What’s Black and White and Gray All Over?

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GLBT Fortnight in Review, April 3, 2013

BY ANN ROSTOW

What’s Black and White and Gray All Over?

Everyone agrees that it’s never wise to jump to conclusions based on oral arguments at the Supreme Court. That said, everyone does it anyway and we here at the Bay Times have every intention of adding to the speculation. Indeed, after listening to the Prop 8 and DOMA discussions on March 26 and 27, there are at least three observations that seem like solid bets.

First, the Supreme Court is not going to issue a ruling that overturns antigay marriage laws throughout the country. Not even the justices on our side seemed eager to settle the issue with one blow, and to be honest, most GLBT advocates did not expect the Court to so do. You may recall when the Prop 8 case was first filed (by Ted Olson and David Boies) that gay lawyers worried we were risking a huge setback for an impossible, or improbable, dream.

Well, the good news is that the justices do not seem likely to issue that huge setback either. Justice Kennedy joined voices on the left in wondering aloud why the Prop 8 case was ever accepted for review to begin with. His comments, and those of Justices Ginsburg and Sotomayor, suggested strongly that the decision to take the case came from the four justices on the right. They also hinted just as strongly that Justice Kennedy had little appetite for putting Prop 8 back on the books.

The third conclusion we might make is that the Defense of Marriage Act is likely doomed. Even arch conservative Justice Alito expressed doubts about the intrusion of federal power on states’ rights, while Justice Kennedy made no bones about his own reservations. Our four champions on the Court, in turn, condemned DOMA as a violation of Equal Protection.

This all sounds good, right? If we follow our three observations to their logical conclusions we would see marriage restored in California, while the federal government would recognize our legal unions throughout the country. But the devil is in the details, and the details remain just as murky now that the arguments are over as they did beforehand.

Here’s the problem: A Supreme Court ruling is not a simple up or down vote. What really matters is the opinion itself, the precedent it sets, the principle it lays out, the law it articulates.

For example, imagine if the High Court strikes DOMA, but does so in a states’ rights opinion that leaves the issue of our right to marriage recognition ambiguous. Let’s say that the four pro-gay justices write a minority opinion concurring with the outcome, but basing their conclusion on Equal Protection. And let’s say that two or three conservatives write their own antigay dissent. What are we left with? True, DOMA would be off the books which would certainly be a victory. But our legal fight for equality might be set back in the process. Why? Because a majority of the Supreme Court would have decided that, on principle, gay unions do not necessarily deserve the same treatment as straight marriages.

Or imagine another outcome. One underlying issue in both cases is whether or not sexual orientation should be treated like race or gender in the application of Constitutional law. From the arguments, it seemed as if the justices skirted this major debate, for reasons unclear. Perhaps they simply lacked the time to delve into this core question when they had so many other matters to pursue.

But what if five members of the Court agree that sexual orientation discrimination should not be given heightened scrutiny in these or any future lawsuits? Such a statement from the Supreme Court would be disastrous. There’s no other way to put it. And even if the Court makes a more ambiguous statement, we would have to read between the lines to determine where the impact falls on a scale of one to ten--- one being sort of okay and ten being very very bad.

So you see there are a number of ways to win and lose at the same time. Ergo, there are a number of good reasons to stay nervous as we wait for the opinions to emerge in late June. But for all the dangerous possibilities, there are some fabulous outcomes also within our grasp.

I wrote before that the Court is unlikely to legalize marriage across the board. That’s true, but because it’s unlikely does not mean it’s out of the question. So there’s that.

Second, although conventional wisdom says that Justice Kennedy will strike DOMA on the basis of states’ rights rather than gay rights, that wisdom doesn’t seem all that wise if you think about it. No justice is required to select only one constitutional theory for his or her opinion. So, yes, we know that Justice Kennedy thinks DOMA is a federal power grab, but he may well agree that DOMA penalizes gay couples unfairly in the process.

Further, assuming that our four allies on the Court are going to articulate the case for equality, why on earth would Justice Kennedy deliberately deny them the fifth vote that would put teeth into that opinion? This is the man who wrote both the Romer opinion in 1996 and the Lawrence opinion in 2003. He has hung his legacy on gay rights and there’s no reason to think that he would undermine his signature jurisprudence in the last decade of his career.

A majority ruling that strikes DOMA on gay rights grounds would be a huge victory indeed. And although such a ruling might sidestep the question of legal scrutiny that we mentioned above, it would likely do so in the least destructive way. The Court, for example, could say that while there are excellent arguments in favor of heightened scrutiny for sexual orientation discrimination, it’s not necessary to reach that issue in this case.

Speaking of sidestepping, I’ve ducked the issue of “standing”in this analysis, simply because there’s enough to talk about without going into Article III and whether or not the Prop 8 organizers have the right to appeal in federal court to begin with. As you know, there are also questions about the standing of the Congressional committee now backing DOMA, as well as the U.S. government, which appealed the DOMA case even though it agreed with the lower court ruling (normally an Article III no- no).

But without getting too tedious, Court observers noted that many justices seemed prepared to simply dump the Prop 8 case on standing grounds, which would allow them to avoid comment on the question of marriage equality per se. If you believe that the four liberal justices wanted to skip the case in the first place, and that Justice Kennedy shares their view, they may well take this route. That would nullify the Ninth Circuit’s ruling, and (possibly after a brief legal skirmish) would outlaw Prop 8 as per the ruling by Judge Vaughn Walker.

As for the standing issues in the DOMA case, while they were discussed, there was less of a sense that the justices would use them to avoid a ruling on the merits of DOMA. After all, just as you can’t be a little bit pregnant, you can’t have a little bit of DOMA. The law has been struck down by the First and Second Circuits, so how can the government recognize same-sex marriages in New York or New England, but ignore them in Iowa or Washington?

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Marriage Equality All The Rage

Let’s take a break from High Court hijinks and take stock of the rest of the gay news of recent days. A zillion more politicians have come out in favor of marriage equality, bringing the number of pro-marriage senators to 50, including two Republicans.

