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Forms Over Substance

April 1st, 2010 2 comments

Stop me if you’ve heard this one before: A man walks into a government office (Social Security, in this case) seeking to have his adopted daughters’ new names recorded, and their social security numbers changed. Since the process itself was fairly smooth, this wouldn’t be anything to write about. But because the man in question had adopted the kids with his same-sex partner, he wasn’t about to get out of there without the requisite reminder of “the erasure of [his] existence,” to quote a great snippet from the Canadian Supreme Court.

Even though joint adoption by a same-sex couple is now permitted in many states, the federal government’s form is deaf to this development: The spaces for parents include one for “mother” and one for “father.” So the federal employee, seemingly a bit embarrassed, pointed out the obvious: one of these men would have to be listed as “mother.”  He suggested breaking the gender tie by counting the visual evidence in front of him: That man would be father, while the invisible one would be “mother.”

How do I know all this? To paraphrase Bart Simpson, “I was that man.” And while I professed indifference as to who would get to play mommy, I didn’t exactly put up a fuss when I was deemed “daddy.”  (This internal reaction could itself kick off a whole separate entry, I know. Of course the right move would  have been to have insisted on being “mommy,” but the guy was trying to be accommodating and I didn’t want to make him uncomfortable. How’s that for rationalization?) I fulminated uselessly about how it’s time for a new form, the employee dutifully agreed, and I was out of there.

Really, how hard would it be for a form to have two boxes for “Parent 1” and “Parent 2,” with each containing a choice of two boxes (roughly one for each gender) to be checked? Where’s the downside to this? It would be simple, easy to understand, and hard to argue with….

Except by zealous bureaucrats and their private-sector cognates whose central mission, it seems, is to decry every single move towards recognition of the reality of people’s lives. And there’s always the chance that every little bit of publicly sanctioned second-class citizenship contributes to keeping the closet chockful. I guess it was too much to hope that the Bush Administration would create a new form in its waning days, as it was too busy making other, more destructive changes – perhaps thinking that the economic meltdown would distract attention.

President Obama, I have a very small but symbolically important request that shouldn’t take much of your time….

This post was originally published on January 9, 2009.

Responding to Comments on “Marriage Equality” Series — and a Big Thanks to Michael Ginsborg

August 7th, 2009 1 comment

For most of the week just gone by, I’ve been guest-blogging on the issue of religious accommodations to marriage equality and to other protections that same-sex couples enjoy under state anti-discrimination law. The blogs have appeared on one of my favorite, because most informative, sites: Proposition 8 and the Right to Marry. It’s hosted by Michael Ginsborg, a San Francisco-based law librarian who somehow keeps abreast of every significant legal development on marriage equality and related legal issues, while holding down a full-time job. Thanks again to Michael for this invitation. It seems he enjoyed the outcome as much as I did.  (You can find the posts on that site, or here on wordinedgewise; just scroll back through the immediately preceding four posts, and you can jump to the full text  after a couple of introductory paragraphs.)

As much as I enjoyed doing the series, I had no idea that it would engender such a wealth of response. Dale Carpenter, over at The Volokh Conspiracy, linked to the series, and then extensively analyzed and commented on my central proposal. (Less positively, the Alliance Defense Fund also noted the series.)  And I found myself swamped by comments: Part III of the series, which contains my core proposal, garnered almost 200 comments between Volokh and Prop 8 and the Right to Marry. In all, there have been almost 300 comments.

Obviously, I have neither the time nor the desire to respond to all of these individually. Nor is doing so necessary — while many are insightful, some are so far outside bounds of civilized discourse that they shouldn’t be dignified. And when there are a great number of comments, there’s some back-and-forthing that strays far from the initial proposal. Also, the torrent of comments over at Volokh responded to both me and to Carpenter’s alternative suggestion; I’ll leave him to defend his own ideas. Yet there are many some insightful points that I do want to address (mostly without specific reference to the commenter). I’ll also reiterate just enough of the points made in my posts to provide needed context.

On my idea that businesses opposing same-sex marriages shouldn’t be permitted to deny normal commercial services to these couples — but should have a First Amendment right to announce their religious views in opposition — and on Carpenter’s alternative suggestion that such businesses be allowed to refuse service only if they display such a sign, this brisk comment was incisive: “I think posting a sign of either kind is like trying to avoid lightning by holding up a steel pole.”  Other less pithy commenters were along the same line, with one noting that my idea had already failed in the New Mexico case where a photographer refused to shoot a same-sex commitment ceremony, and then was sued. Another suggested that those advertising that they’d prefer not to deal with same-sex couples might not avoid the wrath of gay-rights organizations. Might it be better to fly under the radar?

Maybe. It’s hard to know, as my proposal moves in uncharted waters. Perhaps I’m seized by Pollyanna palsy, thinking that if same-sex couples know about a particular business’s objections in advance, they won’t press the issue, even if I believe they should have the right to. I don’t know the details of the New Mexico case (but plan to look into them), but perhaps the couple’s surprise at the response set off a reaction that led to litigation. My guess is that very few wedding-related businesses will care enough to advertise their opposition; those that do might expect fewer straight couples, as well, if the locality is progressive.

On a broader front, there are those who generally oppose laws that prohibit private businesses from discriminating. Among the most thoughtful of these was this commenter:

As much as I support gay marriage in an official sense (I don’t think the government should refuse to issue marriage certificates to gay couples), I’ve always been skeptical of anti-descrimination laws regarding private business. Individuals are allowed to be racists, sexist, anti-gay, etc, so why shouldn’t business be allowed to do so? It’s a stupid business decision to refuse to serve people illogical reasons like race or sexual orientation, but private businesses should be allowed to make stupid decisions.

