Will Portman, Matt Salmon, and Me

I fear it is a sign of advancing age that I can remember back to 1996 (and the preceding Dark Ages) when the debate over marriage equality began in earnest and only one Senator–Ron Wyden–openly spoke out in support.  Two others–Ted Kennedy and Carol Mosley-Braun–also supported marriage equality but in a more circumspect manner.  Of those original three, only Wyden still serves in the Senate.

Over the next fifteen years, support for same-sex marriage in the Senate grew slowly; before 2011 only 15 Senators, Democrats all, supported it, although LGBT activists suspected, as they did with President Obama, that many more Senators secretly supported the cause.  Understanding that a craven but Democrat-controlled Senate would be far more beneficial to the LGBT cause than a Republican-controlled Senate, LGBT organization chose not to rock the boat–often to the consternation of the larger and more impatient LGBT community.

In the past two years, and especially since last November, Senatorial support for marriage equality has exploded.  As of the time of this writing, 54 Senators–over half the Senate–support pro-marriage equality legislation.  This no doubt due to the confluence of several factors: (1) consistent polling data showing that a majority supports marriage equality; (2) President Obama’s high-profile endorsement of same-sex marriage and his subsequent reelection; (3) the embrace of marriage equality in the Democratic party platform; (4) the election of Tammy Baldwin the first openly gay Senator; and most importantly (5) the referendum victories in Maine, Maryland, Minnesota and Washington.  From hereon in, for most Democratic Senators (and all future serious Democratic Presidential candidates) it is far more dangerous to oppose same-sex marriage than to support it.*

Surprisingly, of the 54 Senators who favor marriage equality, two are Republicans.  Mark Kirk of Illinois, whose prior voting record on gay rights issues included a vote against repealing Don’t Ask Don’t Tell, issued a very simple but powerful statement: “Same-sex couples should have the right to civil marriage.  Our time on this earth is limited, I know that better than most.  [Kirk recently recovered from a stroke.]  Life comes down to who you love and who loves you back–government has no place in the middle.”

Before Kirk announced his support though, Rob Portman of Ohio changed his mind to support same-sex marriage.  To say that his announcement was a great shock is an understatement; his voting record on LGBT rights was abysmal.  Portman, a candidate to be Mitt Romney’s running mate, announced his support for same-sex marriage in an editorial in which he explained how he came to that position.  Two years ago his son Will came out to him, and Rob Portman came to understand that by opposing marriage equality he was hurting his own son.

The response to Portman from the political right was–predictably enough–outrage.  The response from the left however, was more complicated.  Most of us celebrated Portman for his change of heart.  Disappointingly though, there was a lot of anger toward Portman coming from some influential corners.  Dan Savage, wrote that the true hero of the story was Will Portman, a correct enough statement, misguided in the implication that Rob Portman’s actions are somehow less than meaningful.  The argument of Portman critics such as Savage, Paul Krugman, and Matt Yglesias goes something like this:

Rob Portman, like most/all Republicans, lacks empathy.  He was able to comprehend the issues facing gay people only because his son is gay.  Therefore, if someone he loves doesn’t have that problem (such as poverty), Portman has no capacity for empathy.

I acknowledge a grain of truth to this criticism.  Will Portman will never suffer poverty or employment discrimination (the Senator still does not support ENDA), a benefit of being a Senator’s son who attends Yale.  Nevertheless, Savage, Krugman, and Yglesias are flat-out wrong.  Rob Portman changed his mind about marriage equality because someone he loves is gay, and that exemplifies exactly why the central message of the gay rights movement has been a call for gay people to come out.  Rob Portman should be celebrated; he is proof that we change our loved ones’ minds by coming out.

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Following Portman’s announcement, Representative Matthew J. Salmon (R-AZ) commented on television that he too had  gay son, but unlike Portman, he did not support marriage equality.  Claiming his son Matt was “by far one of the most important people in my life,” Congressman Salmon said, “I love him more than I can say.  It doesn’t mean that I don’t have respect, it doesn’t mean that I don’t sympathize with some of the issues.  It just means I haven’t evolved** to that stage.”  Salmon’s statement set off a deserved wave of criticism, but one person who supported him was his son Matt.  (To avoid confusion, the father will be referred to as “Salmon” or as “the Congressman” and the son as “Matt”).

It is impossible to judge another man without walking a mile in his shoes; I acknowledge I do not know Matt’s journey.  I cannot judge him, especially about something as intimate as his relationship to his parents.  Nevertheless, it is nearly impossible to watch his gut-wrenching “It Gets Better” (IGB) video, or read the often-harrowing Phoenix New Times account of Matt and his former partner Kent Flake, and not recoil in horror from the emotional hell his family created for him.

The gay activist and writer Michelangelo Signorile wrote a scathing indictment of Salmon who, along with his wife Nancy, was actively involved in the (failed) 2006 campaign to ban legal recognition of same-sex relationships in Arizona.  Nancy headed the campaign and involved Matt.  This is after he came out to her.  (He was in reparative therapy at the time, and he voted in favor of the ballot measure.)  In his IGB video, Matt said that his mother did not get involved in the later, successful 2008 ballot measure, so I suppose that is some progress.

Signorile is a loud, abrasive, and overly opinionated writer and activist.  In this instance however, he is absolutely correct.  The damage that the Salmons did and still do to their son is incalculable whether or not he admits it (whether or not he can admit it).  Signorile writes:

Those parents who do not move on the issue, who reject their children, either by literally throwing them out of their homes or by saying, “I love you, but I don’t accept your ‘lifestyle,’” are putting themselves above their children. For young people in that situation, living as second-class citizens in their own families and fooling themselves into thinking that their parents love them (because they so much want that love from their parents) while allowing their parents to quietly condemn them each and every day, even as they grow into adulthood, the rejection eats away at their self-esteem.

For whatever reason–politics, religion, old-fashioned bigotry–the Salmons do not fully embrace their son.  The Congressman may say that Matt is “by far one of the most important people in my life,” yet his actions show that Matt is not important enough.  If a parent loves his child unconditionally, then there are just some sacrifices the parent has to make.  Belief in one’s own self-righteousness is one of them.

Recently, Matt defended his father on a local Phoenix television station and again on CNN.  He insisted that his father loved him and was not an anti-gay bigot.***  These interviews however, are far from convincing.  Despite claiming that his relationship with his father was never stronger, the hurt, young man who nearly broke down into tears on his IGB video was very much apparent.  Matt tells us that his father loves him, but his answers to reporters’ questions show a contrary picture.  He neither defends (or even explains) his father’s homophobic votes in Congress nor disputes the image of his family from the Phoenix New Times article.  In the local television interview, Matt’s real revelations were (1) a near admission that he regrets that his dad is not like Rob Portman; and (2) the lowest point in his relationship with his father was when Matt left reparative therapy–which all reputable medical and mental health associations consider insidious and harmful junk science.  Worse, when asked if his parents would come to his (theoretical) wedding, Matt said, ”I’m not going to lay that burden on them, but I hope that they do.”  That is the response of something who doesn’t want to admit the real answer is no.  Watching Matt is like watching a helpless captive.  On CNN, Mat said that in order to get his parents to respect his views, he had to respect theirs.  No, no, no!  Their views are that he is less of a person and his love is less meaningful than theirs.  That is a view worth fighting not respecting.

I am sure Matt would not want me to pity him; most likely he would resent for doing so.  Yet after watching this interview, I feel nothing but the most profound pity for him.  He does not know unconditional love, and he is clearly not in a place where he is strong enough to cope without it.  Therefore, he lets his parents emotionally batter him, his father especially so.  Matt should never have appeared before the cameras; it was his father who dragged him into it.  By talking about Matt on national television, the Congressman turned his son into a shield against completely correct charges of homophobia.  He made Matt protect him rather than the other way around.

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Growing up gay in suburban Philadelphia was not as difficult as in some locations; I imagine I would have had a much more difficult time in places like rural Mississippi or inner-city Detroit.  Nevertheless, I did not escape unscathed.  I grew up in the era when AIDS was still “the gay cancer.”  The Defense of Marriage Act was passed and signed into law as I left high school for college.  I knew no openly gay adults, but I knew plenty of homophobes.  In those days I was in deep denial–praying every night for God to make me “normal.”  It didn’t work.

