Posts Tagged ‘326’

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.

Operation Brainwash

June 1st, 2009 No comments

There’s so much flying around about the murder of Dr. George Tiller, one of the few doctors left who would perform late-term abortions, that one hesitates to weigh in. But here’s a telling piece of context from Mary Mapes, writing for Huff Post on the tactics of Operation Rescue, the rabid anti-abortion vengeance strike force that protested at Tiller’s Wichita clinic. In 1991, Mapes covered the group’s “Summer of Mercy,” which took its vile road show to the clinic:

“[T]hey were bullies.

“In 1991 and until his murder, Dr. Tiller was one of the few doctors in this country who performed late-term abortions. Despite what Operation Rescue claimed, none of his clients were ending pregnancies on a whim. None of them wanted to be there.

“Each case was a tragedy — a much anticipated child discovered to have only a partially formed head, a baby that was dying in the womb and had to be delivered, a child with medical problems so profound as to be unimaginable, a diagnosis that meant a child’s life outside its mother’s body would be both brief and brutal.

“Tiller’s clients often included couples who had been hoping to become parents but had their hearts broken late in pregnancy when they received horrifying medical news about their much-wanted babies.

“These people got no mercy from Operation Rescue.”

“They were hounded and harassed, shoved and shouted at on the most heart-breaking day of their lives. In order for patients to make it to their appointments, clinic supporters had to coordinate each woman’s arrival with walkie-talkies. They shielded the patient by forming a flying wedge of bodies that rushed through the crowd to escort her into the building.

“I watched one woman sobbing as she and her husband were helped into the clinic. Her tears went unnoticed by the hundreds of protestors surrounding her who shrieked and wailed and tried to trip the people escorting her to the door.”

I wonder how many of the protesters had suffered through such a tragedy of their own. A good guess would be “zero.” Lots of empathy for a developing life — even those that had no chance of developing, or or surviving — but none for the women and families that were actually dealing with the deepest kind of tragedy. It’s only that kind of skewed view that might have led Tiller’s murderer to have shot him in church, with his wife in attendance and singing in the choir. Left behind: four kids and a host grandchildren, in addition to his grieving wife.

As is its custom when such tragedies occur, Operation Rescue is expressing its obligatory and wholly insincere regret. But don’t expect the incendiary rhetoric to stop. Worse, expect the violence to continue. This just in from one of Andrew Sullivan’s readers, a former protester:

“Email newsletters from these people — not just the higher ups — spoke of Tiller being guilty of ‘blood libel’, aborted fetuses’ ‘blood crying out for vengeance’, “death mills”, etc. These people not only spoke the language of the Old Testament but saw themselves as part of its narrative. They are Jonah warning Ninevah (Wichita) prophesizing about its wickedness (Tiller’s clinic). They are David up against Goliath (Tiller). There were endless calls for this ‘atrocity to end’ and that ‘abortion in Wichita will end when the Church of Jesus Christ decides it will end’. The radicalism seemed to endlessly feed back on itself.

“This had been going on for years now. When these people said that Tiller’s practices must be ‘brought to an end’ or whatever, I truly believe that the vast, vast, vast majority of them (including the OR president, whom I’ve talked to about this before) do not have homicide on their minds. However, it doesn’t matter. Operation Rescue or Bill O’Reilly do not qualify every statement about Tiller with a parenthetical stating ‘oh, by the way, killing him is not the way to stop him’ for obvious reasons. But even if they did, they can’t stop someone from thinking that more drastic measures are ‘necessary’.”

There’s a further, terrible irony in all of this. Christina Page offers some compelling facts: As abortion rates declined during the Clinton years, violence against those provide or are associated with abortion services spiked. During the comforting years of the Bush Administration (in this one limited sense only!), violence basically disappeared. Now, it’s back. The rise in violence during Democratic administrations can’t be linked to increases or decreases in the number of abortions. Indeed, the relationship looks to be quite the inverse. No, the incidence of violence can be explained only by the ability of nutcase organizations to fire up their supporters by attacking the pro-choice views of Clinton and Obama. In short, the number of abortions isn’t what drives the violence, it’s the politics.

Operation Rescue and similar organizations have much to answer for. But don’t expect them to.