Sounds like Uruguay is poised to legalize marriage soon. Yay Uruguay! Don’t know about you but I’ll be rooting for them the next time I see their team in the World Cup. The ACLU has filed a state court freedom to marry suit in New Mexico, where the law is silent on marriage restrictions and where renegade city officials in Santa Fe recently announced plans to issue licenses to same-sex couples. Also, some couples have filed a federal marriage lawsuit against the state of Utah.

And I was happy to see Rutgers hoops coach Mike Rice get the ax after watching videos of this lunatic calling his players “fairies”and “faggots” while hurling basketballs at their private parts. Now let’s see some punishment for the enablers in the Rutgers administration that saw this video months ago and gave Rice a slap on the wrist at the time.

By the way, I’m adding a new commercial jingle to the list of annoying songs that I can’t get out of my mind. Lately there’s been“five dollar subway” and “Mr. Lid.” Now I can’t get rid of the song about Tena Twist adult diapers even though I don’t remember much of the lyrics. You know the ad I mean, with the women dancing and twisting?

I just tried to look up the words to this and I landed at a site for “adult babies” and “diaper lovers.” Hey, I know we’re all supposed to keep an open mind given our history as a despised sexual minority, but this is really a little out there. Too much for me, anyway.

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Who Knows Where?

I return now to tie up a couple of the many loose ends at the Supreme Court, beginning with the following perplexing question:

If the Court strikes DOMA, would the federal government recognize a married couple who married in Massachusetts or Iowa, but who now lives in Texas or Oklahoma?

The question seems to be a no-brainer. Of course they would. How could the government possibly force couples to live forever in a state that conforms to their marital status? How could a couple be forced to choose between a job promotion or marriage benefits? Would a military family have to switch from married to unmarried due to a transfer?

And look at the different state laws surrounding first cousins. Does the federal government force cousin couples to remain in West Virginia (or wherever this is legal) in order to stay married for social security purposes? Answer, no.

In fact, the answer doesn’t seem as obvious to others as it does to me. (Moi? Wrong? Could it be?) At arguments, Roberta Kaplan, the lawyer for Edith Windsor, told the Court that it could strike DOMA and base marriage recognition on the “state of residence.” But how could that be true? And when you answer, keep in mind that the right to interstate travel is fundamental in this country, and cannot be hindered without a “compelling”government purpose.

Finally, one of the most irritating aspects of both oral arguments was the tendency of the justices on the right to make note of the relative newness of same-sex marriage. Justice Alito insisted the concept was newer than cell phones and the Internet. In a similar vein, Justice Scalia pounded Ted Olson with the question of exactly “when” the Constitution mandated same-sex marriage.

But the objections are, or should be, easily resolved. Legal marriage may be new, but the same-sex couples seeking recognition are decades old. Marriage equality will not mean that gay couples will suddenly decide to get together, live together, have families. This has been going on both in and outside the shadows for a long time, and it will continue with or without equal treatment under the law. Equal treatment under the law, needless to say, is a little older than cell phones.

And “exactly when” did the Constitution mandate marriage equality? Each time the High Court has ruled that marriage is a fundamental right, and each time the High Court has struck discriminatory laws under the Equal Protection Clause. That’s when.

The real question is when did we recognize that gay couples fall under those precedents? Even if the answer to that question is five minutes ago, once that realization hits home there’s no justification for further inaction.

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arostow@aol.com

Oral Fixation

GLBT Fortnight in Review, March 20, 2013

BY ANN ROSTOW

Oral Fixation

I feel as if it’s the night before the big game. We are all obsessed with tomorrow’s match up, but there’s really nothing we can say about it. All we can do is continue the speculation. Well, why not? There’s always a little tidbit or two to feed our hunger. Here’s one: How will the fabulous latest poll on same sex marriage affect the Justices’ frames of mind?

Surely they (Kennedy and Roberts) can’t remain unmoved by the soaring appreciation for our legal unions now shared by our compatriots. In addition to an overall 58 percent support, the latest survey says some 80 percent of the under thirty crowd now believe in our right to marry. Indeed, the only generation that clings to tradition is the one over 65 years old. The gradual acceptance we’ve seen over the last decade or so has gone viral, mainly because so many people spent so much time straddling an impossible fence. Once they lost their balance, as was inevitable, there was only one side they could pick. After all, they were only on the fence to begin with because they had already rejected the antigay position in their heart of hearts and needed a way station.

In the last two weeks, Republican Senator Rob Portman has come out for marriage equality, making mention of his gay son in the process. Hillary Clinton, long our ally in word and deed, has issued a full throated public endorsement. True, a few denizens of the Conservative Political Action Conference (CPAC) continue to deride our love. But these are the same people suggesting that slavery wasn’t so bad and that background checks for gun owners are akin to press censorship.

The Supreme Court dislikes jumping too far ahead of public opinion. But lately, it seems as if they have little to worry about in that regard. Yes, 40 states outlaw same-sex marriage. But majorities in most of those states would have it otherwise. I still doubt the Court will issue an historic condemnation of all restrictions on marriage rights. But I’m more hopeful that they will avoid a destructive “compromise” opinion that might impede our progress for years to come. It’s more likely that they will strike the Defense of Marriage Act, while sidestepping the issue of full marriage equality.

The audio broadcast of next week’s oral arguments, on Tuesday and Wednesday, will be available online the same afternoon. We’ve got March Madness, the Supreme Court, and more March Madness. Let the games begin!

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Six Ways To Do Nothing

I was surfing for news this morning when I made a detour into the ten secrets of airline hostesses, an intriguing headline straight out of the days of Coffee, Tea or Me. As usual, I was disappointed. Hostesses hate pouring diet Coke, which takes forever to unfizz. They don’t get full pay until the door shuts, so they’re only making a couple of bucks an hour while they’re telling us to put our stuff under our seats. No wonder they’re in a hurry. I have no idea why the article was limited to female hostesses in this day and age, particularly in view of the bland revelations. But it was another reminder of my own gullibility.