Our thinking about private anti-discrimnation laws has been tainted by the (post) Jim Crow experience in the South. That was a special case where government entities hostile to the rule of law effectuated public policy through private actors on a wink and nod basis (If you didn’t discriminate you would be punished). The fact that there was a special case that required an exception to the general rule that private actors can be bigots, is a poor reason to change the general rule.

This is a respectable argument — with which I strongly disagree — but it’s not my fight here. In fact, we do extend such anti-discrimination protection to all kinds of  classes beyond race, including sex, religion, national origin, disability, and so on. I’m therefore quite skeptical of any laws that would effectively single out same-sex couples for treatment that we’ve collectively decided isn’t fair to impose on other groups. And, as I mentioned in Part II, I’ll bet that many of those calling for these exemptions aren’t sincere in saying they’d like to limit them to the marriage context. (Some of the commenters picked up on that possibility, with some good examples, too. One noted that protections for religions aren’t needed here any more than in the case of divorce, where a particular church — say, the Catholic Church, won’t recognize a legal divorce. No one thinks they should have to, and no one thinks religions need to marry same-sex couples, either. So, where the exemption is limited to this context, it’s not necessary and may be seen as a form of bigotry.)

During a lively exchange of comments to the first post over at Prop 8 and the Right to Marry, readers bruited about a reverse issue: Why focus on religious exemptions of those who oppose same-sex marriages in states where they are allowed and not on the religious rights of those who can’t marry in other places? I suppose that’s another way of saying that religious law should either be subordinated to civil law law, or not. Why does religion have the trump only when it cuts against equality? The short answer is that the civil law governs and sets the terms under which exemptions may (or may not) be granted; religion doesn’t come first. But that answer doesn’t really get at something deeper about freedom of religion and how it can be deployed to political advantage. I’d be interested in readers’ thoughts on this issue.

With the number of comments that poured forth, I could continue this for many more paragraphs. But I’ll content myself with a few final thoughts. Part IV, where I discussed discrimination by religiously affiliated businesses, drew a very negative comment that was to an extent deserved. In those cases, my view is evolving, and I didn’t set forth the kind of clear proposal I’d offered for the case of private business. Yet many of the toughest cases will be in this shadowy area where religious entities enter the public, and sometimes, commercial arena. As my detractor said:

Florists… it’s not about freakin’ florists. It’s about access to, and participation in, the countless faith-based and faith-affiliated service agencies that exist in this country and which receive hundreds of millions of dollars in public contracts to provide social services.

As I suggested in the post, for the most part I disfavor legal exemptions in these cases as much as in the case of “freakin’ florists.” Again, if religiously affiliated service agencies are involved in commerce, they need to play by those rules. Otherwise, no public contracts, no tax exemptions, and perhaps even liability under prevailing state laws. I suggested adoption services as a place to make an exception (for mostly practical reasons), as well as certain activities conducted with a purely religious purpose — not, for example, housing for married students in a college affiliated with a religious denomination. I’ll confess that line-drawing in these cases is tough, and my sympathies are almost always with the same-sex couple. But I might be persuaded in specific, well-defined cases to make clear exceptions, as I stated.

Let me close with one final quote from another commentator:

“Doesn’t this kind of discrimination, justifiable or not, make you sick?”

Yes.

Delhi Order: Equality, Sliced Thick

July 6th, 2009 No comments

As many readers know, last week the High Court in Delhi, India, sided with an HIV/AIDS services organization in ruling that the state’s prohibition on consensual, “unnatural” sexual acts violated the Indian Constitution. Nan Hunter has a brief summary of the ruling in Naz Foundation v. Government of NCT of Delhi, which apparently applies throughout the country unless and until reversed by the Supreme Court.

The long decision is noteworthy for many reasons, most obviously because it adds India to the ever-growing list of nations that have taken important steps towards recognition of the basic equality of their LGBT citizens. I recommend reading the entire decision (it’s long!), which you can find linked to The Times of India  (which also quotes some of the court’s soaring rhetoric about discrimination, equality, and dignity).

Here, I want to focus on just a couple of points. First, the two state ministries that weighed in on the law differed; the Ministry of Home Affairs supported the law, while the Ministry of Health and Family Welfare sided with those challenging the law. The conflict draws into sharp focus the question of whether “morals legislation” is valid when it’s contradicted by public health and welfare considerations. In sum, the court said “no.” Home Affairs conceded the privacy argument for throwing out the law, but thought that it should be overborne by considerations of “public safety and protection of health as well as morals….” But the evidence strongly supported the contrary view of Health and Family Welfare, to the point that public health considerations argued strongly in favor of removing the legal prohibition against consensual sexual acts.

As someone who writes and teaches about the connections between public health and law, I was surprised and heartened to see the court undertake a direct and compelling public health argument in favor of throwing out this artifactual statute.  In a ten-page section of the opinion entitled “[The Law] as an Impediment to Public Health,” the court details the high social and epidemiological cost of the closet, which is powerfully reinforced by the criminalization of same-sex relations. As we know, criminalization of same-sex relations and the accompanying stigma (as well as the potential for blackmail, apparently still real in India) drive the epidemic underground, making it much more difficult to reach people with disease prevention messages and strategies.

To the Home Affairs counter that criminalization was the right response to the HIV epidemic, the court noted that this view ran counter to well-understood views of homosexuality and the effect of criminalization. Siding with international and national public health authorities (including Health and Family Welfare), the court stated the prevailing view that criminalization doesn’t stop the behavior, but simply drives it underground. Not a good place to be, from a public health perspective. In addition to leading to preventable cases of STDs, including HIV, criminalizing homosexuality has more subtle effects. It adversely “shapes an individual’s identity and self-esteem. These laws “serve to embed illegality within the identity of homosexuals.” They “reinforce public abhorrence of lesbians and gays resulting in an erosion of self-esteem and self-worth.”