I came out at age 19, late by today’s standards but not so late in the mid-to-late 90′s.  Coming out was a traumatic experience, so much so that I could not even say “I’m gay” to the first person I told.  Being able to say the actual words for the first time happened days afterwards.  The next month I told my parents.  My father was surprised, but relatively supportive.  My mother was neither supportive nor surprised.  She told me she would never be able to reconcile herself to my being gay; a decade and a half later, she has kept her word.  We still speak, but her refusal to support me has damaged our relationship, probably irreparably.

I have a friend who recently married his long-time partner in a state where same-sex marriage is legal.  My friend’s parents knew his partner and treated him well.  When the wedding invitation arrived however, my friend’s parents wrote to him to tell him that they would not attend.  They said that although they tolerated his homosexuality, and felt they had been very good about doing so, approving of his marriage by attending was a bridge too far.  My friend was crushed by the knowledge that his parents refused to see his marriage as anything other than a “marriage.”  Their message was that they believed his relationship to be a camp spectacle–a parody of heterosexual love.  My friend stopped speaking to his parents.

I thought of my mother and my friend as I watched Matt’s interviews.  Whether Matt abandons his parents or stays but with the understanding of the limits of their love is not for anyone to judge.  Matt deserves sympathy, empathy, compassion and support.  I understand Matt Salmon’s pain because I wonder, as he must also, why I don’t deserve the love Rob Portman has for his son Will.

Footnotes:

*  I did not mention the House of Representatives, and with good reason.  Because there are 435 of them and because they represent ever-changing electoral districts, the number who support marriage equality is bound to be skewed by factors such as a redrawn (gerrymandered) Congressional map rather than a true representation of the nation.  What is important at the moment is that there are six open LGBT members of the House.

**  I hate when politicians who claim not to support same-sex marriage use the word “evolve.”  Evolution may be the slow process of adaptation to an environment, but in modern usage, to evolve to get to a more advanced (i.e. better) state of being–as in “we evolved from simple single-celled organisms to complex multicellular ones.”  Therefore, the word “evolve” actually denotes that supporting marriage equality is the morally correct position.  When President Obama said he was evolving, it was seen as a coded message, and it is now when Lisa Murkowski, the (Republican) Senator from Alaska says it.  This brings up the obvious question however: If you understand that supporting marriage equality is morally correct then why aren’t you already supporting it?

***  There are two conflated issues here that must be separated: (1) Congressman Salmon’s love for his son; and (2) Congressman Salmon’s alleged homophobia.  They are not mutually exclusive and should not be treated thus.  The Congressman may love his son more than anything in the world, but that is not a defense against blatant homophobic actions.  The entirety of the American LGBT populace suffers from his regressive votes in Congress, and that is not negated by a personal connection as Matt may want to believe.  One judges a person’s character by their actions far more than by their personal connections.

Windsor, Paul Clement, Legal Ethics, and the Folly of Originalism

As you no doubt know, this past week two major gay rights cases were argued before the United States Supreme Court.  The first of these cases, Hollingsworth v. Perry, is the case that challenged Prop 8, California’s 2008 marriage equality ban.  While there is much to say about Perry, I will save my thoughts until that case is finally decided one way or another.  Instead I would prefer to talk about United States v. Windsor, the second case that was argued, and in many ways the more important of the two.  Windsor challenges Section 3 of the Defense of Marriage Act (DOMA), the part that limits federal recognition of state marriages to heterosexual couples.  Windsor is the less grand of the two cases and far less modest in terms of scope, but it a step in a well-developed legal strategy and a more likely winner.

Edie Windsor, now an octogenarian, married her long-time partner Thea Spyer in Canada in 2007 after being together for over forty years.  Because they lived in New York, their marriage was fully recognized by the state government and treated as equal.  Thea suffered from multiple sclerosis, and Edie was her caretaker.  When Thea died, Edie was assessed over $360,000 in taxes on Thea’s estate by the federal government–taxes that would not have been assessed had Thea been Theodore.  Edie Windsor won her case at trial and again on appeal.  Both lower courts declared that Section 3 of DOMA was unconstitutional.

This case (and several like it that are currently before federal courts) has an interesting twist to it.  Whenever a federal law is challenged in court, the Executive Branch (usually through the Justice Department) defends it.  This time however, the President himself declared DOMA unconstitutional and refused to defend it.  In fact, the Justice Department went so far as to argue on behalf of Edie Windsor at the Supreme Court.

While it is exceedingly rare for the President not to defend a federal law, it is also not unheard of (contrary to the impotent fit that the Court’s conservative Justices threw at oral argument).  However, if DOJ refused to defend DOMA then that put the case in an odd position.  Having won at trial, Edie Windsor could not appeal.  Which meant that someone had to appeal in order to bring the case to the Supreme Court.  This is where Congress came.  Because the House of Representatives is controlled by Republicans, the House, through its falsely named and unfortunately acronymed Bipartisan Legal Advisory Committee (BLAG), hired a high-powered, high-profile attorney named Paul Clement and paid him big money to defend DOMA.  The Senate, controlled by Democrats, did not join the challenge.

Whether BLAG is allowed to defend the case is an open question, and there is a question about whether the Justices may dismiss Windsor on standing.  Standing is legalese term for the right to be a part of a case.  Unless you are a legal nerd, this is all very dry and boring, so I won’t waste your time with it other than to say that the issue is whether BLAG is an appropriate party to represent the government on appeal.  BLAG says yes, Edie Windsor’s attorneys says yes, DOJ says yes, but the Supreme Court wasn’t sure.  They asked a Harvard law professor to argue against standing, and then tore her arguments to shreds.

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For the purposes of this post, my focus is less about how Windsor will turn out, but rather the man who argued against it, Paul Clement.  Clement, a man whom I have written about before, is probably the most famous Supreme Court advocate working today (this is a big deal in legal circles).  He has argued over 50 cases before the Court and is a dynamic presence at the lectern.  He is smart, quick on his feet, and clearly respected by the Justices.  In the George W. Bush administration, Clement was initially the Principal Deputy Solicitor General and then in 2004 was named Solicitor General.†  (Ironically the man he succeeded, Ted Olson, was arguing on behalf the gay couples in the Prop 8 case.)  I also suspect however, that Clement is a partisan hack who lacks scruples.

Clement is not only steeped in the traditions and quirks of practicing before the Supreme Court, he has the an enviable conservative pedigree.  He graduated from Harvard Law School and was an editor of the Harvard Law Review (I believe the year that now-President Obama was in charge).  After law school, he clerked for Laurence Silberman at the DC Circuit and then Antonin Scalia at the Supreme Court–two of the most famous conservatives jurists in the country.  He was an associate at Kirkland & Ellis, then chief counsel for a subcommittee of the Senate Judiciary Committee, and then became a partner at King & Spaulding.  This was before he left to go to the SG’s office where he famously argued major terrorism cases.  After returning to private practice he was the natural choice as counsel for the opponents of Obamacare.  No doubt his Federalist Society dues are paid through 2025.

Yet for someone as accomplished and respected as Clement is, he has also lost a lot of very high-profile cases–the terrorism cases and Obamacare being the most high-profile.  Infamously, while at the SG’s office, Clement told the Justices that the United States does not torture, and within a week, the Abu Ghraib pictures were released.  (It is a wonder he was allowed back in the building.)  Clement’s win-loss record though is not a knock against him; conversely, that he has appeared so many times is a sign of his talents.  What people, especially–but not exclusively–non-lawyers, tend not to understand is that the Supreme Court is a lawmaking body, same as Congress.  The Justices themselves obfuscate their role by saying stupid things like “the job of a judge is to be like an umpire and call balls and strikes.”  Or they hide their role through judicial philosophies like Originalism, the idea that the Constitution should be interpreted as the Framers would have done in 1789.  No, the Supreme Court makes law.  When it comes to Constitutional Law, they ostensibly do as little as possible out of a false humility–an unelected body that never faces the will of the populace should not make sweeping judgments (until a majority wants to make sweeping judgments).  The point is that while it is supposed to be Clement’s job to persuade a majority of the Justices to his side, the truth is that the Justices make their own decisions based on policy and politics as much as law.