I’m a sucker for anything with a list or a number. Ten foods to avoid at all costs (potato chips and margarine). Five ways to reduce stress (get more sleep and take a bath). The six worst Presidents (Buchanan and Andrew Johnson). The ones that really annoy me are the random lists of “best cities to retire” or “most fit cities” or “happiest cities.” Who picks these? The top city is always something like “Oslo” or “Greenville, Tennessee,” but there’s never a clear explanation of the analysis that produced the final rankings.

And yet, time after time, I continue to click on these tempting links. Someday I will discover that “clicking on side bars” is one of the “Top Ten Time Wasters.”

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Lake State Moving Along

Meanwhile, perhaps you’re wondering what’s new in our valiant communal quest for civil rights. Well, not a hell of lot, which is why I digress. But still, the fight goes on as must our attempt to relay the details.

I’ve been wondering what happened to stall our marriage legislation in Illinois. You recall that the state senate passed a bill on Valentine’s Day, and a house committee followed suit a few days later. After that, nothing. Apparently, we are still short the votes for passage in the house, but we continue to lobby for the final victory.

Likewise, we’re still watching the wheels slowly turn in Rhode Island, where marriage equality passed the house in late January and will be heard by a senate committee this week. En fin! Still, lawmakers are reportedly considering language that would exempt wedding-related businesses from nondiscrimination laws in the event that marriage equality passes, an offensive, bizarre and counter intuitive strategy indeed. We’re also still hoping that the New Jersey legislature can corral a two thirds majority to override Chris Christie’s marriage veto, and we have until next January to manage that feat.

Delaware is poised to launch a marriage effort, we’ve been hearing. And now, Minnesota is emerging as the next battleground. Marriage equality has passed committees in both houses, and since Democrats control the house and the senate, we have a solid chance for success in the Land of a Thousand Lakes. Are there really a thousand lakes in Minnesota? Further, is that a lot of lakes? You can’t really tell unless you know how many lakes there might be in other states of similar size. How big is a “lake” anyway?

I’ve lost track of the prospects for marriage overseas. I triumphantly reported that the French and British lower houses both approved marriage equality last month, but I continue to read articles indicating that the debate continues, as do protests on both sides. Must I really track down the political status of marriage in every European country? Are we waiting for the House of Lords to return from grouse hunting in Yorkshire? Is the French senate off skiing in Val Thorens? It’s hard enough to keep up with the Rhode Island senate and the Illinois house for God’s sake.

Oh, and before I leave this subject I should mention that the Odawa Indian Tribe in Michigan has approved same-sex marriage. And lawyers in the city of Santa Fe are considering a renegade move to issue licenses to gay men and women, given the fact that there’s no specific state law on the books that forbids it.

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He’s So Humble, He Never Thought The Song Was About Him

So, much is being made of the fact that the new Pope does not support gay rights, which is like being upset that Paul Ryan wants to turn Medicaid into a block grant. I also read an article about how Mr. Pope, whose original name I forget, urged the Argentinian government to offer civil unions instead of marriage equality, which was supposed to suggest that the man was a pragmatist. Whatever. I have nothing against the Pope, but I’m not looking to him for leadership in our fight against discrimination. And if he has any chinks in his antigay armor, they are minor dents at best. Frankly, I’m just happy that the smarmy media adulation appears to be over and done with.

And in completely unrelated news, I’m sure you read that Michelle Shocked made antigay comments at an Oakland concert, and the rest of her tour was immediately cancelled by almost all the various clubs on her schedule.

First of all, how come Michelle Shocked is still doing tours? I remember she was around a quarter of a century ago, and she wasn’t that great back then. Cher and Madonna might get away with careers that span decades, but Michelle Shocked?

But second, the fact that her tour was essentially shut down by a dozen different decision makers is the most telling sign that antigay rhetoric is approaching the social disfavor of racism. I hope the Supreme Court took notice.

And to continue my theme of unrelated items, did you hear about the organization that bought the house across from Fred Phelps and painted it in rainbow colors? The $81,000 house in Topeka, Kansas, will be dubbed the “Equality House,” used as a center to fight bullying, and finished off with a giant rainbow flag. Phelps’ daughter Shirley said she loves the new attraction, which will only serve to highlight the evils of homosexuality.

Meanwhile, two of Phelps’ grandchildren abandoned the family compound last month as they began to realize that their grandfather was insane rather than prescient. Two of Shirley’s daughters, Megan and Grace Phelps-Roper, issued a public statement apologizing for their role in various protests and pledging to “try and find a better way to live from now on.” It’s worth a search to read Megan’s articulate and touching letter.

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NOM Gets No Love

I didn’t really follow the CPAC conference last week, but you couldn’t help stumbling over that smug video of Sarah Palin chugging a big gulp and basking in some increasingly rare attention. Poor Palin has had her fifteen hours of fame. But you know what? Her time’s been up for a few years now, and she seems to be the only one who understands this sad state of affairs.

I recommend a trip to BuzzFeed to compare the photographs of the empty room at the National Organization for Marriage’s CPAC presentation and the packed house at a panel on changing the conservative stance on gays. According to Chris Geidner, NOM’s Brian Bond spent most of his time complaining about how badly he and his fellow anti-marriage activists were being treated these days, called bigots and the like. Even at CPAC, of all places, the age of hate seems to be slowly coming to an end, the audience dwindling, the applause quieting to a smattering of claps.

Speaking of Bond and NOM, the group is planning a big protest on the national mall this Tuesday to correspond with Day One of the High Court’s marriage arguments. It will be interesting to see how many followers turn up.

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What’s The Matter With Kansas?

