state supreme court ruling on whether a wedding photographer has the right to refuse a lesbian client under the state’s antidiscrimination law. Oral arguments were heard in March, so a ruling could emerge any day. And as you know, this is far from the only instance of a Christian business owner claiming immunity from state laws based on religious freedom.

 

For example, there’s another case pending in a lower court in Washington, where a florist refused service to one of her regular customers, a gay man who was getting married. Again, the florist claimed that supplying a gay wedding would violate her religious beliefs. This case has been combined with a complaint brought by the state attorney general against the florist, so the florist faces both her rejected client and the state government itself.

 

I will save my usual rant over misplaced religious freedom for another column, but I did read recently that most Americans believe small businesses should be allowed to refuse service to gays on religious grounds. Interestingly, the same survey noted that most Americans do not believe that atheists should be allowed to refuse service to Christians.

 

Think about this for a minute. It shows that no matter how far we have come, we still fall far short of winning the hearts and minds of our heterosexual fellow Americans. You cannot simply “believe” that disapproval of gays is a religious commandment any more than you can “believe” that racism is based on scripture and protected by the First Amendment. Well, I should say that you can believe anything you like, but such a belief should not be given automatic credence when a court of law examines your claims. I mean, really. Could the florist deny service to a Muslim? Answer, no.

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arostow@aol.com

 

 

 

 

Finishing the Job

 

GLBT Fortnight in Review, July 10, 2013

BY ANN ROSTOW

 

Finishing the Job

 

Our twin Supreme Court victories may have been short on explicit legal reasoning, but they have delivered a powerful shot of adrenaline into an already energized GLBT civil rights movement. That’s essential, because as Freedom To Marry’s Evan Wolfson reminds us, we cannot sit back and expect marriage equality to roll effortlessly over the country like a warm tide. We must continue to work for it, and we must work hard.

 

I know it has seemed easy enough over the last few years, hasn’t it? But underneath the rising support have been sophisticated educational programs. Our legislative wins have been well organized by savvy political activists. The referendums we’ve won have been fought with technical acumen. And the arguments that have secured court rulings in our favor have been polished and perfected by GLBT lawyers for decades.  Success hasn’t fallen into our laps. We’ve earned it. And much of it has been paid for with small donations from average GLBT citizens as well as larger gifts from our richer brothers and sisters and our allies.

 

On Tuesday, Freedom To Marry released a new roadmap for “finishing the job” of bringing marriage equality to every state in the nation. Clearly, the end game will find us back before the nine justices. But before that day arrives, we must build “a critical mass” of equality states, and an “undeniable momentum” in public opinion. Without first meeting those conditions, we are unlikely to win our next High Court showdown.

 

According to Wolfson’s group, the critical mass is at least 20 states, or roughly half of the American population. The undeniable momentum would be public support of at least 60 percent and rising. Freedom to Marry thinks we can meet these goals by the end of 2016, and indeed that seems doable.

 

First, we can ask the states with civil unions to upgrade to marriage equality. With the demise of the Defense of Marriage Act, such states are no longer offering equal benefits to same-sex citizens. Indeed, the Obama administration has bolstered this argument by making clear that the federal government will not recognize state-specific partnership regimes. We’ve always called them second-class statuses. Now there’s no question that civil unions are discriminatory, plain and simple.

 

New Jersey is a particularly blatant case, since the state supreme court has already ruled that same-sex couples must be equal to their heterosexual neighbors. Ever since the legislature reacted to that ruling with a civil union law, our side has argued vociferously that New Jersey’s unions fail to meet the test of equality that the court purported to enforce. We’ve been litigating this issue in state court for a couple of years, but after the Windsor ruling, Lambda Legal has amended its complaint and asked for quick summary judgment in our favor. Do civil unions provide New Jersey citizens with equal marriage rights? Hell no.

 

But even in states where courts have yet to order equality, the case against civil unions is now clear. Those states are proliferating, and could upgrade to marriage either through court action or through political will.

 

Second, several of the states with antigay constitutional amendments are likely to repeal those amendments if the electorate gets another chance to vote. That is what we hope will happen in Oregon next year, when voters will be asked to reverse their amendment and legalize marriage.

