Perspective and Privilege

A 2011 Williams Institute report (PDF) notes that 27% of lesbian, gay, and bisexual respondents have reported workplace discrimination on the basis of sexual orientation. For those who are out in the workplace, that number rises to 38%.

78% of transgender respondents report workplace harassment, with 47% reporting discrimination in hiring, promotion, or job retention.

6 years ago, 7,001,084 people voted for Proposition 8, the California ballot initiative that eliminated the right for same-sex couples to marry.  Last week, Brendan Eich, CEO of Mozilla, resigned "under pressure after his [financial] support" of Prop 8 surfaced. He had donated $1,000 to the campaign for Prop 8.

On April 7, 2014 a Google News search for "Brendan Eich" returned 27,800 results.

So, to be generous, something like, what .0000001% of Prop 8 supporters have experienced pressure to resign due to their support of Prop 8. And, I assume this number is somewhat accurate because, holy shit wow, do we ever hear about it, and have Important Conversations about it, and have people Really Take A Stand about it when, stop. the. presses. a cisgender white (presumably) heterosexual man's livelihood is threatened because of his now-unpopular political stance and, meanwhile, a trans person not getting a callback for a job interview is just ho-hum business as usual.

You might be able to tell that I've been largely annoyed with many of the conversations and blog posts I've read about this man and his situation, even within the gay-male-dominated "LGBT" (ie, gay) blogosphere. Indeed, I consciously refuse to fall into the Tolerance Trap wherein I grandly denounce Eich's resignation and suggest that, oh my, how intolerant of us to not tolerate people's intolerance of us!

Nope!

I believe that Prop 8 was an absolute moral wrong that caused actual harm. My life, my dignity, my self-respect, my relationship, and my marriage are not academic debates. Having conversations about whether I'm sufficiently deserving of equal rights with people who demand that I do so with the utmost civility and decorum has never been "fun" for me.  It's degrading.  Nor do I believe that it is healthy, for me, to be 100% forgiving of those who have harmed me without apology, even if they've "only" harmed me by hating the idea of my equality so much that they spend their money on opposing it.

To those who now demand magnanimity of me, of "us" - for we are still an "us," it seems - I'm not saying I find it entertaining, either, to see a person resign from a job for supporting Prop 8.  I have no idea who or what entity initiated the pressure to get Eich to resign, even as anti-LGBT conservatives and some gays blather about [content note: mixed metaphors and appropriation] the Gay McCarthyist Witchhut Lynch Mobs.

I'm simply remaining agnostic to the frenzied, desperate, and super fun debates about whether its "fair," or "tolerant," or "moral" for people to "be pressured" to resign for supporting Prop 8.  I usually hate it when people tell me I should worry about more important things, but I admit, I do think the LGBT community has greater concerns than coddling the fears of bigots who are now anxious about possibly having to suffer consequences for their financial support of our inequality and degradation.

I'm a lesbian. I've only ever known consequences and the potential for ostracism from this. How lucky for bigots that they just now are understanding what that might mean.

Conservative Writer Advises NOM to Change

Over at The Washington Post, conservative commentator Jennifer Rubin suggests that it's time for the National Organization for [Heterosexual] Marriage (NOM) to adapt to the reality of same-sex marriage and to begin actually promoting marriage.

She suggests some action items for the group:

"Campaign for marriage, not against gay marriage. Root out marriage penalties in the tax code. Enlist religious and secular groups to tout marriage and inform people about its physical, psychological and economic benefits. Promote private marriage counseling. If MADD can change attitudes on drunk driving, the environmental movement can make recycling delinquents into social pariahs and a conservative talk show host and Democratic senator can set out to raise awareness of adoption, NOM can certainly lead a cultural movement to promote marriage."

Well, we'll see, I guess.

Though, I always find it notable that conservatives are so willing, so able, to give individuals and organizations who oppose same-sex marriage the benefit of the doubt.

When I was a guest writer at the now-defunct Family Scholars Blog, writing regularly about the antics of NOM and other professional opponents of same-sex marriage in this conservative-dominated forum, I was often met with incredulity on the part of some of the conservatives there who, unlike many LGBT folks, actually do seem to operate on the assumption that NOM doesn't harm, whether intentionally or not, LGBT people. As though, sure, it makes 100% good, rational sense, and not even an iota of bigotry, to say you're all about saving marriage while focusing primarily on preventing same-sex couples from marriage.

Good grief, some would opine, what's so wrong about NOM seeking to drive a wedge between gays and blacks, anyway? Or, it's just a small but vocal group that actually hates gay people. Or, my personal fave, "both sides do it too!" whenever any evidence of anti-gay incivility was brought up.

I bring up these issues mostly as a reminder that many LGBT people and allies have a quite different perception of NOM and its purported goodwill and intentions with respect to saving marriage than do, apparently, many conservatives. The organization itself was formed in 2007 specifically to put Proposition 8, banning same-sex marriage, on the ballot in California. And, recently, NOM has increased its anti-trans advocacy, suggesting that it's moving toward a more sinister adaptation to the reality of ever-increasing acceptance of same-sex marriage: opposing transgender rights and equality.

For the organization to begin activities like promoting private marriage counseling and rooting out marriage tax penalties would seem to be quite a drift from its original, monomanically-gay-related purpose and history.

Frankly, I don't want NOM to lead a cultural movement. I would be very wary of folks at that organization being widely asked or expected to do so. The organization promotes hetero supremacy and asinine, bumper sticker thinking about gender essentialism. I question how many Americans even could look past its problematic anti-LGBT history and truly believe that the organization possesses the moral capital to "lead" a cultural movement around marriage at all.

Personally, I will not respect the organization or its leadership until they look within, ponder their losses, and publicly apologize to the LGBT community and acknowledge any harm caused through its advocacy and campaigns. I'm confident I'm not alone there.

Schadenfreude Moment of the Week

As I've continued to mull over the recent gay-related Supreme Court victories regarding DOMA and (sorta) Prop 8, I've gotten a bit of satisfaction about how the Regnerus study did not successfully sway the Court's majority even though public records show that the study's release was timed to influence major Supreme Court decisions.

According to The American Independent, the conservative Witherspoon Institute paid about $700,000 for the study.

Gosh, that must be really sad for the study's biggest fans.


Related:
The Regnerus New Family Structure Study 
American College of Pediatricians Misuses Regnerus Study in Amicus Brief 
Journal Audit Finds Severe Flaws in Regnerus Study 
Regnerus Speaks at Ruth Institute Conference

Scholars Critique Regnerus Study
Regnerus: Same-Sex Marriage Will Change Heterosexual Marriage
Fischer: "Underground Railroad" Needed to Rescue Children in Gay Families

Blogging Return

Welp, I'm back.

Did I miss anything?

Seriously though, I'm thrilled about the DOMA and Prop 8 cases. When the news broke, I was on an Amtrak train in the middle of rural Missouri. I began reading the opinions on my phone and when I told my friends in the next seat over the good news, complete strangers began congratulating us and expressing their excitement as well. For me, it will be a "where were you when you heard?" moment that I'll always remember.

I've been completely away from the blogosphere for the past week, so I'm looking forward to reading some of the reactions, including the bigot reactions of doom. Before I left, I remember hearing some buzz about some threat, signed by a who's who of anti-gay bigots, to disregard any pro-gay Supreme Court ruling regarding marriage. So, like that asinine Manhattan Declaration, this new similar statement/threat/temper tantrum/whatever will be super fun to put into the history folder and look back upon.

Feel free to talk about the cases, reactions to it, or whatever. Comment moderation is restored to regular status.

SCOTUS Takes Up DOMA and Prop 8

It has been, of course, a big week at the US Supreme Court with respect to same-sex marriage.

