Finishing the Job

 

GLBT Fortnight in Review, July 10, 2013

BY ANN ROSTOW

 

Finishing the Job

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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Sidetracked

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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Watching Paint Dry

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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arostow@aol.com

 

We Survived SCOTUS Review Without Bad Things Happening!

GLBT Fortnight in Review, June 26 2013

BY ANN ROSTOW

 

 

We Survived SCOTUS Review Without Bad Things Happening!

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Oops. We’ve finished the bottle.

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What Now?

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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arostow@aol.com

 

 

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.