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Oh, Perry! (Hold On)

January 10th, 2010 No comments

In case you were wondering whether the Prop 8 defenders believe their arguments are sound, wonder no more: They have gone so far as to seek, from Supreme Court Justice Anthony Kennedy (who decides such applications for the Ninth Circuit, of which California is a part), an emergency stay of the California court’s order to allow a delayed broadcast of the trial proceedings. The trial is to start tomorrow, with the youtube broadcast to be offered on time delay (maddeningly, we don’t know when the video will be available; later the same day, or early the following day).

Does this action sound to you like that of a group confident in the strength of its arguments? Me, neither. The stay application cites the prospect of witness intimidation and harassment if this show trial is broadcast. Translation: We’re much better off if people can’t see that we have no good arguments against allowing gay couples the same right to marry that heterosexual couples take for granted.

One interesting tea leaf to read here: Justice Kennedy is among the Court’s most consistent defenders of the First Amendment, reading its guarantees quite broadly. Thus, if he does grant the stay, the prospects for ultimate success at the Supreme Court dim. His vote is likely decisive. And Kennedy probably can’t dodge the issue by asking the full Court to weigh in, because the other eight justices would likely split 4-4, throwing it right back to him.1 There’s something fitting about Kennedy’s role here: He can decide this, all by himself. We might as well say that about marriage equality, generally.

  1. I know, this is much too simple, because this isn’t the same as deciding the marriage issue on the merits. And the First Amendment issue could split the Court in a different way. Yes, but if Bush v. Gore taught us anything, it’s that theory and doctrine will be subordinated to political result when the chips are down. So I don’t expect the conservative wing of the Court to do anything that would diminish, even hypothetically, the case against marriage equality which they may soon have to hear.

Changing the Terms of Debate

November 9th, 2009 1 comment

An opinion piece in today’s Asbury Park Press, a New Jersey paper, argues that that there’s no need to “rush” gay marriage through a lame-duck session of the  legislature. (Outgoing Governor Corzine will sign it if it reaches him before his term expires in January; Governor-elect Christie would veto such a measure.)

Whatever the merits of the argument about enacting laws during a lame-duck session, something else about the piece was noteworthy. The editors, after noting that marriage equality has been consistently voted down when put up as a referendum, said:

[Gay marriage] is legal in five states, but only through acts of legislatures or by court mandates.

Only” through acts of legislatures? This is called “representative democracy,” by the way. It’s not perfect, which is why courts are standing by to pass on the constitutionality of measures enacted. But matters are far worse when rights are put up for popular vote. Then there’s no filter between the most visceral impulses of the “mob” and the protection of minorities. As Jesse Ventura (remember him?) aptly stated in the wake of the Maine marriage equality vote:

“You can’t put a civil rights issue on the ballot and let the people decide. You have to have elected officials to who have courage to make the right decision. If you left it up to the people, we’d have slavery, depending on how you worded it.” (h/t Joe.My.God)

It’s bad enough that many states allow just this sort of popularity contest on basic rights. Journalists shouldn’t be making it worse by suggesting that the legislature is somehow subordinate to the plebiscite.

Dallas Judge Declares Texas’s Ban on Same-Sex Marriages Violates the Federal Constitution

October 2nd, 2009 2 comments

Courts sometimes find themselves in a bind: Stray too far from public opinion (even if constitutional principles seem to compel doing so), and they risk vilification and loss of the public’s confidence on which they, to an extent, depend for legitimacy. But ignore the reality of  the litigants before  them, and they run the risk of irrelevance.

The breaking news that a Dallas judge has just recognized the right of a same-sex couple to divorce by finding that the state’s ban on same-sex marriages violates the U.S. Constitution’s guarantee of equal protection highlights the tension between the court’s reliance on public good will and the need to solve problems. As I wrote recently, couples at the end of a marriage must divorce in order to effect a clean separation and to avoid issues — like bigamy — that can surface when they find another partner. Yet in the case I posted on, and Indiana judge denied the divorce (because the court can’t dissolve a marriage that doesn’t exist) while expressing frustration at the result the court felt compelled to reach.