When Clement was hired by BLAG, he was a partner at King & Spaulding, Atlanta’s major law firm.  The hue and cry that rose up against King & Spaulding for taking the case however, was nothing that the firm had prepared for.  Corporate America, which surprisingly has been at the vanguard of gay rights, was quite vocal.  The rumors (denied by all but probably true) were that Coca-Cola threatened to withdraw as a client of King & Spaulding if the firm continued defending DOMA.  No matter how big King & Spaulding is; an Atlanta firm that loses Coca-Cola may as well sign its own death warrant.  As a result, Clement left the firm for Bancroft, a litigation boutique with a strong conservative presence.  For his decision to leave his law firm to continue defending his client, Clement was lauded as a hero.  That is one way to look at the story but I offer another.

Most likely, Edie Windsor will win her case, and Section 3 of DOMA will be struck down, probably 5-4.  There are no guarantees that the Justices’ opinion will do much to help the LGBT rights movement in the next case, but all signs point to Section 3 being dead (yes, the common wisdom is that one can never tell from oral argument, but Obamacare aside, that is not actually true).  This has been the writing on the wall for some time.  The federal courts that have heard Section 3 cases have been near unanimous in finding for gay plaintiffs.  The House Republicans may want to defend DOMA, but that does not make it a winner.   Everyone deserves representation, but that representation does not mean a day in court–it means that the lawyer has to give his client the best advice possible.  There are several issues with Windsor that make BLAG’s side the loser: (1) standing; (2) constitutionality; and (3) defensibility.

I mentioned the standing issue above.  As for constitutionality, Section 3 is flat-out unconstitutional whether it be on Equal Protection grounds or federalism grounds.*  Finally there is the lack of defensibility.  Clement abandoned the usual defense, the infamous “parade of horribles” which compares gay relationships to pedophilia, polygamy, and perversions.  This was not done out of the kindness of his heart; the Supreme Court has made it clear that this argument will not win the day.  Without it however, Clement lacked the most potent weapon in his arsenal.  As a response, he came up with two new arguments: (1) Congressional intent in creating DOMA was not discrimination, it was for uniformity; and (2) gay couples don’t need marriage because they cannot accidentally get pregnant.  In other words, in this latter argument, gay people are too responsible, whereas those irresponsible heterosexuals need added protections (taxes, Social Security, etc.) because otherwise they will not protect the many accidental babies they irresponsibly produce.  This latter argument is so ridiculous that I cannot even remember if it was brought up in Court.  The former argument is an outright lie.  Congress was not only open about its discriminatory intent in creating DOMA, Congress was proud of it.  I have never heard Paul Clement reduced to such babbling as when Justice Kagan ambushed him with the actual Congressional Record that stated that in creating DOMA, “Congress decided to reflect and honor collective moral judgment and to express moral disapproval of homosexuality.”  How he was unprepared for that attack is beyond me; even a bad or inexperienced lawyer would have been aware of it.

Clement’s performance at oral argument betrayed his dishonesty and that of his side.  Sticking to the idea that DOMA was purely a marriage uniformity act, Clement argued, “We don’t want somebody, if they are going to be transferred in the military from West Point to Fort Sill in Oklahoma, to resist the transfer because they are going to lose some benefits.”  The gall of this argument is infuriating.  First of all, there is the obvious question: why shouldn’t someone resist a transfer to a place that treats his or her marriage as invalid?  Besides which, these are not merely “some benefits” that a gay couple will lose, but in fact quite substantial ones.  Moreover, his argument is entirely disingenuous.  In 1996 when DOMA was passed, Don’t Ask Don’t Tell was still effect–meaning that if a gay or lesbian person in the military asked for federal marriage benefits, he or she risked certain discharge.   In 1996 this would be especially risky–the first civil unions were not enacted until 2000 and the first same-sex marriages did not begin until 2004, and all previous attempts to attain legally recognized same-sex unions failed spectacularly.  (Furthermore, DOMA has no sunset provisions; Congress never expected it to end and had to plans to reevaluate it.)  Finally there is the converse uniformity question: if Congress was so concerned about uniformity why not declare that a legally recognized same-sex union must be recognized by every state (the complete opposite of DOMA)?  The answer is that uniformity was clearly not the motivating factor, animus was.  And animus as a motivating factor does not pass even the Supreme Court’s most lax standard of review.

So given that there is a standing issue, two issues of constitutionality, and no legitimate defense, why would Clement take the case to court rather than counseling BLAG to drop it?  Well, there are two answers.  The first is that I do not believe there is a conservative, reactionary cause that Clement will not gleefully defend.  For all his acumen, he is at heart as much a hack as any politician.  The second, and probably more important reason is that Congress has spent millions on this case.  Clement’s hourly rate is not cheap, and any case that goes to the Supreme Court will have a very large legal bill–which is why the Supreme Court takes on a very large number of cases involving multinational corporations.  Unlike corporate cases though, the DOMA defense is footed by the taxpayer.  While the millions Clement’s firm is currently earning is a mere drop in the fiscal bucket, to spend so much on an unwinnable battle comes across as rank hypocrisy from the party that fashions itself as the one of fiscal responsibility.

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Having torn apart Clement for a lack of scruples, I again acknowledge that the Supreme Court is a lawmaking body not truly bound by anything (or as I heard one respected lawyer say, “The law is all crap.”)  Ergo, even though the law seemingly demands that the Court overturn Section 3, that is no guarantee.  But even with the most conservative-leaning Court since the early New Deal days, it is still hard to imagine that Section 3 will survive.  If for no other reason, very few Justices want to go down as the next Roger Taney or James McReynolds, Justices remembered (if at all) for being on the wrong side of history.

Then there is Antonin Scalia.  In the stately, staid world of the Supreme Court, Scalia has been throughout his term the spark plug.  He is vocal, acerbic, witty, and he takes his one-man show outside of the Court’s marble temple (i.e. speaking engagements).  His written opinions are equally acidic and are written to play to the gallery.  Scalia is smart, and he wants people to know it.  In the past few years however, his act has become embarrassing–he publicly called out the Obama Administration for its role in the political realm, which is practically unheard of.  He called the Voting Rights Act “a racial entitlement“–as though the right to vote was not the fundamental guarantee of a democratic country.  And we must not forget the ridiculous “Broccoli Horrible.”  But aside from perhaps abortion, the cases that seem to make Scalia the angriest have been gay rights cases.  Quite frankly, Scalia is homophobic and exhibits it with every comment he makes.  (Rachel Maddow’s comparison of him to an Internet troll is mean but quite correct.)

Windsor presents an added irritant to Scalia; it lays bare that his judicial philosophy of Originalism is merely a personal opinion with delusions of historicity.**  (This critique also applies to Clarence Thomas’s similar but more extreme original intent philosophy.)  Even if one accepted Originalism, the Framers of the Constitution (putting aside the revulsion they would feel about homosexuality) would perceive DOMA as blatantly unconstitutional.  In the Framers’ days, there was a limit to the federal government’s power, the Bill of Rights did not apply to the states, and the Commerce Clause was really about commerce.  DOMA would have been (and still is) an unjustifiable incursion onto the authority of the states.***  I have no difficulty however, believing that Scalia and Thomas will both abandon their slavish devotion to original intent, and instead vote to uphold arguably the most blatant Congressional overreach of my lifetime.

That Supreme Court is a political body, and I suppose no one should be surprised that the Justices and the advocates who come before them are political creatures.

Footnotes: 

† The Solicitor General (SG) is the lawyer who represents the United States before the Supreme Court.  The office of the SG is full of brilliant, talented, and ambitious attorneys who come from and are practically guaranteed to return to high paying jobs at enormous law firms.  Like Supreme Court clerks–which many of these attorneys once were–lawyers in the SG’s office are the cream of the cream of the crop and are highly prized commodities.  They are also ridiculously ritualized, something the Supreme Court Justices play into, not least by calling the SG “General” at oral argument (it’s a weird quirk, given that the “General” in Solicitor General is an adjective so the appropriate title should be Mr./Madam Solicitor General).  The most ridiculous of these rituals is the morning coat, which the SG traditionally wears when arguing before the Court.  (Former SG and current Associate Justice Elena Kagan opted against wearing it.)

* The federalism issue is that marriage has historically been defined by states and the federal government has historically honored that.  DOMA forbids federal recognition which means the state’s ability to define marriage is infringed upon.

** While Scalia pretends to care deeply about the original intent of the (deeply divided) Framers of the Constitution, he gives little heed to the (near unanimous agreement of the) Framers of the Civil War Amendments, which remade both document and country.  Nor does he care at all about the intent of modern legislators and legislative history when deciding about how to interpret of the constitutionality of modern legislation.  Perhaps it is because the Congressional Record is a very thorough legislative report whereas the information we have today about the Constitutional Convention is sparse and generally one-sided.