 

Third, another handful of states where no amendment is in place could legalize marriage equality through the political process. Illinois has passed marriage equality through the state senate, and although we haven’t amassed the necessary votes in the house, they could be there by this fall. In the aforementioned Garden State, lawmakers have already passed marriage rights in a bill that was vetoed by Chris Christie. It’s not impossible that our side could override that veto with a two thirds majority before next year.

 

Finally, we have the federal option. These are the Prop 8-style cases we bring in federal court, arguing that the antigay policies of Your State Here violate the U.S. Constitution. We already have federal cases in progress against the states of Hawaii and Nevada. This week, the ACLU filed suit against Pennsylvania, and announced plans to file federal marriage cases against Virginia and North Carolina. I think there may be another one or two floating around because I have lost track and become confused as our national litigation strategy has flowered over recent years.

 

Marriage will be won or lost on the back of one (or more) of these Prop 8-type lawsuits. The Hawaii and Nevada cases are being heard together by the Ninth Circuit; the others are just getting started. As such, potential scenarios abound.

 

What if the Ninth Circuit rules in our favor a year or two from now? If the High Court ducks an appeal, marriage could be legal throughout the western United States. If not, this will be the case that decides our fate, maybe four or five years from now. What if the Ninth Circuit rules against us? Will we suffer defeat and try our hand in a different circuit? Or will we roll the dice and petition the justices? Would that be asking for trouble? Maybe so.

 

You can see that in order to win the war, we have to win many if not all of the battles. I was just listening to an interview with Justice Kagan, who was asked to what extent the High Court pays attention to polls and public opinion. Our decisions are not based on polls, she said (and I paraphrase) but nonetheless, we live in a real world and we don’t close our eyes and ears to the changes in society and public attitudes.

 

Surely, to return to the original premise, we cannot approach the Court for a final decision without the clear weight of public opinion on our side, as well as the clear sense that marriage equality is a dictate of our history and our constitution.

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Sidetracked

 

I almost kept riding the above train of thought that has chugged easily through the first thousand words of this column. But really, why? You get the picture. Isn’t there anything light and fun, dare I say it…gay…to write about? Let’s disembark at Petticoat Junction and share random musings at the Irrelevant Cafe!

 

My wife Mel decided to remove a pug stain on the carpet in our bedroom. When the stain didn’t resolve itself, she scurried off to Home Depot and bought an expensive rug machine with a pet attachment. She then removed all the furniture from the bedroom and treated the entire floor. Now, she’s decided to paint the bedroom baby blue since the furniture is out. I would normally be glad to aid in this evolving project, but unfortunately I have to write this column. I suspect that it will take me hours to finish. By that time, she will probably have knocked down a wall or two.

 

Meanwhile, although not a trial watcher by nature, we have been following the travails of Mr. Zimmerman, who appears to be wriggling out of criminal charges for murder. How on Earth can you get out of your car, stalk an innocent teenager through a dark subdivision, shoot the unarmed kid through the heart…and claim it was all the kid’s fault? Even if Trayvon had turned around and confronted Zimmerman, or even knocked him down or whatever, why wasn’t it Trayvon who was acting in self-defense? Surely it is not self-defense when you create the very circumstances that require defense in the first place. Can a burglar claim self-defense after breaking into a house, getting caught, feeling threatened, and then killing the home owner?

 

Let’s just say that we don’t get it.   

 

So, I read that Alec Baldwin succumbed to one of his deranged fits of temper and called someone a “toxic little queen,” along with a few other antigay epithets. We have all been urged to tear up our Capital One cards to teach the man a lesson. I think he apologized to the GLBT community but quite frankly, I have not done a great deal of research on this incident. As such, I cannot recommend a course of action.

 

Now here’s something. I just read an article in USA Today that tells me there are some gay men and lesbians who might not get married, even if and when they have the opportunity. So say the “experts” consulted for this piece, who also note that many straight people do not marry for a variety of similar reasons.

 

Don’t you hate contrived topics? What next? Some animal lovers don’t have pets? Some children don’t like ice cream? I particularly object to the stories that single out the one gay person in America who actually opposes same-sex marriage because he or she is unhinged in some way, and deliver a profile under a headline like: “Gay Community Divided on Marriage Rights.”