I've been mostly following the arguments and recaps at SCOTUSblog. There are many good roundups at the site, two interesting pieces of which include commentator Lyle Denniston saying "DOMA is in trouble" and Amy Howe breaking down the Prop 8 arguments "in Plan English."

In her post, Howe suggests that the Justices may not reach the merits of the Prop 8 case at all, since Prop 8 is being defended not by the State but by the proponents of the ballot initiative. What that means is that the proponents of Prop 8 may lack "standing" to bring the case.

Back to DOMA, though, Denniston recounts how Justice Kennedy "seemed troubled" by the way that DOMA prohibits same-sex couples who are legally married in a state from receiving federal benefits of marriage and by the way that DOMA interferes with the "traditional authority" of the states to regulate marriage.

Feel free to discuss these cases, the briefs, the articles, and/or specific arguments in the comments.

I would like to end with one observation. At this blog, in the context of civility, we sometimes discuss the difference between intent and effect, and concede that an action or statement may be harmful even if that was not the intent of the person making it.

That mixed-sex relationships oftentimes result in procreation is often put forth as a civil, non-religious reason for limiting marriage to one man and one woman. Yet, my primary issue with a legal system that affords separate and unequal rights to same-sex couples and mixed-sex couples is that, pragmatically, DOMA and Prop 8 only test the gender composition of a couple, not the couple's actual procreative ability. That some states, like my own, grant the exact same state-level rights of marriage while calling the legal status by a different name, like "civil union" which is supposedly definitely not marriage, appears similarly irrational.

I realize that to those who have been involved in this conversation for years, I'm not making a new argument or saying anything that hasn't been said a million times already.  And yes, I realize that some, including the legislators who were in support of DOMA, believe that it would be "offensive" to inquire, prior to marriage, into whether a mixed-sex couple were capable of procreation. Apparently, it matters a lot when heterosexuals might be offended, as opposed to when same-sex couples might be offended!

But to me, and to many others (judging by the traction this argument gets), the overbroad nature of letting mixed-couples marry who cannot procreate together while excluding all same-sex couples from marriage for precisely that reason has an effect of suggesting that the same-sex couple sub-category of couples who cannot procreate together cannot marry because they are tainted by the purported moral inferiority of homosexuality.

At the same time, I think we would be remiss in not acknowledging the actual intent behind DOMA, as it was not as entirely benign as is sometimes claimed.

In 1996, one of the reasons that the House Committee on the Judiciary put forth for supporting DOMA was, actually, to enshrine the moral inferiority of homosexuality into law. This Committee wrote (PDF):

"Civil laws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexuality. This judgment entails both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality."

In the current context in which it is often fashionable for some opponents of same-sex marriage to be more offended when one's views are called anti-gay than to be offended about holding anti-gay beliefs, I think the incredibly problematic aspects of the legislative history of DOMA sometimes get a little bit overlooked and erased.

If one of the purported goals of DOMA was to reflect and honor a collective moral disapproval of homosexuality, that seems to be an admission that the law actually does reflect and honor a collective moral disapproval of homosexuality. Knowing that context and background, I think it's incredibly difficult for supporters of DOMA to claim, in good faith, that their support of DOMA is not, likewise, expressing a similar disapproval.

[Cross-posted: Family Scholars Blog]

American Independent: Regnerus Study Influenced by Funders

The American Independent has obtained documents and emails from a public records request showing that the widely-critiqued Regnerus study was timed to influence "major decisions of the Supreme Court" and that, contrary to language in the study purporting otherwise, The Witherspoon Institute may have played a larger role in the study than claimed.

Sofia Resnick reports:

"[The documents] show that the Witherspoon Institute recruited a professor from a major university to carry out a study that was designed to manipulate public policy. In communicating with donors about the research project, Witherspoon’s president clearly expected results unfavorable to the gay-marriage movement.

The think tank’s efforts paid off. The New Family Structures Study came out just in time for opponents of gay marriage to cite it in multiple federal cases involving marriage equality – including two cases soon to be decided by the U.S. Supreme Court.....

Records show that an academic consultant hired by UT to conduct data analysis for the project was a longtime fellow of the Witherspoon Institute, which shelled out about $700,000 for the research. Documentation about University of Virginia associate sociology professor W. Bradford Wilcox’s dual roles contradict Regnerus’ assertions that the think tank wasn’t involved with how the study was designed or carried out.

Religious right groups such as the Witherspoon Institute have for years been challenging the legality of gay marriage on all fronts and trying to amass data that that can be used to sway the public, lawmakers, and the courts to their side of the debate. Groups seeking to block gay marriage have been eager to use Regnerus’ study – and even further twist his findings – as evidence that gay parents are inferior to straight parents.

So far, the New Family Structures Study has been cited in United States v. Windsor, a challenge to the constitutionality of the Defense of Marriage Act, and Hollingsworth v. Perry, which seeks to overturn California’s gay-marriage ban, Proposition 8."

I believe that the main issues with respect to the Regnerus study are substantive flaws. These do not need to be re-hashed, as I originally hashed them out here (and many others have done so as well). At the same time, the two above-cited issues of concern, seem to be more.... concerning since the release of the documents.

Barry Deutsch questioned Wilcox's dual roles back in October. And Wilcox responded in his own words, saying:

"I served as a fellow and as the director of the program on marriage, family, and democracy at the Witherspoon Institute from 2004 to 2011. These positions were honorific, and designed to highlight my writing and speaking on family-related issue."

Language in the study itself claimed that the Witherspoon Institute played "no role at all in the design or conduct of the study, the analyses, the interpretations of the data, or in the preparation of [the study.]"

Yet, Resnick cites an email suggesting otherwise:

"In the early stages of the New Family Structures Study – before data was collected and long before any results were known – the Witherspoon Institute’s president, Luis Tellez, made it clear to Regnerus that expediency was paramount.

'Naturally we would like to move along as expeditiously as possible but experience suggests we ought not to get hung up with deadlines, do what is right and best, move on it, don’t dilly dolly, etc.,' Tellez wrote in a Sept. 22, 2010 email. 'It would be great to have this before major decisions of the Supreme Court but that is secondary to the need to do this and do it well. I would like you to take ownership and think of how would you want it done, rather than someone like me dictating parameters but of course, here to help.'”

To me, this email doesn't suggest that the Witherspoon Institute engaged in anything extraordinarily damning from a methodological standpoint, but it is pretty explicit that having the study available for the Supreme Court to consider is at least one motivating factor for the study to happen. Technically, urging the study to take place quickly so it can be used in court cases, is involvement in the "conduct" and "preparation" of the study.

In addition, Renick claims that emails exist of "examples of Wilcox making decisions on behalf of Witherspoon and of Tellez insisting Wilcox be present at certain meetings alongside Regnerus," suggesting that his role was more than simply "honorific." In one email, Regnerus purportedly asks Wilcox for feedback on the funders' "'boundaries' around this project" and "their hopes for what emerges from this project."


I know in the past that some people, including David Blankenhorn, have expressed a distaste for the Public Information Act (or, perhaps, the distaste is just toward the application of the Act to this particular case?), which was implicated because of Regnerus' association with the University of Texas.

Yet, open and honest government is (purportedly) a cornerstone of American government. And, this study was purporting to tell certain truths, both substantively with respect to outcomes and procedurally with respect to the influence of its funders, with the weight, legitimacy, and authority of the University of Texas behind it. Yet, these records suggest more of an influence from Witherspoon than what the study's disclaimer purports, and what both Regnerus and Wilcox have claimed.

And, that troubles me.

In my original critique of the study I was very clear about not ascribing anyone involved "with having evil or malicious intent here."  I'm not sure if I would use the word evil, but this study does seem especially tainted now, in my opinion, by this influence and dishonesty. 