*** For my own part, I do not buy into a federalism argument.  To me this is about Equal Protection.

What’s Important

This year is the first that I have ever donated to a political cause, and it has been for the marriage equality campaigns in Maryland, Maine, Washington, and Minnesota. Obviously, marriage equality is extremely important to and personal for me, but it goes well beyond my own personal beliefs and wishes. Same-sex couples are routinely denied entitlements which heterosexual couples take for granted, including (but not limited to) hospital visitation, joint adoption of children, survivors’ benefits, and even simple recognition from one’s community. The equality laws in Maine, Maryland, and Washington guarantee that, at least at the state level, those benefits will be bestowed; the Minnesota amendment ensures that they will be denied.

For two years I lived in Mitt Romney’s Massachusetts, and during those two years I watched the struggle for marriage equality in that state very closely. I saw both the brightest side of humanity and the darkest. I also witnessed Mitt Romney’s craven and despicable actions. I will never forgive him for the evil that he did. He was defeated then, but this is the man who thinks he should be President.

The anti-equality forces are so desperately trying to portray their position as not bigoted, because they know they know that it is. Marriage, as the law defines it, is a governmental institution. Like it or not, agree or disagree with whether the state should be involved, that is the reality of the situation, full stop. Without laws guaranteeing marriage equality, unions between same-sex couples are permitted to be treated as inferior. The anti-equality forces may want to portray their opposition as something other than bigotry, but that is smoke and mirrors. Their opposition is prejudice, it is homophobia, and it is hatred. It is the doing of actual harm to people who have never harmed others only because of who they are.

If we truly believe that liberty and equality are virtue guaranteed to all souls, then there should be no question how to vote on marriage equality. I so want to believe that the better angels of our nature will finally win out.

Vote for equality in Maine, Maryland, and Washington. Vote against bigotry in Minnesota.

Yes it’s time, but it’s more than that. It’s time long overdue.

DOMA And The Federal Courts

First an apology.  It has been a month since I last posted anything, but I have a full-time job now, and therefore my time for writing is limited.

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The odious Defense of Marriage Act may well be on its last legs.  This past Thursday, the Second Circuit Court of Appeals (the one that includes New York) declared DOMA unconstitutional in Windsor v. United States.  Search far and wide, and you will not find a more compelling story than Edie Windsor’s (seriously, have a look), who was with her partner Thea Spyer for 44 years.  They married in Canada in 2007 and that marriage was recognized by their home state, New York (which now has same-sex marriage).  When Spyer died, Windsor was burdened with a tremendous federal tax burden on the couple’s estate–something like $350,000.  Had Spyer and Windsor been a married heterosexual couple rather than a married lesbian couple, no federal taxes would have been assessed.  However, Section 3 of DOMA prevents the federal government from recognizing same-sex marriages performed by any state.  Therefore federal tax law considered Windsor and Spyer merely roommates.

The Second Circuit in the strongest possible language, struck down DOMA.  This is not completely surprising, even though the judge writing the decision, Dennis Jacobs, was appointed by George Bush 41 and would never be mistaken for a judicial liberal.  No federal court that has heard a Section 3 case has found in favor of the government (all the more so since President Obama’s Justice Department refused to defend it on the grounds that DOMA is unconstitutional), and the cases have been coming from all sides.  This is due both to the sympathetic plaintiffs and the fact that DOMA should be as unpalatable to judicial conservatives for its abrogation of longstanding principles of federalism as it is to judicial liberals for its treatment of gays and lesbians.

The real surprise of Windsor though was that the Second Circuit in no uncertain terms stated that gays and lesbians are a protected class and that laws that are discriminatory against gays and lesbians merit a heightened judicial review.  In other words, the government cannot make up any reason that sounds rational in order to defend the law.  It has to be the real reason behind the law, and if either the motive for passage or the outcome after passage is discriminatory in nature, then there has to be a really good reason to explain that discrimination.  Since there is almost never a good reason, laws that face heightened scrutiny are almost always struck down.  The actual level of review applied by the Second Circuit was the so-called “intermediate scrutiny” which is the standard used for gender discrimination cases.  This is the level that the Justice Department also suggests for review.*

No federal court of appeals had ever definitively held that gays and lesbians are a protected class.  The Ninth Circuit danced around the issue a few years ago in a DOMA case and again in the Prop 8 case.  Earlier this year the First Circuit also struck down DOMA, but declined to apply heightened scrutiny.  Even the Prop 8 district court case, presided over by a gay man, evaded the issue of heightened scrutiny.  The Second Circuit opinion does not pull any punches though.

So next stop, the Supreme Court.  Right now a bunch of DOMA cases are working their way through the federal court system.  The LGBT right advocates have won all their cases thus far, but the big test is the Supreme Court.  And the Court pretty much has to take it.  A federal law was struck down, and a new suspect class was created.  Let’s hope the streak can continue.  The wind is at our backs right now, although nothing is certain until the Supreme Court has its say.

Footnotes:

*  It is not however, the most searching level of review.  That is called “strict scrutiny” and is primarily reserved for cases involving race.  This is really just a matter of semantics though; effectively when a law is faced with a heightened scrutiny review, it will be struck down regardless of whether a court claims to use either strict scrutiny or intermediate scrutiny.

A Happy Anniversary

Written on May 17, 2012

Today marks the 8th anniversary of the first same-sex marriages performed in Massachusetts which began on May 17, 2004.  I was there for those first ones.  It is one of my happiest memories, and I am truly proud to have been witness to that moment in history.

When the Supreme Judicial Court announced its trailblazing Goodridge decision near the end of 2003, it was like a bomb went off in the country; Massachusetts was ground zero.  Suddenly gay marriage was all over the newspapers and therefore at the forefront of both national and local political debate, not to mention dinner tables everywhere.  2004 would eventually have disastrous consequences in the national election for supporters of marriage equality and the nation at large–the nadir before the inevitable climb upward.  But that was still half a year away.  In Massachusetts however, immediately following Goodridge the tension was palpable.

Given how liberal Massachusetts seems to outsiders, and that in the in eight years since marriage equality is now entrenched, it is easy to forget that the LGBT community nearly lost the battle.  It was scary at times.  The invective tossed at the LGBT community by (1) then-Governor Mitt Romney; (2) the conservative Democrats and the Republicans in the Legislature; and (3) the usual homophobic hate groups was astounding in its blatant viciousness.  Add in certain segments of the media, the Catholic Church (embroiled in its child sex abuse scandal, yet showing off an audacity that comes with a self-imposed moral authority), and large swaths of the electorate, and it felt like the gay community was surviving a siege.  There were days when I could not turn on the television or read the newspaper for fear that I would start crying.

The Supreme Judicial Court in Goodridge set a six month deadline for the Legislature to take action or else same-sex marriages would automatically begin.  The deadline date was May 17, 2004, a bit of symbolic timing.  I have no idea if the Court intentionally chose May 17, 2004 because it was the 50th anniversary of the landmark Brown v. Board of Education, but I would like to think that the Justices knew and acted with that message in mind.

As May 17th approached, city halls around Massachusetts put out the word that they would not open early; no matter how momentous the occasion, it was business as usual.  The one exception, naturally, was the People’s Republic of Cambridge, which proclaimed that it would open up at midnight.  No one was going to out-progressive Cambridge.  On May 16th, I made the mistake of watching television, and the coverage of the political debate depressed me.  I wanted to hide in my room, but I thought to myself that I should go to Cambridge City Hall to bear witness and be a voice of support.  I felt it was the least I could do.  It did not cross my mind that other people would be there too.  After wavering back and forth a few times, around 10 at night, I took the T from my Brookline station into Cambridge.

In hindsight, I cannot believe how naive I was.  Thousands of people lined the street from Central Square to Harvard Square as Cambridge City Hall became the sight of the largest wedding party in Massachusetts.  This was about 10:30, and the crowd only increased as it got closer to midnight.  Somehow, despite the crowd, I ended up very near City Hall next to a man with a gigantic rainbow flag and a middle-aged, interracial, lesbian couple who complained that the only wedding song gay men knew was “Chapel of Love” (they were correct).

I texted two of my friends who lived in Cambridge and told them where I was.  Both of them, heterosexual men for the record, immediately left their home to join me.  One of them found me right away, but the other was missing in action for quite some time.  Thanks to the man with the gigantic rainbow flag and the magic of text messages, my missing friend was able to find us.