 

Hey. Check out the cool youtube video called something like “All American Boy,” a musical vignette about a guy who falls in love one night at a party around a campfire. It’s become an instant hit. It’s like a novel in five minutes.

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Watching Paint Dry

 

Where else can our banter take us? Mel went to buy paint by the way, so I figure I have to drag out the end of this column for another three hours or so. There have been some antigay attacks in Macedonia, so be forewarned if you’re headed to the Balkan Peninsula.

 

Here’s a perfect topic. Let’s analyze this letter to a conservative advice columnist in the Washington Times: The letter writer’s daughter goes to a Christian school where one of her classmates told everyone he was gay. The kids didn’t seem to care! “How can we help our kids to understand the principle of ‘loving the sinner but hating the sin?’” asks the parent, “when their gay friends--- who are terrific, loving and even faithful people--- seem perfectly normal and acceptable?”

 

I had to check to make sure this wasn’t an Onion letter. In fact, the letter writer sounds exactly like the alter ego I developed for the Bay Times in the 1990s, Nan Parks. Nan was a fictional Marin County housewife who was oblivious to her many contradictions and prejudices. This is exactly the sort of dilemma that would confound her. According to the person who provides the advice, this situation is a teaching moment when the parent can explain just why sex should be reserved for an effort to procreate within a heterosexual marriage. That should go over well, particularly since the boy in question never said anything about sex to begin with.

 

And people wonder why the generations now reaching maturity or moving through young adulthood seem to support our cause? What’s a conservative parent to do when today’s gay and lesbian teens defy the stereotypes of the past by being terrific, loving, faithful and most importantly, confident of their human value?

 

The answers to this question, as reflected in the vague blandishments of the Times advisor, are now in short supply. Where once we could simply demonize the offending classmate, we must now resort to scriptural arcana and stern warnings about premarital sex. Good luck with that, Christian Mom and Dad!

 

The painter has returned with a three-pack of Ferrero Rochers for me and a jar of pickles for herself. Outside, the day is windless and the Texas heat has swelled to triple digits. A few miles away, our legislature is about to pass the anti-abortion bill that we killed two weeks ago before our despicable governor called another special session.

 

We Texas democrats can’t be anything but pleased by the news that Rick Perry will not run for yet another term, and indeed, many of us look forward to a Perry Presidential run, when we assume Perry will again make a fool of himself. The man is not very smart. But he is extremely self-important and has evidently convinced himself that his 2012 stumbles were an anomaly and that better preparation will lead to success. He is wrong and we look forward to watching him overreach once again.

 

Unfortunately, our conservative neighbors will most likely elevate Attorney General Greg Abbot to the governorship, which believe me, will do nothing to improve Texas politics. That said, we have a year and a half before the election, and miracles do happen.

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arostow@aol.com

 

We Survived SCOTUS Review Without Bad Things Happening!

GLBT Fortnight in Review, June 26 2013

BY ANN ROSTOW

 

 

We Survived SCOTUS Review Without Bad Things Happening!

 

I’m writing this column just an hour or so after the High Court released its DOMA and Prop 8 rulings. My first reaction? A big sigh of relief. Of the several bullets and indeed cannon balls that could have been aimed at our communal direction, we dodged them all. Or to keep the metaphor coherent, the ammunition was not fired.

 

There was no comment whatsoever on the merits of the Prop 8 case, and of course, the statute is basically dead, with marriage to resume promptly in the Golden State. Yes, there could be some legal hiccups, but nothing that can’t be cured with a teaspoon of sugar. Plus, even if some reactionary clerk tries to sue, his or her case will be a sideshow against a backdrop of marriage equality.

 

Some of you might be disappointed that the High Court declined to strike Prop 8 as unconstitutional, effectively legalizing marriage equality around the country. But that was never going to happen. Any commentary from the Court on the merits was bound to be negative. Even a ruling that killed Prop 8 on narrow grounds would have come back to bite us by its very narrowness. The only positive outcome was the one we got; a decision that the proponents of Prop 8 lacked standing to appeal under federal law. The only good ruling we could have expected was the one we got; a tedious discussion of Article III with no reflection on the issue of marriage equality.

