GLBT Fortnight in Review

GLBT Fortnight in Review, May 29, 2013

BY ANN ROSTOW

Pride! Again!

I write to you on the eve of Pride Month, capital P and capital M, our annual celebration of the Stonewall riots that started the modern gay rights movement back on June 28, 1969. Here in Texas, our celebration was so hot and so miserable for so many years that at some point we decided it was unsustainable. We now have our Pride event in September or October, on a date so random that I can’t even tell you which month it’s in. Even in the early fall, the days are still so hot that we have our parade at night.

And the whole event kind of pops up unexpectedly. Some friend will call and ask whether we want to meet for cocktails and watch the festivities from the roof of some 6^th Street bar. Oh! Is tonight Pride, we ask? When does it start? Last year, we arrived at 5. Everyone had a different opinion on when the parade began. After threehours of drinking above the empty streets, we finally gave up and had a civilized dinner at an expensive downtown restaurant. (After all, it was Pride night!)

This is all to say that I have lost my connection to Pride. The real Pride, that is. The Pride that arrived on one special Sunday at the end of June when we all came together, young and old, male and female, rich and poor, black, white and brown, and took over the town. Manhattan in the late 1970s and early 1980s, San Francisco in the 1990s. It was tacky, exuberant, exhilarating. It had a rhythm, building throughout the afternoon towards a wild night of carousing. We bought junk, consumed mystery drinks, wore rainbow hats, stood up through the moon roof and ripped our shirts off, staggered down Seventh Avenue south, skinny dipped on Ocean Beach. We listened to speeches and cheered. We danced all day and all night.

And now? Now it’s a couple gin and tonics and we’re off to Trulucks for a dozen oysters and a bottle of white Cote de Rhone. What happened? Stranger still, I don’t even miss the original version of Pride. I really love oysters, air conditioning and a dark booth in an old restaurant. Plus, back in the day I couldn’t afford oysters. One time in New York, the only money we had was a healthy collection of nickels, dimes and quarters. We each took charge of one denomination, so every commercial transaction required a group effort of pulling out coins. Somehow, this stash sustained us through most of the day.

So, as I sit by the sidelines slurping Blue Points, I trust that all of you will do justice to Pride Month and Pride Day in the City by the Bay. I assume that President Obama will issue his usual Pride Proclamation, singing our communal praises and sounding a clarion call for justice. And of course, this year, we may actually have something real to cheer for: a High Court ruling or two that could compound the significance of late June for future historians of the LGBT movement. Hell, I might have to dig out my rainbow beads, put on one of my March on Washington T-shirts, fill up my giant plastic party drink tube with some imaginative concoction, grab my newly recognized spouse and parade down the streets of Austin alone in the 105 degree heat to mark the occasion.

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Why Do We Even Have to Cover This?

One of the big stories this week is the God damned Boy Scout vote. The story is irritating on several counts. First, I don’t know about you, but as far as I’m concerned, the Boy Scouts are very 20^thCentury. They were behind the times when they fought us in the Supreme Court and “won” the right to discriminate as a private organization. Since that 2000 ruling, they have been disgraced. They have lost half their members. And they’ve lost countless partnerships with thoughtful municipalities and civic organizations. Now, years later, they deign to admit gay scouts and they expect us to give them a round of applause? I don’t think so.

Second, as you may know, these bozos decided to maintain their ban on gay scout leaders. Why? There can only be one rationale, and that would be the notion that gay scout leaders are there to prey on gay scouts. So I repeat. They want a round of applause for admitting the gay scouts while they persist in a policy based on the most pernicious stereotypes we face as a community? Again, I don’t think so!

And finally, when will the mainstream media start covering the gay rights movement with even a modicum of nuance? The Boy Scout story deserved coverage, simply based on the organization’s long history of intolerance. That said, this was not a big story. It’s not just me. Our community may find the Boy Scouts annoying, but we really don’t take them that seriously. It’s not that our community was pressuring the Scouts. The world itself was passing them by and they were finally obliged to catch up just a little. Yet from the coverage, you would have thought our movement had made a major breakthrough of some sort. Um, no.

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Sleepless in Springfield

So, as I write, the Illinois House of Representatives has three more days to call a vote on the marriage equality bill that passed the state senate in February. The long delay reflected the fact that we lacked the votes to pass marriage in the house, but lately we’ve been hearing reports to the contrary. Do we have the votes or not? Will the measure be called to the floor, or not? Will Illinois become the 13^thstate to step into the bright light of equality, or not? Hell if I know, but I mention this because I don’t want Illinois to pass marriage equality tomorrow and have all you readers think I was living in a cave.