See, even though there were 10,000 happy, joyous celebrants, the loathsome members of the Fred Phelps clan oozed up to Cambridge to protest with their “God Hates Fags” shtick.  From atop the hill where I stood, we all noticed them, but rather than being the focus of ire, we saw them as ridiculous figures to be laughed at.  After all, there were about 50 of them and 10,000 of us.  And all 10,000 of us had better things to think about than their impotent rage and attention-seeking behavior.  My missing friend however, accidentally wandering into the Phelps protest thinking it was the celebrants.  “After all,” he said to me, “there were all these women holding hands.  What would you think?”  Bright boy that he is, he soon realized his mistake.

As midnight approached more and more videos cameras appeared from media outlets from all around the world.  Then in the distance, police officers in riot gear marched down Massachusetts Avenue.  They turned and walked up the stairs leading to City Hall.  “Wouldn’t it be awesome if they all went into City Hall and got married to each other?” my friend asked me.  Alas, they did not.  But they were the honor guard of sorts, lining the steps as those first same-sex couples went in.

One of the clerks came outside and said something about how people might want to go home because this would take a while.  “That’s okay,” shouted a man in the crowd, “we can wait.”  And then we sang yet another round of “Chapel of Love.”

When the first married couples finally came out they were pelted by showers of rice (and yes, “Chapel of Love” again).  I was standing at least six rows back from the City Hall stairs, and for the next two days I shed rice from my hair.

I did not get home until somewhere around 3 in the morning even though I had to work the next day.  Who wants to leave a party?

The next day was business as usual.  I walked to work, and made sure to pass Cambridge City Hall.  By this point town and city halls around the state had been performing marriages for four or five hours.  In Cambridge were a few supporters lying on the grass yelling congratulations at every gay or straight couple that left the building, but for the most part it was pretty quiet.  Nothing really to see.  The headline of Cambridge’s local newspaper read “The Sky Did Not Fall.”

The mundane morning may have actually been even more important (if less momentous) than the night before.  Nothing was out of the ordinary, indeed the sky had not fallen.  All that was different was that marriage was open to more loving couples.  As such, passing a constitutional amendment to prevent some of those couples from marrying would be more difficult.  It was because of this ordinariness (and the difficulties in getting the state constitution changed) that pro-equality forces eventually succeeded in beating back the proposed amendment.  Since that time, marriage equality has come to Vermont, Connecticut, New Hampshire, New York, Iowa, Washington, Maryland, and the District of Columbia.  Maine and California had it and lost it (and will no doubt get it again).  There are encouraging signs in New Jersey, Hawaii, Illinois, and Rhode Island will join the club shortly.

In eight years that is an awful lot to be proud of.  And I saw the beginning.

Barack Obama And Marriage Equality

Yesterday, President Obama announced his support for marriage equality, the first time a sitting American President ever made such a declaration.  Historically, presidents have not been at the vanguard of the civil rights movements of their time; Abraham Lincoln, and Lyndon Johnson are the major exceptions in American history.

The fact that Obama supports same-sex marriage was not much of a secret despite the fact that he claims this is a new position.  It’s not.  When first running for the Illinois state Senate back in the mid 1990′s, Obama filled out a questionnaire and averred to supporting same-sex marriage.  This was natural given the district he represented, and Obama himself is very much the type who would (and most likely does) have gay friends and acquaintances in his social circle.  But in 2004 when he ran for the US Senate, same-sex marriage was a very polarizing issue as the Karl Rove-led Bush campaign sailed to a second term on a wave of homophobia.  As a result, supporting marriage equality was a no-go for any serious Presidential candidate in 2008.

All the while, more and more Senators, led by the late, great Ted Kennedy, voiced their support for marriage equality.  Also since 2004, more states passed marriage equality laws (or civil unions bills) either through the legislature or through the courts.  LGBT activists became more daring, especially once Obama was elected, and the activists felt that, for the first time ever, they had an ally in the White House.

And the truth is that Obama is an ally.  The frustration that the LGBT community has had with him is somewhat unwarranted.  Yes, it took nearly three-and-a-half years to get him to voice his support for marriage equality, but in those years, he has done far more for the LGBT community than any President has ever done, both big and small.  Executive Orders may be within the purview of the President (and may be reversible by the next President), but no other President has used those Orders to help the LGBT community like Obama has.  He kept his promise to repeal Don’t Ask, Don’t Tell, and most significantly, the Obama Justice Department is no longer defending the Defense of Marriage Act, saying flat-out that it is unconstitutional.  The fact that such a large segment of the LGBT community refuses to recognize exactly what an ally we have is maddening at times.  Trust liberals to not take yes for an answer.

Which brings us to today’s announcement, which came during an interview with ABC’s Robin Roberts.  From early this morning there had been rumors that Obama was going to announce his support for marriage equality, although no one could say for certain.  It just felt like now was the time it was going to happen.  We all expected the announcement would come in 2013, safely after the election.  According to some sources, it was intended to come before the Democratic National Convention.  Two things sped up the timing: (1) the passage of a horribly draconian North Carolina state constitutional amendment which severely punishes same-sex couples in that state; and (2) Joe Biden’s support for marriage equality, which he affirmed a few days ago on Meet the Press.  The latter especially ratcheted up the pressure on the White House from activists who could not understand the President’s reticence.

Despite the fact that in the past two years polls have found that the majority, or at least a plurality, of the country supports marriage equality, Obama’s announcement was not a no-risk gamble.  Yes, he will energize his base and his donors (particularly his very wealthy gay donors), but there are still significant risks.  Perhaps the biggest problem is that Obama risks alienating a substantial portion of his most loyal base: African-Americans.  As a bloc, African-Americans are very socially conservative, very church-centered, and tend to vote against gay rights.  (Important note: this is speaking in generalizations.  Not all African-Americans are homophobic, and many people in the LGBT community are themselves African-American.  Some of the most impassioned and beautiful speeches in favor of LGBT equality have come from African-American lawmakers.)  African-Americans were a large part of why Obama won so handily in 2008, and he will need their support again.  Unlike Latinos who support marriage equality in roughly the same numbers as the general population, African-Americans are a stubborn holdout.  Look, no Republican is going to win the African-American vote, especially against a black President, but the danger is that black voters will not turn out in significant enough numbers if they are too disenchanted with Obama.

Yet Obama has been needlessly equivocal.  Even today he was equivocal, parsing out that while he personally believes in same-sex marriage, he also believes it should be left up to the states to decide.  Some activists, most prominently Dan Savage, are calling him out on that.  Possibly correctly.  But they are also not looking beyond the words to the deeds.  Obama may be saying that he wants to let the states decide, but the actions of his government undercut that sentiment, nowhere more forcefully that in the DOJ’s DOMA position.  DOMA is all about state power, and the DOJ is saying that is unconstitutional.  Behind the  DOJ’s action is the message that marriage is a civil right that is being unfairly denied to same-sex couples.  So yes, what Obama said and what he is doing are at odds, but I trust the actions.  Obama’s presidency has at times been revolutionary, but only from a large picture perspective.  It’s been the same with gay rights, almost a pointillist approach; each step that he takes is just another dot in what is a grand masterpiece of making the LGBT community equal.

Which leaves us with the reactions from the peanut gallery.  Progressives are thrilled, pragmatists are scared, and the people who weren’t voting for Obama anyway are still not voting for him.  Fox of course had the classiest reaction.  Or no, I’m sorry, the opposite of class.  Tackiest, perhaps?

But we can’t forget the gay Republicans, who are gnashing their teeth in agony.  Obama has caused this brains to short-circuit.  The head of the Log Cabin Republicans released a statement that is just baffling in its stupidity.  GOProud then followed up with one of equal lunacy.  The basic gist of both statements is that: (1) Obama was disrespectful toward the same-sex couples of North Carolina by making this announcement so soon after they lost their amendment battle; and (2) he is following in the footsteps of Dick Cheney in supporting marriage equality.