Parallels in Invisibility

From a recent New York Times article about gays in Pakistan:

"Homosexual acts remain illegal in Pakistan, based on laws constructed by the British during colonial rule. No civil rights legislation exists to protect gays and lesbians from discrimination.

 

But the reality is far more complex, more akin to 'don’t ask, don’t tell' than a state-sponsored witch hunt. For a long time, the state’s willful blindness has provided space enough for gays and lesbians. They socialize, organize, date and even live together as couples, though discreetly.

 

One journalist, in his early 40s, has been living as a gay man in Pakistan for almost two decades. 'It’s very easy being gay here, to be honest,' he said, though he and several others interviewed did not want their names used for fear of the social and legal repercussions. 'You can live without being hassled about it,' he said, 'as long as you are not wearing a pink tutu and running down the street carrying a rainbow flag.'”

As I read this article, I kept thinking that all of the anti-gay rhetoric I've encountered over the years suggests that many people in the US would like to see a society much like what's described herein. 

Some people want to see gay sex re-criminalized. Some are resentful of gay pride parades and can't stand it when the reality that homosexuality, and non-heterosexual people, exist in the real world is "shoved down their throats" by, say, two men or two women walking hand in hand or being represented in school textbooks like how Regular People are represented in textbooks.

Anti-SSM campaigns often trade on this resentment and desire to invisibilize lives.

For instance, the anti-SSM Maryland Marriage Alliance's "Consequences of Redefining Marriage" list warns:

"Whenever schools educate children about marriage, which happens throughout the curriculum, they will have no choice but to teach this new genderless institution. In Massachusetts, kids as young as second grade were taught about gay marriage in class."

Aside from the strange lingo "genderless institution," this dire warning, which was also used extensively in California's Prop 8 battle in 2008, suggests that merely learning about the existence of gay marriage is some sort of threat to children and to society.  And, well, I'm not sure what the appropriate compromise on this point would even be. Would these opponents be more willing to support SSM if they could be assured that its existence would never be referenced or acknowledged in public schools?

 

What I find to be rather remarkable is that it's often opponents of equality who lambast liberal so-called "political correctness" that purportedly prevents people from talking about the truth and reality, yet here is an actual political campaign seeking to prevent people from talking about the truth and reality.

With recent court trends showing a judicial willingness to acknowledge animus-based motivations for anti-equality laws, propositions, and amendments, a big post-Prop-8 anti-SSM talking point has been that opponents of SSM are not bigots and that they like gay people well enough. 

 

If that's the case, they might want to consider how denigrating to one's dignity it can be, and how bigoted it appears, to suggest that children and society are better off if homosexuality, same-sex marriage, and/or lesbian, gay, and bisexual people are discreet, invisible, and erased from reality.

[Cross-posted: Family Scholars Blog]

"As If Married"

In the 9th Circuit's recent Prop 8 opinion, the Court noted:

"... 'marriage' is the name that society gives to the relationship that matters most between two adults. A rose by any other name may smell as sweet, but to the couple desiring to enter into a lifelong committed relationship, a marriage by the name 'registered domestic partnership' does not."

As someone in a legal civil union with my same-sex partner, I think about this issue a lot.

In Illinois, the state Department of Revenue is requiring same-sex couples in civil unions to file their state taxes as married. Because of the Defense of Marriage Act (DOMA), however, same-sex couples in legal civil unions cannot file their federal taxes as married; they must file as single individuals. Complicating matters, in order to complete an Illinois tax return, one has to include numbers from one's federal return.

What this tangibly means is that people in same-sex civil unions will have to:

a) Complete and file a federal tax return as an individual;
b) Complete (but not actually file) a separate "fake" federal tax return "as if married" in order to get certain numbers to use on the Illinois return; and
c) Complete and file a state of Illinois tax return as married.

Whew!

Aside from the extra time, effort, and cost that same-sex couples in Illinois will have to go through in filing their returns this year, isn't that phrase, "as if married," interesting?

The Illinois Department of Revenue, in its guidance to same-sex couples, actually used the lingo "as-if-married" to describe the federal filing status of same-sex couples in legal civil unions.

Civil unions and domestic partnerships are, for some, a compromise between giving same-sex couples the rights of marriage while preserving the word marriage for man-woman couples. They are supposed to be the thing that grants same-sex couples dignity while still letting people know that marriage is for the Normal People, or for the couples who are capable of procreation, or for couples who have the genitalia of those who are capable of procreating together even if they actually can't procreate together. Or.... something.

Yet, to me, this practical, tax-filing application of civil union/marriage law really illustrates what an absurd nod-and-a-wink "it's marriage, but not really marriage" scheme this separate-and-unequal arrangement really is.

The marriage/civil union arrangement makes a distinction between couples based, not on actual procreative ability, but on the gender composition of the partners in the relationship. Following from that distinction, the state (but not the federal government) funnels the same rights to these "different" couples through two separate licenses: a marriage license for the man-woman couples and a civil union license for the same-sex couples (or, to man-woman couples who choose the civil union license).

In this way, is the legal status of same-sex relationships in a constant state of flux.

Sometimes they are marriages. Sometimes they are civil unions. Sometimes they are "as-if-married"-types of relationships. And, sometimes, the partners in legal civil unions are complete legal strangers, say, when state borders are crossed, when certain forms have to be filled out, or when the federal government is involved.

Yet, if one can concede that a relationship is deserving of the same state-level rights as something called by a different name, is it really coherent or justifiable to call it by a different name? (Or, to treat it differently in different states, although that's a separate issue).

If a state granted licenses that allowed people to ride hoverboards on roadways would it make sense for the state to create two separate categories of licenses that granted the exact same rights? Imagine: The Generic Recreational License (for redheads only) and The Super FunTimes Hoverboard Permit (for everyone else). Sure, both licenses allow people to operate hoverboards and we all know that the licenses are the exact same except for the names.

But, wouldn't people wonder why the redheads are singled out in this way? Like, why couldn't they just call their licenses The Super Fun Times Hoverboard Permit too?

People would have legitimate reasons for asking why it had to be called something different if its legal effect was the same. People would have legitimate reasons for asking what people had against redheads. Or, saying, "if you're concerned about safety, then actually make the license hinge on a person's safety record rather than hair color."

I'm sure to some it seems silly that so much fuss is being made, on both sides of the marriage issue, over "just a word." I don't agree with Judge Reinhardt that "marriage" is for all people the relationship between two adults that "matters most," but the ferocity with which the word is fought over does demonstrate that the word is very important to many people. My point here is to suggest that the "same-sex couples can have everything except the word marriage" position begs a big question:

If same-sex couples are deserving of the same rights as man-woman couples, are same-sex couples really different enough from man-woman couples to justify calling their relationships something different?

[Cross-posted: Family Scholars Blog, Alas]

9th Circuit Rules Prop 8 Unconstitutional

"Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially re-classify their relationships and families as inferior to those of opposite-sex couples." -Judge Reinhardt, Perry v. Brown

Yesterday, as you might have heard, the 9th Circuit held that Prop 8 violates the 14th Amendment to the US Constitution.

An important take-away of this decision is that it is a narrow one. The Court asked, to paraphrase, "Was it constitutional for California to extend the status of marriage to same-sex couples and then later take that status away?" That is an interesting way for the Court to have framed the issue. Framing is everything in a court case and, while it is certainly true that the State took away same-sex couples' right to marry, the Court could have just as well framed the issue as "Is it constitutionally permissible for voters to deny same-sex couples the right to marry?"

The US Supreme Court, shall this case eventually make it there, should then in theory limit its ruling to the narrowly-framed issue as articulated by the 9th Circuit. However, I wouldn't be surprised if the Supreme Court also decided to frame the issue differently. At least several different legitimate ways usually exist to frame a constitutional issue.

