News for the Week Ended March 30, 2011
BY ANN ROSTOW
Yet Another Doomed Version of ENDA Hits Congress
My email is now full of breathless headlines from all the various GLBT organizations and pundits, announcing that the Employment Nondiscrimination Act has been introduced in the House. Loyal readers are familiar with my opinion of this dubious effort, so I will forego much of my usual rant.
But not all of it.
We have introduced this stand-alone gay workplace discrimination bill to no avail in every Congress save one since 1994.
Prior to that, as far back as 1974, we introduced a bill that would have added “sexual orientation” to the provisions of Title VII of the Civil Rights Act of 1964. Title VII covers workplace discrimination on the basis of race, sex, national origin and religion, and it is reinforced with the steel of almost half a century of case-law. In short, Title VII offers the only real protection against gay bias on the job, period.
If we had kept working on a revision to Title VII, we might be close to victory by now. Instead, we decided that was too difficult, and contrived a separate bill, ENDA, riddled with loopholes to satisfy homophobic lawmakers. Small businesses are exempt from ENDA, as are religious employers. Along with its many inadequacies, ENDA does not provide an avenue for collecting civil damages. Worse, although many modern courts have found a way to rule on gay bias using Title VII, that strategy would be foreclosed should Congress create a separate law that specifically covers GLBT workers.
Perhaps fighting for a separate gay bill made sense in 1994. But nearly two decades later, it makes no sense. Do any of you California readers remember when gay workplace bias was covered under a special provision of the Labor Code rather than included in California’s main human rights act? Hint: it didn’t work and eventually sexual orientation was added to the law that protects every other Californian.
Oh, you say. But it would still be easier to pass ENDA as a first step and then go back and revise Title VII!
I have news for you. ENDA’s not going to pass this Congress. Even Barney Frank called the bill “an organizing tool” that is not likely to reach the House floor. And even if we did manage to pass ENDA after, let’s say, 25 or 30 years of trying, does anyone really think we could pass a stronger gay rights bill on its heels?
I for one am tired, year after year, of getting letters and emails asking for cash to “help pass ENDA.” This bill is a counterproductive legislative artifact from an earlier age, and if all we need an “organizing tool,” why not introduce a revision to Title VII? It would have the same chance of passage as ENDA.
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Ninth Circuit Citation A Mystery (To Me)
Moving on, I tried to check up on the Alaskan case that was cited in the one-paragraph Prop 8 announcement by the U.S. Court of Appeals for the Ninth Circuit last week. The three-judge panel informed us that they were not going to lift the stay on Judge Vaughn Walker’s decision last August to strike Prop 8 and re-legalize same-sex marriage in California.
Since their only explanation was a reference to Southeast Alaska Conservation Council v U.S. Corps of Army Engineers, I thought I’d look up the details. But all I found was a (kind of astonishing) lawsuit involving a gold mine that was planning to dump all its waste into a large lake. The gold mine admitted that the plan would raise the bottom of the lake by 50 feet, triple its surface area, and kill off virtually all aquatic life.
The mine received permission from the U.S. Corps of Army Engineers to go ahead with its dastardly scheme, deftly relying on an ambiguity in the Clean Water Act. A lower court thought that destroying the lake was just fine, but the Ninth Circuit disagreed in a 2007 opinion. I tried my best to find the “principle of vacatur” that applied to the Prop 8 case, but I failed, possibly due my lack of legal training (an educational deficit that normally doesn’t stop me from pontificating on all areas of the law). If any attorneys out there can help me, I’d be grateful. I’m guessing that the principle was articulated in a different opinion, but I couldn’t find it.
By the way, you’ll be interested to know that the U.S. Supreme Court overturned the Ninth Circuit in 2009 in a 6-3 decision, so I’m guessing that by now our pretty little lake is officially an industrial waste site. And here’s a coincidence! Ted Olsen argued on behalf of the gold mine and the state of Alaska.
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Gay Spouses in Limbo
Last week, we covered the bi-national lesbian couple from New York, who were given a reprieve from deportation while they pursue a Green Card in court. Even the government lawyer in the immigration hearing agreed that drastic action should be postponed while the women challenged the law that ostensibly keeps them apart—the Defense of Marriage Act.
Given that the Executive Branch officially views the Defense of Marriage Act as unconstitutional, it was not hard to infer that the U.S. will slow or cease deporting gay and lesbian spouses until the court verdict is in on the constitutional status of DOMA. This inference was bolstered by a statement a few days ago from the US Citizenship and Immigration Services, saying that indeed, deportations would be suspended for foreign gay spouses pending a legal review by Homeland Security.
Cue: Theme from Final Jeopardy. Time’s up! The legal review is over and the government confirmed that it will continue deportations as usual. You recall that the Obama administration made clear that they would still enforce the Defense of Marriage Act despite any constitutional reservations, and I suppose this sad decision reflects that pledge. I’m not sure whether this will have an impact on the girls from New York, but we all hope not.
Of all the hazardous side effects of the Defense of Marriage Act, I think the deportation of bi-national couples has to be the worst, don’t you?
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Gandhi Was What?
I kind of lost my train of thought after a ramble through cyberspace. I clicked on so many things that I completely forgot what I was originally seeking, and I can’t remember it even now. Ah, technology.
Speaking of technology, my wife was reading the paper the other day and she had her hand on her computer mouse and found herself trying to scroll down her article. And, speak of the devil, she just came home three hours early from work. Poor thing doesn’t feel well, and here I am stuck writing rather than tending to her. I’ll send the housemaid in to see if she needs anything.
Oh yes. I was going to find out why people are saying Gandhi was gay, or had a gay fling, or wanted to have a gay fling. It was something like that. I’m no longer interested, however. Instead I am fuming over the incessant talk about how President Obama needs to “clarify” our mission in Libya, and the media’s pointless insistence on knowing exactly what will happen if we end up in a “stalemate.”
Look. The man could not have been more clear. Clinton has been clear. The mission is clear! Enforce a no-fly zone through NATO. Prevent civilian deaths and encourage Gadhafi’s departure through all means short of sending in US ground forces.
But but but sputter sputter sputter! I thought he said he wanted to get rid of Gadhafi! And now he doesn’t? It’s so confusing! What if Gadhafi doesn’t leave? What specifically will we do in that hypothetical situation? Um, what if the Canadian government started attacking civilians? Would America intervene?
Then there’s the ongoing hysteria over what would happen if, say, the nuclear plant in New York had a massive total meltdown. Could we evacuate Manhattan?
I seriously watched a segment on that very possibility. And the answer? No. In fact we can’t evacuate Manhattan, and you know what? We won’t have to because the nuclear reactor on Indian Point isn’t going to have a meltdown.
There’s no radiation poisoning in LA, no great white sharks in your bathtub and while we’re at it, the sun isn’t going to explode next Tuesday. These people are driving me crazy!
I know what you’re thinking. No one is forcing me to sit around reading simplistic articles or watching cable news. And yet, I continue to torture myself.
While surfing, I did learn some of the many alternate spellings of “Gadhafi.” In addition to the AP spelling used here, the strange looking tyrant is also spelled “Gaddafi,” “Qaddafi,” “Al-Qadhafi” “El-Qaddafi” and “Kadafi.” His first name has numerous variations as well, but I won’t indulge myself further on this topic.
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Sodomy Bans Alive and Well
What else is new, you ask? There are several state legislatures considering whether or not to repeal their anti-sodomy laws. Obviously, such laws are unenforceable in the wake of Lawrence v Texas, but some of them are still on the books, including the books of Kansas, Montana, and here in Texas. It looks like all three of these states are going to keep their sodomy laws intact, presumably just to remind their gay and lesbian citizens that they still consider us damnable perverts.
Hey. Remember it took Alabama until the 2000 election to repeal its symbolic ban on interracial marriage. At this rate, we’ll have those sodomy laws gone by 2036.
In other state news, the Colorado senate passed a civil union bill that now goes to the house. And the Indiana senate passed an amendment that bans both same-sex marriage and civil unions. The amendment has to pass in the next session of the legislature, and after that, it would go to a popular vote in 2014 at the earliest. I will withhold my pain and anguish until the Hoosier voters condemn me three years hence.
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Another Law That Won’t Die
Perhaps some of you are wondering how our brave gay men and women in uniform are doing now that Don’t Ask has been repealed.
I suppose they’re all fine, but they’re still in the closet. The repeal of Don’t Ask won’t take effect until two months after President Obama and Secretary Gates sign off on some statement that the change in policy will not affect military readiness. Or something like that.
Gates, meanwhile, won’t sign the statement until the military completes some kind of training on how to implement the new rules. I’m not sure why that would be so complicated. I mean, how hard is it not to discharge someone? At any rate, I just read that a subgroup of the House Armed Services Committee has decided to hold hearings next week in order to provide Congressional oversight for these implementation procedures. If that makes no sense to you, join the club. It appears to be a way for House Republicans to stall the eventual end of the military ban.
And do you remember the federal lawsuit back in October, when Judge Virginia Phillips struck Don’t Ask as unconstitutional? Her ruling was stayed pending appeal, and the suit rose to the U.S. Court of Appeals for the Ninth Circuit. There, the Obama administration asked the court to basically let the appeal slide while they went through the process of repealing the statute.
In a reply filed on Monday, the Log Cabin Republicans (who brought the suit) called the government’s request “absurd” and asked the court to strike Don’t Ask at once and let the chips fall where they may.
The bottom line is that Don’t Ask Don’t Tell is still the law of the land, and will remain so throughout seemingly endless court filings, training programs, subcommittee hearings and certification procedures. I haven’t heard of anyone actually getting kicked out of the service recently, but it’s still irritating to see the military ban sticking around like old gum.
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arostow@aol.com
Thursday, March 31, 2011
Ninth Circuit Says No Marriages Until Prop 8 Case is Over
News for the Week Ended March 23, 2011
BY ANN ROSTOW
Ninth Circuit Says No Marriages Until Prop 8 Case is Over
As we go to press comes the disappointing news that the U.S. Court of Appeals for the Ninth Circuit will not lift the stay of Judge Vaughn Walker’s ruling, which struck Prop 8 last August. As such, gay couples in California will not be able to get married in the state for the foreseeable future.
The appeal in the case against Prop 8 was originally on a fast track. But after a relatively quick schedule of written briefs and oral arguments, the Ninth Circuit panel sent the litigation into a lengthy detour via the California Supreme Court in order to examine one aspect of the issue of standing. I don’t have to explain the standing issue to you. You’ve read all about it. Suffice it to say, it will be well over a year until the case returns to the home stretch.
In view of this torturous pace, our attorneys asked the Ninth Circuit to reconsider their decision to suspend marriage rights for the duration of the case. On Wednesday afternoon, they declined in a brief paragraph citing Southeast Alaska Conservation Council v. U.S. Army Corps of Engineers, a 2006 case within the circuit that I haven’t read, and quite frankly don’t want to.
I promise to read it before next week, because I am perplexed by the panel’s decision. Normally, to get a stay you have to prove that you are likely to win on the merits of the underlying case and that further, you will suffer some harm in the absence of a stay.
In our case, the proponents of Prop 8 are not even guaranteed to have standing to appeal, let alone are they “likely” to win. Obviously, while they may be dismayed at seeing gay couples get married, they are not harmed by such a phenomenon. We, on the other hand, are deeply harmed by the continued suspension of Judge Walker’s decision, particularly under the present timeline.
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Another Federal DOMA Case Hits California
First the Egyptian government is overthrown by popular fiat. Then we have an enormous earthquake and a tidal wave. Four nuclear reactors melt down. And now we’re in a full-fledged air war with Libya. Frankly, it looks as if someone out there is trying to steal our thunder and move the GLBT headlines off the front page.
Not if I can help it! The latest DOMA news out of a federal court in San Francisco will always trump suicide bombings, missile strikes or radiation clouds in this column!
Before I start, isn’t it creepy to watch the various GOP presidential candidates worm their way out from under their rocks? Tim Pawlenty has transformed himself in the last year or two from a bland, albeit ambitious, nonentity, into a far right gay bashing loony tune on the level of Rick Santorum. Newt Gingrich is simply delusional. And Sarah Palin manages to hopscotch between ludicrous figure of fun and evil harridan.
It almost makes me long for people like Mitt Romney and Steve Forbes to reenter the public stage. Even John Boehner is looking good in comparison to some of his colleagues. As a good Democrat, I should be hoping that the Republican field is filled with unelectable wingbats. But then again, as a good American, the idea that one of them could win is too frightening to contemplate.