Have you noticed that it’s always “Ford Truck Month?”Is it my imagination? I think not. And while we’re off the subject of LGBT-ness, what do you think of the fact that President Obama fills out his NCAA bracket in public? I think it’s a refreshing change from public figures who insist on maintaining an unbiased posture on the theory that they will anger one side if they announce a preference.

That said, as a Jayhawk by marriage, I’m pretty disgusted that the man couldn’t support Kansas beyond the first three rounds.

Finally, all credit to Tyanna Slobe at the Rocky Mountain Collegiate, who cut to the heart of the problem with the elementary school mandarins who forbid a six-year-old transgender girl from using the restroom. Stop sexualizing transgender children, wrote Slobe flatly. And she’s right. It’s not simply that trans kids deserve respect and recognition. It’s also the implicit notion that the mere fact of being in a bathroom creates some weird sexual tension and that small children contribute to this freighted ambiance. Really?

A lawyer for Eagleside Elementary told the media “I’m certain you can appreciate that as Coy grows older and his male genitals develop along with the rest of his body, at least some parents and students are likely to become uncomfortable with his continued use of the girls’ restroom.”But in fact we do not “appreciate” this speculation. Who knows how Coy will decide to deal with puberty? What we can anticipate is that Coy will continue to act and dress as the girl she is, and that rather than parade around naked in the restroom, she will use the stalls like everyone else.

I thank my dear reader, N, for the observation that the lawyer’s name is “Kelly Dude.”

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arostow@aol.com

The Eight State Solution

GLBT Fortnight in Review, March 6, 2013

BY ANN ROSTOW

The Eight State Solution

As the clock ticked down on the deadline to file a brief with the Supreme Court against Prop 8, Obama’s Justice Department came through with flying colors. They were not obligated to weigh on the case against California, and indeed the United States is already a party to our other big case, the challenge to the Defense of Marriage Act, so it’s not as if Obama and company have stayed on the sidelines in the marriage wars. But as the President remarked in a press conference, Obama felt that his administration had a responsibility to take a stand on a major question now pending before the High Court.

As you know, while the DOMA challenge asks only if the federal government has the right to ignore the legal marriages of gay couples in Massachusetts and the other eight marriage states, the Prop 8 case asks the deeper question of whether states can withhold marriage at all. As such, it’s the more profound piece of litigation, and to some, the more dangerous. Many activists, who recognize that things are improving quickly in this country, still wonder whether the Court is prepared to strike the laws of some 40 states next summer.

The answer to that is probably no. But the Court can define the question in more manageable terms, as did the Justice Department in its February 28 brief. Assuming that the Court actually deals with the core of the case rather than tossing it on procedural grounds (a possibility), the justices can avoid the gay marriage superhighway with one of two narrow roads.

The Ninth Circuit’s road limited the case to California, the only state that has authorized marriage equality, let it ride for six months, and then taken it away through a public vote. The 2-1 majority ruled that such a maneuver at the expense of a particular group of people was unconstitutional in any context. In a sense, that opinion did not even turn on gay rights or gay marriage.

The Justice Department has taken a more expansive route. After establishing that gay bias should be evaluated under heightened legal scrutiny, Obama and company insist that a state may not offer all the rights of marriage while reserving the word and the status for heterosexuals. Under heightened scrutiny, a state must provide a solid justification for discriminatory actions. Clearly, no important state interest is served by creating a separate terminology for no purpose other than to demean gay couples.

Significantly, the Justice Department’s rationale also condemns the laws of seven other states that offer all the rights of marriage save the name. Were the High Court to follow Obama’s lead, the states of Oregon, Illinois, Rhode Island, Hawaii, New Jersey, Delaware and Nevada would also have to upgrade to marriage. Not coincidentally, many of those states are poised to fall into the equality column on their own.

It’s likely that the High Court will allow the Solicitor General a few minutes to argue against Prop 8 at the March 26 hearing. That’s usually the procedure when the United States offers an amicus brief in a major case. And make no mistake about it, the decision to weigh in as a friend of the court will have a significant impact on the Court’s deliberations. Further, had Obama taken no action, that caution would have sent a message as well, signaling a yellow light that could have influenced the DOMA case at the same time.

Anyway, it’s good news. Don’t forget that since Obama’s day job used to be “Professor of Constitutional Law,” the Court is likely to take his briefs without salt.

The DOMA case will be argued the morning of March 27. The Court’s opinions are likely to be announced in late June.

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Illinois on the Threshold

So, speaking of those other seven states where marriage might be just around the corner, Illinois is leading the pack with nothing but a house vote standing in our path. That’s going to be a close vote, however, and it’s not clear exactly when the measure will be brought to the floor. Soon, I think.

Over in Rhode Island, we’re just waiting for a senate vote, another iffy prospect with another vague timetable. Still, both these states are led by friendly governors with pens in hand waiting to sign a marriage equality bill.

As for the other five states on the fast track to marriage equality, Delaware activists keep talking about passing marriage rights this session, although I can’t tell you when that will happen. Last week, our side commissioned a poll that revealed a 17-point margin in favor of equality. That said, I’m not sure how the questions were phrased.

“Do you think same-sex couples should be treated with dignity and respect? Or do you think they should be branded with a triangle and thrown into a muddy pit?”

Oh, I’m sure there’s a majority in favor of marriage rights in Delaware. I’m just not sure we have a 17 percent lead.

As for Oregon, I already told you that we’re planning a 2014 campaign to overturn the state’s constitutional ban on marriage. And in New Jersey, where the legislature passed marriage equality a year or so ago, we have until January of 2014 to override Governor Christie’s 2012 veto. You may recall that Christie suggested at that time that a public vote would be a preferable way to settle the issue of marriage equality, commenting that he was sure black Americans would have preferred a public vote back in the day rather than suffering through a long and violent struggle for civil rights. I don’t have the 1950 polling data on civil rights at my fingers right this second, but if memory serves it fell just short of majority support.