Meanwhile, the Nevada legislature passed a bill to put a marriage referendum on the ballot that could overturn the antigay language now soiling the Blackjack State’s constitution. Under state law, the measure must be passed by a successive legislature and subsequently put to a public vote. So although the news is nice, it’s not imminent. Plus, don’t forget there’s a federal marriage lawsuit now pending in the Ninth Circuit against both Hawaii and Nevada. It could be that the appellate courts will weigh in before the public has its say, although the ultimate question of marriage rights under federal law will await a Supreme Court decision. This combined Hawaii/Nevada lawsuit may wind up before the justices, assuming they push the meat of the Prop 8 case to the side of their plates as expected.

And what other marriage news is ripe for the picking this week? Well, some group is bent out of shape by that pro-gay marriage ruling in Brazil that I mentioned last time. As I said before, I don’t really understand the Brazilian court system and don’t feel like looking it up. Since that attitude has not evolved since my last column, I have no further comment on the situation other than to inform you that something positive happened in Brazil, and now apparently, it’s pissed off a bunch of people.

There’s also a provocative article in The Atlantic (and does The Atlantic publish any other kind?) that suggests gay couples have a thing or two to teach straight couples about marriage, only because we must rise above gender roles in our domestic lives. I found it fairly interesting and fairly obvious, but like most articles of this ilk it was salted with real life examples of Bill and Bob, Tammy and Jeff, Betty and Jane.

The problem with specific examples is that no couple is fully representative of their demographic. They’re just selected to fit the journalist’s scenario. Betty and Jane might transcend gender roles, but they also might simply be devoted to each other, the one factor that makes all the difference to couples of all orientations. There’s nothing provocative about that thesis, however.

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Kiss Me Kate

Bay Times founder Kim Corsaro has written an article in The Advocate about the 18-year-old Florida senior, Kaitlyn Hunt, who was charged last February with “lewd and lascivious battery on a child 12-16 years old” due to her relationship with her freshman high school girlfriend. According to Kate’s lawyer, the relationship began in November; Kate had turned 18 in August. According to other news sources, the girl ran away to live with Kate in January, at which point the girl’s parents blew the whistle and called in the cops.

The charge is a felony that carries jail time as well as the status of sex offender, which of course could pretty much ruin Kate’s life. Under Florida’s Romeo and Juliet law (which also covers same-sex romances) Kate could be charged with a lesser crime and avoid the sex offender label, but one legal analysis I read suggested that other states might not recognize the distinction and would treat her as an offender under their own state law. In mid-May, the state offered to drop the charge to some lesser type of battery, which would allow Kate to avoid prison time and (in theory) stay clear of sex offender status. However, Kate and her parents rejected that offer, arguing that even the lower charge could severely damage Kate’s future.

As we go to print, it’s not clear whether Kate will decide to fight the charges or whether the state will come through with a more acceptable plea deal. What is clear, however, is that teen relationships within a five-year age range should not be subjected to criminal penalties of any sort.

In some ways, this is not a case of discrimination only because boys and girls get nailed for these faux statutory rape type charges as well. Yet we have seen harsh attacks on youthful gay romances in the past, and for a long time most of the Romeo and Juliet statutes that protect young lovers did not apply to same-sex couples. So when gay teens fall under the criminal spotlight for what appears to be an innocent romance, alarm bells ring. Plus, although they claim to be free of bias, you can’t help but wonder if the parents of the younger girl would have taken a kinder view of a boyfriend. And maybe the state would have given a Romeo a break as well.

The case will play out in the days to come, and will likely be settled before Kate’s June trial date. Meanwhile, the social media attention has been massive, with Free Kate pages and petitions going viral around the globe.

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Vive La France

I was pleased to see that a lesbian movie won the top prize at the Cannes film festival. Yay! And speaking of France, they’re still marching in the streets of Paris to protest the dawn of marriage equality, but the deed is done. Meanwhile, the best tennis players in the world are starting to pound the red clay off their heels at Roland Garros, a signal that the long slog through cold hard serious months are about to give way to the glories of a hedonistic summer.

Much has been written about April in Paris, but in truth it can be a dismal time. Only in June does the city warm up. Even in the early rounds of the French Open you’ll see spectators in jackets and sweaters. But by the time the semi-finals come around, it will be 75 degrees and climbing in the City of Light. Vacation is around the corner, and I don’t mean a week on Long Island. We’re talking a month in Biarritz or Cap D’Agde, and another month of lazing around putting in half days at the office and taking three-day weekends because the other half of the staff is on vacation. Or so it was in the 1980s when for seven years I blew off two weeks of work to watch tennis with the full cooperation of my Gallic superiors, who did the same. And that was before our actual vacations even began.