 

As an aside, let’s note that our legal eagles at Gay Law Inc. were right from the start. The fight against Prop 8 was a dangerous roll of the dice and as the decision approached, we were at the edge of our seats with anxious fear. Let’s also note that the dare devils who pursued the case succeeded in abolishing Prop 8, a magnificent accomplishment. Let the historians of the fight for gay rights make of that what they will.

 

Now for the Defense of Marriage Act. How could we not be elated at the demise of this horrible law? How could we not be thrilled that the Supreme Court of the United States has forced the American government to recognize legal same-sex marriages? Well actually, it would be churlish not to be elated and I am drinking Champagne at the moment. But I will drink Champagne at the drop of a hat so that’s not saying a great deal.

 

But I was disappointed. I have only read Justice Kennedy’s opinion once, and briefly at that. But like his opinion in Lawrence v Texas, it’s short on the kind of hard-nosed legal pronouncements that create lasting precedent. Was it an equal protection ruling? Sort of. Was it a due process ruling? Sort of.

 

Are gays and lesbians deemed worthy of more exacting court scrutiny when their rights are compromised? Um, maybe a little.

 

And what about DOMA itself? Kennedy wrote that Section Three (the part that denies federal recognition to gay couples) was “invalid” and that the ruling of the U.S. Court of Appeals for the Second Circuit (a broad one) was affirmed. What could be clearer, right?

 

Not so fast. He also appeared to limit his ruling to married couples who live in a state that recognizes same-sex marriage. I say “appeared,” because this is another aspect of the opinion that remains cloaked in needless murk. Think about this for a second. Personally, I live in Texas but got married in California in 2008. Are Mel and I recognized as married under federal law? Possibly not. But if not, exactly what federal statute remains to nullify our marriage? Not section three of DOMA, because that section is “invalid.”

 

Yet rather than make this clear, Kennedy concludes his opinion with a discussion of how states that have extended respect and equality to same-sex couples cannot be undermined by a federal government that refuses to acknowledge those couples. In his final sentence, he adds: “This opinion and its holding are confined to those lawful marriages.”

 

What are “those lawful marriages?” In his dissent, (which primarily focuses on a side issue of the U.S. government’s standing in this case) Chief Justice Roberts seems to think that the ruling does not cover any couple living in a non-marriage state. What if a married couple moves away from California or Massachusetts to Texas or Oklahoma?  Is this a subject for some future litigation? It seems so, and that in itself illustrates the weakness of Justice Kennedy’s opinion. He came to the right result, but failed to back it up with tough, dependable jurisprudence. If the federal government violates equal protection by treating gay married couples in Massachusetts differently than straight married couples in Massachusetts, then surely it violates the same legal principles when it treats those same couples differently after they both move to Kansas. If not, why not? And don’t forget that the right to interstate travel is considered fundamental and indeed inviolate under the Constitution.

 

The bottom line is that we still await our landmark civil rights ruling. We still await the opinion that will go down in history along with Brown v Board and Loving v Virginia. That said, both those opinions were preceded by other less significant victories and indeed, you don’t get to the top of the mountain without ascending through the various base camps.

 

In his typically sarcastic prose, Justice Scalia indicates that we are now all waiting for the other shoe to drop. After accusing the majority of a muddled excuse for an opinion, he notes that the language barring federal discrimination works just as well to deny state discrimination. And he effectively repeats the observation he made in his Lawrence dissent, that the majority rationale leads directly to legalizing marriage for gay couples.

 

He’s right of course. In Lawrence, Kennedy implied that gay men and women have the same fundamental right to privacy under the Due Process Clause that protects the marriages of heterosexual couples against state interference. But as mentioned earlier, he glossed over that implication, and by doing so he managed to strike sodomy bans without putting a High Court stamp of approval on marriage.

 

Here, Kennedy did not face the question of whether a state has the right to deny marriage equality to its gay citizens. He faced only the question of whether the federal government can turn away once a state has done so. But even his somewhat vague rationale for striking the Defense of Marriage Act (which lacks any rationale based on anything other than the bare desire to harm) works just as well for any state. Indeed, the problem for the courts is that once you recognize the humanity of gay couples and the equal rights of gay individuals, you find yourself on a straight road to equality with very few off ramps.