Nevada and Hawaii are not on the brink of legalizing marriage equality, but they are both in the middle of an interesting federal lawsuit. Our legal eagles filed Prop 8-type lawsuits in federal court against both states, and in both cases, we lost at trial. Those suits have been consolidated on appeal to the U.S. Court of Appeals for the Ninth Circuit, and there they sit for the moment as the High Court reviews the very same issues. If the Supremes rule on the merits of Prop 8, they will no doubt settle Nevada and Hawaii cases at the same time.

But here’s a big “if:” Let’s imagine that the High Court dispenses with the Prop 8 case on standing issues and never reviews the meat of the matter. Guess which case moves up to the top of our list of groundbreaking marriage equality litigation? This one. It’s running under the news radar for the moment, but the Hawaii/Nevada case could wind up in the history books as the Brown v Board of gay rights.

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With Friends Like These

So, the Obama brief was the top headline in marriage news this week. But running a close second were the briefs filed by many of the largest corporations in the United States in favor of marriage equality. One brief, filed as a friend of the court in the DOMA case, included nearly 250 big companies, arguing that the rift between state and federal marriage policies hurts their ability to attract and compensate top talent. The other one, filed in the Prop 8 case and signed by 100 corporations, also focused on employment and steered clear of constitutional issues.

It’s unusual for the business community to weigh in before the Court on a so-called social issue. And it’s unprecedented for the nation’s big employers to take a unilateral stand. There were no corporate briefs for the other side in either case, and although some conservative religious business owners surely oppose marriage equality, the pragmatic arguments in favor of seamless equal rights across state lines are compelling. Just as one example, imagine that one of your top Vice Presidents is married to a gay spouse in New York and you want to transfer him to Texas. You know what? He’s likely not happy about that, and as a boss, you really can’t ask him to give up his marriage for his job.

Will it have an impact on the Court? I think so. I also think the brief filed by dozens of notable Republicans in favor of marriage rights will make a little dent. Obviously, the justices pay more attention to the legal arguments and the official briefs written by the parties themselves. But even though the friends of the court are standing on the sidelines, you can’t help but notice that all of America is standing by our side, while the riff raff and the far right stand alone in their little corner.

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Yum, Not

Before we go on, I just took a break to read the paper this morning only to discover an irritating article about how to adjust your snacking habits in order to lose weight and improve your health. Here’s the direct quote that I found most annoying:

“Enjoy high protein snacks such as a cup of fat-free, no sugar added plain Greek yogurt and six walnut halves; 3 ounces of grilled chicken breast (no skin); a hard-boiled egg; or one tablespoon of peanut butter on a celery stick.”

First of all, the verb “enjoy” does not belong at the beginning of that list. Second, none of the aforementioned suggestions qualifies as a “snack.”

When you “enjoy” a “snack,” you’re reheating the last slice of last night’s pizza, you’re not boiling up an egg or pulling the plain fat-free yogurt out of the fridge. Indeed, the plain yogurt is meant to be left on the back shelf for several months and then thrown out with the rest of the unpleasant but healthy foods that you bought on a whim (thanks to articles like this one) and subsequently rejected. The other day I threw out a year-old bag of raw flax seed that fell under this category.

Back in my youth, I used to diet simply by limiting my calories. Ten raw oysters and a vodka gimlet or two for lunch. A couple of snifters of cognac for dinner. Throw in a dozen cups of black coffee and a pack of cigarettes and the day was a success. I actually know this because I recently found a little book I used to track my calories when I was in my mid-twenties. The previous entry was marked with three stars because it was under 1,000. Bravo! Oh, and for the record, this system worked.

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Mystery Surrounds Murdered Gay Pol

What else is new, you wonder? Well, I keep stumbling over an article about two men who got kicked out of a mall somewhere for kissing. Then, there’s the news that several potential NFL rookies were asked about their sexual orientation during the recent pro football tryouts.

But the most disturbing development concerns the murder of openly gay mayoral candidate Marco McMillian, 34, whose body was found in a levee near his hometown of Clarkesdale, Mississippi, last week. Although the media has suggested that McMillian’s body was beaten and burned, the New York Times reports that the cause of death is still unclear. According to the coroner, the Times reports, McMillian had a black eye and a few small burn marks, but none of his injuries would have killed him.

Was it a hate crime? It’s possible that the answer could be no. After all, gay men and women can get murdered just as randomly as anyone else. Still, it makes you wonder when a public figure of sorts gets killed in a small conservative town. Police have arrested 22-year-old Lawrence Reed, who was found driving McMillian’s SUV, but they seem to think the murder was “personal.” According to reports, McMillian and Reed had been seeing each other for a short time.

The National Black Justice Coalition has asked the U.S. Justice Department to investigate the murder as a hate crime, either racial or gay. Since both men are African American, it seems more likely that the killing could have been a case of gay panic. In any event, the GLBT community has lost a rising political star from a part of the country where gay leaders are few and far between.

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arostow@aol.com

Bad Form

GLBT Fortnight in Review, February 20, 2013

BY ANN ROSTOW

Bad Form

Maybe it’s because I’ve a news writer for the last couple decades, but of all the stories I’ve encountered in the last two weeks, I was most astonished by the style martinets at the Associated Press who (according to an internal memo) have decided to use the word “partners” or “couple” to describe legally married gay spouses.

You may know that we’re all supposed to consult the AP style guide for correct usage, although many of us just wing it. Today, I am proud to be a member of the latter category. Is the AP waiting for the Supreme Court to rule on the Defense of Marriage Act before deigning to refer to married gay couples as husbands or wives? Or “married?” Or “spouses?”

Maybe five years ago they could be excused for a little confusion. Back then, you could only get married abroad, in Massachusetts, or briefly in California. With many civil union partners and others calling themselves married or using marital terms, the mavens could well have decided to err on the side of ambiguity.

But we are living in country where you can legally marry in nine states. The policy should be simple. You refer to couples as married, domestic partners or civil union partners. And how can you tell which category is correct? You’re a reporter for God’s sake! It’s your job to find out.