The other point worth mentioning is that the court, like many courts addressing broad issues of human dignity and civil rights, looked not only to its own law but also to the laws of other nations, as well as to international declarations of rights. Lawrence v. Texas received prominence of place, with the New Delhi court quoting Justice Kennedy’s majority decision declaring that banning same-sex intimacy violated the couple’s fundamental liberty interest, as well as Justice O’Connor’s equality-based concurrence. But decisions from South Africa, Canada, Australia, and the European Court of Human Rights were also discussed, as were the Universal Declaration of Human Rights and the European Convention on Human Rights.

I can’t resist concluding this post by remembering Justice Scalia’s dissenting screed in Lawrence, relevant to both points. First, he liked that, pre-Lawrence, the prohibition on same-sex intimacy could be — and was — used to support the unequal treatment of gays and lesbians in other areas of law. A couple of the cases he cited favorably upheld: the use of a police department questionnaire asking potential applicants about past homosexual (but not heterosexual) activity; and expanded security clearance for gay and lesbian job applicants only. He left out the worst case of all, in which a job offer to a lesbian who was set to begin working in the Georgia State Attorney General’s office was withdrawn after the AG found out about her commitment ceremony; in the view of this later-to-be-determined adulterer, her status as a lesbian was enough to presume she’d engage in illegal conduct. Begin making room in the closet.

Scalia also reddened at the Lawrence majority’s invocation of — not reliance on — foreign (pronounced: “fer’n”) sources of law. He quoted favorably from an earlier opinion by Justice Thomas objecting to the Court’s imposing “foreign moods, fads, or fashions…” on Americans.

Dignity, equality, and application of sound public health findings: “Moods, fads, and fashions.”

Dignity: Who Has It, and Why Do We Care (or, Dignity, Schmignity?)

May 11th, 2009 No comments

How much would I care about my dignity if no else had any, either?

The question scarcely makes any sense, because dignity is valued only in relation to others, of course. It’s closely related to “esteem,” a regard in which most of us want to be held; I’d rather be the “estimable me” than not.

The matter of dignity came to mind earlier today when reading an account of yet another marriage equality update, this one at the New York City Bar late last week.  (H/t Michael Ginsborg) Towards the end of the program, Katherine Franke, a Columbia law professor, was sounding a cautionary note about the amount of time and effort devoted to the issue. One problem with this “marriage-equality-eats-through-everything” approach is that it runs the substantial risk of marking for inferior treatment other forms of family. That’s right, and as Nancy Polikoff, in particular, has eloquently argued, we need to “value all families,” however defined, and to create structures that respond to people’s real needs. (BTW, here is her analysis of what’s going on in D.C., complete with discussion of parts of related District laws that “value all families.”)

To Franke, the idea that marriage “ennobles and enriches human life” is limiting: “[T]o cloak marriage in this kind of teleological frame that all of us as adults should hope and aspire to obtain, communicates something that I think violates the movement that I joined many, many years ago.” Perhaps we can fuse Polikoff’s insights to Franke’s caution to state that marriage is just one of many ways to achieve one’s own authenticity, and that the continued trumpeting of “all marriage, all the time” risks drowning out that basic insight.

Then, though, Franke said something else that seemed to me just….wrong. She expressed a strong preference for marriage equality decisions that focus on equality, finding the focus on “dignity” that comes with fundamental rights analysis to be troubling. She cited the California and Massachusetts decisions in making her point. What she’s missing, though, is that both courts expressly connected fundamental rights and equality. This connection especially permeates In Re Marriage Cases, the California decision.

This isn’t the place to get into an extended discussion of the text, but a few passages illustrate the point. For example: “one of the core elements embodied in the state constitutional right to marry is the right of an individual and a couple to have their own official family relationship accorded respect and dignity equal to that accorded the family relationship of other couples.” (183 P.3d at 444.)

Recall that the California Supreme Court was making its decision in a state that already had a domestic partnership law that conferred substantially the same benefits on same-sex couples as marriage does on opposite-sex couples. So, “in the present context, affording same-sex couples access only to the separate institution of domestic partnership, and denying such couples access to the established institution of marriage, properly must be viewed as impinging upon the right of those couples to have their family relationship accorded respect and dignity equal to that accorded the family relationship of opposite-sex couples.” (Id. at 445.) The court went on to remind us that this thoroughly discredited idea that “separate is equal” has been tried, and rejected, in the case of race and gender.

Perhaps Franke was simply making the point that marriage equality is just the first step in a more comprehensive assessment of legal fairness and social significance, and her point was lost in translation from panel to report. In any case, it’s worth remembering that courts can and do only address the controversy before them; in so doing, they’re right to insist that likes be treated as likes, and to fuse the related pillars of equality and basic rights.

You’ve got dignity. Where’s mine? And then, what about everyone else?

Equality Forum: The International Equality Dinner Starring the One and Only Gavin Newsom

May 3rd, 2009 No comments

Talk about your gala events! 

Well, for $200 a plate, Saturday night’s International Equality Dinner needed to be a fabulous, star-studded affair, and it was. Pennsylvania Governor Ed Rendell, a true ally of the gay and lesbian community since forever, was Honorary Chair and delivered his usually warm, amusing, and affirming speech. With no elections left to contest, Rendell was even more forthright than usual — and that’s something. But no one wants to talk about him, or even about The New York Times Company, winner of Equality Forum’s 7th Annual Business Leadership Award. This is an honor the Times richly deserves for: its fair and extensive coverage of our issues; its pioneering inclusion of same-sex unions on its “Weddings” pages several years ago; and the stalwart support of the LGBT community from such columnists as the Pulitzer-Prize winning Maureen Dowd and the known homophile Frank Rich. (Read this, if you haven’t already.)

The dinner also featured an open bar, great food (how, with so many people?), impressive videos by and about EF, and a huge and friendly crowd. But these aren’t the story, either.