So, in answer the narrow issue, the 9th Circuit recounted the facts of Prop 8. In short, before Prop 8 passed, 18,000 same-sex couples were legally married in the state of California and given all of the state-level rights, benefits, and responsibilities of marriage. After Prop 8 passed, same-sex couples alone then lost the right to designation of "marriage," while still maintaining the state-level rights, benefits, responsibilities of marriage.

Yes, I can already hear opponents of same-sex marriage questioning how it could possibly hurt same-sex couples to take away the word "marriage" from same-sex couples if such couples still received the same rights under a different designation. I would suggest that such people become familiar with the word "stigma." Or, as the 9th Circuit explained:

"...[W]e emphasize the extraordinary significance of the official designation of 'marriage.' The official designation is important because 'marriage' is the name that society gives to the relationship that matters most between two adults. A rose by any other name may smell as sweet, but to the couple desiring to enter into a lifelong committed relationship, a marriage by the name 'registered domestic partnership' does not."

I have said before that I have complicated, conflicting thoughts about assimilating same-sex couples into the Cool Kids' Marriage Club and how that might, in turn, stigmatize other forms of relationships between adults and create new hierarchies. On a practical level, I also think that allowing same-sex couples to marry will decrease the stigma associated with same-sex relationships and homosexuality. And so to answer my own criticism, I don't see marriage equality for same-sex couples as the ultimate end goal of the LGBT/feminist/progressive movement that I want to be a part of, I see it as a step in the right direction.

Continuing on with the opinion, the 9th Circuit then asked whether California had a legitimate reason for taking away the designation "marriage" from same-sex couples.

Perhaps explaining why the Court framed the issue as it did, the 9th Circuit articulated that it is much different, and suggestive of a more sinister purpose, to take away a right from a disliked minority group than to merely leave alone a status quo of "man woman marriage." In this way, by extending same-sex couples the right to marry and then taking away that right, this case is analogous to Romer v. Evans, where local ordinances first banned discrimination on the basis of sexual orientation and then, later, voters repealed all laws in the state that protected people on the basis of sexual orientation.

As a notable fact, Justice Kennedy is widely believed to be the swing vote in any Supreme Court same-sex marriage opinion. He wrote the majority pro-equality opinion in Romer. It is an interesting approach for the 9th Circuit to have made the Prop 8/Romer comparison so explicitly here. I would be surprised if that were a coincidence and I hope that bodes well for Team Equality.

The 9th Circuit then addressed the reasons put forth for enacting Prop 8:

1) Prop 8 "advances California's interest in responsible procreation and childrearing" (I have addressed this argument here and explained why it's not a legit reason for discrimination): The Court held that Prop 8 was not rationally-related to these interests because Prop 8 did not restrict the right of same-sex couples to adopt or raise children. A law that was actually aimed to promote man-woman child-rearing would have sought to restrict same-sex parenting.

2) There is no point to same-sex marriage because same-sex couples can't accidentally procreate: The Court claimed that it is no justification to take something away to say that it should have never been given in the first place. Prop 8 proponents would have had to argue, and demonstrate, that same-sex marriage would make it more likely for man-woman couples to procreate "accidentally or irresponsibly" upon the legalization of same-sex marriage. They failed to do so.

3. Prop 8 justifies the state's interest in proceeding cautiously in changing the definition of marriage: The Court aptly noted that, in short, an absolute ban of unlimited duration on same-sex marriage in the state Constitution was not merely proceeding with caution, it is a fundamental barrier. It is therefore not rational to think that Prop 8 was enacted for purposes of acting cautiously.

To end, the 9th Circuit concluded that absent a rational relationship to any purported government interest in passing Prop 8, the voters of California enacted Prop 8 out of animosity or, more likely, "mere disapproval" of gays and lesbians- which is not a legitimate government interest. In making this conclusion, the Court observed that, as in Romer, the pro-Prop 8 ads often relied on stereotypes about the inferiority of same-sex relationships, stated that homosexuality and gays/lesbians are inferior, and that children need to be protected from learning about homosexuality and gay people.


[Cross-posted: Alas]

9th Circuit: Prop 8 Tapes To Remain Sealed

The Prop 8 saga continues!

Yesterday, the US Court of Appeals for the 9th Circuit held (PDF) that a lower court abused its discretion in ordering the unsealing of tapes of the Prop 8 trial.

I'm not happy with the decision, but I agree with it. Here's why:

If you remember, the legal defenders of Prop 8 opposed plans to broadcast the trial live. In a pre-trial brief, they claimed:

"The record is already replete with evidence showing that any publicizing of support for Prop 8 has inevitably led to harassment, economic reprisal, threats, and even physical violence. In this atmosphere, witnesses are understandably quite distressed at the prospect of their testimony being broadcast worldwide on YouTube."

The issue of broadcasting the trial went all the way to the Supreme Court. There, without explanation, the Court disallowed the trial to be broadcast.

The judge in the Prop 8 trial, Judge Walker, then continued to allow the trial to be recorded because, as the 9th Circuit opinion cites, Judge Walker asserted that the recordings would only be used for purposes of helping him reach a decision and would not be publicly broadcast. Later, "a different federal judge ordered that the recordings be unsealed because "no compelling reason" existed for keeping them from the public.

And so we come to the 9th Circuit opinion.

Let's talk here about what the opinion is definitely not saying. What this opinion says, if you read it, is not that the recordings must remain sealed because the witnesses in support of Prop 8 are so very scared of same-sex marriage supporters.

Indeed, as key Prop 8 witness David Blankenhorn admitted to me in conversation at Family Scholars Blog, he "never felt physically threatened" because of his testimony and he didn't even seem to be aware that the Prop 8 legal team was putting forth the narrative that witnesses like him were Too Scared To Testify. (Fun Fact: Check out Page 18 of The American Foundation for Equal Rights' brief! (PDF) I love that part of a blog conversation that I provoked is part of the official Prop 8 record! #bragging).

What the 9th Circuit opinion says, if you read it, is that Judge Walker said that he was only going to use the recordings in his own chambers and that he should therefore be held to that. To not hold Judge Walker to his assurance would, in fact, harm the integrity of the judiciary.

What do I think?

I think the tapes should have never been sealed in the first place, and that the US Supreme Court erred in saying that the trial could not be broadcast live, because I strongly question the accuracy and truthfulness of the claim that the broadcast had to be hidden from the public in order to somehow protect the Prop 8 witnesses, who were already relatively-public figures in the anti-SSM movement. I also think many professional opponents of same-sex marriage are petrified of the recordings going viral, mostly because their arguments, witnesses, and substantive points were pretty well walloped by the pro-equality attorneys and experts.

However, given that Judge Walker stated that the recordings would only be used in his chambers, and would not be broadcast to the public, I also think the 9th Circuit makes a compelling argument that it would harm the integrity of the judiciary to not hold Walker to his word regarding the release of the recordings.

The 9th Circuit will soon be issuing a ruling on the merits of the Prop 8 decision. I'm far more interested in that outcome, quite honestly.

[Cross-posted: Alas]

The Problem With the "Marriage Anti-Defamation Alliance"

The National Organization for [Heterosexual] Marriage ("NOM") and professional anti-equality advocate Maggie Gallagher have a new project in the works called the "Marriage Anti-Defamation Alliance" ("MarriageADA").

Shrug.

I'd like to be able to report that this project truly appears interested in provoking an exchange of civil dialogue about the marriage debate, but alas.

The "About" section starts promising enough:

"We recognize that marriage is an important issue, about which people of good will can and do disagree. We believe America should be a place where passionate moral disagreements about important issues such as marriage are expressed with respect, thoughtfulness and civility—and without fear.,[sic] or threats of retaliation, on both sides."

Sure.

