The Economist Hosts Online Debate On Marriage

The Economist magazine endorsed marriage equality in 1996, well before any country in the world allowed same-sex couples to possess an identical marital status to heterosexual couples. This week they are hosting an online debate on the proposition "This house believes that gay marriage should be legal" with my friend Evan Wolfson, founder and executive director of Freedom To Marry arguing in favor of the motion and Maggie Gallagher, founder of the National Organization for Marriage, opposed.

The comments are very interesting and there is an online poll (currently vastly in favor of marriage equality).

Hat/tip to Joe.My.God

Jesse Jackson Endorses Marriage Equality!

Reverend Jesse Jackson endorse marriage equality for same-sex couples in a fiery speech on Monday morning before the assembled crowd to hear the oral arguments in Perry v Schwarzenegger.

Here is the text of the former presidential candidate's speech:

Many years ago in the late 1970s’, I visited South Africa, then deep in the throes of apartheid.  I was asked by the media what I thought of the situation, and I said,  “I believe in human rights for all human beings.   We must measure human rights by one yardstick.”  That principle – our moral center - still applies.  Everything flows from this perspective.

We stand together today as equal members of the human family…. as consistent principled advocates for human rights for all people.  We stand together today to uphold the principles of due process, of equal protection under the law, of fighting against discrimination against any and all people based on race, religion, gender or sexual orientation.

We stand with you today to support Marriage Equality, and to declare that Proposition 8 must be struck down as unconstitutional.  Peoples’ right to self-expression, self-determination be respected and affirmed.  It’s time to challenge ignorance, a time to break the silence and the chains of hatred, of divisive and discriminatory bigotry.   Marriage is based on love and commitment – not on sexual orientation.  I support the right for any person to marry the person of their choosing.

If Dr. King and our civil rights movement has taught us anything, it’s the fundamental principle of that all people deserve Equal protection under the law.   LGBT people deserve equal rights – including marriage equality – and equal protection under the law. Discrimination against one group of people is discrimination against all of us.   The State – and the Courts - should not sanction discrimination.

To those that believe in and fought for civil rights, that marched to end discrimination and win equality, you must not become that which you hated. It’s past time to exist in hypocrisy and ignorance, and time to come out of the shadows and darkness to support unequivocally, equality for all people. Those that support civil and human rights cannot, must not, become perpetrators of discrimination against others based upon race, religion, culture, sexual orientation.

African Americans know too well the sting of legal, state sanctioned, constitutionally driven “second class” citizenship – from centuries of legal slavery and Jim Crow segregation, to classified as 3/5 of a human being in the U.S. Constitution, to facing anti-miscegenation laws that prevented Blacks from marrying whites. 

We cannot not sit idly by while Prop. 8 seeks to target gays and lesbians for a disfavored legal status, as America’s newest “second-class citizens.”  Our legal scholars have cited fourteen times where the Supreme Court has stated that marriage is a fundamental right of all individuals.   That principle must be upheld today – for Blacks and Whites, for straight and gay, for ALL Americans.  No group of people should be denied their fundamental constitutional liberties, like equal protection under the law, simply because of who they are.

So today, we do not stand alone.  It’s time to go forward by hope and not backward by fear, to stand up with courage, hope and strength and send a shout out for equality.  Stiff winds of resistance seek a return to intolerance, bigotry and state sanctioned discrimination – whether against immigrants in New Mexico or against marriage equality in California.   It should only strengthen our resolve to defend equal protection under the law, equality for all Americans, and the forging of a One Big Tent America.

Keep Hope Alive

These Three Men Will Decide Fate Of Proposition 8

Hawkins	Smith	Reinhardt

The 3-member panel for the 9th Circuit Court of Appeals who will hear oral arguments on Monday December 6th in the federal Proposition 8 case, Perry v. Schwarzenegger, has been announced. It consists of the most liberal member of the gigantic 26-member 9th Circuit, Hon. Stephen Reinhardt (appointed by Carter in 1980), a moderate jurist named Hon. Michael Daly Hawkins (appointed by Clinton in 1994) and a right-wing ideologue, N. Randy Smith (appointed by George W. Bush in 2007).

Most commenters think that the make-up of the panel indicates a likely 2-1 decision in favor of the good guys (supporters of marriage equality), which will probably get appealed to an 11-member panel of the 9th Circuit called an en banc panel. From there, it's direct to the Supreme Court of the United States, the highest court in the land.

EQCA Has 7 LGBT-related Bills On Governor's Desk

Equality California has sponsored several bills which have made it through both houses of the California legislature this year and will be on Governor Schwarzenegger's desk, which he has to sign or veto by September 30th.