No, it’s all about San Francisco Mayor Gavin Newsom, a true rock star of the LGBT movement. You could have heard a mozzarella ball drop during Mr. Charisma’s inspiring keynote address. But first let’s back up twenty-four hours.

On Friday night, I attended a screening of Pursuit of Equality, a documentary that focuses on Newsom and the “marriage month” that took place, by his direction, in San Francisco in early 2004. The film, produced and co-directed by Geoff Callan, Newsom’s brother-in-law, can be criticized as hagiography, but it captures and holds for posterity the vertiginous emotional journey of all involved: the mayor and his committed staff; the Repent America joes who camped out at City Hall in protest at what was going on; and, of course, the couples who traveled from (as the Mayor is liable to repeat) forty-eight states to become the first same-sex couples to marry, only to have their unions voided by the California Supreme Court.1

The film reminded me of the inspiration for Newsom’s act of civil disobedience (the best label for it, really). Just after taking office, he’d been invited by fellow Californian and now Speaker of the House Nancy Pelosi to attend the 2004 State of the Union address. The now (mercifully) Ex-President cooked up a stew of inane “priority items”: steroid use in baseball (I can’t make this up); the need for abstinence-only education; and, critically, the imagined urgency of passing a constitutional amendment banning same-sex marriage unions.

This wasn’t the America Newsom wanted any part of. In my interview with him, he credited his Catholic school education for implanting in him the simple dictum that couldn’t abide this divisiveness: “When one suffers, we all suffer.” Almost immediately upon his return from D.C., he asked his clerks what it would take to change the form to accommodate same-gender couples, and it was, well, almost nothing. (Are you reading this, Social Security Administration?) By then in office for just more than a month, Newsom allowed the Gay Marriage Parade to begin; the Grand Marshals were Phyllis Lyon and Del Martin, lesbian pioneers who’d been together more than fifty years. (The film captures Lyon’s terrific sense of humor; when given the standard counseling for newlyweds about family planning, the septuagenarian doubles over laughing.)

Within a few days, San Francisco was mecca for many long-term, committed gay couples. By homing in on a few couples, the filmmakers capture their sheer joy and disbelief at the dignity they’ve just been able to seize. Of course, that joy turned “to bitterest wormwood” (to quote the Mighty Thor) when the California Supreme Court put a stop to the party about a month later. In a strange and unsettling sequence, the film captures a lesbian couple running down the hall in a doomed effort to get their marriage licenses before word of the order reached the clerk. Confronted with a sign telling them they were too late, they performed the remarkable act of remaining in line and being denied. Other couples are seen reading the court’s decision, having it sink it, and — losing it.

Watching these emotional flame-outs, I felt compelled to ask the mayor on Saturday whether these reactions — which one can understand only so deeply, if not directly affected — had made him question his strategy. After all, he knew the likely outcome of this bold Experiment in Equality. Newsom, as articulate and comfortable a speaker as it’s possible to find, answered by sharing his view of the affirming side of it: “People left City Hall with a deeper sense of self and purpose. For that moment, they knew what it felt to be treated with dignity.”

Then I asked Newsom whether he felt he’d done enough to let people know what might happen. “I think people came in with their eyes wide open. They recognized that they were challenging the law, and were there to make a statement, to advance a principle.” He added that he hadn’t received a single email or letter from people saying “How dare you?”

I was using my few questions to gain some measure of Mayor Newsom’s depth and understanding of the issue’s layers, and I came away from the interview and the speech that followed convinced that he really does “get it.”

“Activist courts”? He wants more of ’em, basically. Imagine what would  have happened in 1967 had we allowed a popular vote on interracial marriage. 70% of the population was opposed to it. The history of civil rights, he noted, is “hardly the majority celebrating the minority. No. Courts protect the minority in a constitutional democracy.”

In case you’re sighing impatiently at this elementary civics lesson, it’s worth remembering that equality opponents don’t acknowledge these points when it comes to this issue.

What about civil unions as some kind of compromise that might appeal to a politician with good instincts but a healthy sense of self-preservation (even more so in 2004)? After all, Newsom is now running for Governor of California. If anything, his view of this “virtual equality” substitute is more contemptuous than his take on those who oppose any and all gay rights. At least the latter group is consistent. Civil unions are “separate but equal.” He is unimpressed by events commemorating the 55th anniversary of  Brown v. Board of Education, where speakers “wax eloquent” about equality and the overdue  demise of  the “separate but equal” doctrine, only to embrace that same expedient when marriage equality is the issue.

Newsom, a “fifth generation Californian”  is impatient with his home state on this issue. “I never thought I’d say this,” he concluded, but “as Iowa goes, so goes the nation.”

  1. Many of these couples remarried after the California Supreme Court declared the law banning same-sex marriages unconstitutional. Will their marriages again be voided? I very much doubt it, but we’ll know within a few weeks.

Equality Forum Day 5: What Now?

May 1st, 2009 2 comments

After a political eternity, several bills directly relevant to LGBT equality are queued up before Congress. In order of both expected ease of passage and anticipated timeline, these are: hate crimes, which has already passed the U.S. House, and is expected to navigate the more treacherous waters of the Senate and be signed, possibly within a couple of months; the bewhiskered Employment Non-Discrimination Act (“ENDA”), which could go through by the end of 2009; repeal of the “Don’t Ask, Don’t Tell” policy, which seems to enjoy broad support but is trickier because it involves the military; and repeal of all or part of the Defense of Marriage Act (date and prospects less clear).

Friday’s National Legal Panel seemed in remarkable agreement on these issues, and more cheered by these seemingly modest anticipated developments than might have been expected. After all, Obama’s in office and the Democrats hold power in both houses of Congress (even a looming filibuster-proof majority in the Senate now seems very likely, given Arlen Specter’s party flip). As the ACLU’s Chris Anders asked rhetorically: “What’s the problem?” Why shouldn’t all of these agenda items so long sought, and for which so much laborious lobbying has been done, sail right through?

