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National Legal Panel at Equality Forum: Opening Wide for a Fire Hose of Information

April 29th, 2010 No comments

Did Lambda Legal’s Executive Director, Kevin Cathcart, really “start the LGBT movement for legal rights,” as National Law Panel moderator Brad Sears playfully suggested at the opening of last night’s Equality Forum event?

If he didn’t, he certainly has a deep understanding of what most people think of as the legal “movement” – the litigation that’s been waged for the past several decades in an effort to give LGBT people liberty and equality. Cathcart and Sears, who is Executive Director of the Williams Institute, the LGBT think tank at UCLA School of Law, were half of a predictably stellarly credentialed and excellent panel that’s always a well-attended highlight of Equality Forum. (I’d guess there were easily 100 people present for the discussion).

Sears, who certainly could have added much of substance himself, rarely used his prerogative to do so and instead devoted himself to effective moderating. On the one occasion that he stepped out of role, it was to commend the Obama Administration for “taking a chip out of DOMA” by making a real effort at counting LGBT households in the current census.

Cathcart, of course, focused mostly on the impact litigation that Lambda currently has underway. Among the highlights is a recently filed case in New Jersey, asking the state’s supreme court to declare that the civil union compromise they had permitted several years ago doesn’t confer true equality, and that full marriage rights are therefore needed.  There’s also a case in the court of appeals asking whether the DC marriage equality law can be placed on the ballot, and another in Hawaii asking the court to recognize civil unions for LGBT couples (since a constitutional amendment in that state prohibits full marriage equality).

During a second round of questions focusing on emerging issues, Cathcart found himself in a good mood after yesterday’s oral argument before the US. Supreme Court in Doe v. Reed, in which the losing side in the recent Washington State ballot initiative to remove full domestic partnership rights for gay couples sought to keep private the signatures on the ballot petitions.

“Butch up!”, Cathcart said in summarizing “Justice” Scalia’s reaction to the side that sought privacy. Politics is rough and tumble, and if you’re signing ballot petitions, you should expect some criticism. No big deal.

In this woe-is-us context, Cathcart spent some time dissecting the anti-equality force’s latest strategy, which is to argue that they are the ones being discriminated against and harassed,  and seeking to turn us into the aggressors. He aptly summarized this tactic as an effort to “turn around the facts of real life.”

James Esseks, who is Director of the ACLU’s LGBT and AIDS Project, summarized his work on challenging foster and adoption bans in Florida and Arkansas, and noted that it’s important to win these cases on constitutional grounds so that other legislatures don’t get the idea that these kinds of pernicious laws can work.

He then spent some time on the very hot case of Christian Legal Society v. Martinez, in which the University of California is pitted against CLS in a case that balances the equality interest of the LGBT (and non-believing) students excluded against CLS’s effort to keep them from full voting membership. (California stands with the excluded student by refusing to fully sponsor any group, including CLS, that discriminates.) Esseks’s worry – and mine – is that a decision favoring CLS could in principle, lead to the end of all anti-discrimination laws. Things look ominous in that case, although Esseks thought that the Court might find that the liberty and equality issues hadn’t been “well teed-up” and might punt the case back downfield (OK, not a very effective or comprehensible sports metaphor).

Esseks also mentioned the ACLU’s role in defending the vile Westboro Baptist Church in a case where the father of a soldier whose funeral was protested by these sociopaths had won a judgment for emotional distress. Soon, I’m going to write a post that might be titled: “How I Learned to Hate the First Amendment.” For now, I’ll just refer you to this excellent criticism of the way that freedom of speech has become a sort of secular religion. I don’t like it and I don’t buy it.

Toni Broaddus, who is the Executive Director of Equality Federation, which is described as a national network of more than 60 statea-based LGBT organizations, naturally focused on the level where much of the real action in marriage equality and non-discrimination has been taking place.

One of her sobering points is that it’s getting harder to pass LGBT legislation, like anti-discrimination laws, in part because the “easier” states have already been accounted for. She also noted that it’s been very tough to get gender identity protection passed as a “stand alone” – it works better when it’s folded into broader legislation for the entire LGBT community.  That lesson, she noted, was passed along to ENDA advocates, who belatedly saw the light and came to insist on protection for trans-people in this law, which, you may happen to know, still has not been enacted.

She also noted that LGBT legislation is increasingly building in broad religious exemptions, and that now such exemptions are global – notably in an Ohio law that says, quite directly, that “religious organizations may discriminate.” It perhaps goes without saying that such an exemption would be laughed at in the context of legislation protecting any other historically despised minority, but never mind.

There were also discussions of litigation challenging DOMA, the likelihood of ENDA passing this year (maybe), and a law that would repeal DOMA entirely (don’t hold your breath, but it does have more than 100 sponsors in the House).

I could go on (yes, there was still more), but that’s about enough for a blog post, don’t you think? I do want to close by saying that even though I teach law for a living, blog obsessively and now do a weekly column on legal issues of importance to our community, I always learn a great deal from this panel. There’s so much going on, and so many good people doing so much, that it’s hard to keep up. But that’s a good thing, right?