People on "both sides," if they're being honest, should be able to concede that both equality advocates and "marriage defenders" have acted aggressively, violently, and inappropriately at times with respect to the debate. And, reasonable people on "both sides" should be able to agree that people should be able to express "passionate moral disagreements" without fear of threats of physical violence.

As a point of clarification, and also illustrative of the first problem with this campaign, it's not clear what NOM means by "retaliation." In the past, "marriage defenders" have characterized legitimate, non-violent protesting and boycotts as unfair "retaliation," "censorship" and "hate." Yet, historically, non-violent protestors such as Martin Luther King, Jr. and Gandhi recognized that a key component of non-violent protesting was accepting the possibility of jail time, the loss of a job, and/or the loss of business due to one's advocacy.

Many "marriage defenders," while trying to paint themselves as Gandhi-esque paragons of peace and civility, do not tend to accept these consequences of their political activity. Instead, they ask for the special right to engage in political discourse leading to the denial of other people's rights without any consequence to themselves. In fact, that seems to be the very point of this "MarriageADA" campaign.

Furthermore, and hypocritically, NOM has recently forked over money to put up gigantic billboards in New York threatening the imminent removal from office of politicians who voted in favor of marriage equality. The billboards target specific politicians and boldly exclaim, "You're next." Sure, I see the billboards as a legitimate means of advocacy, but let's call it what it is: a threat of retaliation. I guess the "MarriageADA" is okay with such threats coming from "their side."

Moving on, the very next paragraphs fall prey to the very vilification this project condemns- unfairly demonizing the "other side":

"Since Prop 8, we have grown concerned about the increasing number of reports from people whose persons, property, and/or livelihoods have been threatened because they oppose-same sex marriage.

These incidents, we have come to suspect, are not neither isolated, nor mere thuggery, but are the fruit of a very bad idea relentlessly promoted by gay marriage elites: there is no reason why marriage is the union of husband and wife, opposition to same-sex marriage is just like opposition to interracial marriage, and that “anti-equality” views are therefore the moral, legal, intellectual equivalent of the hateful dogmas of racism." [emphasis added]

The site then encourages "marriage defenders," but not LGBT people or allies, to submit their stories of having been threatened and harassed for their views about marriage.

So. Right. Okay.

Let's talk about the the very phrase "gay marriage elite." For a project extolling the virtues of civility, that one's incredibly inflammatory. It is suggestive of rich, beret-capped "leftists" twirling their mustaches while inventing a "myth" that anti-equality advocates are bigots even though, apparently, anti-equality advocates are actually perfect paragons of civility.

But, well, anyone who even tangentially follows this debate knows that that would be an incredibly dishonest portrait of the debate. People call many "marriage defenders" bigots and the equivalents of racists because many "marriage defenders" actually are bigots and the equivalents of racists.

An important step in demonstrating civility and a sincere concern about dialogue on "both sides" is to concede that hardly-controversial point, especially when many of the regular commenters at NOM's very own blog actually are bigots and the equivalent of racists.

Yet, if we're to believe this project's running narrative, it's incredibly out of line, and possibly a severe human rights violation, to acknowledge that some people oppose marriage equality because they "think anal sex is icky" and/or they just don't like gay people. (Don't forget, equality is important! But more important that that are anti-equality advocates feelings about being anti-equality advocates!)

So, while I can agree that "both sides" should be able to express their views without fear of violence, I cannot agree that "marriage defenders" are entitled to the right to demand that society treat them like special snowflakes of civility for their opposition to equality, when it's the rare "marriage defender" who actually earns that treatment. See, the best way for people to be treated as though they're civil is for them to start actually being civil.

Lastly, the cited report that this campaign relies on is the Heritage Foundation's "The Price of Prop 8" which has "documented" some of the real and imagined harms that "marriage defenders" have endured post-Prop 8.

This report, which reads more like propaganda than a scholarly study, has been widely critiqued for relying on anonymous and unsubstantiated accusations, for recounting incidents that were only questionably linked to Prop 8, and for conflating legal protesting methods and impoliteness with illegal acts of violence. Example: One John Doe received a book of the "greatest homosexual love stories of all time" while another reported receiving a phone call where he was called a "bigot." These acts were conflated with the mysterious "white powder" that was sent to a Mormon church (and that the FBI was never able to link to Prop 8).

Without acknowledging the aggression, bullying, harassment, threats of violence, and acts of actual physical violence that LGBT people regularly endure, it is difficult for me- a lesbian equality advocate- to take the project's professed concern for "both sides" seriously when it only encourages "marriage defenders" to submit their stories of fear, threats, and violence they have experienced.

This post, I suppose, was a long way of explaining why I question the sincerity of this project's purpose.

*I have intentionally not included links to the MarriageADA's website. It can be easily found with the Google.

Related-
Marinelli: NOM Sought "Crazy" Pictures of Equality Advocates

Like I Said

Well, despite the fact that Prop 8 witness David Blankenhorn recently admitted to me that he "never felt physically threatened" by giving his testimony, Charles Cooper (who is the attorney for the "marriage defense" side) recently claimed, once again, that releasing tapes of the Prop 8 trial would cause his witnesses to become too scared to testify in the Prop 8 appeal.

While Judge Ware, on September 19, had ordered the recordings to be released, the 9th Circuit Court of Appeals has just ordered them to remain sealed for now.

Via SFGate (see that link I included? How courteous of me!), Cooper claimed:

"Ware's ruling 'threatens deep and lasting harm to the integrity and credibility of the federal judiciary,' Charles Cooper, lawyer for Prop. 8's sponsors, said in asking the appeals court for an emergency stay.

Unsealing the recordings would expose pro-Prop. 8 witnesses to 'a serious and well-substantiated risk of harassment or worse' and would cause them to refuse to testify at any future proceedings, Cooper said.

He did not present any supporting statements from the witnesses. Prop. 8's opponents, on the other hand, are circulating a comment from the sponsors' chief witness, traditional marriage advocate David Blankenhorn, who said in an online exchange last week that he 'never felt physically threatened' by the presence of cameras at the trial. (emphasis added)."

So, yeah. That "online exchange" bit?

So, yeah, that online exchange was with me. And, I totally reported that tidbit already. Last week. Twice.

I mean, sure, the more important fact is that Charles Cooper's little narrative about how scared the Prop 8 witnesses are (and David Blankenhorn is one out of two of them) is looking more and more disingenuous every day, but... still.

Would it have been difficult to include a link to my article?

I mean, Blankenhorn's admission is a Big Deal. It undercuts the argument that the Prop 8 witnesses are Very Scared Of The Big Bad Gay Meanies- because if the witnesses aren't actually scared like the "marriage defenders" say they are, there's no actual reason to keep the Prop 8 trial recordings sealed. Indeed, in our conversation, Mr. Blankenhorn didn't even seem to be aware of the fact that he was supposed to be scared of marriage equality advocates. When he expressed ignorance regarding the whole sealing-of-the-tapes matter, I had to fill him on that little detail.

Really, I'm surprised more people haven't picked up on my conversation with Blankenhorn, particularly in the LGBT political blogosphere.

But then again, I'm not that surprised.

The "LGBT" blogosphere is dominated, with a few exceptions, by cis, white gay men who are deemed (or deem themselves) the spokesmen for "LGBT" rights. While many feminist blogs regularly cover and advocate for LGBT issues, I have not experienced a parity of reciprocity with some of the more popular gay bloggers covering feminist or gender issues. Some are even outright hostile to feminism while, ironically, having their work regularly promoted at some feminist blogs.

Everyone has the right to set their own agenda at their own blogs, so my point is that Mainstream Gay is missing out analyses and observations from feminism and the feminist blogosphere that could really push LGBT rights forward.