Andrew Sullivan’s “Familiar Feeling” — and a Qualified Defense of Obama

May 14th, 2009 No comments

Well, we’re not even four months into the Obama Administration and already the LGBT community is frustrated at the pace of developments. And, really, who can blame us, after the betrayals of the Clinton Administration and the hostility of his successor who-must-not-be-named? Here’s Andrew Sullivan, in a sobering and angry piece on the Atlantic website (“The Fierce Urgency of Whenever”):

“I have a sickeningly familiar feeling in my stomach, and the feeling deepens with every interaction with the Obama team on these issues. They want them to go away. They want us to go away.

“Here we are, in the summer of 2009, with gay servicemembers still being fired for the fact of their orientation. Here we are, with marriage rights spreading through the country and world and a president who cannot bring himself even to acknowledge these breakthroughs in civil rights, and having no plan in any distant future to do anything about it at a federal level. Here I am, facing a looming deadline to be forced to leave my American husband for good, and relocate abroad because the HIV travel and immigration ban remains in force and I have slowly run out of options (unlike most non-Americans with HIV who have no options at all).

“And what is Obama doing about any of these things? What is he even intending at some point to do about these things? So far as I can read the administration, the answer is: nada. We’re firing Arab linguists? So sorry. We won’t recognize in any way a tiny minority of legally married couples in several states because they’re, ugh, gay? We had no idea. There’s a ban on HIV-positive tourists and immigrants? Really? Thanks for letting us know.”

Steve Sanders over at Sexual Orientation and the Law Blog expands on the point, noting that some of the things Obama’s promised to do might be accomplished without legislative action; arguably, he already has the executive authority to stop the discharges under the completely indefensible “don’t ask, don’t tell” policy.

These points are fair, and we’re right to be concerned about both the pace of change and, perhaps as important, the weakening or outright disappearance of rhetorical commitment on central issues, such as federal civil unions; the Employment Non-Discrimination Act; and the repeal of  DADT. But the story isn’t this simple.

Sullivan himself is of two minds on this, as are many of us. He prefaces the eviscerating remarks quoted above with the following:

“[I]t’s tedious to whine and jump up and down and complain when a wand isn’t waved and everything is made right by the first candidate who really seemed to get it, who was even able to address black church congregations about homophobia. And obviously patience is necessary; and legislative work takes time; and there are real challenges on so many fronts….No one expects a president to be grappling with all this early on, or, God help us, actually leading on civil rights. That’s our job, not his.”

So, where are we and how concerned should we be?

Let me start with Sullivan’s “familiar feeling.” I’m less concerned than he is (of course, I’m not about to get kicked out of the country, either), principally because Clinton and Obama are so different, tempermentally. Clinton, for all of his obvious intelligence, was in many ways an incautious, borderline reckless, man: “I’ll just issue an order allowing gays into the military. What could be hard about that?” Obama’s endlessly analyzed personality is that of the careful incrementalist, who listens to all parties, decides on a course of action (and sometimes reconsiders his position, as with yesterday’s about-face on the release of prisoner abuse photos), and then works patiently and tirelessly for consensus. Anyone who could herd the divas on the Harvard Law Review has some accomplishment to commend his approach.

So what looks the same from one perspective — the lack of progress on gays in the military — may be quite different in underlying significance. We don’t know what Obama is doing (or thinking) behind the scenes, but I’m willing to bet it’s…something.

Not exactly reassuring, is it? I don’t have any way of verifying my suspicion on this issue, and I might be totally off. (I really hope not. DADT is just nuts; made even more so now that same-sex couples can marry or civilly unite. That legal act is now a ground for discharge under the policy. My next post will be of a conversation I had with the unceremoniously brilliant Alex Nicholson, the founder of an organization dedicated to repealing the policy, Service Members United.)

But there is movement. Let’s put this into context. For approximately forever, the only traction gay issues had at the federal level had been as a wedge issue — against us. I’m talking about DADT and the Defense of Marriage Act, not to mention the Federal Marriage Amendment (which never had a chance of passage but was conveniently unsheathed whenever an election loomed), and of course the epidemiologically and ethically indefensible ban on HIV-positive immigrants.

Now we have a gay-inclusive hate crimes bill set to pass and be enacted into law, likely quite soon. (I don’t agree that this is entirely symbolic; but even if it were, symbols matter). “Sources” tell me that there is a place on the legislative agenda this year for the Employment Non-Discrimination Act. (Whether it will be trans-inclusive is less certain, but vital: Who most needs this protection? Not me.) ENDA has been around since, if I’m remembering correctly, the Truman Administration. Neither Sullivan nor Sanders discusses this issue, on which progress looks quite likely.