Now, let’s talk about the latest DOMA litigation, because it seems to have slipped under the news radar along with Charlie Sheen, Bahrain and the future of NPR.
You remember, I’m sure, the tricky case of California lawyer Karen Golinski, who works for the U.S. Court of Appeals for the Ninth Circuit? Golinski has been trying to get insurance for her wife, who she married during the six month California window prior to the passage of Prop 8.
Acting as an administrator, the Chief Judge of the Ninth Circuit ruled that Golinski should be awarded the spousal benefits and ordered the federal government to pay up. Obama refused, citing the Defense of Marriage Act, and Golinski sued for enforcement of her boss’s ruling.
So here’s the latest from the courtroom of Judge Jeffrey White. Judge White said he had no choice but to rule against Golinski in the current case. At issue was not the Defense of Marriage Act, but the much smaller question of whether a Ninth Circuit judge could impose his will on the Executive Branch while acting, not as a judge, but as an administrator. Judge White’s answer to this query was no.
But White went on to suggest that the Defense of Marriage Act was unconstitutional, and he gave Golinski and Lambda Legal until April 15 to rewrite their complaint and challenge the Act directly. Judge White strongly implied that he would strike DOMA if only given the chance.
In view of the fact that Obama has since decided to stop defending DOMA in federal court, this means that those private lawyers to be hired by Congress are going to have yet another case on their hands, one with a new set of facts and a looming deadline for written briefs. Unless they get some kind of delay, their DOMA defense would be due in early May.
Meanwhile, these (yet to be hired?) lawyers have briefs due relatively shortly in two other trials in Connecticut and New York, as well as twin DOMA cases now pending before the U.S. Court of Appeals for the First Circuit in Boston.
Assuming that the administration formally bows out of both Boston cases, as well as the Golinski case, the Congressional lawyers seems to be facing a procedural nightmare. I know that the judge in the New York DOMA case has given them a mid-April deadline to intervene in his courtroom. I’m not sure however, what other schedules may be imposed, and as I implied, I’m not even sure that any lawyers have actually been hired in the two weeks since a Congressional committee voted to step up to the plate and pinch hit for the Justice Department in defending DOMA.
It’s all a mess on their side. And as far as I can tell, our side is organized and chomping on the bit. So that’s good, right?
By the way, there’s yet another federal DOMA case in Oakland, where Judge Claudia Wilken denied a motion to dismiss back in January, and where I suppose the Obama Administration will be obliged to clarify its new gay rights position in writing. That case involves a group of married gay couples trying to get long-term federal insurance.
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Let’s Not Forget The Non-DOMA Cases
Continuing our legal roundup, the Ninth Circuit is considering another gay rights case, this one filed against the state of Arizona, where the legislature decided to “save money” by dropping all the partners of gay state workers from the insurance rolls.
Not only did this save next to nothing in terms of the state budget, but it discriminated on the basis of sexual orientation in the process. Saving money is a legitimate state interest, but the budget ax cannot be applied at the expense of a minority group, any more than the legislature could have ordered every state agency to fire one woman and one Black worker in the name of cost cutting.
The case doesn’t directly involve DOMA or the federal government, but it’s interesting because it will test the Ninth Circuit’s view of Obama’s February assertion that laws targeting sexual orientation deserve more searching legal scrutiny. The Ninth Circuit has already ordered a higher level of legal scrutiny for ousted gay servicemembers under the Due Process Clause (in the Witt case). Extending the underlying principle to the Equal Protection Clause would guarantee victories in all the other gay cases now pending in the 9th Circuit’s vast western jurisdiction.
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Obama Gay Rights Policy Might Halt Deportations
So here’s something. Here’s some tasty news meat to contrast the dry court casserole served up in the last sections. After all the excited talk about Obama’s reversal on his gay legal strategy, here’s some beef.
Two women in New York City, Monica Alcota and Cristina Ojeda, got married in Connecticut last August. Alcota, however, is an Argentinean citizen and has been living here illegally for a decade. Caught in a spot border check of some sort in upstate New York in 2009, Alcota has been fighting deportation for over a year.
After their marriage, however, Ojeda applied for a spousal green card, which of course is prohibited by the Defense of Marriage Act. Nonetheless, in court on Tuesday, the U.S. authorities agreed to suspend their deportation efforts while the women make their case for green card status.
The decision is ground breaking in terms of immigration policy and seems to reflect the administration’s new views on sexual orientation discrimination. Indeed, Immigration Equality recently wrote a letter to Attorney General Eric Holder, asking him to put a hold on the deportation of same-sex foreign partners until the fate of the Defense of Marriage Act is established in court.
Of course, one case does not a general rule make. But if our government’s immigration enforcement lawyers are willing to take the cuffs off Monica Alcota, doesn’t it follow that the United States will let other foreign spouses have their day in court as well?
In other words, this could be, de facto, the end of one of DOMA’s cruelest manifestations, the ban on residency for the married partners of bi-national couples.
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There’s No Ap For That
I don’t have an iPhone, so I really don’t care about the Exodus International ap that helps gay people stay straight. That said, Apple has removed the antigay feature after a community outcry.
The left side of my lower back is killing me for some reason and I can barely stand up or sit down. Just thought you’d like to know. I’m fine when sitting or standing. The agony is in the transition, and it’s been so bad in the last few days that I consumed our household’s entire stockpile of Vicodin, left over from two dental surgeries (me), a lacerated skull (Mel) and another bad thing that I can’t remember.
I kind of liked having spare prescription painkillers on hand for emergencies. Now they’re gone until one of us suffers a new medical trauma of some sort. Ah well.
Let’s see. Three gay men have been murdered in Edinburgh over the last month, but it’s not clear whether or not the crimes are related. The latest victim, a semi-retired math lecturer named Roger Gray, was found viciously stabbed to death inside his flat, with the interior bolt locked in place. Bring on the Scots version of the BAU.
Oh, and the city of Fort Worth is shelling out $400,000 to two of the victims of the June, 2009, bar raid that turned into a scene of gratuitous gay bashing by out-of-control police and ATF agents. One man was hospitalized with a concussion and the other one tore his rotator cuff by being yanked around.
I wonder if they still have their Vicodin pills. Probably.
You know who also has some fun medication in his cabinet? Rudy Gay, the Memphis Grizzly who is now out for four to six months with a mysterious shoulder sprain. Poor Rudy.
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The Scarlet T
Here’s something I didn’t realize. In New York, a transgender man or woman may not receive a corrected birth certificate unless he or she has had complete reassignment surgery. Considering the expense, the pain, and the fact that many transmen and transwomen don’t want that kind of overhaul, the restriction is cruel and unfair. Now, The Transgender Legal Defense and Education Fund has filed suit on behalf of three individuals.
Makes you wonder what the mandarins in New York are trying to guard against. Are Empire State officials worried that citizens will change their gender on their birth certificates just for the hell of it? Do they imagine that people will ask for these fundamental documents to be revised back and forth from female to male to female on a whimsical basis, depending on how they feel in any given year? Perhaps New York could insist that transwomen brand a big W on their foreheads or that transmen have an M permanently tattooed on their biceps.
It also occurs to me that if New York has such a policy, so do many other states. I would look it up, but I don’t feel like it. Maybe next week.
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BY ANN ROSTOW
Ninth Circuit Says No Marriages Until Prop 8 Case is Over
As we go to press comes the disappointing news that the U.S. Court of Appeals for the Ninth Circuit will not lift the stay of Judge Vaughn Walker’s ruling, which struck Prop 8 last August. As such, gay couples in California will not be able to get married in the state for the foreseeable future.
The appeal in the case against Prop 8 was originally on a fast track. But after a relatively quick schedule of written briefs and oral arguments, the Ninth Circuit panel sent the litigation into a lengthy detour via the California Supreme Court in order to examine one aspect of the issue of standing. I don’t have to explain the standing issue to you. You’ve read all about it. Suffice it to say, it will be well over a year until the case returns to the home stretch.
In view of this torturous pace, our attorneys asked the Ninth Circuit to reconsider their decision to suspend marriage rights for the duration of the case. On Wednesday afternoon, they declined in a brief paragraph citing Southeast Alaska Conservation Council v. U.S. Army Corps of Engineers, a 2006 case within the circuit that I haven’t read, and quite frankly don’t want to.
I promise to read it before next week, because I am perplexed by the panel’s decision. Normally, to get a stay you have to prove that you are likely to win on the merits of the underlying case and that further, you will suffer some harm in the absence of a stay.
In our case, the proponents of Prop 8 are not even guaranteed to have standing to appeal, let alone are they “likely” to win. Obviously, while they may be dismayed at seeing gay couples get married, they are not harmed by such a phenomenon. We, on the other hand, are deeply harmed by the continued suspension of Judge Walker’s decision, particularly under the present timeline.
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Another Federal DOMA Case Hits California
First the Egyptian government is overthrown by popular fiat. Then we have an enormous earthquake and a tidal wave. Four nuclear reactors melt down. And now we’re in a full-fledged air war with Libya. Frankly, it looks as if someone out there is trying to steal our thunder and move the GLBT headlines off the front page.
Not if I can help it! The latest DOMA news out of a federal court in San Francisco will always trump suicide bombings, missile strikes or radiation clouds in this column!
Before I start, isn’t it creepy to watch the various GOP presidential candidates worm their way out from under their rocks? Tim Pawlenty has transformed himself in the last year or two from a bland, albeit ambitious, nonentity, into a far right gay bashing loony tune on the level of Rick Santorum. Newt Gingrich is simply delusional. And Sarah Palin manages to hopscotch between ludicrous figure of fun and evil harridan.
It almost makes me long for people like Mitt Romney and Steve Forbes to reenter the public stage. Even John Boehner is looking good in comparison to some of his colleagues. As a good Democrat, I should be hoping that the Republican field is filled with unelectable wingbats. But then again, as a good American, the idea that one of them could win is too frightening to contemplate.
Now, let’s talk about the latest DOMA litigation, because it seems to have slipped under the news radar along with Charlie Sheen, Bahrain and the future of NPR.
You remember, I’m sure, the tricky case of California lawyer Karen Golinski, who works for the U.S. Court of Appeals for the Ninth Circuit? Golinski has been trying to get insurance for her wife, who she married during the six month California window prior to the passage of Prop 8.
Acting as an administrator, the Chief Judge of the Ninth Circuit ruled that Golinski should be awarded the spousal benefits and ordered the federal government to pay up. Obama refused, citing the Defense of Marriage Act, and Golinski sued for enforcement of her boss’s ruling.
So here’s the latest from the courtroom of Judge Jeffrey White. Judge White said he had no choice but to rule against Golinski in the current case. At issue was not the Defense of Marriage Act, but the much smaller question of whether a Ninth Circuit judge could impose his will on the Executive Branch while acting, not as a judge, but as an administrator. Judge White’s answer to this query was no.
But White went on to suggest that the Defense of Marriage Act was unconstitutional, and he gave Golinski and Lambda Legal until April 15 to rewrite their complaint and challenge the Act directly. Judge White strongly implied that he would strike DOMA if only given the chance.
In view of the fact that Obama has since decided to stop defending DOMA in federal court, this means that those private lawyers to be hired by Congress are going to have yet another case on their hands, one with a new set of facts and a looming deadline for written briefs. Unless they get some kind of delay, their DOMA defense would be due in early May.
Meanwhile, these (yet to be hired?) lawyers have briefs due relatively shortly in two other trials in Connecticut and New York, as well as twin DOMA cases now pending before the U.S. Court of Appeals for the First Circuit in Boston.
Assuming that the administration formally bows out of both Boston cases, as well as the Golinski case, the Congressional lawyers seems to be facing a procedural nightmare. I know that the judge in the New York DOMA case has given them a mid-April deadline to intervene in his courtroom. I’m not sure however, what other schedules may be imposed, and as I implied, I’m not even sure that any lawyers have actually been hired in the two weeks since a Congressional committee voted to step up to the plate and pinch hit for the Justice Department in defending DOMA.
It’s all a mess on their side. And as far as I can tell, our side is organized and chomping on the bit. So that’s good, right?
By the way, there’s yet another federal DOMA case in Oakland, where Judge Claudia Wilken denied a motion to dismiss back in January, and where I suppose the Obama Administration will be obliged to clarify its new gay rights position in writing. That case involves a group of married gay couples trying to get long-term federal insurance.