For instance, a person simply cannot understand, much less rebut, the "gender complementarist" argument against same-sex marriage, without thinking about gender on more than a superficial level. At one blog, I once saw a gay man fumble his way through a "rebuttal" at an anti-gay blog where he tried to insist that same-sex couples were "complementary" like how men and women supposedly are because there's usually one butch and one femme in a same-sex relationship.

LULZ. Sure.

When one only considers same-sex marriage from the prism of how unfair marriage bans are to The Gays, one doesn't often pick up on the fact that many narratives about "traditional marriage" are also incredibly sexist, misandric, and misogynistic.

Like, if more Americans knew what version of "traditional marriage" they were "defending," maybe they wouldn't be so eager to defend it.

Anyway, I know I'm being vague in my accusations here, and that's intentional. I'm not trying to stir up a blog shitstorm. I'm just encouraging more prominent gay bloggers to be better allies. For the sake of social justice, I think Mainstream Gay would do better if it popped the Everything Gay bubble and broadened the blogrolls.

Judge Orders Prop 8 Trial Recordings To Be Released

On Monday, I relayed how professional "marriage defenders" had successfully prevented the Prop 8 Trial (Perry v. Schwarzenegger) from being broadcast live for the world to see.

Although the key Prop 8 defense witness has admitted that he "never felt physically threatened" because of his testimony, the proponents of the discriminatory Prop 8 claimed that a live broadcast would have a chilling effect on their witnesses, who were allegedly scared they would be threatened or harassed by LGBT advocates.

Well, a federal judge has now ordered the recordings of the Prop 8 trial to be unsealed (PDF). The Court concluded that "no compelling reason" exists for keeping the trial recordings sealed. In reaching its conclusion, the Court recognized the "common law right of public access to records in civil proceedings," noting:

"Transparency 'is pivotal to public perception of the judiciary’s legitimacy and independence.' As the Second Circuit has explained, while the political branches of government can 'claim legitimacy by election,' judges can only do so by way of their reasoning; thus, '[a]ny step that withdraws an element of the judicial process from public view makes the ensuing decision look more like fiat and requires rigorous justification.' Therefore, because the Constitution 'grants the judiciary ‘neither force nor will, but merely judgment,' it is imperative that courts 'impede scrutiny of the exercise of that judgment only in the rarest of circumstances.'"

And, of course, that is exactly what happened with the Prop 8 trial, and what happens in any case in which a court makes pro-LGBT decisions. Before the opinion has even been read the immediate cry, often initiated by anti-LGBT groups like the National Organization for [Heterosexual] Marriage, is that the decision proves that the courts are somehow "rigged" with homosexualist judicial activists who impose LGBT rights on "the people" for no good reason at all. Many supporters of Prop 8 completely ignored Judge Walker's reasoning and went on to suggest, or explicitly claim, that "practitioners of the homosexual lifestyle" should be banned from deciding same-sex marriage cases.

With this sort of propaganda running rampant in many anti-equality ciricles, it's no surprise that those who are heavily invested in anti-equality activism want to keep records of pro-LGBT cases away from wider public scrutiny. Maybe just maybe there are good, legitimate, and sound legal reasons as to why same-sex couples should be allowed to marry. Maybe just maybe the "marriage defense" reasons aren't as good and "commonsensical" as some believe.

But, let's see how the "marriage defenders'" spun it in their brief. They claimed:

“public dissemination of the [digital recording] could have a chilling effect on . . . expert witnesses’ willingness ‘to cooperate in any future proceeding.’”

The Court rejected that claim as being "unsupported hypothesis or conjecture."

Indeed.

I want to again reiterate the fact that David Blankenhorn, who was the "marriage defense" side's key expert witness, recently admitted to me that he "never felt physically threatened" and that he wasn't even aware of Brian Brown's statements regarding how scared the Prop 8 witnesses supposedly were of LGBT activist harassment.

I want to again reiterate that Mr. Blankenhorn writes books about his opposition to marriage equality, writes blogs about it, and is already a public figure opposing marriage equality- making the "chilling effect" claim look like a disingenuous attempt to paint LGBT advocates as horrible, violent villains.

Anyway, the "marriage defenders" are expected to appeal this latest decision. Why? The latest narrative from one popular anti-equality commentator:

The order to release the tapes is "part and parcel of Walker’s broader course of misconduct in what deserves to be recognized as the most egregious performance ever by a federal district judge."

Did you hear that? Eva!

Sure.


Related:

Marinelli: NOM Sought "Crazy" Pictures of Equality Advocates

Perry v. Schwarzenegger: Prop 8 Trial Rundown

NOM Takes Psychic Act on the Road

Prop 8 Trial Resources and Updates

SCOTUSblog Symposium on Same-Sex Marriage

SCOTUSblog recently ran a symposium on same-sex marriage. Dozens of essays, from a variety of (annoyingly, mostly dudely) viewpoints, are included and you may be interested in checking some of them out.

If you don't have the time to read all of the essays, constitutional scholar Erwin Chemerinsky provides some parting reflections on the same-sex marriage dialogue that provides a good summary of the essays.

If you follow this debate closely, I question whether many of the arguments presented will be all that new to you. Nonetheless, it can be refreshing to read arguments that transcend the explicit and immature anti-gay animus so often found on Internet uttered by even purported leaders of the anti-equality movement (remember Jennifer Roback-Morse's anal sex is icky" gem?).

Chemerinsky ends his piece with a prediction:

"I continue to believe that the Court will rule, five-to-four, in an opinion authored by Justice Anthony Kennedy, that laws prohibiting marriage equality violate the United States Constitution. Kennedy wrote the Court’s opinions in Romer v. Evans (1996) and Lawrence v. Texas (2003), and I think that he will see his longest-lasting legacy from over a quarter of a century on the Court being in the area of eliminating discrimination against gays and lesbians. I believe that his opinion will emphasize, as he did in Romer and Lawrence, the absence of any legitimate interest for prohibiting marriage by same-sex couples. As in Lawrence, and other opinions, he will point to the trend across the world.

Ultimately, the question for Justice Kennedy, the Court, and society is whether gays and lesbians are entitled to equal dignity and equal treatment under the law. There is only one possible answer to that question."

We'll see.

Two Marriage-Related Victories

Some good news today!

1) DOMA Ruled Unconstitutional. Again.

A federal bankruptcy court has ruled (PDF) that "no legally married couple should be entitled to fewer bankruptcy rights than any other legally married couple."

For some background on this case, two men who were legally married in California and who remain so since they got married before the discriminatory Prop 8 was passed, filed a joint bankruptcy petition under a law that allows married couples to file jointly. The United States Trustee, which oversees the administration of bankruptcy cases, sought to dismiss the joint petition because the Defense of Marriage Act (DOMA) defines "spouse" as a person of the "opposite sex."

The court in this case applied rational basis review to each of the reasons Congress put forth for enacting DOMA back in 1996: "the governent's interest in defending and nurturing the institution of heterosexual marriage; the government's interest in defending traditional notions of morality; and the government's interest in preserving scarce government resources." Some snippets:

"...[T]he joint petition of the Debtors will have no effect on procreation or child-bearing. It would not appear to be fair or rational for the court to conclude that allowing the Debtors to file a joint bankruptcy petition will in any way harm any marriage of heterosexual persons....

This court can conceive of no fair, just and rational basis to conclude that DOMA will contribute to the achievement of the goal of preserving scarce government and finds no basis in the evidence or record in this case to credit such a proposition.

Although individual members of Congress have every right to express their views and the views of their constituents with respect to their religious beliefs and principles and their personal standards of who may marry whom, this court cannot conclude that Congress is entitled to solemnize such views in the laws of this nation in disregard of the views, legal status and living arrangements of a significant segment of our citizenry that includes the Debtors in this case."

Finding no valid governmental basis for DOMA, the court concluded that DOMA fails even the least stringent rational basis test.