They are:

• The Mental Health Services for At-Risk Youth bill (Leno) will increase LGBT youths’ access to counseling.
• The Repeal of Discriminatory Code bill (Lowenthal) will end California’s search for a “gay cure.”
• The Civil Marriage Religious Freedom Act (Leno) will codify freedom of religion in relation to civil marriage.
• The LGBT Prisoner Safety Act (Ammiano) will reduce violence against LGBT people in the state prison system.
• The Separation Equity Act (Ma) will allow same-sex couples to dissolve their domestic partnerships and civil marriages at the same time.
• The Hate Crimes Protection Act (Saldaña) will prohibit contracts from requiring a person to waive their right to sue if they are the victim of a hate crime.
• The Unemployment Benefits Equality bill (De La Torre) will give individuals entering domestic partnerships the same rights as those getting married to obtain unemployment benefits

You can click on each bill name to take action to write the Governor and let him know what you think his position on each bill should be.

Logan Utah Adopts LGBT Rights Ordinance!

The city of Logan, Utah (where Utah State University is located) became the second city in the Mormon-dominated, religiously conservative state to enact an ordinance banning discrimination on the basis of sexual orientation or gender identity in employment and housing on Tuesday night.

According to the Salt lake Tribune:

In one motion, the Logan City Council on Tuesday night mandated that employers and landlords cannot discriminate against gays, lesbians or transgendered people in the city limits.

Modeled after anti-discrimination laws recently adopted in Salt Lake City, Logan's housing and employment ordinances passed with four votes and one abstention, by Councilman Dean Quayle. A crowd, which filled the City Council Chambers halls and an overflow room, was mostly subdued throughout a one-hour public hearing. Following the tally though, the crowd erupted in applause and rewarded the council with a standing ovation.

In the days leading up to Tuesday's meeting, Council Chairman Jay Monson said he received more than 250 calls and e-mails "for" and only 10 "against" the ordinances, all from Logan residents and business owners.

[...]

"The [LDS] church supports nondiscrimination ordinances, period. Certainly, I was told that this applies to Logan as much as any other place in the world," Monson said Tuesday before calling for the vote. "They do and I do and I agree that this is not the answer for everything ... But it is a step in the right direction and it is long overdue in my thinking

However, as I have blogged about before, there are plenty of examples of ignorance in this monochromatic state about the nature of civil rights:

Logan resident James Gibson, a business owner and landlord, disagreed saying the City Council is overstepping its bounds.

"I don't feel that it is the place of the government to step in and say who I can and can't hire," Gibson said, adding that, if anything, it should be a state matter. "If anybody feels like they've been discriminated against on behalf of any landlord or business owner, that becomes a civil matter. "

Joshua Frazier added, "The problem is a lack of compassion, not a lack of laws. You cannot legislate compassion and attempting to do so only creates resentment."

Frazier said the ordinances are unconstitutional because employment and property rentals feature a private contract.

"It's wrong for governments to interfere with contracts between individuals," Frazier said. "I see this as the government forcing moral decisions on private individuals. I do not want the government determining and defining what is moral and what is not."

Of course, he is saying that as a white, Mormon man who is currently protected under federal, state and local ordinances which prohibit discrimination on the basis of race, gender and religion.
How would he feel if it were legal to say "No Mormons Need Apply!" in his rental property or place of employment?

It's simply stunning to me how some people can not see past their own privilege.

Mormons Support Salt Lake City Gay Rights Orginance

As Wonder Man says, "It's Ice Cold In Hell." The LDS Church not only did not oppose a proposed ordinance in Salt Lake Cty to extend civil rights protections in emloyment to the categories of sexual orientation and gender identity, but actively supported it. The ordinance passed unanimously, the Salt Lake Tribune reports:

Hours after the LDS Church announced its support Tuesday night of proposed Salt
Lake City ordinances aimed at protecting gay and transgender residents from
discrimination in housing and employment, the City Council unanimously approved
the measures.

"The church supports these ordinances," spokesman Michael
Otterson told the council, "because they are fair and reasonable and do not do violence to the institution of marriage."

They also are consistent with Mormon teachings, he said. "I believe in a church that believes in human dignity, in treating people with respect even when we disagree -- in fact, especially when we disagree."

[...]

The LDS Church's endorsement was hailed by leaders of Utah's
gay community -- some of them stunned -- who called it a historic night they
hope will set the stage for statewide legislation.

"This is a great step," said Will Carlson, director of public policy for the advocacy group Equality Utah. But, he noted, four out of five gay Utahns live outside the capital and should be afforded protection as well. "Equality Utah will continue to work for that."

The ordinance contains much more extensive language granting exceptions to the discrimination protections for religious-based organizations and practices. It will be interesting to see if the Governor of Utah, Gary Hebert, who earlier this year revealed his utter ignorance and misunderstanding of the concept of civil rights, will change his position on statewide legislation now that even the Mormons are saying that LGBT rights laws (trans-inclusive!) are "fair and reasonable."

Here's the full text of the official statement from the LDS Church on the Salt Lake City ordinance:

Good evening.

My name is Michael Otterson, and I am here tonight
officially representing The Church of Jesus Christ of Latter-day Saints.

The nondiscrimination ordinances being reviewed by the city council concern
important questions for the people of this community.