--
Let’s Not Forget The Non-DOMA Cases
Continuing our legal roundup, the Ninth Circuit is considering another gay rights case, this one filed against the state of Arizona, where the legislature decided to “save money” by dropping all the partners of gay state workers from the insurance rolls.
Not only did this save next to nothing in terms of the state budget, but it discriminated on the basis of sexual orientation in the process. Saving money is a legitimate state interest, but the budget ax cannot be applied at the expense of a minority group, any more than the legislature could have ordered every state agency to fire one woman and one Black worker in the name of cost cutting.
The case doesn’t directly involve DOMA or the federal government, but it’s interesting because it will test the Ninth Circuit’s view of Obama’s February assertion that laws targeting sexual orientation deserve more searching legal scrutiny. The Ninth Circuit has already ordered a higher level of legal scrutiny for ousted gay servicemembers under the Due Process Clause (in the Witt case). Extending the underlying principle to the Equal Protection Clause would guarantee victories in all the other gay cases now pending in the 9th Circuit’s vast western jurisdiction.
--
Obama Gay Rights Policy Might Halt Deportations
So here’s something. Here’s some tasty news meat to contrast the dry court casserole served up in the last sections. After all the excited talk about Obama’s reversal on his gay legal strategy, here’s some beef.
Two women in New York City, Monica Alcota and Cristina Ojeda, got married in Connecticut last August. Alcota, however, is an Argentinean citizen and has been living here illegally for a decade. Caught in a spot border check of some sort in upstate New York in 2009, Alcota has been fighting deportation for over a year.
After their marriage, however, Ojeda applied for a spousal green card, which of course is prohibited by the Defense of Marriage Act. Nonetheless, in court on Tuesday, the U.S. authorities agreed to suspend their deportation efforts while the women make their case for green card status.
The decision is ground breaking in terms of immigration policy and seems to reflect the administration’s new views on sexual orientation discrimination. Indeed, Immigration Equality recently wrote a letter to Attorney General Eric Holder, asking him to put a hold on the deportation of same-sex foreign partners until the fate of the Defense of Marriage Act is established in court.
Of course, one case does not a general rule make. But if our government’s immigration enforcement lawyers are willing to take the cuffs off Monica Alcota, doesn’t it follow that the United States will let other foreign spouses have their day in court as well?
In other words, this could be, de facto, the end of one of DOMA’s cruelest manifestations, the ban on residency for the married partners of bi-national couples.
--
There’s No Ap For That
I don’t have an iPhone, so I really don’t care about the Exodus International ap that helps gay people stay straight. That said, Apple has removed the antigay feature after a community outcry.
The left side of my lower back is killing me for some reason and I can barely stand up or sit down. Just thought you’d like to know. I’m fine when sitting or standing. The agony is in the transition, and it’s been so bad in the last few days that I consumed our household’s entire stockpile of Vicodin, left over from two dental surgeries (me), a lacerated skull (Mel) and another bad thing that I can’t remember.
I kind of liked having spare prescription painkillers on hand for emergencies. Now they’re gone until one of us suffers a new medical trauma of some sort. Ah well.
Let’s see. Three gay men have been murdered in Edinburgh over the last month, but it’s not clear whether or not the crimes are related. The latest victim, a semi-retired math lecturer named Roger Gray, was found viciously stabbed to death inside his flat, with the interior bolt locked in place. Bring on the Scots version of the BAU.
Oh, and the city of Fort Worth is shelling out $400,000 to two of the victims of the June, 2009, bar raid that turned into a scene of gratuitous gay bashing by out-of-control police and ATF agents. One man was hospitalized with a concussion and the other one tore his rotator cuff by being yanked around.
I wonder if they still have their Vicodin pills. Probably.
You know who also has some fun medication in his cabinet? Rudy Gay, the Memphis Grizzly who is now out for four to six months with a mysterious shoulder sprain. Poor Rudy.
--
The Scarlet T
Here’s something I didn’t realize. In New York, a transgender man or woman may not receive a corrected birth certificate unless he or she has had complete reassignment surgery. Considering the expense, the pain, and the fact that many transmen and transwomen don’t want that kind of overhaul, the restriction is cruel and unfair. Now, The Transgender Legal Defense and Education Fund has filed suit on behalf of three individuals.
Makes you wonder what the mandarins in New York are trying to guard against. Are Empire State officials worried that citizens will change their gender on their birth certificates just for the hell of it? Do they imagine that people will ask for these fundamental documents to be revised back and forth from female to male to female on a whimsical basis, depending on how they feel in any given year? Perhaps New York could insist that transwomen brand a big W on their foreheads or that transmen have an M permanently tattooed on their biceps.
It also occurs to me that if New York has such a policy, so do many other states. I would look it up, but I don’t feel like it. Maybe next week.
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Wednesday, March 9, 2011
Maryland Vote Any Day Now, Really!
News for the Week Ended March 9, 2011
BY ANN ROSTOW
Maryland Vote Any Day Now, Really!
I know I’ve told you for weeks that marriage equality is just around the corner in Maryland. And it’s still true! It’s just that the corner continues to stretch around the bend and as I write, a vote in the House of Delegates is pending for, um, maybe Friday. I don’t know. Soon.
The 141-member Maryland House was supposed to be a progressive chamber, poised to back up the state senate and send the marriage bill to the friendly governor’s desk. Our big fight was supposed to be in the senate, and indeed we finally pulled that one off and passed the marriage bill in the smaller chamber ten days ago.
Since then, we’ve had a rocky road through the House judiciary committee, but finally emerged with a yes vote last week. This morning, Wednesday, our allies managed to defeat four poison pill amendments, including one that would have legalized bestiality and polygamy (I think). After these victories, the House sent the bill to a final floor vote, but again, I’m not sure when that vote will be held.
But for now, it’s all good. Sort of.
As you may recall, a victory for marriage in Maryland may well be put on hold and tested by a voter referendum. Opponents must collect about 55,000 signatures within a relatively short time in order to shelve the new law until voters have a chance to weigh in. Although marriage enjoys a small majority in the latest Maryland polls, it’s the kind of majority that slips away after our foes throw a few million dollars worth of sweet little children onto the airwaves.
Oh, they’re not our children of course. They’re the innocent little ones who will be forced to confront graphic discussions of homosexual acts in school if two men or two women are allowed to marry in the state. Much as we ourselves learned all about the birds and the bees from our first grade teachers in our early classes on heterosexual marriage. You remember those lessons, right?
Side note. I was adopted at birth, and when I finally learned exactly how babies were conceived, I remember thinking with relief: “So that’s why I was adopted! Of course my parents would never degrade themselves in that fashion!”
--
No News Is Very Good News
What else is new? Well a Colorado committee advanced a civil union bill, so we’ll keep an eye on that. And Republican lawmakers in New Hampshire wisely decided to forget about trying to roll back marriage rights by shelving an antigay amendment for at least a year. Perhaps they were influenced by the poll indicating that two thirds of the voters had no interest in such a move.
All in all, our news this week is solid, but less than scintillating. And I suppose that the main story would be the lack of interest we’ve seen in President Obama’s amazing gay rights decision from two weeks ago. Hello? The President of the United States announces that gay men and women should be considered a protected class under constitutional law and no one objects? Obama’s justice department decides not to defend the Defense of Marriage Act and we hear nary a peep?
Yes, the far right has been squeaking about it, but few people are listening to their feverish cries. This is excellent news.
Earlier this week, House Speaker John Boehner announced that a bi-partisan committee of three Republicans and two Democrats would get together to hash out a response to the various lawsuits that challenge the Defense of Marriage Act. If my math is correct, this bi-partisan committee will likely decide to defend the antigay law, presumably by hiring some lawyers and writing a few briefs or whatever. This effort will fill the void created by Obama and company, who decided, as you know, that DOMA is unconstitutional and not worthy of a defense in court.
Speaker Boehner seems indifferent at best to the whole issue, so one can hope that the Congressional push lacks a certain, je ne sais quoi. We’ll see, won’t we?
I’m still not clear which lawsuits are being completely abandoned by the United States government. They are certainly dropping their defense of two new suits filed last November in lower courts in Connecticut and New York under the jurisdiction of the Second Circuit. But I’m not exactly sure how Obama’s Justice Department is handling the two Massachusetts DOMA suits now before the U.S, Court of Appeals for the First Circuit.
According to the Gay and Lesbian Advocates and Defenders, the Justice Department is continuing to participate in those cases. But they have informed the court that they will argue that Section Three of DOMA is unconstitutional under a high legal standard. Although the Justice Department has not written a second letter to Speaker Boehner concerning the First Circuit cases, I assume that Congress will be able to step into these cases as well in order to put on a more rigorous defense.
We’re still waiting for a DOMA-related ruling out of Northern California federal court that should arrive any day in the Golinsky spousal benefits case. That should be good for a lead story in this column.
And finally, as I wrote last week, the Prop 8 case could come roaring back if the U.S. Court of Appeals for the Ninth Circuit decides to lift the stay on Judge Vaughn Walker’s ruling, and allow marriages to resume in California while the case continues. Our side has petitioned the three-judge panel to reconsider the stay based on the lengthy delays that loom ahead for the litigation.
Needless to say, if the panel decides to lift the stay it would be a huge development. And that decision would likely be routed to the U.S. Supreme Court for a quick, and extremely revealing, review.
--
Honorary Lesbians Behaving Badly
So that’s it for hard news. Now, Ladies? Please join me in conferring honorary lesbian status on Craig Munro of Ipswich, a Brisbane suburb, who has managed to assemble the four essential elements of a classic Lesbians Behaving Badly news item.
First, he is British and/or living in part of the old British realm. You know. The one where the sun never sets.
Second, he is a substance abuser, in this case a pill popper rather than a boozer.
Third, he attacked his ex-lover in a bizarre and obsessive fashion, surely the prime signature of the genre.
And finally, his murder attempt did virtually no damage to the hapless ex, one Brendon Gannaway, a fellow cleaner at the Brassall Shopping Centre.
According to the Brisbane Times, Munro spied his former boy toy kissing a female friend in late 2009. Enraged and unbalanced, Munro overdosed on pills of some sort and was briefly hospitalized. He then fired off 49 text messages, including:
“I’m going to dance on your grave,” “[I’m] out for blood and I promise it will be yours,” and “You shouldn’t have crossed me and you will pay.”
He then waited in his car for Gannaway to ride by on his bike, and slammed into the man at about 45 miles an hour, at the same time texting: “Ha Ha!” Gannaway was knocked out of his shoes, hit Munro’s windshield and then landed on the road. Luckily, he only suffered abrasions, and it probably helped that Munro, in keeping with the traditional Bad Lesbian scenario, called an ambulance.
Munro turned himself in at the scene, telling officers “I just wanted to hurt him like he hurt me. That’s why I ran him over… I just put my foot down and hit him.” In the end, he pled guilty to malicious intent to cause grievous bodily harm and was sentenced to sixteen months in the clink.
Anyway, congratulations to Craig from his new lesbian sisters, and welcome to the club!
--
Christian Patriots Behaving Even More Badly
Since we’re not seeing the usual blockbusting news headlines this week, I think we can breath a sigh of relief and check out some of the stories that I was obliged to spike during the heady days of February.
For example, did you read about Grant Storms? Storms is a 53-year-old antigay “Christian patriot” from New Orleans, who became known for leading a crusade through the French Quarter during the annual Southern Decadence party, yelling at gay men through a bullhorn and waving his Bible.
Well, Grant was arrested the other day for masturbating in public at a local playground!
Hmmm.
The father of four explained that he had been watching porn earlier and presumably was unable to control his subsequent reaction. He also insisted he was not a pedophile, and was instead suffering from a sex addiction that was causing problems in his marriage.
Touchingly, Storms offered a word of apology to his erstwhile targets in the gay community, telling the press “I was very proudful [sic], arrogant. I have been vicious at times in my condemnation of others.”
You know, Grant. We understand. Perhaps we didn’t masturbate in front of the kids, but still. We were out there in the French Quarter wearing tight pants, buying drinks and, I don’t know, throwing beads at each other. Who are we to judge!
--
Other Stuff in the News
So I should probably mention a marriage case in a Minnesota state court, where the judge just ruled against several same-sex couples, who will no doubt appeal.