Meanwhile, lifting of the HIV ban is moving along — albeit at the glacial pace of the federal regulatory process. Again, Sullivan (first quoting):

“’The Department of Health and Human Services has submitted for OMB review a notice of proposed rule-making to implement this change.’

“Translation: we’re doing the bare minimum to make us look no worse than Bush, but we have no real interest in this and are letting the bureaucracy handle it, and we guarantee nothing.”

I think that’s too critical. HHS Secretary Sebelius acted within one week of her confirmation to get this long-overdue repeal moving through the process. As this site reports, the bureaucrats are following standard procedure here, needed to put into practical effect the legislative repeal (changing the law meant that HIV was no longer required to be on the list of excludable diseases; now it must be removed).

Imagine it’s the end of 2009: The hate crimes bill is law, so is ENDA, and the HIV repeal is lifted (in time for Sullivan, I sincerely hope; but as he points out, there are many others for whom the ban leaves fewer, or no, options). DADT continues to be assaulted, relentlessly, from many perspectives, but is still in place. Civil unions, flowering all over the country, lie beneath still-frozen soil in D.C.

Would we regard this record as one of success? Let’s see if we get there, first. And let’s continue the relentless advocacy that is finally, I believe and dare to hope, beginning to push on the hinge of history.

Religion and Sex(uality)

March 17th, 2009 No comments

I recently received an email from a reader who thought I might find interesting a recent communication from the Presiding Bishop of the Episcopal Church. Good guess. The article reminds me that there are many intelligent people of faith who are capable of understanding the dynamic relationship between religion and the secular world. Here is what the Most Rev. Katharine Jefferts Schori had to say, to that point:

“[A]ll of us read Scripture through the lenses we have [including] our cultural norms [and] our scientific understanding….We also privilege particular parts of Scripture in the way we build our lectionaries.”

I really do encourage all of you to follow the link above to this remarkably nuanced and thoughtful article, especially in these times when so many of the most vocal religious figures are speaking mean-spiritedly or ignorantly.

On the nastiness front, Gary Bauer, President of the ironically named “American Values” group recently said that any effort by President Obama to extend domestic partner benefits to government workers (even though two federal appellate judges separately ruled that the workers were eligible for such benefits) would “provoke a furious grass-roots reaction, reinvigorate the conservative coalition and undermine his efforts to portray himself as a moderate on social issues.” Who’s immoderate here?

As for ignorance, the out-of-touch Pope Benedict XVI followed up his lifting of the excommunication of ultraconservative bishops (including one certified Holocaust denier) by statements he just made regarding the scourge of HIV in Africa. On the airplane taking him to Cameroon, he denounced the use of condoms as one tool in fighting the prevention of HIV infection: “You can’t resolve it with the distribution of condoms,” he said. So far, so good: condoms alone won’t solve the problem. But then came this statement: “On the contrary, [condom use] increases the problem.” Noooooooooo!

The same article that captured the latest foot-in-mouth escapade of the seriously out-of-touch pontiff also reported the mainstream public health view that, in a continent heavily burdened by HIV/AIDS, condom use is one of many needed prevention strategies. The trip, by the way, kicks off a year of attention to Africa by this pope.   Africa to Pope: “Thanks, but no thanks.”

Let’s end on a more positive note, by returning to the thoughtful article by Rev. Jefferts Schori. Surveying the landscape of cultural and social signifiers of gender and sexuality at the primates’ meeting in Alexandria, Egypt, she noted that the male-dominated culture there led to all kinds of behaviors that we would regard as either alien or dissonant: the almost complete covering of the female body while paintings of half-naked women adorned the wall of a conference room in her hotel; the view that one partner in a same-sex relationship must be acting the role of the “other” gender; and the hand-holding displays of affection by people of the same-sex that would be regarded differently here.

Rev. Jefferts Schori then concludes with an oddly moving encounter and her reaction to it. When she was greeting people in Texas after the meeting, one man described his friend in a wheelchair as “the most interesting gay man” he knew, and then said (apropos of nothing in particular, apparently): “All of this is really about male supremacy, isn’t it?” Here is the rest of the reverend’s article, set forth below without comment:

“His words, not mine, but worth consideration. ‘There is no longer Jew or Greek, there is no longer slave or free, there is no longer male and female; for all of you are one in Christ Jesus.’ Galatians 3:28.”