Jason, Jason, He’s Our Man

GLBT Fortnight in Review, May 1, 2013

BY ANN ROSTOW

Jason, Jason, He’s Our Man

Don’t get me wrong. Jason Collins, our Great Gay Hope, seems like a really nice guy. He came out of the closet last week with grace and style. He’s handsome and smart, right out of central casting as the perfect professional gay athlete.

But still. Does Jason really merit the tens of thousands of news stories he’s managed to generate in the last few days? Peyton Manning, maybe. But Jason Collins? Was it really such a shock to discover the sexual orientation of a veteran journeyman hoopster? A man that no one except serious basketball fans had ever heard of? Well, I guess it was.

At any rate, the courageous center was rewarded with near universal support. A call from President Obama, an invitation to throw out a pitch at a Red Sox game, a general buzz of pleasure and praise from the media and the blogosphere. He certainly deserves the acclaim, as well as the promised Nike sponsorship that is coming his way. But before we tire of this subject, did any of you notice that Baylor superstar Brittney Griner came out of the closet a week or so earlier and no one said a word? She did, however, get a Nike contract as well, so there’s that.

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Viva La France

So, the French senate finally passed marriage equality the other day, although we will still have to wait for two more votes. I’m not an expert on political procedures in the Land of Delicious Things to Eat and Drink, but it does seem that they conduct a hell of a lot of votes on the same bill before it passes. Nonetheless, this time the deal appears to be done, and marriage licenses are expected to be available by summer.

Meanwhile, many American commentators have noticed that the opposition to marriage equality in France seems to take the form of massive marches and protests, the likes of which are not seen in the United States. How is it, they wonder, that a country with such a laissez faire attitude on many other social issues is bent out of shape by gay marriage!

Actually, the French do not necessarily have an “anything goes” mentality. But more importantly, some 65 percent of the French continually support marriage equality in polls, a higher percentage than we see here in the Homeland. The French are better at organizing street protests in support of fringe viewpoints, that’s all.

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Equality States Hit Double Digits

You probably read about the good news out of Rhode Island, where the state senate finally got it together to take a vote on marriage equality. Once the bill has been ratified by the house and signed by the governor, Rhode Island will become the 10^th state to allow gay unions, and New England will become a solid block of Free States, as I like to call them. It should be a done deal by the time you read this column.

“It’s bad enough when families break down through divorce or death,” said Brian Brown of the National Organization for Marriage after the vote. “But it’s unconscionable when a state encourages this through policies that deprive children of the love of both a mother and a father.” You know, quite frankly I wish the Rhode Island legislature had left out the section of the bill that deprives kids of the love of one of their parents. But I guess you can’t make an omelet without cracking a few eggs, right?

Over in Illinois, where the state senate passed a marriage equality bill some time ago, it seems the house will take a vote on the issue by the end of May. The marriage vote in the Illinois house has been too close to call for weeks, which is why the bill has not been brought to a vote. But hey. “Too close to call” is better than “no chance of passage,” so let’s keep our fingers crossed.

And in Delaware, the state house approved a marriage bill on April 23. As I write, on May 1 if you must know, a senate committee is expected to move the bill to a floor vote. So, yay!

I know that civil unions seem like a bit of a letdown with all our progress towards equality. But still, there’s reason to celebrate the launch of civil unions in Colorado this month. Couples lined up at the crack of whatever time it was in order to tie their knots. I know they could only tie a loose little bow, but it was better than a kick in the pants.

Finally, speaking of kicks in the pants, that’s what we got over here in the Lone Star State, where our ultra conservative Attorney General issued a five-page opinion suggesting that cities, counties and school districts do not have the right to recognize domestic partners. Doing so, wrote Greg Abbot, creates a legal status similar to marriage in violation of the Texas constitution.

Fortunately, it looks as if (Austin’s) Travis County, the Austin school district, and other entities that have partner benefits in place are going to ignore the position paper, which is not binding. But it will no doubt have a chilling effect on the growth of domestic partner programs around the state. And it’s just one more reminder to my wife and me (California 2008) that even though Austin is a fabulous place to live, we may eventually be forced to move.

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ENDA? Not This Again!

I was disturbed to see that the Employment Nondiscrimination Act has been introduced in the U.S. Senate, yet again. Some of you may recall that I don’t like this bill, which purports to end GLBT workplace discrimination. Why do I hate it so much? Because it carves out a special legal remedy for GLBT people when there already exists a powerful federal law that covers everyone else (Title VII of the Civil Rights Act of 1964).