As New York law professor Art Leonard pointed out, the trial court based its decision on the decades old case of Baker v Nelson, where the Minnesota Supreme Court rejected marriage rights out of hand, and where the U.S. Supreme Court wrote that marriage law was not a federal issue. The only problem here is that Baker was a federal case, and these same-sex couples were suing under state law so Baker shouldn’t even apply.
But you know what? With all our high profile lawsuits in action all over the country, I find it hard to focus on a state court ruling out of Minnesota. So let’s not.
Professor Leonard, who has inadvertently been sending me spam messages for the last week in what I assume is a snafu on his AOL account, also reviewed an interesting ruling out of the U.S. Court of Appeals for the Fourth Circuit in favor of a gay plaintiff.
Here’s the issue. If your employer sends you out into the field where you encounter relentless homophobic attacks at a client’s workplace, do you have a case for discrimination against your boss?
The answer is probably yes, assuming you told your own employer and they did nothing to protect you or resolve the situation. The case is interesting as well because the plaintiff is suing under Title VII of the Civil Rights Act, a federal law against workplace discrimination that does not specifically cover sexual orientation. And yet! Many courts have found a way to apply this vital law to protect victims of gay bashing, particularly when they are harassed due to gender non-conformity, a variety of sex discrimination that is indeed covered under Title VII.
And here’s the bottom line. If more courts could agree that Title VII covers discrimination against gays and lesbians, we would not need the Employment Nondiscrimination Act (ENDA), which stands alone as a very flawed half-assed untested weak-kneed second class substitute for the powerful law that protects everyone else.
As long as ENDA is not enacted, courts continue to try and fit our cases into the rubric of Title VII. But if the damn thing becomes law, we would automatically be blocked from Title VII protections, because obviously, our cases would then fall under our own personal gay workplace bill.
ENDA was a fine idea back in the early 1990s. In 2011 however, we should be working either to add sexual orientation to Title VII, or increase court precedents that effectively achieve the same goal. Passing ENDA would arguably be a step in the wrong direction.
I hate to end on a serious note. I promise it won’t happen again.
BY ANN ROSTOW
Maryland Vote Any Day Now, Really!
I know I’ve told you for weeks that marriage equality is just around the corner in Maryland. And it’s still true! It’s just that the corner continues to stretch around the bend and as I write, a vote in the House of Delegates is pending for, um, maybe Friday. I don’t know. Soon.
The 141-member Maryland House was supposed to be a progressive chamber, poised to back up the state senate and send the marriage bill to the friendly governor’s desk. Our big fight was supposed to be in the senate, and indeed we finally pulled that one off and passed the marriage bill in the smaller chamber ten days ago.
Since then, we’ve had a rocky road through the House judiciary committee, but finally emerged with a yes vote last week. This morning, Wednesday, our allies managed to defeat four poison pill amendments, including one that would have legalized bestiality and polygamy (I think). After these victories, the House sent the bill to a final floor vote, but again, I’m not sure when that vote will be held.
But for now, it’s all good. Sort of.
As you may recall, a victory for marriage in Maryland may well be put on hold and tested by a voter referendum. Opponents must collect about 55,000 signatures within a relatively short time in order to shelve the new law until voters have a chance to weigh in. Although marriage enjoys a small majority in the latest Maryland polls, it’s the kind of majority that slips away after our foes throw a few million dollars worth of sweet little children onto the airwaves.
Oh, they’re not our children of course. They’re the innocent little ones who will be forced to confront graphic discussions of homosexual acts in school if two men or two women are allowed to marry in the state. Much as we ourselves learned all about the birds and the bees from our first grade teachers in our early classes on heterosexual marriage. You remember those lessons, right?
Side note. I was adopted at birth, and when I finally learned exactly how babies were conceived, I remember thinking with relief: “So that’s why I was adopted! Of course my parents would never degrade themselves in that fashion!”
--
No News Is Very Good News
What else is new? Well a Colorado committee advanced a civil union bill, so we’ll keep an eye on that. And Republican lawmakers in New Hampshire wisely decided to forget about trying to roll back marriage rights by shelving an antigay amendment for at least a year. Perhaps they were influenced by the poll indicating that two thirds of the voters had no interest in such a move.
All in all, our news this week is solid, but less than scintillating. And I suppose that the main story would be the lack of interest we’ve seen in President Obama’s amazing gay rights decision from two weeks ago. Hello? The President of the United States announces that gay men and women should be considered a protected class under constitutional law and no one objects? Obama’s justice department decides not to defend the Defense of Marriage Act and we hear nary a peep?
Yes, the far right has been squeaking about it, but few people are listening to their feverish cries. This is excellent news.
Earlier this week, House Speaker John Boehner announced that a bi-partisan committee of three Republicans and two Democrats would get together to hash out a response to the various lawsuits that challenge the Defense of Marriage Act. If my math is correct, this bi-partisan committee will likely decide to defend the antigay law, presumably by hiring some lawyers and writing a few briefs or whatever. This effort will fill the void created by Obama and company, who decided, as you know, that DOMA is unconstitutional and not worthy of a defense in court.
Speaker Boehner seems indifferent at best to the whole issue, so one can hope that the Congressional push lacks a certain, je ne sais quoi. We’ll see, won’t we?
I’m still not clear which lawsuits are being completely abandoned by the United States government. They are certainly dropping their defense of two new suits filed last November in lower courts in Connecticut and New York under the jurisdiction of the Second Circuit. But I’m not exactly sure how Obama’s Justice Department is handling the two Massachusetts DOMA suits now before the U.S, Court of Appeals for the First Circuit.
According to the Gay and Lesbian Advocates and Defenders, the Justice Department is continuing to participate in those cases. But they have informed the court that they will argue that Section Three of DOMA is unconstitutional under a high legal standard. Although the Justice Department has not written a second letter to Speaker Boehner concerning the First Circuit cases, I assume that Congress will be able to step into these cases as well in order to put on a more rigorous defense.
We’re still waiting for a DOMA-related ruling out of Northern California federal court that should arrive any day in the Golinsky spousal benefits case. That should be good for a lead story in this column.
And finally, as I wrote last week, the Prop 8 case could come roaring back if the U.S. Court of Appeals for the Ninth Circuit decides to lift the stay on Judge Vaughn Walker’s ruling, and allow marriages to resume in California while the case continues. Our side has petitioned the three-judge panel to reconsider the stay based on the lengthy delays that loom ahead for the litigation.
Needless to say, if the panel decides to lift the stay it would be a huge development. And that decision would likely be routed to the U.S. Supreme Court for a quick, and extremely revealing, review.
--
Honorary Lesbians Behaving Badly
So that’s it for hard news. Now, Ladies? Please join me in conferring honorary lesbian status on Craig Munro of Ipswich, a Brisbane suburb, who has managed to assemble the four essential elements of a classic Lesbians Behaving Badly news item.
First, he is British and/or living in part of the old British realm. You know. The one where the sun never sets.
Second, he is a substance abuser, in this case a pill popper rather than a boozer.
Third, he attacked his ex-lover in a bizarre and obsessive fashion, surely the prime signature of the genre.
And finally, his murder attempt did virtually no damage to the hapless ex, one Brendon Gannaway, a fellow cleaner at the Brassall Shopping Centre.
According to the Brisbane Times, Munro spied his former boy toy kissing a female friend in late 2009. Enraged and unbalanced, Munro overdosed on pills of some sort and was briefly hospitalized. He then fired off 49 text messages, including:
“I’m going to dance on your grave,” “[I’m] out for blood and I promise it will be yours,” and “You shouldn’t have crossed me and you will pay.”
He then waited in his car for Gannaway to ride by on his bike, and slammed into the man at about 45 miles an hour, at the same time texting: “Ha Ha!” Gannaway was knocked out of his shoes, hit Munro’s windshield and then landed on the road. Luckily, he only suffered abrasions, and it probably helped that Munro, in keeping with the traditional Bad Lesbian scenario, called an ambulance.
Munro turned himself in at the scene, telling officers “I just wanted to hurt him like he hurt me. That’s why I ran him over… I just put my foot down and hit him.” In the end, he pled guilty to malicious intent to cause grievous bodily harm and was sentenced to sixteen months in the clink.
Anyway, congratulations to Craig from his new lesbian sisters, and welcome to the club!
--
Christian Patriots Behaving Even More Badly
Since we’re not seeing the usual blockbusting news headlines this week, I think we can breath a sigh of relief and check out some of the stories that I was obliged to spike during the heady days of February.
For example, did you read about Grant Storms? Storms is a 53-year-old antigay “Christian patriot” from New Orleans, who became known for leading a crusade through the French Quarter during the annual Southern Decadence party, yelling at gay men through a bullhorn and waving his Bible.
Well, Grant was arrested the other day for masturbating in public at a local playground!
Hmmm.
The father of four explained that he had been watching porn earlier and presumably was unable to control his subsequent reaction. He also insisted he was not a pedophile, and was instead suffering from a sex addiction that was causing problems in his marriage.
Touchingly, Storms offered a word of apology to his erstwhile targets in the gay community, telling the press “I was very proudful [sic], arrogant. I have been vicious at times in my condemnation of others.”
You know, Grant. We understand. Perhaps we didn’t masturbate in front of the kids, but still. We were out there in the French Quarter wearing tight pants, buying drinks and, I don’t know, throwing beads at each other. Who are we to judge!
--
Other Stuff in the News
So I should probably mention a marriage case in a Minnesota state court, where the judge just ruled against several same-sex couples, who will no doubt appeal.
As New York law professor Art Leonard pointed out, the trial court based its decision on the decades old case of Baker v Nelson, where the Minnesota Supreme Court rejected marriage rights out of hand, and where the U.S. Supreme Court wrote that marriage law was not a federal issue. The only problem here is that Baker was a federal case, and these same-sex couples were suing under state law so Baker shouldn’t even apply.
But you know what? With all our high profile lawsuits in action all over the country, I find it hard to focus on a state court ruling out of Minnesota. So let’s not.
Professor Leonard, who has inadvertently been sending me spam messages for the last week in what I assume is a snafu on his AOL account, also reviewed an interesting ruling out of the U.S. Court of Appeals for the Fourth Circuit in favor of a gay plaintiff.
Here’s the issue. If your employer sends you out into the field where you encounter relentless homophobic attacks at a client’s workplace, do you have a case for discrimination against your boss?
The answer is probably yes, assuming you told your own employer and they did nothing to protect you or resolve the situation. The case is interesting as well because the plaintiff is suing under Title VII of the Civil Rights Act, a federal law against workplace discrimination that does not specifically cover sexual orientation. And yet! Many courts have found a way to apply this vital law to protect victims of gay bashing, particularly when they are harassed due to gender non-conformity, a variety of sex discrimination that is indeed covered under Title VII.
And here’s the bottom line. If more courts could agree that Title VII covers discrimination against gays and lesbians, we would not need the Employment Nondiscrimination Act (ENDA), which stands alone as a very flawed half-assed untested weak-kneed second class substitute for the powerful law that protects everyone else.
As long as ENDA is not enacted, courts continue to try and fit our cases into the rubric of Title VII. But if the damn thing becomes law, we would automatically be blocked from Title VII protections, because obviously, our cases would then fall under our own personal gay workplace bill.
ENDA was a fine idea back in the early 1990s. In 2011 however, we should be working either to add sexual orientation to Title VII, or increase court precedents that effectively achieve the same goal. Passing ENDA would arguably be a step in the wrong direction.
I hate to end on a serious note. I promise it won’t happen again.
Wednesday, February 23, 2011
Obama Administration Calls Sexual Orientation Protected Class
Obama Administration Calls Sexual Orientation Protected Class
Says Defense of Marriage Act is Unconstitutional
In an extraordinary development this morning, Attorney General Eric Holder informed Congress that President Obama and the Justice Department have determined that sexual orientation discrimination should be subjected to heightened scrutiny in U.S. courts. As such, the United States will not defend the Defense of Marriage Act in two recently filed lawsuits, and (astonishingly) the government will urge the federal courts now considering older lawsuits to apply the high legal standard that virtually guarantees a gay rights victory.
Barring some other unexpected thunderbolt, Section Three of the Defense of Marriage Act will not survive this change in legal strategy in the federal appellate courts. But the fate of the bill, and our community’s legal status, will eventually be resolved by the U.S. Supreme Court.
This news is explosive—an historic moment in the history of the GLBT civil rights movement, where progress and setbacks usually follow the pattern of “two steps forward, one step back.” We may yet see a step back, but the President’s decision brought us forward by a mile in an instant.