Arguing with GOProud and the Log Cabins is a fool’s errand.  Their existence only proves that gays too can care more about money than principle.  But I do want to address both parts of their argument briefly.  (1) What is more disrespectful, announcing that you support marriage equality after the North Carolina defeat or that you oppose marriage equality as well as civil unions as their boy Mitt Romney did both before and after President’s announcement today?  I believe the latter.  (Also, Republicans are the ones responsible for the North Carolina amendment.  Just saying.)  (2)  Dick Cheney is hardly a leader in this issue.  When his influence may have done some good, like say when Bush the Younger tried to pass a constitutional amendment that would have banned all same-sex marriage in this country, he remained silent and implied that he did not support marriage equality despite the fact that his daughter is a lesbian.  Obama, is the President.  He is running for reelection.  He is not taking the easy way out of waiting until he is out of power and then talking about marriage equality from the safety of retirement.

What Obama did today is a small step, but it is an important one.  Every once in a while the arc of the moral universe does bend a little closer to justice.

On 8

When Perry v. Schwarzenegger, the since-retitled Prop 8 case, went to trial, it was videotaped.  Cameras in the courtroom is a vaguely controversial topic in legal and judicial circles, but the Ninth Circuit Court of Appeals established a pilot program for courtrooms in its jurisdiction that allowed for the video recording of cases, presumably those that were interesting (a rare occurrence as trials in general are duller than dull), which would be available to the public.

This kind of program is not without precedent; oral arguments from the Ninth and Second Circuit Courts of Appeals are available on C-SPAN (and geek that I am, I have watched some), but generally cameras in the courtroom are taboo.  The Supreme Court is the course the biggest culprit in keeping the courtroom free of video recordings, and the Justices steadfastly (and apparently unanimously) refuse to allow video cameras in even when Congress demands that they do.  David Souter famously told the Judiciary Committee they could have video cameras in the Supreme Court when they rolled them in over his dead body.  Personally, I am surprised that the Supreme Court even allows its oral arguments to be audio recorded, but I suppose it’s been there long enough (since Earl Warren’s day) that it’s now safe.  You can access the recordings if you are so inclined, and again, geek that I am, I have.

Therefore, it came as no surprise when the Supreme Court, possibly afraid that people might want to see how justice gets done in this country, granted the request from the Prop 8 proponents to keep the tapes hidden.  Now, it is true that there is nothing in the Constitution that mandates that trials and arguments must be recorded.  Nevertheless, it violates the spirit of the constitutional mandate for open proceedings to deny video cameras in the courtroom.  In the Internet Age, the only way to watch a trial is still to physically go to the courtroom. Unless you are a criminal law attorney or a judge, you probably cannot do that very often.  And if the case draws massive media attention, you have almost no shot of getting in.

Which brings us to 8.  Because the Perry tapes have been sealed away, possibly forever, Dustin Lance Black, the screenwriter of Milk fame, wrote a play about the Perry trial with dialogue largely taken from the trial transcripts.  The first reading was in New York and a second reading was recently staged in Los Angeles and was streamed live over the Internet.  Ergo, more people have “watched” the trial than would have done so had the actual recordings been made publicly available.  You can still watch it at a variety of sites, and I did so at Slate.  8 is a work of political theater, and this reading (which was rewritten a bit after the first) was performed by, among others, Brad Pitt, George Clooney, the recently out Matt Bomer, three cast members from Glee, Martin Sheen, George Takei, John C. Reilly, Christine Lahti, Kevin Bacon, and Jamie Lee Curtis.  Rob Reiner directed it, and no doubt the spirits of Carroll O’Connor, Gregory Peck, and Elizabeth Taylor blessed the show.

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First a word about my post title “On 8.”  I originally thought to call this post “No On 8,” which was also the slogan of the LGBT rights movement during the Prop 8 referendum.  It also would have hinted at some of the reservations I had watching the reading.  On the other hand, as a title, it is glib, which I did not want to be regardless of my feelings about 8.

I hate being the gay contrarian, but more than that I hate pretending.  I hate pretending that something is good just because I agree with the fundamental message.  I hate the idea that I have to go along with the group think and love Glee or Will & Grace (or pretend to) when both are terrible.  I especially hate the idea that I should be thankful to those shows because of this flawed idea that since that they have aired, straight people accept us more.  (The cause and effect in that thinking is backwards.  Those shows exist because homosexuality is more accepted in society not the other way around.)  I cling to the stubborn idea that good gay-themed entertainment is infinitely better than mediocre fare regardless of message or popularity.

I did not love 8.  The acting was generally very good, although criticizing acting in a hastily organized, staged reading misses the point.  This was not a performance, and there really was no rehearsal time (this reading was really just a dressed up fundraiser for Americans for Equal Rights).  Only Martin Sheen was a problem; he has gotten even hammier since his West Wing days.  For me at least, it was difficult to suspend disbelief because I have heard the real Ted Olsen argue cases, and he is quite a different personality.  Olsen is also very level and calm while Sheen over-emoted to the point of turning red.  Ted Olsen is many things, but Jed Bartlett he is not.  While Sheen tried to turn Olsen’s closing argument into a monologue worthy of King Lear, in my mind I heard Olsen speaking them, and that was more affecting.   Dignity trumps fireworks every time.  (On the other hand, John C. Reilly’s turn as the loathsome boob David Blankenhorn was incredibly funny, and although he too overdid it, in the context of the actual complete humiliation that David Bois handed to Blankenhorn at trial, it worked.)

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I admit that I am a very bad gay in that I don’t worship theater, so take my opinions of the show with that grain of salt.  There is something so artificial about theater that doesn’t exist in movies, and I really have a tough time with the artifice of plays.  It’s my problem not 8‘s, but it did affect my enjoyment.

I wish a lawyer, or someone at least familiar with a courtroom, had written this play.  This is not meant to disparage Dustin Lance Black.  I respect his work; I loved Milk and cried at the end.  But a trial has its own rhythms, its own patterns, its own language, and I don’t think Black understood that.  (No doubt there are a zillion lawyers out there who disagree with me.)  There was something about the temporal inconsistency of the script that was just off, no doubt reflecting how hard it is to turn a multi-day, multi-stage trial into an hour and a half theatrical work.  I wonder if a non-lawyer who has neither watched trials and oral arguments nor read courtroom transcripts would feel that disruption.  Once again, perhaps this is my problem and not Black’s.

What bothered me the most though was the script’s focus on the Perry plaintiffs.  In particular, the focus on Kris Perry and Sandy Stier and the adorable moppets who are their sons felt incredibly fake.  Or worse than fake, it felt like propaganda.  It’s hard to write this because I am writing about real people who are doing something incredibly brave (and risky), and whom in real life I admire very much.  But even though they are the plaintiffs, Perry is not about Kris Perry, Sandy Stier, Jeff Zarrillo, and Paul Katami.  They are merely the vehicles.  Just as in Lawrence v. Texas, Perry is about every gay and lesbian person in the United States regardless of whether they plan on marrying someone of the same sex.  The theatrical device of an everyman (in this case the four plaintiffs) just doesn’t work here.  The trial spoke for itself.

8 is too ambitious for its own good.  The original purpose of the production was twofold: (1) to find a way to transmit the visuals of the Perry trial since the video tapes have been sealed; and (2) to raise money for Americans for Equal Rights (Black is a founding board member of AFER).  Now it appears that there is a third purpose: to be made into a television movie for HBO that will win acclaim and Emmys by the truckload.  That self-conscious ambition hurts 8 on an artistic level.

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Maybe the problem is that 8 is not a compelling piece of theater because dramatically it is lacking.  I am not talking about the use of trial transcripts because the most effective parts of the show were from the trial and the least effective parts were when the play stayed from the transcript.  The problem is that in a battle between rights and wrong, which is what 8 is ultimately about, there is no compelling villain.  From a political perspective this makes sense, why humanize your enemy?  Because 8 is ultimately political, if cannot afford to make a villain someone the audience would secretly like.  From a dramatic point of view though, this is deadly.  What is Othello without Iago, Angels in America without Roy Cohn, or Paradise Lost without Satan?

Frankly, who would the gay rights movement want to build up?  Those who are opposed to the LGBT rights movement–James Dobson, Randall Terry, Tony Perkins, Pat Robertson, the evangelicals, the Catholic and Mormon Church hierarchies, the national Republican party, etc.–what do they offer?  What good does humanizing them do?  Nothing really.  From a dramatic point of view the only effective villain is Maggie Gallagher.  Ever since I read the Salon profile of her, I have been both fascinated and horrified.  Maggie, unlike the rest of he ilk, is intelligent, and surprisingly enough given how horrible she is, appears to have no actual animosity toward gay people.  Yet Maggie has completely forsaken empathy and humanity in favor of blind devotion to a cause.