Welcome to the sausage factory! All of these bills have to be introduced, go through committees, survive amendments, and then go to the floor for  passage. Then there’s reconciliation of possibly differing versions of the legislation between the two chambers. According to Georgetown law professor and legislative expert Chai Feldblum, the complexity of the process and the list of backed-up agenda items from various constituencies means that we’ve been “given” two slots for this legislative session: one for hate crime and one for ENDA. Time is the most precious resource on Capitol Hill; getting the “face time” you need is vital to move things forward.

The hate crimes law (“The Local Law Enforcement Hate Crimes Prevention Act“) isn’t strictly a “gay rights bill,” because it also covers criminal acts motivated by a victim’s race, religion, disability, national origin, or gender. It thus has a broad coalition working toward its passage. ENDA is trickier; whether the version that’s passed will offer “gender identity” discrimination is unclear. That’s the goal, but the TG community could be thrown overboard to get the bill enacted. I wouldn’t be in favor of  such a bill, because no one needs workplace protection as much as those who are gender nonconforming, and if they’re not included now — forget it. They’ll never get a bill through on their own.

Penn law professor Tobias Wolff, who advised the Obama campaign on issues of interest to the LGBT community, offered a rich and complex account of Obama’s support. Wolff said he “lost count” of the number of times Obama mentioned issues of gay equality on the campaign trail, even when his audience (say, a conservative black church) might have been less than fully receptive to it. Yet Obama never did a presentation before any of the national LGBT advocacy groups; which was also unprecedented (this time not in a good way) for a Democratic candidate. This might be looked at as less than supportive, but Wolff’s interpretation was that Obama preferred to construct coalitions that were more broad-based, and not especially associated with any particular interest group. He also related that Obama isn’t going to independently decide to do things for us; he expects advocacy and persuasive arguments, and can be moved by them. So in an odd yet paradoxically exhilarating way, there’s more work to do with a sympathetic President and Congress, not less.

According to Hayley Gorenberg, Deputy Legal Director for Lambda Legal, much less promising are the prospects for any kind of substantial help from the U.S. Supreme Court on marriage equality or the military policy. Here the situation is markedly different from that of the state level, where courts have often been strong allies, especially in recent marriage equality cases and on family law questions, such as second-parent adoptions. Although the Court has some good precedent cases (Romer v. Evans, which declared anti-gay animus an unconstitutional basis for legislation; and Lawrence v. Texas, striking down statutes that criminalize intimate sexual conduct between consenting adults), they’re very deferential to the military and not likely to require marriage equality any time soon. The Court might be receptive to the carefully crafted challenge to the part of DOMA that denies federal benefits to legally married couples; that case, though, has just been filed and would take years to reach the Court. By then, perhaps DOMA would have been repealed.

At least as far as “don’t ask, don’t tell” is concerned, though, the Obama Administration could adopt some internal policies and rules that would greatly lessen its arbitrariness and devastating impact on dedicated military personnel. And that interplay between decisional law, legislation, and regulatory law was consistently emphasized by the panelists, especially Feldblum. Moderator Nan Hunter, a Georgetown law professor, did a nice job in getting the participants to explain these relationships, and the law itself, in a way that the “lay” audience could understand.

What we’d have trouble understanding is a lack of movement. If these initiatives fail, the panelists agreed that we’d be forced to take responsibility for that failure. This prospect, though, wasn’t enough for anyone to seek the return of the Bush era.

Equality Forum Day 4 (Part 1): Politics 101 (Domestic)

April 30th, 2009 No comments

How important is bipartisanship in pursuing full equality for the LGBT community? Is it better to work on the state law level, or to push for national policy changes? How are our issues connected to larger issues? And what will be the questions facing the community ten years from now?

Moderator Patrick Guerriero used these open-ended questions to stimulate dialogue and a healthy level of disagreement among the members of Thursday’s National Politics Panel, attended by an audience of about 70 enthusiasts. Perhaps in an effort to achieve balance,  there were two identifiable Republicans on the panel (former Mass politician Guerriero and former Log Cabin Republican leaader Richard Tafel), one identifiable Democrat (Jon Hoadley, the Executive Director of Stonewall Democrats so young that he was apparently put on the panel to remind me of my own mortality), and two women whose politics seemed generally progressive,  yet practical (Toni Broaddus, Executive Director of Equality Federation, a national network of state-based LGBT organizations, and Darlene Nipper, Deputy Executive Director of the National Gay and Lesbian Task Force).

The Republican Party came in for a beating, despite Guerriero’s effective advocacy on behalf of some of the GOP’s courageous figures: a Massachusetts Republican(!) who ran against an entrenched Democrat who was ready to support a constitutional amendment overturning the Goodridge marriage equality decision; the Iowa Supreme Court Justices who allowed the Varnum marriage decision to be unanimous; and an ultraconservative district attorney in Colorado who zealously prosecuted the murderer of the transgendered Angela Zapata under the state’s newly enacted hate crimes law.

Tafel, to my surprise, appears to have had a sort of conversion experience (perhaps I should avoid that term). He grew up in the Philadelphia suburbs, where he and everyone else (OK, not everyone else) was Republican.  Now, he says, all of his nieces and nephews under the age of 30 are Democrats. He supported Obama, and urged moderate Senators Snowe and Collins of Maine to join Arlen Specter in the exodus from the increasingly depopulated and brain-dead GOP. When another panelist worried that activists shouldn’t put all of “their eggs in the Democratic basket,” Tafel didn’t seem worried. The GOP will “wander in the wilderness for a long time,” he opined. This was a culture shift on the order of FDR’s.