I've said before that if the "marriage exists for procreation" argument were anything other than an attempted after-the-fact argument against allowing same-sex couples to marry, the "marriage defenders" would put their money were their mouth was and de-link all rights, privileges, and benefits of marriage that were not directly linked to procreation. As Judge Walker noted in Perry: "There are support obligations and there are a host of other obligations that flow from a marriage that have nothing to do with the sexual conduct of the parties to the marriage."

The right to file joint bankruptcy petitions is, of course, one of many such rights. I'm glad this court recognized that.

In general, DOMA has not stood up to judicial scrutiny and as a Supreme Court battle looms in the near future, the irrationality of the law probably explains why organizations like the National Organization for [Heterosexual] Marriage are focusing on everything but the substance in that debate.


2) Judge Walker's Perry Decision Not Vacated

Because we allow gay people in gay relationships to be judges even on gay issues, a court found that Judge Walker did not have to recuse himself from California's Prop 8 case Perry v. Schwarzenegger even though he is in a same-sex relationship.

I'm sure this decision will disappoint professional anti-gay Matt Barber, who believes "practitioner[s] of the homosexual lifestyle" can't judge marriage cases, as well as the folks at Protect Marriage, who filed the motion to get Perry vacated.

This decision appeared to have been a no-brainer for the court, which I'm sure will also come as a shocking revelation to the anti-gays who are convinced of the Utter Genius it took to argue that it wasn't so much the judge's homosexuality that was the problem, it was his being in a homosexual relationship that was the problem. The court cut right to the chase in articulating:

"The fact that a federal judge shares a fundamental characteristic with a litigant, or shares membership in a large association such as a religion, has been categorically rejected by federal courts as a sole basis for requiring a judge to recuse her or himself."

Whoooooops!

Gee, I wonder if the motion was mostly We're-Victims-Of-A-HomoFascist-Tyranny posturing intended to rile up frothy anger and a sense of heterosexual persecution?

Anyway, in addition to echoing the concerns that I (and other commentators) raised about the precedent vacating Walker's decision would have set with respect to minority groups' ability to, like, ever rule on civil rights cases, the court noted:

"Among other things, this means that if, in an overabundance of caution, [Judge Walker] were to have disclosed intimate, but irrelevant details about his personal life that were not reasonably related to the question of disqualification, he could have set a pernicious precedent. Such a precedent would be detrimental to the integrity of the judiciary, because it would promote, incorrectly, disclosure by judges of highly personal information (e.g., information about a judge's history of being sexually abused as a child), however irrelevant or time-consuming."

I think undercutting the integrity of the judiciary is actually, no joke, a big part of the Anti-Gay Agenda. So, cue Team Inequality's whining about the judiciary in 3....2.....1.

Sigh. So predictable.

"Brilliant" Warning Flaunts Animus

[TW: Homophobia, gender policing]

Reacting to Gay Days at Disney World, Christian group Florida [Heteronormative] Family Association (FFA) recently paid for an aircraft to fly near the theme park pulling a banner that read: "Warning Gay Pride Day@Disney Today"

David Caton, executive director of FFA then boasted that, according to his group's observations, "[t]here was a defininte, drastic reduction of mainstream families there." The Christian Post article doesn't provide a statement from Disney confirming this alleged reduction. The article also fails to provide a statement from Caton saying what his group's ultimate goal was with respect to the sign. Apparently, why "mainstream families" require such a warning is a self-evident bit of common sense that requires no further explanation.

The head of another "family" group, however, shared his insight. John Stemberger, who called the warning "brilliant" and who is president of the Florida [Heteronormative] Family Policy Council, explains:

"For Stemberger, his problem with Gay Days at Disney is how attendees 'flaunt' their sexuality when children are around, and that Disney allows the event to take place during normal business hours when other groups have to come in after hours to hold their events.

'No one is saying they don’t have a right to do it. The issue is why doesn’t Disney warn the parents and say this is Gay Day? We do that with movies, we do that with records. Why not do it with a theme park?' questioned Stemberger. 'Or they can just close the whole thing off and do it in the evening and let them have unbridled debauchery. They don’t have to do it during the day … where there are thousands of children around that have to be exposed to this behavior.'”

Unbridled debauchery. Lulz. I think anti-gays think most gay people's lives are much more exciting than they really are. Stemberg continues:

“'It’s not just the fact that it’s gay,' asserted Stemberger. 'You have to understand that it is the activity that is going on, the kissing, the inappropriate dress, the immodest and purposely provocative cross-dressing that goes on at the park.'”

Oh, so it's not just the kissing, it's the kissing that's gay that's the problem. And, it's not that the gays are prancing around naked or that the lesbians are engaging in competitive carpetmunching contests on Space Mountain, it's more that some of the people are wearing the clothes that have been arbitrarily assigned by society to the "opposite" sex.

Got it.

On a serious note, I think the FFA did a real service to the LGBT cause with their warning. For one, it warned away homobigots of the "I don't have a problem with gays, I just don't want to see them flaunting it by holding hands, pushing strollers, or kissing each other like how straight people do all the time" sorts of bigots from Gay Days- ensuring a more tolerant atmosphere for LGBT attendees.

And two, it perfectly illustrates the animus behind bans on same-sex marriage and other anti-gay measuers, an animus that professional "marriage defenders" deny exists in the real world.

By their own words, actions, and very large airplane banners, these Nice Civil Christian groups make it abundantly clear that the driving force behind many of their activities is the notion that, because we're immoral, depraved, dangerous, and unworthy of the same human dignity they grant to "mainstream" families, same-sex couples and LGBT people must be stigmatized and avoided by normal people.

It's NOM For the...Win?

After the Obama Justice Department announced that it would no longer defend the discriminatory Defense of Marrica Act (DOMA), Rep. John Boehner hired the law firm of King & Spaulding, for a cool $500,000 of taxpayer money, to represent the House of Representatives' effort to defend it instead.

But then, in yet another dramatic twist to the Prop 8 debacle, King & Spaulding announced that it was withdrawing from the case. (DOMA is now being defended by another firm).

King & Spaulding's decision came after (a) the Human Rights Campaign (HRC) insinuated that the law firm's equality rating would suffer and threatened to launch a "full-throated educational campaign" aimed at clients and law school recruits, and (b) it was revealed that the King and Spaulding contract forbade all employees from publicly or privately advocating for the repeal of DOMA.

Now, like many legal commentators, I am critical of King & Spaulding's decision to drop their client after having signed a contract. Although, I will admit that I'm less critical than many commentators, given that the contract clause forbidding employees from advocating against DOMA might have conflicted with a California law prohibiting employers from forbidding political activitiy in their employees.

At the same time, I am critical too of the notion that any law firm or attorney that signs on to defend DOMA must be pressured into dropping that defense. DOMA is a horrendous law, yes. But let it have its day in court after both sides present their best cases. Unlike "marriage defenders" who want to forever conceal their legal performances before the open tribunal in Perry v. Schwarzenegger, I say let the world see our best case for equality (as well as the best case for inequality).

Nonetheless, with King & Spaulding's withdrawal, I believe the National Organization for [Heterosexual] Marriage's (NOM) running narrative about The Incredible Power of the Gay has been a bit of a PR victory.

But just a bit, especially after Team Anti-Equality's repugnant gay-baiting attempt to get Perry vacated on the basis of Judge Walker's same-sex relationship.

That being said, I question whether NOM staff understands the difference between winning a battle and winning the war. For, NOM staffers keep boasting on their blog about the many commentators who oppose DOMA yet who also believe it was wrong for King & Spaulding to drop their client.

It's as though they believe support for the principle of zealous legal representation translates as a substantive win on the marriage issue.