It was not until I saw Jane Lynch portray Maggie in 8 with fire-breathing panache that I realized that Maggie is a 21st century Louise Day Hicks.  Hicks was a Boston politician, and the chairwoman of the all-powerful Boston School Committee in the 1960′s.  Under her leadership, the Committee resisted integrating the deeply and unfairly segregated Boston inner-city schools, a resistance that only intensified after the Garrity decision.

When the Garrity decision was announced, Hicks founded ROAR (“Restore Our Alienated Rights”), the primal scream of rage against integration from the Boston Irish.  Unsurprisingly–and with good reason–Hicks and ROAR became the face of Boston racism.  The irony though is that it is unclear if Hicks herself was racist.  J. Anthony Lukas, in his masterful book Common Ground, the classic book about school integration and race relations in Boston, suggests that Hicks was not racist (as opposed to George Wallace or Hicks’s allies at ROAR) so much as a consummate politician who knew her constituency and channeled their rage for her own political gain.

And that to me is more about who Maggie Gallagher is.  She is not a second Anita Bryant so much as a second Louise Day Hicks, someone who sold her soul for politics.

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There is one final problem with 8, and that is the self-congratulatory nature of the people behind it.  I watched Rob Reiner and Dustin Lance Black say that this is the final leg of the race that is the civil rights movement, and my jaw dropped in shock.  This speaks to an incredible myopia, which is I am pretty sure is not how AFER sees the struggle.  I wonder if AFER will still exist when the marriage fight is won.  That isn’t the last hurdle even if it is made out to be.  Civil rights is an ongoing struggle that will change and mutate with each generation.

Perry is not the end, but rather the end of the beginning.  For years now the groundwork has been laid; everything up until now has been prologue for the fights that are to come.  It was important and necessary, but it was merely the start.  This year, marriage laws passed by Washington and Maryland will be up for referendum; activists in Maine have gotten marriage onto the ballot in that state; New Jersey’s governor has vetoed a same-sex marriage bill there, and his veto needs to be overturned; preparations must be made in California in case the Supreme Court overturns Perry; the victory in New Hampshire was not close, but it is still no reason to relax; there is movement to try to get the same-sex marriage ban in Ohio removed; and bans on same-sex marriage are up for public referendum in Minnesota and North Carolina.  This is with the backdrop of the DOMA cases working their way through the courts, a bill to repeal DOMA in the Senate (which won’t pass a filibuster and won’t get approval from the House), the fights for ENDA, the Student Non-Discrimination Act, housing equality, immigration reform that treats same-sex couples fairly, transgender rights, benefits for the same-sex spouses of federal employees, and overturning same-sex marriage bans in the majority of states.

No, we are not in the last leg.  The fight has just intensified.  The Great Work begins.

New Hampshire And Same-Sex Marriage: The Times, They Are A Changin’

In the future, when historians of the LGBT rights movement write their books about American same-sex marriage, they will look to March 21, 2012 as the point of no return, the Gettysburg of the war over LGBT rights.  It was the day that the New Hampshire House of Representatives voted against repealing the state’s same-sex marriage law.

Not repealing a law may not seem like an astounding victory, especially when compared to how much effort it took to get the law enacted not quite three years ago—too-close-for-comfort passages in the New Hampshire House and Senate and then the uncertainty over whether (Democratic) Governor John Lynch would even sign it.  Unlike neighboring Vermont when it passed its same-sex marriage law, New Hampshire’s legislature did not have anywhere near enough votes to overcome a veto.  Lynch, despite a professed personal objection to same-sex marriage, relented and signed the bill into law.  On January 1, 2010, New Hampshire began sanctioning same-sex marriages, which replaced an earlier civil unions law.

Also in 2010, the American public overwhelmingly voted Republican in national and state elections, and New Hampshire’s legislature, which was majority Democrat, became overwhelmingly Republican–so much so that Republicans had enough votes to overcome any gubernatorial veto.  All eyes were fixed on New Hampshire’s same-sex marriage law.  Same-sex marriage advocates were particularly worried given that in the past two years voters in Maine and California took away marriage rights from gay and lesbian couples.  Losing New Hampshire would be extremely painful.  Maybe more so.

It is tempting to paint all of New England as bright azure on the political map, but that is not the case.  Political opinion in New England indeed skews Democrat, but New Hampshire is more purple than blue.  Fitting for a state whose motto is “Live Free or Die,” there is a very strong libertarian streak in the New Hampshire ethos.  There is a suspicion of big government (ironic given that the New Hampshire legislature, the General Court, is the second largest in the country behind Congress and the fourth largest English-speaking legislature in the world) but there is also a “live and let live” attitude.  In other words, New Hampshire libertarians are closer to true libertarianism rather than Ron Paul acolytes.  Paul is less a libertarian than an isolationist, social conservative who hates the Drug War and the Federal Reserve.  New Hampshire is many things, but Mississippi or Texas it is not.

As expected, there were indeed efforts in New Hampshire to strip same-sex couples of the right to marry.  At first the General Court did not want to take it up, and for a year they successfully avoided it.  But pressure from within (an effort spearheaded by Representative David Bates) and without (groups such as the National Organization for Marriage) eventually brought the issue to a boil.  Governor Lynch vowed to veto any attempt to repeal the same-sex marriage law.  Although the Republicans theoretically hold enough votes to override a veto, a good number of legislators from the very substantial libertarian wing of the party said they would vote against an override–enough of them stood up that proponents of repeal were positive they would not have enough votes to overcome the veto.

Rep. David Bates thought he found a solution, abolish same-sex marriage and in its place reinstate the old civil unions law.  All same-sex marriages would retroactively become civil unions (unlike in California where the marriages that took place prior to Prop 8 remained marriages), which in Bates’s mind, and the mind of some other legislators, was the same thing except for the word.  Abolishing all same-sex couples’ protection was so unlikely that even the bigots at NOM and the state’s branch of the Catholic Church backed the civil unions bill–something they never do.  To Bates and his allies putting forth civil unions was the only way to get the libertarians on his side.  There was some blowback; one Republican legislator, Seth Cohn, was so angry at the attempt to repeal same-sex marriage, that he proposed an amendment to the bill that would ban marriage between left-handed people.  I am not privy to the internal workings of the New Hampshire legislature or pro-marriage forces in New England, but my sense was that the general feeling was that passage of the repeal by the House was inevitable and the real battle would be to garner enough support to prevent an override of the veto–or in the longer term, if the override attempt failed this year, to ensure that the General Court would not be able to pass the bill under a future Republican governor who would sign it.

On March 21, 2012 though the House essentially ended the debate for good.  Not only did the repeal attempt fail, it failed by a substantial margin, 211 to 116.  There are only 103 Democrats in the House.  118 Republicans voted not to repeal the law.  In practical terms that means more Republicans voted against the repeal than for it.  When the law initially passed in 2009, only seven House Republicans voted in favor.

It is very easy for the LGBT community to tar Republicans as homophobic bigots, and this is in large part because the national Republican party does this to itself.  The GOP gladly aligned itself with the so-called Moral Majority in the 1970′s and 80′s, and today any person who seriously wishes to be considered for the Republican Presidential nomination must burnish impressive homophobic credentials.  Why else could Rick Santorum, who offers nothing but a vision for theocracy, do so well?  Mitt Romney’s SuperPAC donated $10,000 to NOM for its efforts to repeal Prop 8.  The homophobia has gotten worse since the Tea Party took over and the party has been steadily driving out anyone who is not ideologically “pure,” especially on matters of abortion and same-sex marriage (remember Dede Scozzafava?)  It’s the opposite side of the coin from the 1960′s and 70′s when the Southern Democrats, who were once part of the New Deal coalition, became Republicans following the passage of civil rights laws and the end of Jim Crow.  They have now driven out liberal and moderate Republicans with their intransigence.

That is why the victory in New Hampshire was so stunning.  It was Republicans who made a gay rights victory possible.  Not just a handful like in Washington, Maryland, or New York.  A majority of voting Republicans–well over 100–turned their backs on the homophobia in their party.  This is the first real indication that LGBT rights is transcending political party and becoming solely a matter of fundamental fairness and human dignity.

Again, New Hampshire is not Mississippi, and I do not expect to see a same-sex marriage bill come out of Jackson any time soon (let alone one with Republican votes), but this is the point of no return.  Some Republicans have started to realize that they can no longer stand athwart history and yell, “Stop.”  Because the Republicans now see their gay siblings, friends, cousins, parents, neighbors, children, grandchildren, coworkers, nieces, and nephews, they are finally able to start looking at the rest of us and see us as humans rather than sexual organs.  Because of that, they would not–could not–take rights away from us.