So, aside from Guerriero’s qualified defense of the GOP, what was there left to argue about? With the tiresome two-party debate on hiatus, other issues swam into focus. All panelists had their eyes on the big national prizes (ENDA, hate crimes, repeal of DOMA and of “don’t ask, don’t tell”), but were in general agreement that, to use Hoadley’s term, advocacy groups that didn’t get to the grass roots level were “Astroturf organizations.” Nipper explained Hoadley’s point to be that effective advocacy had to address the “issues that actually matter to people.” Obvious, right? But national groups1 have often been criticized for not taking sufficient account of these voices.

Broaddus and Nipper were particularly compelling in their account of the many interconnected ways in which state-level work needs to be done. Nipper was just in Maine, working with 150 field workers who came from several local states. (Somehow, I had no idea that this was going on.) That state is on the threshold of marriage equality, and these boots (on the ground) are made for lobbyin’. Broaddus emphasized the need to work on all fronts: through the courts; the legislature; and with the people directly. Iowa supplies a great example here. The state was targeted as a likely success on marriage, because (1) the court was fair and progressive; and (2) the constitution is hard to amend — but not impossible, of course, so advocates worked behind the scenes for some two years to lessen the chance that the legislature would initiate the amendment process. These actions  must be further supplemented by door-to-door efforts.

As for the federal level, this isn’t the first panel where I’m hearing a note of concern beginning to overlay and temper the community’s goo-goo eyes infatuation with Obama. If an inclusive ENDA  isn’t passed this year, then…when? Yesterday’s hate crimes vote in the House was the crumb we need to keep believing, for now.

When Guerriero asked the “where will we be ten years from now” question, I managed only with great self-control and muscular discipline to avoid  rolling my eyes. I hate questions asking for opinions about the unknown. But he must have known his panel, because they did a great job with it. Hoadley made the startling statement that he’d recently spoken to a group of young gays who had never known anyone who’d died of AIDS. His point was that each generation has different issues, new stuff to deal with. For his generation and the one right behind it, he’s hoping (so am I), that most of the basic equality issues will be resolved  in our favor by then.

Then we can get on with the more general construction of a more just society. Broaddus said that “Join the Impact,” an organization formed in angry response to the passage of Prop 8, was doing things like a food drive. There’s nothing particularly LGBT about that, except to the extent that the energy we’re harnessing in our current struggle is “the gift that keeps on giving.”

  1. “Give me an “H”! Give me an “R”! Give me a “C”! What’s that spell?”

Equality Forum Day 3 (Part 1): “Tomorrow Hour Zero”

April 29th, 2009 No comments

The day before the tragic events of September 11, 2001, U.S. intelligence intercepted a communication known to be from al-Qaeda, boasting that “tomorrow is zero hour” (literally translated above). This possibly interesting statement went untranslated, though, until September 12. According to Alex Nicholson, who apparently speaks all living and several dead languages (and also looked like he could take me apart with his bare hands), the military was short on Arabic translators. Why? Because of discharges resulting from the “don’t ask, don’t tell, don’t pursue” — but do compromise national security — policy then and now in effect.

Nicholson and fellow National History Panelist Julianne Sohn were both victims of this insane policy. Nicholson’s colleague snooped the damning information about him from a letter he’d written (in Portugese, by the way), and then reported it a few weeks later apparently out of spite. This accomplished translator, and scion of a military family, was out of a job in less than a year. Sohn had a much longer career, that finally ended when a colonel called her (while she wasn’t on active duty) to “read her her rights.” In describing this event for the first time publicly, Sohn quickly lost her composure and dissolved into tears not seen since the final of this year’s Australian Open.

Just like that, I got it.

I’m not pro-military, generally. My dad was in the Navy, but only briefly and mostly he was, er, a lifeguard stationed in the less-than-hazardous State of New Jersey. I grew up  just close enough to the Vietnam era to have breathed some of the anti-military air (which, by the way, is mostly unjustified and more than a little classist). And I’m by temperment and philosophy a pacifist (mostly). So I admit that I didn’t exactly flush with excitement upon learning that this year’s history panel would focus on “gays in the military.” But listening to these stories — especially Sohn’s — was profound and arresting. Here was a woman whose life and identity were all about the military. Now, after years of what was surely a profound struggle to manage the cognitive dissonance that results from being a part of an organization that commands your silence, it was all falling apart. Of course this is painful to call to mind. But why did this happen to her, and why are these discharges still taking place? As scholar-panelist Nathaniel Frank put it: “Wait. You’re being investigated by the U.S. Government because you’re a lesbian? It’s 2009!”

Well, how did we get here? What justifies this ban? Frank issued “the historian’s challenge” to the audience: Step into the shoes of those you disagree with. Then see if you can understand their perspective. OK, I did. And I can’t.

Frank and panelist moderator Aubrey Sarvis, Executive Director of the Servicemembers Legal Defense Network (SLDN) provided a thumbnail review of the history and justifications for the exclusion, which is been official policy only since the 1920’s. (Here’s the first of two book plugs from today’s Forum: Nathaniel Frank’s book, “Unfriendly Fire: How the Gay Ban Undermines the Military and Weakens America” — copies of which just happened to be available for purchase at the event — provides a comprehensive review of this history. It’s been favorably and informatively reviewed by Janet Maslin in The New York Times.) My simplistic take on the evolution of the military’s treatment of gay soldiers is that, as gay identity and culture became harder to  ignore, the military’s exclusionary policies became more Draconian and defensive. (In a similar vein, think of state anti-marriage equality constitutional amendments in response to a rising tide of open gay relationships.)