The AP makes an exception for people who refer to themselves as married, or who use the terms “husband” or “wife” in a quote. But this seems doubly odd. First, it calls into question the general rule that obliges reporters to use non-marital terms for everyone else. Second, it allows people who are not legally married to self-identify as married even when they’re not.

I am guessing that the AP doesn’t want to embed a political viewpoint into its style guidance, but with this outrageous move that’s exactly what they have done. They have determined that married gay couples are not really as married as everyone else.

You may recall that the AP pedants recently came out against the use of the term “homophobic,” based on the notion that “homophobia” is not a psychiatric disorder and/or that people who dislike gays do not do so out of “fear,” which is of course the meaning of “phobia.” You know what, AP? The meaning of words evolve. Homophobia means dislike of gays. And yes, it’s often based in fear. What next? Banning the word “gay,” because it really means “lighthearted and carefree?” Who’s in charge over there?

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Viva La Vida

The Mexican Supreme Court ruled in favor of three gay couples trying to marry in the state of Oaxaca back in December. But the other day, the Court issued its sweeping written opinion in these cases, making clear where it stands on matters of gay rights in general. And like our neighbors to the north, our neighbors to the south are way ahead of us. (Perhaps we can close the gap this summer.)

The Mexican high court cannot rule on a nationwide basis, and can only change law in the states after ruling on five cases (J. Lester Feder at Buzzfeed tells me). Since the most recent ruling involved three cases, the folks in Oaxaca are getting close to marriage rights. But more importantly, the decision will pave the way for other state activists to make marriage claims. Marriage rights are available to gay couples in Mexico City and in the state of Quintana Roo on the Yucatan peninsula (think Cancun and Cozumel). Those marriages, as well as the civil unions allowed in the U.S. border state of Coahuila, are recognized throughout the country.

Mr. Feder also noted that the recent ruling took strength from a 2012 gay rights victory from the Inter-American Court of Human Rights, suggesting that the road is paved for other Latin American countries to make progress. Marriage equality is already the law in Argentina and Uruguay.

By the way, while I was cruising on Buzzfeed I learned that a pair of gay penguins in a Danish zoo have become parents. Sadly, the zookeepers in Odense have failed to name the birds, which takes some of the color out of the story, don’t you think? We do know, however, that in their desperation to create a family, the penguins tried to steal eggs from other couples and also tried to hatch a dead herring. Happily, one of the zoo’s females produced two eggs and abandoned the extra. The egg was given to the boy penguins, and they successfully nurtured it to chickhood. We will know its sex in a few months when it grows feathers. And I trust we’ll have some awww-inspiring nicknames for the whole family by then.

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Bu-Bye Pope

Was I the only one who thought, and still thinks, that the media hoopla surrounding the Pope’s resignation was a bit smarmy? Fine, the Pope is always going to be an international figure, but enough is enough. Is there some rule that all popes are to be treated as saintly father figures one step down from Christ himself? And was it a heroic gesture of some sort for a frail man in his mid-eighties to resign from a demanding public job?

I, for one, could not have cared less. But then, there are many things I don’t care about. For example, I didn’t care about the killer in LA who died in a burning cabin the other day. Why did we have split screen coverage of the flames when we were minutes away from the State of the Union speech? It would have made sense if the cabin had been surrounded and the guy was about to emerge. But all we saw was some woods and something on fire in the distance. There was no “breaking” news.

Indeed, it is truly a shame that the nation’s assignment editors do not consult me personally in advance of every key decision.

Moving right along, I left my list of stories in my car and although the car is sitting in my driveway, it feels very very far away. I know that I was supposed to cover the Valentine’s day vote for marriage equality in the Illinois senate. And indeed, I was intending to lead this column with Illinois politics. After all, there’s a good chance that equality will pass the house, although the vote count is reportedly close. And unlike the situation in Rhode Island, where we will probably be waiting weeks or months for the state senate to take up the house bill on marriage, it sounds as if the Illinois house will debate marriage fairly soon. Maybe this week. Maybe starting today.

So if all goes well, the Windy State will become the tenth bastion of freedom in the nation. But the emphasis is on “if all goes well.” Here’s the situation. If I were to start this column with Illinois news, crowing about how close we are to marriage rights, overflowing with optimism, things would go south. The house would delay debate. We’d lose a close vote. Something bad would happen. But if I bury this exciting development in the middle of an item in the middle of the column, then the sky’s the limit!

First Illinois, maybe in a matter of days. Then we’ll see if our adversary, Rhode Island senate president Teresa Paiva Weed, eventually allows debate on the bill that has already passed the house. If that bill noses through, we’ll have eleven states on our side. And keep in mind that Delaware activists are set to push marriage through the Corporate Headquarter State legislature like a knife through butter. We could have an even dozen by May Day!

By the way, the ease in which knives go through butter depends entirely on the knife and whether or not the butter has been refrigerated. Let’s hope that Delaware activists have a ginzo knife and the butter’s been sitting on the counter all day.

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Beyond Basic Rights

There are marriage efforts underway in other states too, albeit with dimmer prospects. Believe it or not, we even have a bill in the Texas legislature to strip the constitution of its ban on recognizing gay couples. True, the bill has a snowball’s chance in Austin in August, but you have to start somewhere. I read that Mississippi just ratified the 13^th Amendment a few days ago, so I think we can expect Texas to allow same-sex marriage by the end of this century at the latest. (Lawmakers in Mississippi reportedly had not realized that theirs was the only state that had yet to formally abolish slavery until they saw “Lincoln.”)

In Oregon, where prospects are not dim, just a bit far away, activists have announced plans to take an equality amendment to the 2014 ballot. Oregon voters condemned marriage rights back in 2004, but they did so by a relatively small margin for the times. Plus, that was ten years ago.

Basic Rights Oregon thinks the time is right to bring the issue back before the voters, and if they are successful, Oregon would become the first state to repeal an anti-marriage constitutional amendment. Think about it. We went through years of statewide votes. We’re not going to reverse those votes in the deep red states, but we may well be in store for a raft of new statewide elections in places like Oregon, where we have a solid chance for success.