This is the momentum the LGBT rights movement needed.  There is so much work to be done and very quickly in time for November.  New Hampshire Republicans proved that the work is not in vain.

A Question For The Supreme Court

If the American Care Act is unconstitutional, then how can the Defense of Marriage Act possibly be justified?

Lawrence Revisited

A tempest in a teapot has emerged in legal circles over the past week.  Dale Carpenter, a libertarian/conservative, gay law professor at the University of Minnesota Law School, published his new book, Flagrant Conduct,* which details the story behind the seminal gay rights case Lawrence v. Texas.  Lawrence is a case which I have many reservations about, but I have been waiting for a book like this since the Justices announced their decision in 2003, and I cannot wait to read it.  I also have reservations about Carpenter, but I suppose it could only be he who wrote the book, primarily because he eviscerated the gay rights movement’s most cherished myth about the case–John Geddes Lawrence and Tyron Gardner, the interracial couple who were arrested for having sex in their home, were (1) not a couple, and (2) not having sex when they were arrested.

Carpenter’s book received surprisingly little attention on the gay blogs until a bombshell hit; Dahlia Lithwick of Slate wrote a very positive review of the book for The New Yorker where she discussed at length the truth behind Lawrence.  Although Lithwick insinuated that the lawyers behind Lawrence were somewhat disingenuous about presenting the facts, she (and Carpenter too) was clear that there was nothing dishonest in the case made to the Supreme Court.

The first angry response came from Kevin Cathcart, the Executive Director of Lambda Legal, and a man deeply involved with the Lawrence strategy.  His defense however, was very weak tea; it amounts to him claiming that the litigation team never misrepresented the facts–a completely different charge from the one Lithwick (and Carpenter) supposedly leveled at Lambda and Co.  It’s not a fair (or good) rebuttal, and I am not alone in noticing that.  Carpenter did his research, and Cathcart does not rebut anything factual.

Others have also jumped into the fray.  Ari Ezra Waldman, Towleroad.com’s resident law professor, took a macro view.  Siding with Cathcart, Waldman wrote that Lithwick did not understand “what gay rights are really all about.” His argument is that Lambda Legal and company simply took a case that could bring them victory and crafted the appropriate litigation to put the best facts forward (as any good lawyer should).  Waldman is a bit in love with his own writing, and it is sometimes difficult to get his point, but his (stripped down) argument is that it wasn’t so much Lawrence and Gardner who were the focus of the case, but rather gay people as a whole.  In this he is correct.**  Where Waldman is incorrect is in claiming that Lithwick misunderstood this, which is not true.  A close reading of her New Yorker review indicates that she very much gets this.  For his part, Waldman fails to comprehend that Lithwick is not evaluating legal strategy; she is reviewing a book about the Lawrence litigation.

In contrast, on Salon, Linda Hirshman takes a micro approach and focuses completely on Lawrence and Gardner in a blog post provocatively titled “Lowlifes deserve justice too.”  Hirshman argues that it is rare for the perfect plaintiff to appear, and almost never in a criminal case, which Lawrence was.  This is something Lithwick discussed in her review.  Because of issues such as child custody and employment, gay couples who would otherwise be “perfect plaintiffs” would not (and indeed could not) get involved.  Hirshman, like Waldman, is correct in the points she makes, but she completely misses the point of the entire controversy.  The issue is not whether Lawrence and Gardner were the best of all possible plaintiffs (clearly they were), but whether their lawyers represented them honestly.

I cannot comment on Carpenter’s book, not having read it, but I do feel secure when I say that everyone from Lithwick onward has completely missed the most important point about Lawrence.  It had nothing to do with John Lawrence, Tyron Gardner, or their lawyers and everything to do with the nine Justices of the Supreme Court.

The implication behind the debate between Lithwick and her defenders is that the Justices cared about the facts of the case.  They did not.  Nor does this debate give the Justices enough credit.  Each one of them was at one time a lawyer, and all of them had served as judges for years.  They all understood how lawyers write briefs.  Moreover, whatever bad facts the attorneys for Lawrence and Gardner wrote in the briefs, the Justices had seen much worse.  Waldman was right when he wrote that all gay people were on trial, but he failed to take that idea to its logical conclusion; the Justices also understood that all gay people were on trial.

Courts are law-making bodies.  We hear foolish arguments about courts as “super legislatures,” but the truth is that courts, in addition to being interpreters of the law, are a check on the tyranny of the majority.  That is why federal judges are given lifetime tenure and their pay cannot be decreased–so that they are not pressured when they have to make tough decisions.  People tend to forget–or ignore–that court-made law is also law, and it always has been.  It has been this way since Marbury v. Madison and probably even earlier.

In 1986, at the height of the AIDS crisis, a majority of the Supreme Court in Bowers v. Hardwick pushed back on the Warren Court and sexual revolutions.  Perhaps allowing a distaste for homosexuality to get in the way of what was correct both morally and legally, 5 Justices found no constitutional right to adult, consensual, homosexual sex even in the privacy of one’s bedroom.  In the decade following Bowers, six of the nine Justices stepped down and were replaced.  Some of those replacements were more inclined to be friendly toward gays and lesbians both personally and in their jurisprudence.  Concurrently, a massive education campaign began, which penetrated even into the halls of the Supreme Court.  One of the Justices in the Bowers majority (Lewis Powell, who had stepped down in 1987) publicly admitted that he made a mistake, while another (Sandra Day O’Connor, who remained on the Court through Lawrence) privately felt the same.

In 1996, the new Supreme Court got its first chance to signal that it was ready to overturn Bowers in a case called Romer v. Evans.  Although Romer did not directly overrule Bowers, it was practically a plea to gay rights advocates to bring a case that would allow the Court to do so.  One Justice, Antonin Scalia, was especially annoyed by this, and if you thought his dissent in Lawrence was scathing, you haven’t read his Romer opinion.

With Lawrence, the Supreme Court got the case it was looking for, and (like Congress in 2010 with Don’t Ask Don’t Tell) a majority overturned the earlier law.  Four of the five justices in the majority opinion joined the Court after Bowers, including the opinion’s author Justice Anthony Kennedy.  The fifth Justice, John Paul Stevens, had been in the Bowers minority.  O’Connor, not wanting to lose face by publicly admitting she was wrong, wrote a concurrence that actually went beyond the majority in terms of protection for gays and lesbians, but did so from a different legal avenue.  In other words, the majority opinion said there is a fundamental right to private, adult, consensual homosexual sex; O’Connor said, there is no such right, but because straight people would not be arrested under such law, it unfairly targets gay people and for that reason is unconstitutional.  Both the Lawrence majority and O’Connor’s concurrence were about gay people as a whole.

When a case gets to the Supreme Court, it is no longer about the parties involved; it is about the principles.  That is why in the end, Lawrence and Gardner themselves made very little difference.  That is also why gay rights advocates were, and to some extent still are, so nervous about Perry v. Brown, the Prop 8 case.  The question is not whether the Justices will be swayed by the stories of four upstanding plaintiffs; the question is whether the Justices feel that now is the right time to start moving ahead with same-sex marriage.
Footnotes: 

* There are three types of books about Supreme Court cases.  The first is a book about a specific case, how it came to be and how it came before the Supreme Court.  Call this the Gideon’s Trumpet paradigm after Anthony Lewis’s famous book about Gideon v. Wainwright.  This is the kind of book that Flagrant Conduct is.  The second type of book is a history of a movement, which, for obvious reasons, is far longer and much more dense.  The most famous example of this kind of book is Richard Kluger’s Simple Justice, which details the Civil Rights Movement’s legal strategy culminating in Brown v. Board of Education, although Brown is neither the beginning nor the end of the book.  For the gay rights movement, there is no Simple Justice equivalent, but we are not yet at the point where such a book can or should be written.  Finally there are the biographies of the Justices themselves, almost always written after their deaths and after their papers have been opened to researchers.  Only one of the Justices who heard Lawrence has died, and while three have retired, no books are forthcoming in the foreseeable future.

** I make a similar point in another blog post that is currently in the editing process.  The Lithwick affair cropped up while I was writing that post, and I felt like I needed to write about the kerfuffle before I could complete the post I had been writing.