Back in the 1990s, when ENDA was first introduced, the idea of adding “sexual orientation” to the categories covered in Title VII was impractical. But that was 20 years ago! Why are we still pushing this relic, which could actually harm our community rather than help it? The last version of ENDA that was worked over by Congress a few years back had a limited or nonexistent right to file a lawsuit. It was a Swiss cheese bill, filled with loopholes that would have forced courts to evaluate cases of gay bias under a very low bar. Why would we want such a mechanism when the rest of the country operates under a tough statute that is backed by half a century of case law and includes the right to sue for damages? (The current ENDA, as far as I can tell, caps damages at $100,000 to $300,000.)

In the absence of ENDA, many courts have chosen to interpret Title VII to cover trans bias, as well as cases of antigay discrimination which involve sexual stereotypes. A male worker who is harassed for his effeminate style, for example, could bring suit under Title VII. (Sexual stereotyping is considered a form of impermissible sex discrimination under current law.) If we pass ENDA, however, courts will have to take direction from the new law, which as I mentioned is a pale shadow of Title VII. Plus, it reinforces a second class status for GLBT workers, who will be formally relegated to an inferior level of protection.

If you’re old enough, you might remember that California once banned gay bias in the workplace under a section of the Labor Code rather than under the Unruh Civil Rights Act. The compromise was a useless disaster, later rectified by the state legislature. So why are we engaged in this “baby steps” exercise in the U.S. Congress? Someone please tell me.

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Crazy Cats Down Under

I just took another tour through a “gay” search of Google news, where I was still finding news about Jason Collins and gay men in sports even up into screens 50 and 60. Amazing. Persevering towards news on other topics, I discovered that a trio of women who call themselves “Australian Cat Women” have managed to buy the domain name for the country’s leading antigay conservative group, the “Australian Christian Lobby.”

The Cat Women paid something like 19 Australian dollars for the rights, which I’m guessing the people at Christian Lobby failed to renew. They immediately posted their logo, a cat under a rainbow, and when word of the coup began to spread, they found themselves with hundreds of thousands of viewers. The women are not sure how to capitalize on their new platform. The whole thing was supposed to be a joke, but now the possibilities abound. The Australian Christian Lobby had not responded to media inquiries as of April 29.

Cute story, don’t you think? My impression is that Australia doesn’t have a strong conservative religious faction. I think their Prime Minister is an official atheist. But it’s still fun to mess with these bozos, wherever and whenever we have the chance.

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Binational Gays Should Probably Wait

I suppose I should write about the Immigration Bill. Gay activists have been annoyed that the proposals emerging from the Gang of Eight do not include sponsoring citizenship for foreign gay spouses, and Patrick Leahy has indicated he may add an amendment recognizing gay partners when the now-massive bill arrives at the Senate Judiciary Committee. But according to Marco Rubio, such an amendment would doom the entire legislation.

What’s an activist to do?

Well, what we probably should do is give up this particular fight. We will likely prevail in just a few months, when the High Court is expected to strike the Defense of Marriage Act as unconstitutional. With DOMA out of the way, the federal government will treat a gay spouse like any other spouse. Meanwhile, the Immigration Bill, if passed, will improve the lives of maybe 250,000 undocumented LGBT residents. Do we really want to stand on principle with so much at stake for so many people, gay and straight, who live in the shadows?

But what if DOMA is upheld? We’ll just keep fighting of course. But let’s not scuttle immigration reform in the process. Plus, you know DOMA is doomed.

By the way, have you noticed a lot of elephants in TV commercials these days? Aren’t they adorable? There’s the elephant who goes to the hotel. Then there’s the one who makes it hard for people with COPD to breathe. And there’s a car insurance elephant too. For the record, I’m pleased that someone decided to rename the scary sounding “emphysema.” COPD seems much more manageable. Particularly when you take the drug that gets the elephant to get off your chest and walk beside you in companionable silence.

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Cocktails All Around!

Yes, I know that had nothing to do with GLBT news, but what else do you want to talk about? The Day of Silence? That came and went successfully for the ten zillionth year in a row. Want more stories about mean florists and photographers who don’t want to participate in our weddings? I thought not. Too depressing. Oh, I think I should tell you about our out lesbian District Attorney here in Austin, who got nailed for a DWI the other day.

I know, I know. It could happen to any of us, right? (Well, some of us at least.) But Rosemary Lehmberg had a blood count of around .23 and an empty vodka bottle on the passenger seat, taking Driving While Intoxicated into the entirely new category of Driving While Out Of Your Mind Drunk. At least she lived up to our municipal motto, “Keep Austin Weird,” because nothing says “weird” like getting behind the wheel when you are nearly comatose from alcohol consumption.

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