Here’s a brief history of our federal fight against the 1996 Defense of Marriage Act, specifically our fight against Section Three, which creates a federal definition of marriage as the union of one man and one woman. (Section One of DOMA is its title; Section Two allows each state to maintain its own gay marriage policy.)
In March 2009, the New England-based Gay and Lesbian Advocates and Defenders filed suit in federal court in Boston, charging that Section Three violated the Equal Protection rights of married gay couples in Massachusetts, who were treated differently than their heterosexual neighbors by the U.S. government. The state of Massachusetts filed its own challenge to Section Three based on states’ rights issues and the two cases have proceeded in tandem.
Much to our communal disgust, the Obama administration chose to defend the Defense of Marriage Act using archaic anti-gay arguments in its initial brief. After a major outcry, the government changed its briefing strategy, rejecting overt hostility but continuing to defend DOMA as a legitimate expression of Congress’s desire to maintain the status quo and keep uniformity in the context of a contentious national debate.
The government also argued that the case should be evaluated under the easiest standard of legal review, the “rational basis test,” which requires only that a law be rationally related to a “legitimate” public interest.
This easy standard, which puts the burden of proof on the plaintiff, cannot apply when a fundamental right has been breached. Nor does it apply to an equal protection claim against members of a “suspect class” like race, national origin, gender and religion. In order to make its argument stick, the government cited local precedent for the premise that sexual orientation does not comprise a protected class.
The Supreme Court has never resolved the legal status of gays and lesbians, but the U.S. Court of Appeals for the First Circuit, which includes the Boston area, has previously ruled that gays and lesbians are not a suspect class, and do not qualify for heightened legal scrutiny on this basis.
This precedent added weight to the government’s position. But last November, GLAD and the ACLU filed two more DOMA challenges on behalf of couples from Vermont, Connecticut, New York and New Hampshire. Filed in Connecticut and New York, the cases fall under the jurisdiction of the U.S. Court of Appeals for the Second Circuit, where there is no previous ruling on the protected status of gay men and women.
In these cases, the administration would have been required, not simply to fall in line behind established precedent, but to affirmatively argue that sexual orientation does not satisfy the requirements of a suspect class. This, Obama and company have now refused to do. And indeed, the government has gone much further, stating that it is the position of the President and the Justice Department that sexual orientation should indeed be protected, and as such, subjected to a high legal standard.
The government goes on to acknowledge that the Defense of Marriage Act does not pass the higher constitutional tests, which shift the burden of proof to the defendant and which require, in their strictest form, that a law be narrowly tailored to serve a “compelling” public interest.
Holder’s letter, delivered to House Speaker John Boehner, says that the government will be prepared to present the theoretical case for DOMA under the rational basis standard if the courts in the Second Circuit request such a filing. The district judges might do so to cover their bases, but it’s hard to imagine that they or the federal appellate court would actually rule against both the plaintiff couples and the government of the United States. Indeed, the legal arguments against gay rights in this and other contexts are so weak, that it takes the power of the status quo and the weight of the state to tip the scales of justice against logic, reason and the history of American constitutional law.
As for the Massachusetts cases (now on appeal after a gay rights victory at the district court level) Holder wrote that the government will urge the First Circuit to use a high level of scrutiny. Those cases are in the briefing stage, with GLAD’s reply to the government briefs due on March 1. I’m guessing that the Justice Department will issue a supplemental brief, or perhaps use their final brief to expound on suspect class status. Oral arguments will follow in a few months, and the appellate panel would normally rule three to six months after that.
It’s likely that a conservative Congressional faction will hire lawyers to defend the Defense of Marriage Act, but I’m not sure of the procedure for such an intervention. Holder writes that Justice Department attorneys “will also notify the courts of our interest in providing Congress with a full and fair opportunity” to participate in the Second Circuit litigation. And a statement from the Gay and Lesbian Advocates and Defenders indicates that “either chamber may step in and appoint counsel to defend DOMA.”
The deadline to file a motion to dismiss in the Second Circuit area cases is March 11. And while we know the administration will let the deadline lapse, we will soon see who (or what) will attempt to ride to DOMA’s defense. Meanwhile, the Obama administration says it will continue to enforce the Defense of Marriage Act until the law is struck by courts or repealed.
--
Speechless in Austin
The impact of Obama’s decision goes well beyond this case or that one. By embracing the use of higher scrutiny for gay rights cases, his administration effectively has switched to our side on any and all gay civil rights cases against the United States from now to the end of his administration.
The implications are staggering, and for all our complaints about the President’s lack of interest or energy in defending gay rights, he has, in one fell swoop, become the fiercest of champions. Only a hard right ruling from the U.S. Supreme Court could block our way, and of course, there lies the fear.
Forgetting about the Second Circuit cases for the time being, I’m unclear as to whether a group of Congressional bad guys can insinuate themselves into the First Circuit lawsuits at this juncture. After all, the administration is still involved as an appellant in the Massachusetts cases, and although they have now pledged to urge a pro-gay ruling, they have not created a vacuum by abandoning their role in the contest.
Assuming we emerge the winner in the First Circuit, the Obama administration would not appeal the result. In theory, marriages in Massachusetts would be then be recognized by the federal government, and I can’t begin to guess how DOMA would be enforced in one section of the country, but not elsewhere.
Would there be a mechanism to bring such an untenable result to the High Court for resolution? Maybe. I don’t know.
As for the Second Circuit cases, assuming Congress is allowed to defend the law, and assuming again we win down the road, there would certainly be an appeal to the High Court and I imagine the justices would have to accept it.
It’s possible the Court could strike DOMA without taking a stand on suspect classifications. But I can’t see Anthony Kennedy agreeing to a dramatically antigay ruling that simultaneously upholds DOMA and denies constitutional protections based on sexual orientation. And if the Court were to agree with Obama on heightened scrutiny, it would be game, set and match.
There’s another option for the federal appellate courts, including the justices, and that is to fall back on a vague type of legal evaluation, sort of a heightened rational basis test, where laws that trample on gay civil rights are given just a little extra attention, but gays are not elevated to a suspect class. If they heard our case today, such a compromise wouldn’t surprise me. But a year or two from now, the looming shadow of history’s future verdict on gay rights may be enough to push Kennedy and maybe Roberts over the edge into a gay version of Brown v Board.
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Lawyers Ask Ninth Circuit To End Stay on Gay Marriages
Just after the Holder letter was released, the lawyers from the Olson Boies team asked the U.S. Court of Appeals for the Ninth Circuit to revisit the stay of Judge Vaughn Walker’s August ruling in the Prop 8 case.
As you recall, Judge Walker struck Prop 8 as unconstitutional and ordered marriages be resumed for gay couples in the Golden State. His order was stayed by the Ninth Circuit pending what was supposed to be a speedy appeal.
But it hasn’t been speedy and after last week, we now know that it’s going to drag on for a couple of years. First, the California Supreme Court must address the side issue of whether or not the Prop 8 proponents have standing to represent their side in court under state law. That should take the rest of this year. Then, the Ninth Circuit panel must decide whether or not the proponents have standing to appeal under federal law. There goes another three to six months. After that, who knows what further machinations will extend the case?
Given the delay, our lawyers argue, and given the fact that the Obama administration now believes a federal ban on marriage recognition is unconstitutional, it’s appropriate to reconsider whether or not to put Judge Walker’s order on hold for such a protracted period of time.
Obviously, the Obama administration was not involved in the Prop 8 suit, which was filed against the State of California. So their revised thinking on the level of legal scrutiny that applies to gay rights cases is irrelevant. But then again, it’s not irrelevant, and it will have a profound impact under the surface of many other gay cases that don’t directly involve the federal government.
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In Other News
All in all, it’s been a momentous day.
Lost in the banner headlines is the Hawaii Civil Union bill that now heads to the friendly governor’s desk for signature.
Even more dramatic is the committee vote in the Maryland senate that will send a marriage equality bill to the floor of the senate for a critical vote on Thursday. Marriage equality is expected to pass the House of Delegates if it can make it through the senate. In the senate, we have exactly the 24 votes we need to pass the bill, barring some last minute reversal.
Perhaps you’re wondering why I capitalized House of Delegates, but left senate in regular type. It’s because I generally use lower case for state legislative bodies, but House of Delegates just begs to be capitalized.
At any rate, we can now watch for the other big news that will develop over coming days; to wit the backlash over Obama’s announcement. Will it be muted? Or will it turn into a full-fledged national gay bashing session? Either way, it will be worth watching.
--
arostow@aol.com
Wednesday, February 16, 2011
California Supreme Court Agrees to Consider Standing Issue
California Supreme Court Agrees to Consider Standing Issue
Today, a month and a half after the U.S. Court of Appeals for the Ninth Circuit asked the California Supreme Court for a legal opinion on a question of standing in the Prop 8 case, the California justices formally agreed to consider the issue.
So, without delving into the arcane relationship between legal standing under state law and legal standing under federal law, let’s just say that the “fast tracked” challenge to California’s ban on same-sex marriage is now off to wander through the desert for a long long time.
After a series of briefs and counter-briefs, the California Supreme Court will hear oral arguments in September on the question of whether the Prop 8 initiative proponents have the right to represent their side from a legal standpoint under state law, given that the State of California has declined to defend the antigay position.
Did you say September?
Yep. After that it will take a month, or two, or three before the justices determine where the state law comes down on this question. Once they inform the Ninth Circuit panel, the three appellate judges will decide whether the Prop 8 proponents have standing under federal law to appeal Judge Vaughn Walker’s gay marriage decision from last August.
That should take a few more months by the way, so we’re already well into 2012 by my calculations.
Let’s say the Ninth Circuit then decides that the Prop 8 people lack standing. Well, that decision will probably be appealed to the U.S. Supreme Court, which may or may not take review. But you can be sure that many more months will elapse before SCOTUS weighs in, and if the High Court decides to meddle in the matter, the question of standing could drag on for another half year.
Meanwhile, the underlying lawsuit and the constitutionality of Prop 8 will remain in limbo for the foreseeable future.
Hey. Anyone for a Prop 8 repeal campaign in 2012? Remember that idea? We dropped it when we thought this lawsuit would save us from an expensive and divisive foray into California electoral politics. Perhaps it’s time to dust off the plans.
On the other hand, some lower visibility federal cases are moving along at a regular clip, so we’ll see some important marriage decisions in 2011 and 2012. Just don’t hold your breath for demise of Prop 8.
Today, a month and a half after the U.S. Court of Appeals for the Ninth Circuit asked the California Supreme Court for a legal opinion on a question of standing in the Prop 8 case, the California justices formally agreed to consider the issue.
So, without delving into the arcane relationship between legal standing under state law and legal standing under federal law, let’s just say that the “fast tracked” challenge to California’s ban on same-sex marriage is now off to wander through the desert for a long long time.
After a series of briefs and counter-briefs, the California Supreme Court will hear oral arguments in September on the question of whether the Prop 8 initiative proponents have the right to represent their side from a legal standpoint under state law, given that the State of California has declined to defend the antigay position.
Did you say September?
Yep. After that it will take a month, or two, or three before the justices determine where the state law comes down on this question. Once they inform the Ninth Circuit panel, the three appellate judges will decide whether the Prop 8 proponents have standing under federal law to appeal Judge Vaughn Walker’s gay marriage decision from last August.
That should take a few more months by the way, so we’re already well into 2012 by my calculations.
Let’s say the Ninth Circuit then decides that the Prop 8 people lack standing. Well, that decision will probably be appealed to the U.S. Supreme Court, which may or may not take review. But you can be sure that many more months will elapse before SCOTUS weighs in, and if the High Court decides to meddle in the matter, the question of standing could drag on for another half year.
Meanwhile, the underlying lawsuit and the constitutionality of Prop 8 will remain in limbo for the foreseeable future.
Hey. Anyone for a Prop 8 repeal campaign in 2012? Remember that idea? We dropped it when we thought this lawsuit would save us from an expensive and divisive foray into California electoral politics. Perhaps it’s time to dust off the plans.
On the other hand, some lower visibility federal cases are moving along at a regular clip, so we’ll see some important marriage decisions in 2011 and 2012. Just don’t hold your breath for demise of Prop 8.
California Supreme Court About To Do Something Interesting
News for the Week Ended February 16, 2011
BY ANN ROSTOW
California Supreme Court About To Do Something Interesting
Today, we are expecting the California Supreme Court (finally!) to announce how it plans to handle the request it received from the Ninth Circuit panel reviewing the Prop 8 case.