Marriage Equality: Another Day, Another Defeat

January 7th, 2010 2 comments

This photo, although taken several hours before the New Jersey Senate voted on — and voted down — a bill to allow same-sex couples the simple right to marry, is at once symbolic and oddly poignant:

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The poster belongs on the floor, at least until its clear statement of “The American Dream” is realized. The only thing that would state the point more bluntly would be for John Tomicki, who represents the state’s anti-equality forces, to be jumping up and down on it, cackling maniacally. (Oh, and what a sense of humor this guy has! Mugging for the camera with equality supporter Steven Goldstein, Tomicki said that he and Goldstein had a deal with each other: “No kissing!” Don’t worry.)

This outcome was predicted and all-but-inevitable once backers of the bill withdrew it from consideration a couple of weeks ago. But when the Assembly failed to take the bait and consider it first, the Senate was boxed into a “now or never” situation, as incoming Governor Christie would veto any measure that did pass.

Thus concludes (a few days late) the 2009 political season on the issue of  marriage equality, one that started with such promise but — with the exception of D.C. — ended so dismally. Yet every public debate, every chance to bring this message forward, is itself a step towards victory. Opponents have no arguments left, and it’s just a matter of time before the ramparts fall.

There’s much more I could say, but I really do need to come up with a presentation on how the law affects gay and lesbian’s economic relationships and decision-making for tomorrow morning…. I’ll summarize it here within the next few days.

“My Head is Spinning”: NJ Senate Committee Passes Marriage Equality Bill

December 7th, 2009 No comments

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This just in: By a 7-6 vote, the New Jersey Senate Judiciary Committee voted out the marriage equality bill, with what appear to be appropriate protections for religious organizations whose beliefs teach against same-sex unions. (I’m trying to get a copy of the bill so that I can independently analyze its terms.) Its fate in the full Senate (and beyond) may be decided on Thursday, and is unclear.

As I wrote a few hours ago, some of the testimony focused on religion, and its appropriate (or  not, in my view) place in this debate. Read the linked article at the start of this post, and you’ll see that much of the opposition revolved around two points: religion and the right of “the people” to decide the issue.

As I’ve written before, this notion that we should suspend representative democracy to allow visceral votes on issues of basic equality is as perverse as it is popular. If you can find the testimony, listen to the exchange between a Vermont Republican legislator who came down to testify and a clearly overmatched NJ Senator, who pressed her unsuccessfully whether the question should be put to the people. “The people elect us to make hard choices,” was her unassailable bottom line.

But as to religion, consider this astonishing statement by Josh Pruzanzsky, Executive Director of the Agudath of Israel of New Jersey. Same-sex marriage “would endanger religious freedom [and] inhibit free speech….”

Whose religious freedom? Not those of more liberal religious groups, whose freedoms are infringed if they’re not permitted to solemnize same-sex unions. The connection between the legislative bullying of the “big” religions and the popular vote that reflects the beliefs of those same groups is clear, and troubling.

Also troubling is the just-below-the-surface equation of gay couples with sex, and the related anger over the challenge to gender rules that we represent. Consider this “comment” from one of the story’s readers, which reflects a primal mash-up of all of these fears:

top / muncher = husband ??????????????????
bottom / munchee = wife ????????????????????????

My head is spinning- does anyone remember Sodom and Gomorrah??

Whatever the full legislature decides, there’s a long way to go.

Observations on the Marriage Equality Hearing Underway in New Jersey

December 7th, 2009 No comments

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Here’s the scene from New Jersey today, where supporters and opponents of the marriage equality bill gathered in advance of the Senate Judiciary committee meeting. Write your own caption.

If I had more time, I would have live-blogged this carnival from start to finish. (Here‘s the link to the hearing now going on.)

Since I’m listening right now, here’s a live bloggette:  There’s an interesting colloquy going on between a spokesman for the Catholic Church and the legislators. The Church guy (one Mr. Brennigan, it seems) appears to be in support of the current civil union law, but won’t be boxed in to saying that directly. He’s being pushed to ask whether it’s the label that matters, or substantive rights and privileges: Should same-sex couples get all of the same rights and privileges as married couples, save the title?

Yes, he says: You can create a parallel structure with all of the same rights and benefits. But you can’t call a same-sex union marriage. He’s almost saying — no, he is saying — that the legislature lacks the power to grant the status of marriage to gay couples. But this is a natural law argument, to which my response is always: “Who says?” One needs a properly public argument.

Mr. Brennigan is now acknowledging that, yes, the Church did oppose the civil union law. So, he says, this is about mitigating the damage.

Now one Senator is asking what the Catholic Church would have to say to a reform Jew who supports marriage equality, and how natural law fits into this disagreement. Brennigan is properly respectful, but the question gets at something vital: By choosing any particular religion’s view over another’s, the law ends up disrespecting religion more generally. The Senator follows up with exactly the right observation: Based on your view, we end up disenfranchising another religion.

True. That’s why arguments must be independent of religion. I’ll be back with a summary and a preview of Thursday’s vote later.