Over at the Supreme Court, meanwhile, I think we have something like 58 hostile friend of the court briefs now piling up for both the Prop 8 and the Windsor case. Soon they will be joined by dozens of briefs on our side, and without going on and on about it, I just want to remind you again to watch to see if the U.S. Justice Department files an amicus brief in the Prop 8 case in the next day or so. This is the most newsworthy possible event between now and the oral arguments in late March.

And before we leave our favorite subject, have any of you seen the marriage equality ads now airing nationally? Freedom to Marry and the Human Rights Campaign have put together an impressive spot, featuring clips from Laura Bush, Colin Powell, Dick Cheney and Barack Obama all calling for marriage rights. Truly, we are on the offensive.

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It Won’t Get Better

Should I go out to my car? Or should I just blather on for a few more lines at random? I agree dear Readers! You can read about the European court ruling on gay adoption somewhere else. Maybe there was also a gay soccer player somewhere. I can’t remember.

So, I just read that the “It Gets Better” video project is about to launch a version in South Africa. One of its star presenters was to have been Oscar Pistorius, the legless track star who recently shot his girlfriend to death “by accident.” Pistorius has now been dropped from the anti-bullying campaign.

“Just remember that you’re special,” Pistorius said in the now-abandoned clip. “You don’t have to worry. You don’t have to change. Take a deep breath and remember; ‘It will get better.’”

Newsflash. It’s only going to get worse for Oscar, unless he manages to convince the court that he fired several rounds through a locked bathroom door because he thought an intruder was hiding out in the john.

I’ve never had an intruder in my house, and I have no doubt that it would be terrifying. That said, I’d feel much better about it if the dangerous criminal was locked in the bathroom rather than running around loose in the house. Further, if I were the type to shoot someone, I think I’d wait until the person emerged, if only to verify that the supposed intruder was not my dog, my former roommate, a confused bum, a distant cousin, a drunk neighbor, or the love of my life. Hell, I might even ask who’s there in a loud voice before unleashing the firepower. Then again, I’m special.

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arostow@aol.com

Sick of the Scouts

GLBT Fortnight in Review, February 6, 2013

BY ANN ROSTOW

Sick of the Scouts

This is one of those weeks jam-packed with moderately significant, somewhat tedious, news items of mild interest to our vibrant and colorful GLBT community. I’m not pleased about it. I far prefer a week with a big exciting story that will eat up the first half of this column in one effortless gulp. Alternatively, we all also love the weeks when cannibals or conservative Christian pedophiles dominate our discussion.

But Defense Department regulations? The Boy Scouts? Committee votes in various state legislatures? Say it ain’t so!

Alas, it is so, and I can only do my best to spice up the bland fare with a little habanero sauce, or maybe a couple shots of flaming cognac. In truth, I’ve always thought it was a waste to burn off all the alcohol in a perfectly good snifter of booze. That observation aside, I’d like to dispense with the Boy Scouts as quickly as possible. The Scouts bore me with their sanctimonious oaths and traditions, their uniforms and badges and faith-based jingoism. In the last few weeks, they’ve dominated the headlines simply by hinting that they might ease their categorical ban on gay scouts at some point in the future.

So what! I’ll believe it when I see it, which might not be for months. On Wednesday, the Scouts announced that the big decision won’t take place until May or later, after some 1,400 members of some national council get to vote on the matter. My vote? Get these jokers off the front pages of our newspapers until, or unless, they actually take some action on the matter. Meanwhile, despite my better judgment, I will continue to buy microwave popcorn from the cute little Scout across the street. My politics are skin deep in certain areas.

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Bustin’ Out All Over

Marriage equality is poised to become law in England and France, where the lower houses of parliament both passed gay marriage rights by large margins last week. In Britain, the vote was 400-175, a large majority cobbled together despite the opposition of over half the conservative members. Good for David Cameron, a champion of justice who will pay for his support in political currency down the line. The measure now goes to the House of Lords, which looks as if it should be capitalized. I won’t even check the style guide.

In France, the assembly voted 249-97 to send marriage equality to the senate, which feels more like a lower case cohort. Lately, we’ve seen dueling protests in the streets of Paris on both sides of the debate. But the bottom line, if you believe pollsters, is that 63 percent of the French public believes in same-sex marriage rights. Bravo les mecs!

I told you the news was significant. And there’s more of the same here in the Homeland, where an Illinois senate committee advanced marriage equality to the senate floor. A senate vote is likely on February 14, after which the bill would go to the house. In other state news, Wyoming lawmakers defeated bills to ban gay discrimination and authorize civil unions. We’re supposed to be pleased that these bills made it to a floor vote to begin with, but I’m indifferent. Wake me up when the Big Sky country legislature sends a gay rights measure to the governor’s desk.

Delaware activists are convinced they can legalize marriage for gay couples this spring. And we’re still waiting for action on marriage in the Rhode Island senate, after the house approved a marriage bill a few weeks back. I also told you the news was tedious, remember?

Is there more, you ask? Possibly. But I think we’ve had enough. Oh. Here’s a little unsubstantiated tidbit. Tax records from the National Organization for Marriage reportedly indicate that NOM chief Brian Bond makes around half a million a year if you add up all his salaries and perks. That’s a lot of money for losing four state elections and a couple of court cases. I wonder if the dwindling contributors to the fight against marriage appreciate how much of their cash is finding its way into the Bond household accounts.

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Ask and Tell, But Don’t Shop in the PX

I’d love to tell you what outgoing Defense Secretary Leon Panetta is planning on our behalf, but at press time, the details have yet to be announced. We do know that one of Panetta’s last acts will be to issue a number of directives to recognize the families of gay servicemembers. Obviously, he cannot violate the nefarious Defense of Marriage Act, which as you know prohibits the federal government from acknowledging gay spouses. On the other hand, he might be able to issue ID passes that could give gay spouses access to base services. Perhaps he can come up with some other perks. In any event, his efforts are welcome. Incoming Secretary Chuck Hagel has pledged to follow up on this initiative, assuming he is confirmed to the post.