The Broadest Rule Ever Told

March 11th, 2009 No comments

The War in Iraq, the erosion of our global political capital and standing, the response to Katrina, the economic collapse — with so many delicious delicacies of abject failure ripe for ingestion (and expulsion!), it’s little wonder that other Bush Administration disasters got lost in the shuffle. It’s kind of like being the fourth Baldwin brother.

As is generally known, and as is to an extent common to all lame duck presidencies, Bush et al. pushed through a number of “midnight regulations” designed to perpetuate their policy preferences. In this case, though, many of these last-minute changes had the effect of leaving a residue not unlike the smell of Limburger cheese.

Among the most pernicious is the “Provider Conscience Act,” which isn’t a legislative “act” at all, but a rule created by the Department of Health and Human Services (“HHS”). This rule, which went into effect on the last day of Bush’s historically inept tenure, creates an amazingly broad “safe harbor” for anyone who refuses, for reasons of “religious beliefs” or “moral convictions,” to perform any “health service” at all. (The rule applies to any entity that receives federal funds; effectively, almost all of them because of Medicare and Medicaid.)

This language could hardly be broader. HHS refused to define “health service,” or to specify what will count as valid “moral convictions.” As a practical matter, anyone who is remotely connected to any health-related procedure (because those who assist medical personnel are also covered by the exemption) can refuse to do anything that conflicts with whatever they believe. (Good luck winning a challenge to the sincerity of the “belief” after the fact.) They don’t need to refer the patient to another provider who might be willing to perform services that the patient is actually legally entitled to. Nor does the provider need to inform the patient of these “limitations” until the moment of refusal.

Before this blunderbuss rule was put into place, there were already several sources of federal legal protection for those providers who refused to provide abortion services. Over the years, parties offering, seeking, and declining to provide such services have all learned how to live with these restrictions. But this new “act” goes well beyond the context of abortion, potentially applying to birth control, as well. And not only birth control: In principle, there is no service, operation, or procedure that isn’t covered by this rule.

Does a doctor, or her assistant, oppose vaccination? Don’t vaccinate. (Will the parent take the child to another physician who will vaccinate? Perhaps not, and you can expect a public health peril to develop.) And the doctor can’t fire the person who refuses, because the law protects the “conscientious objector.”

Refusing to provide blood transfusions? Not willing to fill prescriptions for birth control drugs needed to ensure a woman’s health? These and countless other decisions are protected under this rule. HHS was impervious to arguments that this open-ended rule could lead to health care providers refusing to perform any task for any reason at all, but it’s less understandable that a law professor would agree. Yet in an installment of Radio Times (search for 12/16/08 show), St. Thomas University law professor Teresa Collett brushed aside these concerns, telling me that the law, while broad, wouldn’t lead to the kinds of problems I’ve just identified. There is no basis for her confidence.

There’s likely good news. The Obama Administration opposes the rule and has already begun the process that could repeal it.  And the Attorney General of Connecticut, one Richard Blumenthal, has sued (along with others) to enjoin the rule. But for now, the rule threatens public and private health and places providers’ whims over patient safety and autonomy.

Is it Trash Day yet?

{an acknowledgment to Dan Whitney, a student whose solid paper relating to this topic saved me research time and effort}

Three Acts on Prop 8: III (A)

March 6th, 2009 No comments

So here we are: It appears very likely that, on or before June 5, 2009, the California Supreme Court will uphold the “right” of California voters to pass Prop 8, taking away a right — the right to marry — that the court had barely more than a year ago deemed fundamental. (Under California law, the court must decide the case within three months of oral argument.) This was a substantial risk that those filing the suit took, and many believed that this legal terrain would have been best left unmapped.

I don’t agree, because I think that the court’s decision, assuming I’m right in my prediction, will underscore that we have substantial work to do to win  “hearts and minds.” The reality that this struggle will continue to be difficult hit home immediately after last November’s elections: While they’re already being forgotten in the California-consumes-all-energy frenzy surrounding Prop 8, initiatives in several other states were also blows to the marriage equality movement. In Florida, for example, more than 60% of voters uncharitably passed an amendment restricting not only marriage rights but other forms of relationship recognition. It remains to be seen how broadly the law will be interpreted.    
But there is plenty of good news, too. As the always eloquent and perceptive Hendrik Hertzberg observed at the time, these measures had the feel of a “last stand.” His piece is required reading for those inclined to despair at recent (and upcoming?) developments and setbacks. Marshalling the pile of relevant polling data available as well as marriage developments in Massachusetts and Connecticut, he argues that the public’s view of gay rights and relationships is moving inexorably in a progressive direction.