Texas District Judge Tena Callahan wanted to give the couple what it needed, so she did. But at what cost? Since Texas has a state constitutional ban on gay marriages, the only way to get jurisdiction over the case is to vault over the state’s ban and declare the law invalid under the federal constitution. So that’s what Judge Callahan did, invoking the U.S. Constitution’s guarantee of equal protection under the laws to get there.

This decision reminded me of a Florida court’s ruling that the state’s ban on gay couple’s adopting children violated the Florida state constitution’s right to equal protection under the law. In both cases, a court saw a problem that needed solving — especially in the adoption case, where allowing the adoption by long-term foster parents was clearly in the children’s best interest. But appellate courts, at a remove from these actual problems, often take a more dispassionate view of the law and the facts.

Judge Callahan has an argument (at least on the merits; I’m trying to find a copy of the decision, if one exists, to analyze the persuasiveness of her opinion),1 but decisions like this risk creating bad precedent — in theory, this case, because grounded in the federal constitution, could go all the way to the Supreme Court. Did Judge Callahan consider this in trying to solve the problem before her? Should she?

  1. If I do, I will post my analysis.

The Limits of Religious Liberty

August 26th, 2009 No comments

It’s vital for a trial judge, and for a jury, to be able to assess the credibility of witnesses. As we all know, credibility is a complex determination that relies on all kinds of conscious and unconscious verbal, physical, and facial cues. But what happens when religion interferes with one of those cues?

In this story, a Muslim claimant was effectively driven out of small claims court when she refused, for religious reasons, to comply with the judge’s order that she remove her face-covering niqab. The woman had proposed putting on the case before a female judge (where she’d be able to remove the headdress, consistent with her religious tenets), but had been told that none was available.

The woman’s suit against the judge is wending its way through the courts; meanwhile, the Michigan Supreme Court yesterday issued an order that, beginning next month, will protect judges in such cases. It will permit them to control the appearance of witnesses to “ensure that the demeanor of such persons may be observed and assessed by the fact-finder.” The ACLU proposed adding a clause that would have exempted those with sincere religious beliefs from the effects of the rule, but of course that would leave unsolved the problem that prompted the rule in the first place.

The ACLU’s position ignores that there are (at least) two litigants, both of whom have rights. If the garment covering all but the eyes can disguise cues of dishonesty, then fairness to the other side calls for sacrificing the religious freedom to the demands of public litigation. Some will see in my position a distrust of those who choose to wear camouflaging clothing, but I think the point stands from an adversarial perspective.

These situations can often be handled in a better way, though. It would make sense to accommodate the religious belief where possible; as women in almost-total covering become more common, fair accommodation and practicality require developing ways of anticipating and addressing these situations. Thus, in a court that has at least one female judge, hearings with women who can’t remove their  niqabs in front of men could be reassigned. Such accommodations have their limits (this wouldn’t work for jury trials, for example), but should be sought wherever possible. While there will be situations where the conflict can’t be managed, it should be where it can be.

The Senator and the Justice — Cornyn’s Selective Outrage

July 16th, 2009 No comments

Senator Cornyn is being given a pass on his audacity. Today, he asked soon-to-be Supreme Court Justice Sonia Sotomayor about whether a decision in favor of marriage equality would be “interpreting” or “making” law. The implication, of course, is that such a holding would be “making law” and therefore illegitimate.

To her credit, Sonomayor was (barely) able to contain her exasperation. There isn’t a clear divide here, and the Court’s decision will be based on precedent, constitutional text and interpretation, and something called “evidence.”

But Cornyn should be the last person to complain about judges “making law,” because his own decisions on the Texas Supreme Court showed an astonishing lack of concern about existing law and precedent. There, he was willing — eager, really — overturn any precedent, however recent, that made life more difficult for insurance companies.