And, well, let me remind them of what these commentators that NOM has linked to are actually saying about DOMA:

Ruth Marcus, The Washington Post: The Defense of Marriage Act, which bars the federal government from accepting same-sex marriages recognized by state law, is repugnant and, I believe, unconstitutional. The Obama Justice Department did the brave and correct thing in deciding it could no longer defend the law.

Andrew Cohen, The Atlantic: As I have consistently written over the past nine months, there are plenty of legitimate legal reasons to think that the DOMA's dubious message of unequal rights for same-sex couples ultimately will fall at the Supreme Court.

Jonathon Capehart, The Washington Post: House Speaker John Boehner (R-Ohio) has more pressing things to do — debt, deficits and “Where are the jobs,” Mr. Speaker? — than prevent a gay couple from the joys of filing joint tax returns and availing themselves of the other rights and responsibilities that accrue to federal recognition.

Margaret Talbot, The New Yorker: DOMA is a discriminatory piece of legislation, made even more problematic by its disrespect for laws enacted by the states: it prevents the federal government from recognizing same-sex marriages that are legal in the states in which they occurred.

LA Times Editorial: DOMA is a regressive law.

The New York Times Editorial: We strongly oppose the federal statute known as the Defense of Marriage Act, which bans recognizing same-sex marriage. House Republicans should not have used taxpayer money to hire outside lawyers to defend it.

Repugnant. Dubious. Regressive.

It's suddenly becoming clear why "marriage defenders" seem to want to keep the substantive debate in the closet while they up the vilification of LGBT people.

Barber: "Practitioner[s] of the Homosexual Lifestyle" Can't Judge Marriage Cases

As we saw two days ago, the supporters of Prop 8 are seeking to vacate Judge Walker's pro-equality ruling in Perry v. Schwarzenegger. Their contention is that since Walker is in a same-sex relationship, he cannot be impartial about ruling on the constitutionality of California's ban on same-sex marriage.

In their motion, Protect Marriage's legal team insists:

"It is important to emphasize at the outset that we are not suggesting that a gay or lesbian judge could not sit on this case."

Well, Team "Protect Marriage" might want to let anti-gay activist Matt Barber, Associate Dean of Liberty University School of Law, in on that little tidbit. Writing at conservative Christian Lifesite News, Barber lets it all hang out:

"Back in February of 2010 it became rumored that retired Federal Judge Vaughn Walker – who presided over the case at the District level – was a practitioner of the homosexual lifestyle. It was further reported that he had a longtime male lover. Judge Walker refused to confirm or deny the rumors. At the time I was one of the few people to publicly call for his recusal. It’s inexplicable that attorneys defending Prop 8 didn’t make such a motion.

With Judge Walker’s recent admission that he does in fact practice homosexuality, the case for recusal has been proven. His ruling on the Prop 8 case should be immediately vacated as he possessed both an incontrovertible and disqualifying conflict of interest....

A heterosexual judge is precisely what Federal law requries under such circumstances."

While Protect Marriage tap dances around the idea that a gay judge can't be impartial (you know, lest their side look like bigots), Barber just comes right out and says it: Only a heterosexual can judge this case.

One is led to wonder if Barber, who's also the Vice President of Liberty Counsel Action, doesn't understand the oh-so-nuanced-and-not-at-all-bigoted argument that ProtectMarriage is trying to make. You know, the one where it's not the judge's homosexuality that's the problem, it's his homosexual tendency of being in a homosexual relationship that's the problem.

Or, maybe Barber's just not as concerned as some "marriage defenders" about not looking like a bigot.

Either way, whooops.

Prop 8 Drama: Quote of the Day

Regarding the Prop 8 supporters' motion to vacate the Perry v. Schwarzenegger decision on the grounds that Judge Walker is in a same-sex relationship, Pema Levy observes:

"The judicial bench -- traditionally a bastion of privilege and racial homogeneity -- has never been as diverse as it is today. That is, of course, a good thing. But it may signal that minority judges are vulnerable to ethical challenges....

If Walker's decision is vacated, this situation may well give rise to a new species of ethical conflicts. While the motion to vacate Walker's ruling is certainly offensive in parts, by using Liljeberg and other similar rulings to demonstrate Walker's conflict of interest, Prop. 8 opponents are essentially arguing that an interest in full equality is the same thing as a financial interest....

The motion against Walker is in unchartered territory, so it's unclear if a judge will find it convincing. But the sentiment behind it highlights the sad truth that judges are usually members of a group -- namely straight, white, heterosexual men -- who enjoy more privileges under the law and whose impartiality is never questioned. 'Typical cases affect groups that judges aren't members of, such as criminals or people on welfare,' Hellman says. 'There aren't many laws challenging a middle-class way of life.'"

Indeed, if this motion is successful it will set a precedent for requiring the recusal of minority judges in cases ascertaining whether that minority group is unconstitutionally discriminated against.

And regarding the contention that a gay judge in a same-sex relationship has "an interest" in the same-sex marriage issue, well, logically, of course minorities have an interest in no longer being discriminated against. That's sort of the nature of discrimination and oppression, derp. But then, so too do majority groups have an interest in perpetuating that discrinination.

Unfortunately, and owing to the invisible nature of that privilege, it is only non-heterosexual, non-white, and non-male judges who continually have to go out of their way to assure everyone that they are not beholden to "special interest groups." White male heterosexuals never have to assure us that they are not beholden to the special interest group of straight white guys.

That being said, many constitutitional law scholars (who aren't, like, affiliated with Liberty University) believe the chances of this motion succeeding are slim. For instance, UC Irvine School of Law Dean Erwin Chemerinsky has said that the motion "has no chance of success" and that he "know[s] of no instance in which a judge has been disqualified because of his or her race, religion, sexual orientation, or gender."

DePaul University School of Law's Jeffrey Shaman, who authored a textbook on judicial conduct, suggests that the Protect Marriage legal team might be "worried about the judge's opinion, which was such a strong opinion, and they are trying to make an end run around it."

We'll see what happens. Honestly, you really never know how a case is going to turn out. BiAsEd JuDgEs notwithstanding, natch.


Related-

American Foundation for Equal Rights: "Prop 8 Propoonents Desperate Plea Backfire in the Media"

Marinelli: NOM Sought "Crazy" Pictures of Equality Advocates

Last July, in writing about the National Organization for [Heterosexual] Marriage's (NOM) "Marriage Tour," I speculated that a motive of the tour might have been to present "marriage defenders" as victims of aggressive LGBT advocates in order to drum up opposition to same-sex marriage.

After all, it's easier to get people to deny rights to a minority group that is framed as dangerous, monolithic, and evil than if that group is framed as just as human and nuanced as "good, clean, regular everyday folk."

Indeed, soon after the wheels on their bus started turning, NOM began tediously documenting and publicizing every real and imagined slight suffered by its participants and supporters.

For instance, when someone allegedly cut off the NOM bus in traffic and flipped them off, NOM's Brian Brown tweeted "Got tolerance?" (Apparently, only "marriage defenders" ever have run-ins with rude drivers). Then, speaking of equality advocates who showed up to counter-protest NOM, Brown characterized them in a blogpost as "crazy" and "nuts" for shouting "Get your hate out of our state."

Well, almost a year later, NOM defector Louis Marinelli is claiming that Brian Brown sent him an email during the tour instructing:

"I need crazy pictures of our opponents."

According to Marinelli, Brown's request came minutes after Marinelli had sent Brown a photo of "marriage defenders."

If true, Brown's request would be especially ironic coming from Team Don't You Dare Frame Us As Villains.

Indeed, back in 2009, NOM's Maggie Gallagher bemoaned the fact that some marriage equality advocates dared to suggest that "people who see marriage as a male-female union are like slave owners or segregationists" and, in response, Gallagher demanded, "This kind of disrespectful treatment of diverse views on gay marriage really needs to stop. Now. Today."

Wow.

Got projection?