This cascade of policies has led to the “don’t ask, blah blah blah” policy now in force. As Frank states: There’s no evidence of any kind to justify it. It’s a remnant, a soiled selvage from an era when gays were regarded as sick and sinful. That image still has enough purchase in the military for them to be able to use coded arguments, such as “troop  cohesion,” in defense of the indefensible. Frank then raised a related point that I’d not considered: By putting gay sexual orientation forward as a ground for exclusion, the policy has the unintended consequence of putting the issue of sexuality “on the table” for all service members. “Am I acting straight enough (even though I am straight)? How will my  actions (or inactions)  be interpreted?” Does this seem like a positive effect on “unit cohesion” to you?

The policy may disappear as soon as this year, but maybe not, either. The panelists seemed to agree that Obama’s vocal support is absolutely vital; support he pledged during the campaign, but hasn’t articulated since taking office. I had the sense that their patience will run out soon. All emphasized the need for education and activism. Sohn and Nicholson have really taken up this cause with fervor, as has Frank (in a more academic but also compelling way). Sohn’s biography, detailing her impressive service, is here. Nicholson is now Executive Director of Servicemembers United, an advocacy organization for gay and lesbian military and the issues affecting them. (His blog is pretty good, too.)

At some point towards the end of the presentation, Sarvis put this question to the panelists: “Why should we care about this issue?” By the time he did, only a true and committed blockhead could have failed to understand its importance. Frank said it best: We should care because this policy “is a blemish on the integrity of our Armed services and on our entire nation.”

——–

Let me take a step away from reporting for a moment to make a broader statement. As I was listening to yet two more stirring panels tonight (OK, it’s last night by now), I had this thought: Perhaps by now I should be numb to all of this, my interest starting to flag. In fact, quite the opposite is happening. I remember that “the madder Hulk gets, the stronger him gets.” I’d say that “the more I hear, the more urgent all of this seems.”

There really is a great deal to do, on seemingly scores of issues big and small. These zealous panelists (including those on the family law panel, about whom I’ll blog after getting some sleep) who donate their time and enthusiasm to Equality Forum and countless other events, should inspire us all.

Equality Forum Day 1: From VIP Kickoff to the Margins

April 27th, 2009 2 comments

Imagine this life: You’re not safe at school. The very sight of you makes people uncomfortable, sometimes angry. Your family disowns you, but no one else will adopt  you or take you in for foster care. Without mooring, and unsure of your own identity, you turn to drugs and alcohol, perhaps landing in jail. You can’t find a “legit” job, so sex work becomes your “best” option. You contract HIV, or Hepatitis, but have no access to health care to pay for your treatment. Low-level bureacrats decide whether to honor your chosen gender on identity documents, making routine transactions an occasion for recurring humiliation.

This nightmare is reality for many transgendered people. Even the “mainstream” gay and lesbian community has only recently begun to wake up and recognize these realities. The National Transgender Panel — significantly, the first substantive program of this year’s Equality  Forum — was an energizing, often moving conversation about the legal, social, and political obstacles that block the full citizenship and dignity of the transgender community. Indeed, the story told  above was pieced together from the comments made by both panelists and audience members, whose input the panelists constantly sought — and received in effective abundance.

The panelists, themselves all members of the community, spoke authoritatively about legal issues (Benjamin Jerner); the national political landscape (Kathy Padilla) and the hugely complex public health challenges faced by this community (Ben Singer).

Perhaps because of my own interest in public health and the legal issues relating to it, I  found Singer’s presentation particularly compelling. He’s a smart activist who understands the need for data-driven results; as he puts it, if you’re not on the public health radar (and you get there by showing a problem affecting a population), you don’t exist. But the issues facing the transgender community are more than a “blip” on any morally defensible radar; they amount to an on-going emergency. A few of the sobering examples confronting this community will have to suffice here: (1) Violence against them is epidemic, and the situation becomes graver as the categories of oppression pile up. Thus, transgendered women of color are at the greatest risk. (2) HIV/AIDS are at levels otherwise associated with sub-Saharan Africa. (3)The community faces high levels of medical uninsurance, a problem connected to joblessness and homelessness, themselves endemic.

Against this backdrop,  many of the issues of formal equality that many of us (including your humble blogger) most often concern ourselves with seem less vital. Really, do you think people facing the kinds of issues I’ve just mentioned have marriage equality on their plate? Again, Singer:  “We talk more about these grand legal issues and not these other ones.”

But “these other” issues were thoroughly chewed over — by the audience. In a wonderfully  generous move, Singer invited the audience to answer a question about the kinds of problems routinely faced by transgendered youth. The answers should pain any person with a halfway developed sense of empathy. One young woman was thrown out of her home and not adoptable. A young man ended up abusing drugs and doing time in prison. Several regarded every day of school as a kind of torture. Of course, any kid growing up gay — or different in any way, really — can share painful experiences. But these really did seem different in kind, not  just degree.

“Every spark of friendship and love will die without a home.”

Yet not all transgendered people are in the desperate situation Singer describes, and, for some at least, it would be very helpful if the state were to grant them basic legal rights, including the recognition of their marriage. Jerner discussed a case with which I’m familiar, in which the Kansas Supreme Court idiotically declared null a long-term marriage between an opposite-sex couple (where the wife had been born a male), thereby disinheriting the surviving spouse in favor of an evil offspring. Although I have a quibble with his reading of the case,1 his point about the need for legal remedy is sound.

The panel ran over time. The audience was large; about 100, I’d guess, many of them young, bright activists.  They didn’t seem to want it to end, and that’s not surprising. There was a great deal to be said. Afterwards, I had a chance to speak to Singer, Padilla, and moderator Joelle Ruby Ryan, a warm and gentle giantess who ran an open and generous forum. Singer and Padilla are very interested in the untold story of transgender activism (newsflash: Stonewall wasn’t the first time members of the GLBT community rose up in protest). Padilla showed me some of her materials, and I’m sure I’m only one of many encouraging her to turn these into a book, or at least a long article. In the meantime, I’m hoping to do a follow-up blog on this issue of the history of transgender resistance — with help from Singer and Padilla,  who are enthused, knowledgeable, and in possession of all kinds stuff that’s by turns really cool and very moving.