 

The good news is that just a decade or so ago, courts would twist themselves into knots in order to preserve the traditional definition of marriage. Now, they are twisting themselves into knots in order to avoid the kind of opinion that their grandchildren will read with dismay. One of these days, and it’s already happened in several courts, judges and justices will be able to give themselves up to the relief and pleasure of writing a strong, coherent account of how and why gay men and women fit into our Constitution’s guarantee of liberty and equal rights. Until then, we are left with partial victories, which are so much better than partial defeats. Pass the Champagne!

 

Oops. We’ve finished the bottle.

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What Now?

 

Let’s move on to the practical implications of these rulings for the future. Leaving aside the question of whether or not the legal precedent has teeth, there’s no doubt that the decisions will have a huge impact on public opinion and political action.

 

California marriages will begin again almost at once. We will add the Golden State and its huge population to the list of free marriage states that will then cover a third of Americans.

 

In state legislatures across the country, serious efforts will begin towards overturning the constitutional amendments that now bar marriage in over 30 states. Once again we will likely go through years of state elections and public votes. Beginning in 2014 and continuing perhaps another decade until state after state rescinds discrimination.

 

Starting at once, the federal government will issue green cards to the legal foreign spouses of gay Americans. Keep a close eye on whether or not they live in the state where they wed and whether or not that state recognizes marriage. It’s possible that the ambiguity in Kennedy’s opinion will be resolved by federal policy makers, who simply dictate that—for example—all married gay couples may file joint taxes regardless of their residence.

 

Gay spouses of those serving in the military will be granted housing and base privileges. Indeed, it won’t be long before the oddity will not be the state or company that recognizes gay married couples, it will be the state or company that does not. Corporations, which have actually been at the forefront of gay rights in many ways, will extend their policies further.

 

Fans of statistician Nate Silver may have already examined his trend chart of public attitudes towards same-sex marriage. The support for marriage equality increases at a higher rate each year until even Texas and Oklahoma throw off the chains. There is simply no going back, and as frustrating as it may be to wait and wait for a national consensus on gay equality, and the national policies that go with it, it’s a comfort to know for sure that such a day is coming. No longer is it “if this happens…” or “if that happens…” This and that have happened. Now comes a lengthy, but inevitable final slog.

 

More progress lies directly ahead of us. A lawsuit in state court in New Mexico challenges the Land of Enchantment. Another freedom to marry case continues in Illinois. Oregon voters will likely overturn their antigay constitutional amendment next year. Other states will do so by legislative action. Rachel Maddow reports that efforts to repeal anti-marriage amendments are underway in every single state, and I believe her. Here in Texas, such a measure has been introduced, and although my state will surely be one of the last to capitulate, such a development suggests that bluer states will lead the way. Most importantly, Mel has left to go purchase more Champagne.

 

In my view, we should be in no particular hurry to zip back to the High Court. This is a Court that operates in a sly and insidious fashion. Roberts and Company eviscerated the Voting Rights Act, pretending at the same time to maintain the edifice and send it back to Congress for an updated list of racial trouble spots. Spare us. Affirmative action? It survives if and when a university can prove beyond a shadow of a doubt that consideration of race is absolutely necessary in order to preserve diversity. We are lucky that they ducked Prop 8 rather than come up with an antigay body blow, thinly disguised as respect for the state electorate.

 

Keep in mind that such a ruling, a ruling that said California remains in control of its state marriage law, whether through popular vote or other means, such a ruling would have set gay rights back decades. It would have been sweetly phrased. But it would have indicated that gay couples have no constitutional right to marriage and that discrimination was just a question of state policy. That was the worst case scenario that we avoided this morning, and the next time we bring our very lives before the nine justices, we have to make sure that such a scenario is not even in the picture.

 

Given the erratic nature of this Court, we may need a few more years of dramatic evolution before we can return with that kind of confidence. But keep an eye on the Ninth Circuit, and the Prop 8-type case that pits the states of Hawaii and Nevada against a group of same-sex couples. They argue that these states violate the U.S. Constitution when they deny marriage equality by state constitutional decree. Sound familiar? It should. Our side lost both these cases in lower court, and they have been consolidated for review by the appellate court. I’m not sure where they stand because I’ve been obsessed by Prop 8 and DOMA for the last month or so, but I’ll check on them once I recover.

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arostow@aol.com