Well, you know what? It will all become moot this summer when the High Court strikes the Defense of Marriage Act as unconstitutional. Likewise, although it’s not clear that the trials and tribulations of binational gay couples will be addressed by immigration reform, their problems will also become moot when the Supreme Court rules in our favor.

Why the confidence?

Dear readers, the Defense of Marriage Act is not just “arguably” unconstitutional. It is blatantly unconstitutional and has been struck by every federal judge and every federal appellate panel that has evaluated its miserable existence. The federal government itself is arguing against it and it simply cannot survive review. Oh, did you think you’d escape a reference to the High Court this week? Sorry. Our two Supreme Court cases form a massive black hole in the center of our news galaxy, and their gravitational pull is felt even in the slowest weeks.

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Standing Up

I feel it even now, as I slip inexorably towards the event horizon. Now that I think about it, the black hole metaphor is weak. It’s not bad enough to revise, but it can’t continue. Before we go on, however, may I complain about news anchors and talk show hosts who cannot read their teleprompters? I had to turn off Chuck Todd in disgust this morning after he butchered the pronunciation of two words and misread a passage of text that we could all see for ourselves. Alex Wagner just referred to “Marshall McGLUEin.” And don’t get me started on Reverend Al, who, at times, is simply incomprehensible.

“Jenny Wether, ah, Jerry Werther, Wether, Wouldn’t you agree that Republicans can’t let the fairness of it, go to the voter? Can they get away with this? Jerry, what do you say?”

“Well, Reverend. I think the attempt to disenfranchise the voters in minority districts is something that Congress has to address…”

“Look at here we have numbers to tell us. Look at this number of people who had to give up and they had 20,000, 200,000, people who just said we can’t wait. What do you say to that Jenny?”

“I think we all agree that we had a real problem in the last election…”

Hey, I love his politics but this guy cannot put together a coherent sentence. And Chuck Todd is a close second in the race to ineptitude. C’mon guys. Make an effort.

Moving on to the High Court, I gather that another zillion friend of the court briefs landed on the desks of the Supreme law clerks last week, as the bad guys’ amici filings came due. I have resisted the urge to read these horrific sounding papers, and I’m none the worse for my laziness. I have about 20 years of anti-marriage legal briefs and opinions under my belt and from what I’ve heard there’s nothing new in this latest barrage.

The big question now is whether or not the Obama administration will weigh in on the Prop 8 case. As you know, the administration is one of the petitioners in the Windsor challenge to the Defense of Marriage Act. But the federal government is not technically involved in the Prop 8 challenge to California’s marriage ban.

That said, the Justice Department is free to author a friend of the court brief in opposition to the California amendment. An opinion by the federal government always carries significant influence with a court, ergo we all would like the administration to become one of our legal “friends.” They have until February 21 to file a brief. My last column reported that the deadline was February 28, but astonishingly, I appear to have been mistaken.

In addition to the ugly antigay briefs that rained down on Washington last week, we also saw the Court-ordered brief on standing in the Windsor case from Harvard Law Professor Vickie Jackson. As the Court had requested, Jackson argued that neither the House Republican “bipartisan legal advisory committee” (BLAG), nor the U.S. Justice Department, had the right to appeal the Windsor decision to the High Court.

To make a long story short, Jackson noted that Congress had no direct stake in the constitutionality of the Defense of Marriage Act; and even if it had, the BLAG does not represent Congress as a whole since the U.S. Senate has not agreed to its activities. As for the Justice Department, Jackson points out that the Obama administration “won” its case against DOMA in lower court, and should not by rights be able to appeal a victory. Other voices argue that since the administration is continuing to enforce DOMA, and indeed has yet to repay Edith Windsor’s unconstitutional $360,000 estate tax check, the government has a continuing controversy that qualifies for standing under Article III of the Constitution.

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He Takes The Cake

So, if we ran a bakery, should we be required to design a cake that says “God Hates Gays?” Of course, the story in the news this week actually involves a Christian bakery in Oregon that has refused to make a cake for a lesbian wedding. But the question works both ways.

One thing that’s clear is that these cases are not a matter of “religious freedom,” as the baker bleats. Hating gay people, or blacks or anyone else, is not a matter of faith, and saying so doesn’t make it so. But it might be a First Amendment question, don’t you think?

Oregon state law, along with that of many of its sister states, forbids discrimination on the basis of sexual orientation in public accommodation. That would include businesses like the Evil Cake Makers in question. But would that law oblige someone to produce a message that violates their deeply held beliefs? Would a black-owned bakery be obliged to ice an Aryan Nation cake? Would a Jewish bakery be forced to craft a swastika?

I think there’s a difference between refusing to serve a gay couple in a restaurant or clothing store, and refusing to make something that conveys an idea you despise. And for the record, there was another mean baker in Colorado, so don’t think I got the dateline wrong.

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Super Bummed

What do I do with a 150-word shortage at the end of this column? I think I will ask my San Francisco readers to forgive me for the Super Bowl. Naturally I was rooting for the 49ers, but I also hoped that Chris Culliver would have a bad game as cosmic penance for his obnoxious comments about gay players.

Thanks to the mixed messages I was sending to the Gods of football, we gave up a big touchdown and extended the Raven’s drive in the 4^th quarter with a pass interference call. I blame myself.

That said, am I the only one who thought Kaepernick could have run for a touchdown on second and goal at the end of the game? And while I’m not an expert, I was under the impression that the defender is not allowed to wrap his arms around a potential receiver and drag him off the play. One of the commentators said that it was “tough” to call holding at the end of a big game. Say what? You just throw away the rule book because it’s a “big game?” Bottom line, my friends we were robbed.

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