Most infamous in this regard is Boyles v. Kerr, 855 S.W.2d 593 (1993), in which Cornyn joined a majority in prohibiting a negligence lawsuit by a woman whose boyfriend had taped the two of them having sex and then showed it to his friends; according to the court, Dan Boyles owed no duty to Susan Kerr not to “negligently inflict” emotional distress on her. But this decision overruled a controlling case holding otherwise from only five years earlier.

Decisions are overruled all the time, but in this case the court didn’t bother justifying its turnabout with any substantial reasons, instead inveighing vaguely against “unlimited liability.” The real difference, of course, was that the court’s membership had shifted during the intervening five years; notably, Cornyn himself came to the bench in 1990 — between the two cases.

Cornyn was among the new, pro-insurance justices on a court that has been notoriously corruptible over the years. Time and again, the frustrated dissenters expressed a level of anger, and adopted an accusatory tone, that is startling. From Justice Doggett’s dissent in Boyles:

“[E]xcessive concern for the effect of every opinion on insurance companies seems to have become the predominant and overriding issue here, even to the exclusion of a woman’s most basic rights. Susan Kerr loses today because of the majority’s misdirected concern about the potential liability of insurers….”

Speaking of women’s concerns, I can’t let this post end without noting that Boyles sparked a conflagration of outrage, such that the court withdrew its original opinion and rewrote it to make it less offensive. In that earlier opinion, the court had displayed a shocking lack of sensitivity to the plaintiff’s injury, noting, among other minimizing facts, that she’d been able to have sexual relations after this humiliating incident. Here’s what the Women’s Advocacy Project (which provides social and legal services to victims of abuse) had to say about the court’s decision and language:

“The court has sent a message to all these Texans [who have suffered sexual and emotional abuse] that they are second class citizens. It defies logic to have a system of justice that will compensate the victim of a car wreck but that will refuse to compensate the recipients of the most devastating of emotional injuries. Perhaps more significantly, this Court has sent a message to these citizens that their injuries do not merit judicial redress, leaving them with no alternative but to take justice into their own hands.”

Well, that sounds ominous. But not a problem for now-Senator Cornyn, who continues to be more concerned about whether a “wise Latina” will make bad decisions because of her prejudices and radical world view.

Who’s the radical activist here?  Cornyn asked Sotomayor: “Judge, what should I say to my constituents?”

That’s a good question, but his constituents might want him to talk about something other than he thinks.

Empathy and Activism: A Look at Senator Cornyn’s Own Judicial Record

July 16th, 2009 No comments

During the Sotomayor hearings, Sen. John Cornyn of Texas has been among the most aggressive questioners. He seems particularly overwrought about the nominee’s statements that her experience as a Latina would somehow affect, or even improve, her decision-making. (Of course, the would-be justice has run as far from those comments as possible.) He and other conservatives also worry about “activist judges” who “legislate from the bench.” It’s amazing he can express these concerns without blushing.

As I noted when this issue broke, there are several ways to interpret the “wise Latina” comment. The most benign is that all of us are a product of our environment and experience; our empathy should be for all litigants, but we’re not, and shouldn’t pretend to be, robots. (That said, Sotomayor’s performance so far has been that of Automaton Lawyer.)

Cornyn, though, is having none of this; empathy isn’t and shouldn’t be part of decision-making. NY Times columnist Maureen Dowd is at her skewering best in yesterday’s take on the Republican Legion of (White) Super-Attackers. Smashing the tennis ball with deadly accuracy, she nails every line and corner of the court:

“A wise Latina woman with the richness of her experiences would more often than not know that a gaggle of white Republican men afraid of extinction are out to trip her up.

“After all, these guys have never needed to speak inspirational words to others like them, as Sotomayor has done. They’ve had codes, handshakes and clubs to do that.

“[P]resident Obama wants Sotomayor, naturally, to bring a fresh perspective to the court. It was a disgrace that W. appointed two white men to a court stocked with white men. And Sotomayor made it clear that she provides some spicy seasoning to a bench when she said in a speech: ‘I simply do not know exactly what the difference will be in my judging, but I accept there will be some based on gender and my Latina heritage.’