Unfortunately, the justices care little for my deadline, and I am obliged to turn in my column without this vital information.
It’s not clear as of four central time whether the Court will issue an actual response to the Ninth Circuit’s arcane question about the legal standing under state law of the Prop 8 initiative backers. It’s also possible that the court will simply tell us whether they plan to consider the knotty question in the coming weeks or months, or alternatively, they could tell the Ninth Circuit to figure it all out for themselves.
Assuming the justices don’t address the issue in detail this afternoon, and further assuming they don’t tell the Ninth Circuit to go jump in Lake Tahoe, we have no idea how long the justices will wrestle with the relatively boring technical issue that lies between us and an actual decision on same-sex marriage. As I’ve said before, regardless of what happens today, t looks as if the “fast tracked” Prop 8 case has gone on a walkabout.
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Arizona State Workers Fight To Keep Benefits
Now that we’ve covered the big nearly breaking story, we have a savory smorgasbord of actual news to tantalize your GLBT taste buds. There’s a big federal case about partner rights in Arizona that was just argued before a Ninth Circuit panel on Monday. (Yes, it’s true. The Ninth Circuit is the most fun federal appellate court in the country. Prop 8, the Golinski case, the Arizona case, a legal bonanza!)
There’s also a same-sex Canadian divorce case heading to the Wyoming Supreme Court, where marriage recognition law is ambiguous. And we have loads and loads of state legislative news, including a civil union bill in Hawaii that is perhaps to be finalized as I write.
But before we rush headlong into these exciting affairs, let’s go back to that Arizona case. Alert readers will wonder, hmmm. Why didn’t Ann mention this case before it managed to reach oral arguments at a judicial level one rung down from the US Supreme Court? Wasn’t there a district court ruling, an appeal, a schedule set, briefs filed? Did she just ignore a major federal gay rights case even as she blathered on and on about other trials and tribulations?
Um, yes.
Here’s what happened as far as my memory is concerned.
That idiot governor, Jan Brewer, who replaced our champion in Phoenix, Janet Napolitano, decided to “save money” by dumping domestic partners from the state workplace benefits. Brewer and her campadres in the rightwing Arizona legislature managed to save all of, I don’t know, five dollars out of the state budget, and in the process they left about 480 gay families, including 60 kids, suddenly unprotected.
Lambda filed suit in November 2009, and last July, a federal judge issued an injunction against the state, ruling that the budget rationale was not convincing and that the revised policy appeared to discriminate on the basis of sexual orientation. I covered all of that, but somehow, I never noticed that Arizona appealed the injunction to the Ninth Circuit. And here we are!
The case also failed to register because it’s not a classic marriage case; it’s an equal protection case, arguing that the gay state employees have been denied equal workplace benefits for no legitimate reason. Nonetheless, a ruling in our favor from the three judges on the panel (all appointed by Democrats) would be sensational. Hey, better to write about it late than never. We should see a ruling in the next three to six months if tradition holds.
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Activia!
There’s so much actual news that I hesitate to draw your attention to the 30-something grocery clerk in Albuquerque who jacked off into a free yogurt sample at the local Sunflower Market. I don’t think he was gay, but I encountered the story at 365gay.com, so it’s sort of a gay news item. Law enforcement took possession of the suspicious dairy treat after a customer complained, and the offender was identified through DNA.
And before we sink our teeth into legislative news from around the US of A, I stumbled over another bad boy on one of my legal blogs, this one an Iowa lawyer named Clovis Bowles who lost his license for 18 months after having oral sex with a client in the law library of the Black Hawk County Courthouse. In the courthouse library? With your client? Really?
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Merry In Maryland?
Moving right along, we are still bombarded with optimistic news out of Maryland, where it looks like marriage equality is right around the corner, sort of. There’s a senate committee vote on Thursday, and according to the Washington Post, the marriage bill could make it to the senate floor next week.
After a period of suspense, it looks as if we now have the 24 votes we need for passage, and it’s likely that we also have the 29 votes we need to stop a filibuster. (A handful of lawmakers have pledged to vote to bring the bill to the floor, even though they are opposed to the bill itself.)
The House of Delegates is expected to pass marriage should it emerge from the senate, and Governor O’Malley has pledged to sign a bill into law, making Maryland the sixth state to treat same-sex couples on par with their heterosexual counterparts. That said, a November 2012 referendum is possible if opponents rustle up enough signatures in the weeks following an O’Malley signature. So, we’ll see.
Washington lawmakers in the house and senate just introduced a marriage equality bill in the Starbuck State. A civil union bill is lurking in the Colorado legislature. I think I saw another one in Pennsylvania. And as I mentioned, Hawaii is expected to pass civil unions in the next few days, maybe today, and send that bill to a friendly governor.
New York is working on marriage, as is Rhode Island, where evildoers have also proposed a marriage ban. In Indiana, the house passed an amendment that would send a marriage ban to the voters, but not only does the senate have to confirm the plan, but both chambers have to pass the amendment again in the next session in order for the amendment to hit the voters. An antigay Indiana amendment is therefore not immanent, but the 70-26 house vote the other day was depressing nonetheless.
The attempt to roll back marriage rights in Iowa is still being held at bay by the head of the state senate, who thankfully thinks it’s a horrible idea. And even though a poll in New Hampshire showed widespread public opposition to reversing marriage rights in the Granite State, I gather than certain conservatives are still pursuing a repeal, even as Republican leaders have vowed to concentrate on the economy and whatever else is going on over there.
Oh, there’s more. But please. Haven’t we just done enough? Iowa, by the way, is also working on a bill that states that life begins at conception, a valid opinion, but since when can you legislate a point of view? What’s next? A law insisting vitamin C cures colds and swimming right after lunch is bad for your health? Never mind. I have a feeling that anything’s possible.
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CPACman
So, the Conservative Political Action Conference is over and done with, and although the gay Republicans at GOProud were allowed to co-sponsor this year’s shenanigans, there’s talk that they won’t be welcomed next year, since the new uber conservative CPAC head honcho doesn’t seem to like us very much.
As you know, letting the gays into the CPAC tent led several groups on the religious right to boycott the confab, although most of the libertarian types didn’t seem to mind. But just because GOProud insinuated themselves into the festivities didn’t mean they were home free. Donald Trump and Tim Pawlenty distinguished themselves respectively by coming out against same-sex marriage and suggesting we reinstitute Don’t Ask Don’t Tell.
I didn’t pay particularly close attention, but I’m sure there were many others willing to articulate the far right talking points. Indeed, I think Ann Coulter said that the “Gay Left” was destroying the family. I suppose that’s us. Have you destroyed any families lately? Me neither. We’d better get cracking!
I’m not sure why this charade deserves the massive media attention it garners. I read that something like 3,700 people voted in the straw poll that named Ron Paul as the best GOP candidate for 2012. The majority of the voters were men under 25, not exactly the cohort that will decide the primary battles to come.
For some reason, I’m reminded of the sports talk radio host I was listening to in the car yesterday, a man who confessed that he has a secret addiction to Captain Crunch cereal. Several listeners called up to add their voices to the ensuing discussion, expressing relief that they were not alone in their childish passion.
One guy, who sounded like he was under 25 and possibly could support an oddball ideologue who wants to return us to the gold standard, told the audience that he gets a box of Captain Crunch, pours two thirds of it into a giant bowl, pours in milk, waits about 90 seconds for the mixture to reach his preferred consistency and, Presto! Dinner is served!
Truly a repellent mental image in so many ways.
I might add, lest you think I’m a food snob, that Captain Crunch was my personal favorite when I was a little girl, with Lucky Charms a close second. That said, my dream breakfast was sautéed Norfolk Spot, when in season.
OK OK. I’m a food snob.
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Criminal Minds
Well, I took a little break while waiting for this damn California Supreme Court announcement, and when I came back I discovered a new piece of gay news, the horrific story of a 19-year-old from Hickory, North Carolina, who took a heavy dose of “Mucinex DM,” felt weird, and murdered his gay roommate.
According to the Advocate, Michael Anderson shot Steven Starr with a rifle, shot him again with a pistol, hacked him up with an ax, and carved words into his body. He then called 911 to report that he had butchered Starr to such an extent that the dead man was unrecognizable.
Anderson told the operator he met Starr at a gay bar, where he (Anderson) had gone to “experiment.” It seems that subsequently, Starr let Anderson stay at his place.
As Anderson explained on the 911 call:
“I met him and went to his house and he took me in and I turned straight again. And he wanted to touch me and stuff and I wouldn’t let him, and he kept trying. And I waited until he went to sleep and then I shot him three times. And I mutilated him very badly and I’m sorry, I’m sorry. Oh God, please help me.”
I was going to spin this as a cautionary tale about gay shame run amok, but actually, I think Anderson is a madman who transcends sexual orientation.
As for Mucinex DM, I don’t know whether I want to avoid it like the plague or try one “just for fun.” I know I’ll never see those TV mucus people in quite the same light. Also, a town called “Hickory, North Carolina” is just a little surrealistic. Not sure why.
Do any of you watch Criminal Minds? I love that show, although I have to lock all my doors and windows before I turn it on. However, I have a pet peeve that runs through every episode without fail.
When the team gets together to brief the local police on the profile, one team member starts talking, and then he or she stops and another one picks up the description without missing a beat, then that person stops and the next person chimes in and the vocal relay goes on until everyone has spoken.
In real life, no one butts into someone else’s presentation without some kind of pause or cue. It just doesn’t happen, and if it does, it happens once, not four or five times in succession. And once you start noticing this contrived device, it becomes really irritating. It’s just wrong!
BY ANN ROSTOW
California Supreme Court About To Do Something Interesting
Today, we are expecting the California Supreme Court (finally!) to announce how it plans to handle the request it received from the Ninth Circuit panel reviewing the Prop 8 case.
Unfortunately, the justices care little for my deadline, and I am obliged to turn in my column without this vital information.
It’s not clear as of four central time whether the Court will issue an actual response to the Ninth Circuit’s arcane question about the legal standing under state law of the Prop 8 initiative backers. It’s also possible that the court will simply tell us whether they plan to consider the knotty question in the coming weeks or months, or alternatively, they could tell the Ninth Circuit to figure it all out for themselves.
Assuming the justices don’t address the issue in detail this afternoon, and further assuming they don’t tell the Ninth Circuit to go jump in Lake Tahoe, we have no idea how long the justices will wrestle with the relatively boring technical issue that lies between us and an actual decision on same-sex marriage. As I’ve said before, regardless of what happens today, t looks as if the “fast tracked” Prop 8 case has gone on a walkabout.
--
Arizona State Workers Fight To Keep Benefits
Now that we’ve covered the big nearly breaking story, we have a savory smorgasbord of actual news to tantalize your GLBT taste buds. There’s a big federal case about partner rights in Arizona that was just argued before a Ninth Circuit panel on Monday. (Yes, it’s true. The Ninth Circuit is the most fun federal appellate court in the country. Prop 8, the Golinski case, the Arizona case, a legal bonanza!)
There’s also a same-sex Canadian divorce case heading to the Wyoming Supreme Court, where marriage recognition law is ambiguous. And we have loads and loads of state legislative news, including a civil union bill in Hawaii that is perhaps to be finalized as I write.
But before we rush headlong into these exciting affairs, let’s go back to that Arizona case. Alert readers will wonder, hmmm. Why didn’t Ann mention this case before it managed to reach oral arguments at a judicial level one rung down from the US Supreme Court? Wasn’t there a district court ruling, an appeal, a schedule set, briefs filed? Did she just ignore a major federal gay rights case even as she blathered on and on about other trials and tribulations?
Um, yes.
Here’s what happened as far as my memory is concerned.
That idiot governor, Jan Brewer, who replaced our champion in Phoenix, Janet Napolitano, decided to “save money” by dumping domestic partners from the state workplace benefits. Brewer and her campadres in the rightwing Arizona legislature managed to save all of, I don’t know, five dollars out of the state budget, and in the process they left about 480 gay families, including 60 kids, suddenly unprotected.
Lambda filed suit in November 2009, and last July, a federal judge issued an injunction against the state, ruling that the budget rationale was not convincing and that the revised policy appeared to discriminate on the basis of sexual orientation. I covered all of that, but somehow, I never noticed that Arizona appealed the injunction to the Ninth Circuit. And here we are!
