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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.  

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.

The Puzzled Generation (Part Two)

March 26th, 2009 No comments

This story is way better than either of the incidents related in Part One. (“Better than Part One? Pinch me!”)

Sometime in the mid-1990s, a now long-since “ex” and I took advantage of a friend’s generous offer of the use of his mother’s condo in Destin, Florida. After a seemingly interminable drive from Philly (nb., the Florida panhandle is, strictly speaking, endless), we arrived at a well-appointed, two-bedroom condo in a complex that housed a nice pool, tennis courts, and a view of the Gulf (of Mexico, for the geographically challenged).

It turned out that this condo bore heavy traffic; the day after we arrived, two men in their 70s showed up. They, too, had permission to use the condo, and were there to compete in a tennis tournament. As there was plenty of room for everyone and these gents were seemingly friendly enough, there was every reason to expect respectful accommodation from all parties.

But wait.

My friend was acquainted with a woman who lived about two hours away. They’d been chummy in college, and he saw this as a rare opportunity to catch up. So she drove west from Southwest Georgia, and the three of us went out for dinner and a few drinks. But because of these same drinks and general fatigue, it made sense for her to spend the night at the condo. When the three of us walked in to the condo, the U.S. Open Senior Doubles competitors were in the living room. After introductions that explained who everyone was to each other, the two men bade us a polite good night and retreated into their assigned bedroom. We — an African-American woman, a Mexican-American man and me (white guy) chatted for awhile, and then sacked out. (The woman slept on the sofa, while we men were in our assigned bedroom.

The next morning, we all awoke to find a brief and odd note from the two older guys: They’d left for a hotel. Weird, we thought — but didn’t think too much about it until…

We heard through the grapevine that these guys had left because they weren’t comfortable staying with two men who had brought home a prostitute!

Remember, we introduced my ex’s friend to them in context: as his old college friend. But this made no impression on these men, who must have disbelieved this account. In place of the truth, they constructed a set of assumptions about the three of us that supported the only narrative that made sense to them:

(1) These two men (my ex and I) were a couple of straight friends. For reasons I won’t get into, this assumption required an astonishing blindness.

(2) This woman — after all, an African-American (maybe not the term they would  have used) — could not have been friends with these two men.

(3) Therefore, these guys brought this woman back here for sex.

Look, I didn’t know these guys at all. To this day, I have no idea whether they’re decent or awful, politically liberal or conservative, bright or lamppost-dumb — or even whether they’re still alive. But I can conclude that, by virtue of their life experiences and social background, they made up the only story that made sense to them. (As my condo-lending friend’s wife said: “Well, she wasn’t cleaning up, so what else could she be to these guys?”)  And while there’s plenty of humor in this situation, it’s also a sobering reminder that the problems of perception that often attach to race and sexual orientation are stubbornly resistant to change.

I’d like to think progress is continually being made towards at least a recognition that the world’s beings can’t be so neatly boxed. Speaking in gross generalities that are probably offensive to senior citizens, subsequent generations do seem less “puzzled” by such relationships and friendships. But I do think of this story every now and then; it reminds me of the heavy lifting — the moving and then unpacking of these boxes — still to be done.

Categories: race, sexuality Tags: , , , , , , , ,

They Might be Lesbians

January 29th, 2009 No comments

Earlier this week, a California appellate court sided with a private Lutheran school in its decision to expel two of its female students for…what, exactly?

According to the court, the school had the right to expel them based on the belief that the two 16-year-olds had “a bond of intimacy” that was “characteristic of a lesbian relationship.” The details of the students’ relationship are less than clear: there was some dispute about where their friendship stood on the BFF-to-passionate-sexual-intimacy continuum. Apart from whatever conduct the girls engaged in (or didn’t), there was also some question about their self-definition. On their MySpace pages –when will they learn? — one student described herself as “bisexual”; the other, as “not sure.” The websites also showed the girls hugging, conduct that is of course unexceptionable absent the context.  

Whether based on their conduct or their status, and despite the lack of proof, the school’s decision was upheld for the simple reason that the state’s antidiscrimination statute was found not to apply to a private, religious school. Thus, the kids’ claim of sex discrimination, alleging that boys who got into trouble were generally treated less harshly, didn’t fly, either. If the statute doesn’t apply, that’s pretty much the end of it.

After reading the case (but not the cases the court discussed in reaching its decision), it seemed to me reasonable for the court to construe existing precedent to find that the school was not a “business”; and the law doesn’t apply to private, non-commercial organizations.  Whether that precedent is correct is another issue, though.  In some sense, such a school is a business — it charges money, and entities aren’t excluded from the statute’s coverage simply because of their non-profit status.

But I don’t think the legal approach is best in this case, anyway. The school probably would have done better by not expelling the girls, even if they had the right to do so. (I say “probably” because the opinion doesn’t fully spell out the facts of the girls’ conduct.)

Let’s take as a given that the church teaches against homosexuality. Does it really think that expelling every high school student who is even questioning his or her sexuality is the best idea? Adolescence is a time for questioning just about everything, including one’s religious beliefs. A school can embrace this challenge, inviting and encouraging dialogue about the basis for religious belief and the complex relationships between sexuality, its physical expression, and the demands of faith. My guess is that there are other students who engage in — or who have perhaps thought about engaging in — other sexual acts (even ones between members of the opposite sex!) that go against Lutheran teaching. Is it not odd that a religion born of a healthy questioning of religious teaching is fostering an atmosphere in which such questioning will be punished?     

Categories: Civil Rights, Gay Rights, religion Tags: , , , , ,