“Republican Lindsey Graham read Sotomayor some anonymous comments made by lawyers about her, complaining that she was “temperamental,” “nasty,” “a bit of a bully.” Then he patronizingly lectured her about how this was the moment for “self-reflection.” Maybe Graham thinks Nino Scalia has those traits covered.

“But the barbed adjectives didn’t match the muted performance on display before the Judiciary Committee. Like the president who picked her, Sotomayor has been a model of professorial rationality. Besides, it’s delicious watching Republicans go after Democrats for being too emotional and irrational given the G.O.P. shame spiral.

“W. and Dick Cheney made all their bad decisions about Iraq, W.M.D.’s, domestic surveillance, torture, rendition and secret hit squads from the gut, based on false intuitions, fear, paranoia and revenge.

“Sarah Palin is the definition of irrational, a volatile and scattered country-music queen without the music. Her Republican fans defend her lack of application and intellect, happy to settle for her emotional electricity.

“Senator Graham said Sotomayor would be confirmed unless she had ‘a meltdown’ — a word applied mostly to women and toddlers until Mark Sanford proudly took ownership of it when he was judged about the wisdom of his Latina woman.

“And then there’s the Supreme Court, of course, which gave up its claim to rational neutrality when the justices appointed by Republican presidents — including Bush Sr. — ignored what was fair to make a sentimental choice and throw the 2000 election to W.

“Faced with that warped case of supreme empathy, no wonder Sotomayor is so eager to follow the law.”

*********

Cornyn’s own record as a Texas Supreme Court Justice reveals a similar “supreme empathy” — to insurance companies. In the area of tort law, he consistently sided with majorities that eviscerated long-standing rules and principles, consistently to the advantage of defendant businesses and the insurance companies that ultimately would have had to account for the losses.

These decisions, often by the barest of majorities, were not in cases that any other state supreme court would have agreed with. In the 1992 case of Keetch v. Kroger Co., 845 S.W.2d 262 (Tex. 1992), Cornyn and three other justices held that a supermarket wasn’t necessarily liable for a slippery condition that its own employee had created. Maybe the employee didn’t know the spray he’d used had landed on the floor. The flabbergasted dissenters pointed out that the majority’s decision, in addition to being at odds with settled and uncontroversial law in Texas as well as everywhere else, effectively told employees and store owners to “look the other way.”

The majority also tripped the plaintiff up on a procedural error, one that the dissent noted was now applied only to those bringing suit, not to those defending: “Today the court… extends a dual standard of justice–an easy requirement for defendants, an inexplicably strict one for plaintiffs.” (Mauzy, J., dissenting)

This willingness to use arcane procedural rules to defeat claims sometimes meant that valid cases never got a hearing. In the inexplicable H.E. Butt Grocery Co. v. Warner, 845 S.W.2d 258 (Tex. 1992), Cornyn wrote only for himself (but as the majority because of an oddity of Texas law) in tossing out a case involving a woman who’d slipped and been injured allegedly because of an ill-conceived “bag your own chicken”1 promotion. Despite the clear description of the dangerous condition set forth in the complaint, then Justice Cornyn found that it hadn’t provided legally sufficient notice of the problem. I leave to the law-curious among you the details, but this telling comment from the dissent bears quoting:

“”The majority opinion defies modern rules of pleading, which require only that a plaintiff put the defendant on notice of the claim. [This] retrograde analysis runs counter…to modern tenets of procedure….”

Empathy for insurance companies and judicial activism: Not just for leftists, apparently. Cornyn’s decisions spawned dissents that were downright angry and accusatory. Here’s a good place to finish, again stemming from a pro-insurance decision by a Cornyn-led majority:

“When an unequivocal constitutional command and  concern for the insurance industry collide in this Court, the outcome is no longer in doubt. [T]oday’s decision is but one example of the court’s recent indifference to precedent and its commitment to wholesale revision of Texas law.” (Doggett, J., dissenting)

  1. Ick.

Prop 8 Decision to Come Down Tomorrow? Here’s What to Look For.