I couldn’t have asked for a better blogging assignment to get me excited about the rest of the week.

———

Before this amazing panel, Equality Forum kicked off, as always, with the VIP Party in City Hall. This year’s event was staged, aptly, in the grand Conversation Hall. Probably a couple of hundred folks were VI enough to have garnered invitations, and most of the people I spoke to were impressive leaders of various organizations, or were directly involved with Equality Forum.

Dwight Evans, the Pa. State Representative who received a distinguished service award for his legislative efforts on behalf of the LGBT community, is a gregarious man with an expansive view of equality and opportunity. His charter school has been around for more than a decade, and he’s been a consistent advocate for GLBT rights in Harrisburg, where  the political winds don’t reliably blow in a favorable direction. I enjoyed a brief conversation with him, in which he showed himself to be a member of a rare and beautiful species: the pol without affect. His view of equality? “You don’t have to convince me.” His acceptance speech spoke to the need to “get past typical barriers and walls,” and concluded, quite sensibly (yet somehow movingly) with: “Thanks. And let’s move on.”

Also effective was Mayor Michael Nutter, the poor guy stuck with a job that no reasonable person would have taken had he known of the economic collapse to visit the city within nanoseconds of his inauguration. On radio, he comes across as bright and logical, but a bit stiff. In person, he’s witty and relaxed – but just as compelling. The short: He’s on our side. And Equality Forum founder and Executive Director Malcolm Lazin, to whom I must give props for giving me this “forum” to blog about the event, closed the proceedings with an inspiring call to take part in this Sunday’s Equality Rally and March, linking these events to a courageous march here in Philadelphia forty years ago led by gay pioneers Frank Kameny and the late Barbara Gittings. Very effective — now let’s hope the event is the success it needs to be.

Well, it’s late and I’m almost blogged out. But here’s a light moment from the Kickoff Party. Having just speared an unwilling olive after a too-epic struggle at the hors d’oeuvres table, I was standing near it (catching my breath), when a jovial fellow spun around and bumped into me. He was so apologetic that I didn’t have the heart to tell him he’d sent my only olive spinning out of my hand and through the air. I was reminded of the Seinfeld “Junior Mint” episode, and only hoped that the escaped refreshment hadn’t had a similarly calamitous result. Alas, I believe (but do not know for sure) that it landed in a scoop of perfect, high hair — unknown to the “victim.” If so, I’d like it back. No questions will be asked.

  1. He says the court declared that transgendered people couldn’t marry anyone — I think that reading is possible but not compelled. The case is In re Estate of Gardiner,42 P.3d 120 (Kan. 2002).

Log Cabin (Republican) Syrup

April 23rd, 2009 1 comment

A gay friend of mine moved from New Haven, CT (he was a Yale professor) to Columbus, Ohio for a year. His dating life, he told me, was a disaster: “Every guy I met told me on the first date that he was a Log Cabin Republican.” There were no second dates.

http://www.otrcat.com/z/log_cabin_syrup_1938.jpg

For  those who don’t know, the Log Cabin Republicans are a gay advocacy group that, roughly, adheres to certain “old school”  Republican values like lower taxes and limited government (federalism, as convenient, too) while pressing for LGB (but not always T) equality. They’re mostly a bunch of well-to-do white guys. Their argument for existence is that they can work within to transform the Republican Party in what is, after all, a two-party system.

I’m not one of them. My politics are decidedly to the left, and I generally favor a substantial role for government in working towards social justice (while realizing the limits of this reliance, the benefits of markets,  and the importance of grass roots advocacy and effort). And my  view of the group wasn’t exactly improved after an argument in 2004 with one Log Cabin member who, to my astonishment, supported Bush over Kerry, even asserting that there was “no difference” between them on gay issues. We were (not close)  friends before this, not at all after that.

But there he was in late 2008, at a March for Equality in Philadelphia. We walked together. He stated that he’d been an Obama supporter, and that the Republican party was in danger of becoming a “fringe.” I then regretted my boorish behavior in 2004 (I wasn’t exactly civil, I’m afraid) and sent him an email of apology. His response was more than gracious, and he owned some responsibility, too. I wisely refrained from asking about his continued association with the Log Cabin.

Now I’m feeling a bit more charitable towards the group. A recent story reported that the Log Cabin had been involved in getting the leadership of the Republican Party in the New York Senate to allow its members to “vote their conscience” on the pending marriage equality bill. Given that at least four Democrats are poised to vote “no,” this step could spell the difference between success and failure. It would be neither fair nor charitable to deny that the group has had success in galvanizing what’s left of the moderate wing of the Republican party; as a sign of their effect, they and Meghan McCain apparently have a thing goin’ on, too. If she’s the face of young Republicans (or at least enough of them), then we can have a legitimate debate about policy that takes equality as a given and moves on from there.

But I’m still not syrupy sweet on the Log Cabin. They support formal equality, and their blog lists some recent accomplishments at the state legislative level that are, frankly, impressive. But what about addressing the deep and underlying inequities of race, gender, and even sexual orientation  and gender identity? Formal equality doesn’t really get to those messier issues. Marriage equality won’t help an adult woman who needs time off to take care of her ailing sister or grandchild, neither of whom is covered by the Family and Medical Leave Act. A law prohibiting discrimination in the workplace doesn’t address the issue of whether employees make a living wage.

But they’re not the only group that focuses on formal equality, and, if I’m being fair about it, they seem to be making more inroads lately than the national, non-partisan Human Rights Campaign, whose efforts on hate crimes, anti-discrimination laws, and repeal of the Defense of Marriage Act have yet to bear fruit. (Here’s an example of their behind-the-scenes achievements, though.)

So am I ready to enter a post-partisan era? Nah.