The case also failed to register because it’s not a classic marriage case; it’s an equal protection case, arguing that the gay state employees have been denied equal workplace benefits for no legitimate reason. Nonetheless, a ruling in our favor from the three judges on the panel (all appointed by Democrats) would be sensational. Hey, better to write about it late than never. We should see a ruling in the next three to six months if tradition holds.
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Activia!
There’s so much actual news that I hesitate to draw your attention to the 30-something grocery clerk in Albuquerque who jacked off into a free yogurt sample at the local Sunflower Market. I don’t think he was gay, but I encountered the story at 365gay.com, so it’s sort of a gay news item. Law enforcement took possession of the suspicious dairy treat after a customer complained, and the offender was identified through DNA.
And before we sink our teeth into legislative news from around the US of A, I stumbled over another bad boy on one of my legal blogs, this one an Iowa lawyer named Clovis Bowles who lost his license for 18 months after having oral sex with a client in the law library of the Black Hawk County Courthouse. In the courthouse library? With your client? Really?
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Merry In Maryland?
Moving right along, we are still bombarded with optimistic news out of Maryland, where it looks like marriage equality is right around the corner, sort of. There’s a senate committee vote on Thursday, and according to the Washington Post, the marriage bill could make it to the senate floor next week.
After a period of suspense, it looks as if we now have the 24 votes we need for passage, and it’s likely that we also have the 29 votes we need to stop a filibuster. (A handful of lawmakers have pledged to vote to bring the bill to the floor, even though they are opposed to the bill itself.)
The House of Delegates is expected to pass marriage should it emerge from the senate, and Governor O’Malley has pledged to sign a bill into law, making Maryland the sixth state to treat same-sex couples on par with their heterosexual counterparts. That said, a November 2012 referendum is possible if opponents rustle up enough signatures in the weeks following an O’Malley signature. So, we’ll see.
Washington lawmakers in the house and senate just introduced a marriage equality bill in the Starbuck State. A civil union bill is lurking in the Colorado legislature. I think I saw another one in Pennsylvania. And as I mentioned, Hawaii is expected to pass civil unions in the next few days, maybe today, and send that bill to a friendly governor.
New York is working on marriage, as is Rhode Island, where evildoers have also proposed a marriage ban. In Indiana, the house passed an amendment that would send a marriage ban to the voters, but not only does the senate have to confirm the plan, but both chambers have to pass the amendment again in the next session in order for the amendment to hit the voters. An antigay Indiana amendment is therefore not immanent, but the 70-26 house vote the other day was depressing nonetheless.
The attempt to roll back marriage rights in Iowa is still being held at bay by the head of the state senate, who thankfully thinks it’s a horrible idea. And even though a poll in New Hampshire showed widespread public opposition to reversing marriage rights in the Granite State, I gather than certain conservatives are still pursuing a repeal, even as Republican leaders have vowed to concentrate on the economy and whatever else is going on over there.
Oh, there’s more. But please. Haven’t we just done enough? Iowa, by the way, is also working on a bill that states that life begins at conception, a valid opinion, but since when can you legislate a point of view? What’s next? A law insisting vitamin C cures colds and swimming right after lunch is bad for your health? Never mind. I have a feeling that anything’s possible.
--
CPACman
So, the Conservative Political Action Conference is over and done with, and although the gay Republicans at GOProud were allowed to co-sponsor this year’s shenanigans, there’s talk that they won’t be welcomed next year, since the new uber conservative CPAC head honcho doesn’t seem to like us very much.
As you know, letting the gays into the CPAC tent led several groups on the religious right to boycott the confab, although most of the libertarian types didn’t seem to mind. But just because GOProud insinuated themselves into the festivities didn’t mean they were home free. Donald Trump and Tim Pawlenty distinguished themselves respectively by coming out against same-sex marriage and suggesting we reinstitute Don’t Ask Don’t Tell.
I didn’t pay particularly close attention, but I’m sure there were many others willing to articulate the far right talking points. Indeed, I think Ann Coulter said that the “Gay Left” was destroying the family. I suppose that’s us. Have you destroyed any families lately? Me neither. We’d better get cracking!
I’m not sure why this charade deserves the massive media attention it garners. I read that something like 3,700 people voted in the straw poll that named Ron Paul as the best GOP candidate for 2012. The majority of the voters were men under 25, not exactly the cohort that will decide the primary battles to come.
For some reason, I’m reminded of the sports talk radio host I was listening to in the car yesterday, a man who confessed that he has a secret addiction to Captain Crunch cereal. Several listeners called up to add their voices to the ensuing discussion, expressing relief that they were not alone in their childish passion.
One guy, who sounded like he was under 25 and possibly could support an oddball ideologue who wants to return us to the gold standard, told the audience that he gets a box of Captain Crunch, pours two thirds of it into a giant bowl, pours in milk, waits about 90 seconds for the mixture to reach his preferred consistency and, Presto! Dinner is served!
Truly a repellent mental image in so many ways.
I might add, lest you think I’m a food snob, that Captain Crunch was my personal favorite when I was a little girl, with Lucky Charms a close second. That said, my dream breakfast was sautéed Norfolk Spot, when in season.
OK OK. I’m a food snob.
--
Criminal Minds
Well, I took a little break while waiting for this damn California Supreme Court announcement, and when I came back I discovered a new piece of gay news, the horrific story of a 19-year-old from Hickory, North Carolina, who took a heavy dose of “Mucinex DM,” felt weird, and murdered his gay roommate.
According to the Advocate, Michael Anderson shot Steven Starr with a rifle, shot him again with a pistol, hacked him up with an ax, and carved words into his body. He then called 911 to report that he had butchered Starr to such an extent that the dead man was unrecognizable.
Anderson told the operator he met Starr at a gay bar, where he (Anderson) had gone to “experiment.” It seems that subsequently, Starr let Anderson stay at his place.
As Anderson explained on the 911 call:
“I met him and went to his house and he took me in and I turned straight again. And he wanted to touch me and stuff and I wouldn’t let him, and he kept trying. And I waited until he went to sleep and then I shot him three times. And I mutilated him very badly and I’m sorry, I’m sorry. Oh God, please help me.”
I was going to spin this as a cautionary tale about gay shame run amok, but actually, I think Anderson is a madman who transcends sexual orientation.
As for Mucinex DM, I don’t know whether I want to avoid it like the plague or try one “just for fun.” I know I’ll never see those TV mucus people in quite the same light. Also, a town called “Hickory, North Carolina” is just a little surrealistic. Not sure why.
Do any of you watch Criminal Minds? I love that show, although I have to lock all my doors and windows before I turn it on. However, I have a pet peeve that runs through every episode without fail.
When the team gets together to brief the local police on the profile, one team member starts talking, and then he or she stops and another one picks up the description without missing a beat, then that person stops and the next person chimes in and the vocal relay goes on until everyone has spoken.
In real life, no one butts into someone else’s presentation without some kind of pause or cue. It just doesn’t happen, and if it does, it happens once, not four or five times in succession. And once you start noticing this contrived device, it becomes really irritating. It’s just wrong!
Maryland Marriage in a Crab Shell
News for the Week Ended February 9, 2011
BY ANN ROSTOW
Maryland Marriage in a Crab Shell
Like many of my fellow GLBT news researchers, I have long followed the career of NBA basketball star Rudy Gay. Mixed in between the random stories that pop up on our daily Google searches, we learn of Rudy’s triumphs and failures, we nod our heads at his $82 million contract with the mediocre Memphis Grizzlies, we applaud his high scoring games and give him a mental “that’s OK” when the Grizzlies lose. After all, of all the pro hoopsters, it can be argued that he has the closest connection to our community, um, namewise.
This is all to explain why I’m leading this report on marriage in Maryland with the unrelated news that Rudy is out this week with a sprained toe. Get better soon, Rudy, and go Memphis!
By virtue of the same phenomenon, we are also keeping an eye on journeyman golfer Brian Gay, and although Brian is not in the news as often as Rudy, I am pleased to report that he is 19th on the PGA tour money list at the moment. Keep it up, Brian! Our civil rights movement is rooting for you.
In our main story, the head of the Maryland Senate says he thinks we have a 60 to 70 percent chance of passing the marriage equality bill in his chamber, perhaps as early as next week.
Currently, 20 state senators have come out in favor of the bill, which was the subject of seven hours of testimony before the senate judiciary committee on Tuesday. There are six others who remain undecided, and one of the opponents just switched to undecided this morning after yesterday’s hearing, bringing the undecideds to seven. We need 24 yes votes to pass, and something like 28 to avoid a filibuster. That should be possible since several of the opponents say they will nonetheless vote to bring the bill to the floor.
The Maryland House of Delegates is thought to have the votes to pass marriage equality if it makes it through the state senate, and Governor Martin O’Malley has pledged to sign it, although he prefers civil unions in principle.
If the marriage bill becomes law, conservatives are expected to race around collecting roughly 56,000 valid signatures within 40 days of O’Malley’s signature for a 2012 ballot measure that would repeal equality. Although voters may not initiate amendments to the state constitution in Maryland, they do have the ability to petition for the repeal of a statute.
I offer no opinion on whether or not such a petition drive would be successful. As for a public vote, recent polls indicate that a small plurality of citizens support marriage equality. But small margins have a tendency to evaporate at the ballot box. That said, November of 2012 is a long way away. Public opinion is moving inexorably towards us at a rate of one to two points a year thanks to demographics. And since same-sex marriage from outside Maryland is already recognized by law in the She Crab Soup State under the Attorney General’s interpretation, the vote will simply be about whether to allow legal marriage contracts to originate in the state.
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Blacksmith State Debates Marriage
Elsewhere, we have the usual mix of good news and bad news, although the good things have a better chance of coming to fruition than their nefarious counterparts.
Rhode Islanders are considering marriage equality, and the house judiciary committee is holding a hearing on the subject this afternoon. With openly gay Democrat Gordon Fox running the House and marriage friendly Independent Lincoln Chafee in the governor’s mansion, there is now at least some possibility that marriage could become law in the Teeny Tiny State, where a marriage bill is also pending in the senate.
Rhode Island lawmakers will also debate an antigay marriage amendment, although I haven’t encountered any reports to indicate that this idea has traction. Let’s hope that my impression is accurate and not simply a reflection of my limited attention to Rhode Island politics. But hey. If there’s a decent chance that Rhode Island could pass marriage equality, it stands to reason that there’s little chance of the exact opposite result, right?
There are quite a few other things happening, including something bad under discussion in Utah, a committee vote against our communal interests in Indiana and a mixed bag coming out of Iowa. I had actually planned to devote a significant chunk of time and space to these subjects but I’ve just returned to my column after a break and my frame of mind has been dislodged from its legislative angle.
Do you care? I promise to cover all the developments in detail in some future issue, and you won’t miss a thing! Oh, thank you readers.
Here’s something. Did you know that Lincoln Chafee worked for seven years in his youth as a “professional farrier?” I had to look him up twice. First to find out whether he had one or two “f” s in his name, and second to verify that he formally switched from Republican to Independent. In the course of this detail work, I discovered his surprising early métier, something you might understand in a westerner’s resume, but not what I would expect from a New Englander.
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Worst Super Bowl Ad
And speaking of stereotypes, do you think that the Pepsi super bowl ad exaggerated negative impressions of Black women? I do. I’m talking about the one where the wife behaves like a harridan, physically snatching junk food away from her miserable puppy of a husband. She then finds him sneaking a Pepsi Max on a park bench and he slumps with guilt, erroneously believing that the delicious soda must be on his wife’s list of impermissible products. Turns out the diet drink is fine with her, and she even has her own can of Pepsi Max.
The husband then notices a sexy blond jogger, and smiles when she sits down on his bench. In fury, the crazy wife throws her Pepsi at him, he ducks, and the blond is knocked to the ground by the force of the can hitting her in the head. The couple runs off in a panic, with the wife apologizing to the blond as they make their escape.
The whole episode taps into society’s characterization of Black women as mean controlling matriarchs who pussy whip their husbands into submission assuming they have a husband to begin with. There’s a milder corollary for wives in general, and TV commercials are full of scenes where men hide and connive like little boys to avoid getting in trouble for making a mess, ignoring their chores, eating the wrong thing, going out with their male friends, looking at other women and violating a whole list of imperatives from their demanding spouses.