May 20th, 2009 No comments

With a limited number of days remaining in which the California Supreme Court can hand down its monumental decision regarding the validity of Prop 8, the first murmuring has just been heard that tomorrow may be D-Day. (The story notes that police barricades are being moved into place in San Francisco, likely in anticipation of street actions there — protests or celebrations.)

As I live-blogged the argument, it seemed quickly evident that the court was going to uphold Prop 8 as a permissible amendment to the state’s constitution, but let stand the many thousands of marriages that had occurred during the several months of 2008 when same-sex marriages were legal. I still believe that’s what going to happen, but with all that’s been going on since then, there is some reason to question that outcome. Here are a few questions that the court may answer whenever it does issue its ruling:

(1)  Things have changed since the oral argument, and at a speed no one could have predicted. Iowa, Vermont and Maine — soon to be followed by New Hampshire, it seems — now have marriage equality. Will the court acknowledge these developments, and, if so, what impact will they have on the justices? My guess is that the court will express sympathy or empathy for the gay community (something no U.S. Supreme Court Justice is supposed to have, according to this fool) and celebrate these developments, but place its trust in the people to eventually extend the promise of equality — after all, the New England states mentioned above have achieved marriage equality legislatively, not by court order. This approach may make the court (and others?) feel better about what it’s doing.

(2) Whither willy-nilly? During the argument, Justice Kennard kept asking counsel opposing Prop 8 whether the court could “willy-nilly” disregard the will of the people. (In fact, she used the expression so often I was left wondering whether she’d just learned it.) I took her to mean that calling Prop 8 an impermissible “revision” to the state constitution rather than an allowable “amendment” would be an unprincipled, haphazard thing to do. But even Ken Starr, arguing for Prop 8, conceded that the case raised the unique issue of depriving a suspect class of a right that the court had declared fundamental. Thus, overturning it wouldn’t be “haphazard.” One could argue that Prop 8 really does constitute a fundamental change to the state’s constitution by restricting the court’s ability to interpret it. This argument blends almost seamlessly into the related point that Prop 8 purports to disrupt the established separation of powers — courts are the interpreters of constitutional guarantees. (The argument is summarized, and the brief linked, here. Scroll down to April 28.)

(3) What will the court say about taking rights from a class that, just last year, it  had declared to be entitled to the highest degree of protection? This question is obviously closely tied to the last one. The court’s decision to treat sexual orientation as a “suspect class” that triggers the highest level of judicial scrutiny (suspicion, really) was based on its finding that the gay community had historically been subject to discrimination, that laws treating the community differently bore no relation to the ability to contribute to society, and that gays were historically powerless.  Do subsequent developments make those observations less true, and reduce the need for heightened protection? If not, then the class is still suspect, and the rights are still fundamental. Can a simple majority vote change that?

(4) Another related question is whether any of the justices who opposed marriage equality last year might change their vote. This seems unlikely, but a justice who is especially respectful of stare decisis —  which says, in layperson’s  terms, that the court should respect its own precedents, overruling them only under exceptional circumstances — might look at matters this way: “I didn’t think that sexual orientation called for heightened scrutiny, but we (over my dissent) held that it did. That’s now the law and I’m bound to respect it. And if sexual orientation is a suspect class, and if same-sex couples have a constitutional right to marry, which we also held (again, over my dead… — I mean, over my dissent), then that right can’t be taken away so easily, if at all.”

Don’t expect this to happen, though. Stare decisis is like a raincoat that justices don and doff according to the prevailing weather.

(5) How ugly is it going to get?

(I’ll be back with a lay summary of the opinion shortly after it’s issued.)

Update: It’s now been confirmed that the opinion will not issue tomorrow. The court must issue the opinion within the next two weeks, though. I will supplement this post shortly before the decision issues, and then again to summarize and reflect on the opinion.  

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.