He’s right, and things have only moved more briskly since last November. Indeed, Prop 8 may ultimately be remembered not because of its radical removal of fundamental rights from a “suspect class,: but because of the cascade of dormant activism it unleashed. In a post later today, I will offer a review and assessment of the legal, social, and political work that has been done since the dawning of the Age of Obama. As you’ll see, things are getting better.   

You Ain’t Seen Nothin’ Yet

January 26th, 2009 1 comment

Probably too much was made of the Oof! of Office misadministered by Chief Justice John Roberts to finally-President Barack Obama last week. We might learn something from the Justice’s error, though.

The likely cause of the mistake was identified, and properly pilloried, by the Harvard psychologist and linguist Steven Pinker in an op-ed piece that ran in the NY Times: Roberts attempted to rewrite the oath to conform to his own pedantic — but incorrect — ideas of proper grammar. (As a sometimes-pedant myself, I have learned painful lessons about the importance of actually being right.)

Likely because of his extensive study of Latin during his Catholic school boyhood, Roberts likely subscribes to the “rule” against splitting infinitives; this is no rule at all, but a slavish import from Latin where infinitives can’t be split, because they consist of only one word. Thus did Roberts place the word “faithfully” at the end of a sentence that should have had the President “solemnly swear that I will faithfully execute the office of president of the United States.” Instead, the Chief Pedant wanted him to “solemnly swear that [he would] execute the office of president to the United States faithfully.”

This was a change up with which the almost-President would not put (to follow another silly “rule” about not ending a sentence with a preposition). Obama stopped, gave the Justice a chance to correct himself, and then they moved on.

Can’t I just move on, too? OK, in a minute. First, I want to suggest that the adherence to rules that don’t make a lot of sense can be dangerous when applied to the business of judging. Pinker reminded me that Roberts had also “amended” a Bob Dylan quote to remove an “ain’t”; as a kid, I remember chanting that “I ain’t gonna use ‘ain’t’, cause it ain’t in the dictionary.” Whatever meta-statement the previous sentence may or may not make, here’s a rule that I think we can all agree on: If you’re trying to show off your pop culture chops, editing Bob Dylan subverts your goal.

Lily Ledbetter, too, probably wishes that Roberts and his fellow conservative justices had less of an adherence to silly rules. In a 5-4 opinion onto which Roberts signed (now I can’t stop myself!), the Supreme Court ruled that Ms. Ledbetter’s sex discrimination lawsuit against Goodyear, based on unequal pay, was time-barred because she had failed to sue within the 180-days the law required. Ms. Ledbetter had worked for the company for some twenty years before realizing that her pay was substantially lower than that of every male in the same position, many of whom had far less seniority than she. Pay discrimination is often insidious and invisible, accruing over many years before the disparity becomes evident (and not disclosed by the employer, certainly).

No matter: Going against the majority of federal appellate courts and even the EEOC’s own view, the Court ignored this reality and found her claim time-barred. Thus, the factual finding that she was the victim of discrimination, meant nothing.

In dissent, Justice Ginsburg had this to say: “The Court asserts that treating pay discrimination as a discrete act, limited to each particular pay-setting decision, is necessary to “protec[t] employers from the burden of defending claims arising from employment decisions that are long past.” [B]ut the discrimination of which Ledbetter complained is not long past. As she alleged, and as the jury found, Goodyear continued to treat Ledbetter differently because of sex each pay period, with mounting harm.”

In fairness, the law in question could have been read either way. But only one reading was consistent with the remedial idea of the federal law. Because of the majority’s decision, Lily Ledbetter, who lost many thousands of dollars over the years, had no remedy.

Thus was Ms. Ledbetter cheered when the newly installed Democratic Congress passed a bill bearing her name, amending the statute to allow suits like hers. The bill passed the Senate last week, 61-36, with all four female Republican Senators (and the usually reliable Arlen Specter) joining a unanimous Democratic caucus. The House, which has passed a similar version of the bill, is expected to take it up tomorrow — on John Roberts’ fifty-fourth birthday. And the Lily Ledbetter Fair Pay Act of 2009 is expected to be the first bill that President Obama signs.

That’s two quick corrections to Justice Roberts’ actions. “You have not yet seen a thing,” to correct the woefully ungrammatical title of Bachman-Turner Overdrive’s 1974 hit (and for “uncool,” it’s hard to surpass that reference).