I think what put the Pepsi ad over the top was the fact that the husband was physically fit to begin with, implying that his wife was not simply concerned about his health, but sociopathic. In one scene she even caught him eating something fattening in the bathtub fully clothed, grabbed it out of his hand and gave him what looked like a bar of soap but could have been a slice of a radish or something.
And is it my imagination, or was this ad perhaps unconsciously designed to resonate with the backlash against Michele Obama’s nutrition policies, and by extension ridicule the First Lady along with every other Black woman in America?
The problem is that ironically, it’s a sexist trope. An overpowering man who berates his wife for eating junk food or spilling the ketchup would bewilder rather than amuse the television audience. The convention is compounded for Black women and men, and the stock image of the ball-breaker African American woman reinforces the double standard. Just think as well of that State Farm car insurance ad where the Black guy backs into another car and his girlfriend rips him to shreds for it. Who would deliberately attack someone they care about under such circumstances? No one! Or certainly no one that any average viewer would like.
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Ten Million Bucks Allocated For Marriage Ads
So Freedom to Marry is holding a conference call in a few minutes, but I’m going to skip it because they already announced the big news: to wit, a $10 million public education campaign over the next three years. The group will launch the program with a sweet little ad that I saw on their website, to be aired on CNN.
So, good for them. Ten million is a lot of money and public education is a worthy activity. That said, I don’t feel like going through the whole call-in process when I can just read the press releases.
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Prop 8 Case On The Snail Track
Meanwhile, in case you’re wondering, nothing seems to be happening with our marriage lawsuits at the moment. We are still waiting for the California Supreme Court to decide whether or not to consider the question of whether Prop 8 people would have standing under state law to represent their positions in court. A three-judge Ninth Circuit panel has made it clear that they believe the question of whether the Prop 8 people have standing under federal law depends to a large extent on the state law interpretation, so they’ve asked the California justices to weigh in on this less-than-scintillating matter.
And so far, a month or so later, the California High Court has yet to tell the Ninth Circuit what it plans to do. If the justices agree to look at the issue, at this rate we’ll be waiting around for half the year for their actual views on the subject. Only then will the Ninth Circuit (perhaps) continue their deliberations on the underlying question of whether Prop 8 is constitutional. And for all we know they’ll drop the case completely if they decide the marriage opponents lack standing. So much for the “fast track” that once defined the pace of this high profile litigation.
Over in the First Circuit, the twin challenges to the Defense of Marriage Act continue on schedule, with our side’s briefs due March 1, followed by another set of arguments from the Obama administration.
And we are waiting with interest for a ruling on the question of whether the Defense of Marriage Act forbids the Ninth Circuit from offering spousal benefits to a lesbian staff attorney. That case was argued quite a while ago and with my luck, a dramatic ruling will be issued shortly after I file this column, making me look like I’m not on top of things. Nothing could be further from the truth of course.
These are not the only federal cases of interest to our attentive community, but they are the ones at the front of the pack.
And to be completely accurate, we can’t forget the federal case against Don’t Ask Don’t Tell, which is still active even though Congress has set the law’s repeal in motion. As long as DADT is still on the books, the Ninth Circuit will continue to treat the federal lawsuit against the law as a live conflict. As you know, the ban on openly gay military service won’t be officially dead until after the government certifies that its repeal will have no impact on military readiness. Once that’s done, in a few months I guess, President Obama will have to do something else--- make a proclamation or sign something or order something. I forget the exact procedure.
I am assuming that the repeal rigmarole will reach its conclusion before the lawsuit ends, making the litigation moot. Then again, allowing gay soldiers to serve does not necessarily end sexual orientation discrimination in the military, so perhaps some constitutional issue will remain in play even after the law is gone.
And there you have it, ladies and gentlemen.
BY ANN ROSTOW
Maryland Marriage in a Crab Shell
Like many of my fellow GLBT news researchers, I have long followed the career of NBA basketball star Rudy Gay. Mixed in between the random stories that pop up on our daily Google searches, we learn of Rudy’s triumphs and failures, we nod our heads at his $82 million contract with the mediocre Memphis Grizzlies, we applaud his high scoring games and give him a mental “that’s OK” when the Grizzlies lose. After all, of all the pro hoopsters, it can be argued that he has the closest connection to our community, um, namewise.
This is all to explain why I’m leading this report on marriage in Maryland with the unrelated news that Rudy is out this week with a sprained toe. Get better soon, Rudy, and go Memphis!
By virtue of the same phenomenon, we are also keeping an eye on journeyman golfer Brian Gay, and although Brian is not in the news as often as Rudy, I am pleased to report that he is 19th on the PGA tour money list at the moment. Keep it up, Brian! Our civil rights movement is rooting for you.
In our main story, the head of the Maryland Senate says he thinks we have a 60 to 70 percent chance of passing the marriage equality bill in his chamber, perhaps as early as next week.
Currently, 20 state senators have come out in favor of the bill, which was the subject of seven hours of testimony before the senate judiciary committee on Tuesday. There are six others who remain undecided, and one of the opponents just switched to undecided this morning after yesterday’s hearing, bringing the undecideds to seven. We need 24 yes votes to pass, and something like 28 to avoid a filibuster. That should be possible since several of the opponents say they will nonetheless vote to bring the bill to the floor.
The Maryland House of Delegates is thought to have the votes to pass marriage equality if it makes it through the state senate, and Governor Martin O’Malley has pledged to sign it, although he prefers civil unions in principle.
If the marriage bill becomes law, conservatives are expected to race around collecting roughly 56,000 valid signatures within 40 days of O’Malley’s signature for a 2012 ballot measure that would repeal equality. Although voters may not initiate amendments to the state constitution in Maryland, they do have the ability to petition for the repeal of a statute.
I offer no opinion on whether or not such a petition drive would be successful. As for a public vote, recent polls indicate that a small plurality of citizens support marriage equality. But small margins have a tendency to evaporate at the ballot box. That said, November of 2012 is a long way away. Public opinion is moving inexorably towards us at a rate of one to two points a year thanks to demographics. And since same-sex marriage from outside Maryland is already recognized by law in the She Crab Soup State under the Attorney General’s interpretation, the vote will simply be about whether to allow legal marriage contracts to originate in the state.
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Blacksmith State Debates Marriage
Elsewhere, we have the usual mix of good news and bad news, although the good things have a better chance of coming to fruition than their nefarious counterparts.
Rhode Islanders are considering marriage equality, and the house judiciary committee is holding a hearing on the subject this afternoon. With openly gay Democrat Gordon Fox running the House and marriage friendly Independent Lincoln Chafee in the governor’s mansion, there is now at least some possibility that marriage could become law in the Teeny Tiny State, where a marriage bill is also pending in the senate.
Rhode Island lawmakers will also debate an antigay marriage amendment, although I haven’t encountered any reports to indicate that this idea has traction. Let’s hope that my impression is accurate and not simply a reflection of my limited attention to Rhode Island politics. But hey. If there’s a decent chance that Rhode Island could pass marriage equality, it stands to reason that there’s little chance of the exact opposite result, right?
There are quite a few other things happening, including something bad under discussion in Utah, a committee vote against our communal interests in Indiana and a mixed bag coming out of Iowa. I had actually planned to devote a significant chunk of time and space to these subjects but I’ve just returned to my column after a break and my frame of mind has been dislodged from its legislative angle.
Do you care? I promise to cover all the developments in detail in some future issue, and you won’t miss a thing! Oh, thank you readers.
Here’s something. Did you know that Lincoln Chafee worked for seven years in his youth as a “professional farrier?” I had to look him up twice. First to find out whether he had one or two “f” s in his name, and second to verify that he formally switched from Republican to Independent. In the course of this detail work, I discovered his surprising early métier, something you might understand in a westerner’s resume, but not what I would expect from a New Englander.
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Worst Super Bowl Ad
And speaking of stereotypes, do you think that the Pepsi super bowl ad exaggerated negative impressions of Black women? I do. I’m talking about the one where the wife behaves like a harridan, physically snatching junk food away from her miserable puppy of a husband. She then finds him sneaking a Pepsi Max on a park bench and he slumps with guilt, erroneously believing that the delicious soda must be on his wife’s list of impermissible products. Turns out the diet drink is fine with her, and she even has her own can of Pepsi Max.
The husband then notices a sexy blond jogger, and smiles when she sits down on his bench. In fury, the crazy wife throws her Pepsi at him, he ducks, and the blond is knocked to the ground by the force of the can hitting her in the head. The couple runs off in a panic, with the wife apologizing to the blond as they make their escape.
The whole episode taps into society’s characterization of Black women as mean controlling matriarchs who pussy whip their husbands into submission assuming they have a husband to begin with. There’s a milder corollary for wives in general, and TV commercials are full of scenes where men hide and connive like little boys to avoid getting in trouble for making a mess, ignoring their chores, eating the wrong thing, going out with their male friends, looking at other women and violating a whole list of imperatives from their demanding spouses.
I think what put the Pepsi ad over the top was the fact that the husband was physically fit to begin with, implying that his wife was not simply concerned about his health, but sociopathic. In one scene she even caught him eating something fattening in the bathtub fully clothed, grabbed it out of his hand and gave him what looked like a bar of soap but could have been a slice of a radish or something.
And is it my imagination, or was this ad perhaps unconsciously designed to resonate with the backlash against Michele Obama’s nutrition policies, and by extension ridicule the First Lady along with every other Black woman in America?
The problem is that ironically, it’s a sexist trope. An overpowering man who berates his wife for eating junk food or spilling the ketchup would bewilder rather than amuse the television audience. The convention is compounded for Black women and men, and the stock image of the ball-breaker African American woman reinforces the double standard. Just think as well of that State Farm car insurance ad where the Black guy backs into another car and his girlfriend rips him to shreds for it. Who would deliberately attack someone they care about under such circumstances? No one! Or certainly no one that any average viewer would like.
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Ten Million Bucks Allocated For Marriage Ads
So Freedom to Marry is holding a conference call in a few minutes, but I’m going to skip it because they already announced the big news: to wit, a $10 million public education campaign over the next three years. The group will launch the program with a sweet little ad that I saw on their website, to be aired on CNN.
So, good for them. Ten million is a lot of money and public education is a worthy activity. That said, I don’t feel like going through the whole call-in process when I can just read the press releases.
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Prop 8 Case On The Snail Track
Meanwhile, in case you’re wondering, nothing seems to be happening with our marriage lawsuits at the moment. We are still waiting for the California Supreme Court to decide whether or not to consider the question of whether Prop 8 people would have standing under state law to represent their positions in court. A three-judge Ninth Circuit panel has made it clear that they believe the question of whether the Prop 8 people have standing under federal law depends to a large extent on the state law interpretation, so they’ve asked the California justices to weigh in on this less-than-scintillating matter.
And so far, a month or so later, the California High Court has yet to tell the Ninth Circuit what it plans to do. If the justices agree to look at the issue, at this rate we’ll be waiting around for half the year for their actual views on the subject. Only then will the Ninth Circuit (perhaps) continue their deliberations on the underlying question of whether Prop 8 is constitutional. And for all we know they’ll drop the case completely if they decide the marriage opponents lack standing. So much for the “fast track” that once defined the pace of this high profile litigation.
Over in the First Circuit, the twin challenges to the Defense of Marriage Act continue on schedule, with our side’s briefs due March 1, followed by another set of arguments from the Obama administration.
And we are waiting with interest for a ruling on the question of whether the Defense of Marriage Act forbids the Ninth Circuit from offering spousal benefits to a lesbian staff attorney. That case was argued quite a while ago and with my luck, a dramatic ruling will be issued shortly after I file this column, making me look like I’m not on top of things. Nothing could be further from the truth of course.
These are not the only federal cases of interest to our attentive community, but they are the ones at the front of the pack.
And to be completely accurate, we can’t forget the federal case against Don’t Ask Don’t Tell, which is still active even though Congress has set the law’s repeal in motion. As long as DADT is still on the books, the Ninth Circuit will continue to treat the federal lawsuit against the law as a live conflict. As you know, the ban on openly gay military service won’t be officially dead until after the government certifies that its repeal will have no impact on military readiness. Once that’s done, in a few months I guess, President Obama will have to do something else--- make a proclamation or sign something or order something. I forget the exact procedure.
I am assuming that the repeal rigmarole will reach its conclusion before the lawsuit ends, making the litigation moot. Then again, allowing gay soldiers to serve does not necessarily end sexual orientation discrimination in the military, so perhaps some constitutional issue will remain in play even after the law is gone.
And there you have it, ladies and gentlemen.
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