Like most of America, our community in Salt Lake City is comprised of citizens of different faiths and values, different races and cultures, different political views and divergent demographics. Across America and around the world, diverse communities such as ours are wrestling with complex social and moral questions.

People often feel strongly about such issues. Sometimes they feel so strongly that the ways in which they relate to one another seem to strain the fabric of our society,
especially where the interests of one group seem to collide with the interests
of another.

The issues before you tonight are the right of people to have a roof over their heads and the right to work without being discriminated against.

But, importantly, the ordinances also attempt to balance vital issues of
religious freedom. In essence, the Church agrees with the approach which Mayor
Becker is taking on this matter.

In drafting these ordinances, the city has granted common-sense rights that should be available to everyone, while safeguarding the crucial rights of religious organizations, for example, in their hiring of people whose lives are in harmony with their tenets, or when providing housing for their university students and others that preserve religious requirements.

The Church supports these ordinances because they are fair and reasonable and do not do violence to the institution of marriage. They are also entirely consistent with the Church’s prior position on these matters. The Church remains unequivocally committed to defending the bedrock foundation of marriage between a man and a woman.

I represent a church that believes in human dignity, in treating others with
respect even when we disagree – in fact, especially when we disagree. The
Church’s past statements are on the public record for all to see. In these
comments and in our actions, we try to follow what Jesus Christ taught. Our
language will always be respectful and acknowledge those who differ, but will
also be clear on matters that we feel are of great consequence to our society.

Thank you.

White House Issues (Weak Statement) On ME and WA Anti-Gay Referenda

The Advocate's Washington Bureau reporter Kerry Eleveld was able to get the White House to issue a statement on the anti-gay referenda currently facing two states: Washington (Referendum 71 if not APPROVED would repeal a comprehensive domestic partnership law) and Maine (Question 1 IF PASSED would prevent a marriage equality law from going into effect)

“The President has long opposed divisive and discriminatory efforts to deny rights and benefits to same-sex couples, and as he said at the Human Rights Campaign dinner, he believes ‘strongly in stopping laws designed to take rights away.’ Also at the dinner, he said he supports, ‘ensuring that committed gay couples have the same rights and responsibilities afforded to any married couple in this country.’"

So, to reiterate, the President of the United States is urging people to Approve Referendum 71 in Washington state and Vote NO on Question 1 in Maine.

Mormons (Again) Reveal Their Ignorance Of Civil Rights

Dallin H. Oaks, member of the
Quorum of the Twelve of the Mormon Church

Another day, another verbal eruption from an influential Mormon revealing their ignorance and opposition to civil rights, the concept that all people are treated equally by their government. Last time it was the Mormon Governor of a predominantly Mormon state of Utah, this time it is one of the most powerful leaders in the rigidly hierarchical church, Dallin H. Oaks, a member of the Quorum of the Twelve Apostles.

Oaks said the free exercise of religion is threatened by those who believe it conflicts with "the newly alleged 'civil right' of same-gender couples to enjoy the privileges of marriage."

"Those who seek to change the foundation of marriage should not be allowed to pretend that those who defend the ancient order are trampling on civil rights," Oaks said. "The supporters of Proposition 8 were exercising their constitutional right to defend the institution of marriage ..."

Oaks said that while "aggressive intimidation" connected to Proposition 8 was primarily directed at religious people and symbols, "it was not anti-religious as such." He called the incidents "expressions of outrage against those who disagreed with the gay-rights position and had prevailed in a public contest."

"As such, these incidents of 'violence and intimidation' are not so much anti-religious as anti-democratic," he said. "In their effect they are like well-known and widely condemned voter-intimidation of blacks in the South that produced corrective federal civil-rights legislation."

Wow! Where to begin with refuting these statements when there is so much misinformation and ignorance displayed? Earlier I blogged about the white-hot homophobia and misogyny of the Catholic Church and now comes this insanity from a spokesperson a certifiably racist and misogynistic institution.

Happily, there were responses from two gay people included in the article about Oaks' speech, which the author claims Mormon church officials told them would be a "significant commentary on current threats to religious freedom."

Marc Solomon of Equality California:

"Blacks were lynched and beaten and denied the right to vote by their government," said Marc Solomon, marriage director for Equality California, which spearheaded the No on 8 campaign. "To compare that to criticism of Mormon leaders for encouraging people to give vast amounts of money to take away rights of a small minority group is illogical and deeply offensive."

Fred Karger of Californians Against Hate:

Fred Karger, founder of the gay rights group Californians Against Hate, said Oaks' speech is part of a public relations offensive to "try to turn the tables on what has been a complete disaster for the Mormon church ... They are trying to be the victim here. They're not. They're the perpetrators."

Pretty good responses, but both comments fail to address the key issue that Oaks speech reveals: he fundamentally does not believe in full equality for LGBT people and he either doesn't know or doesn't care to find out about the extent of the persecution of African-Americans in the civil rights era of the 1960s, but he still wishes to overlay his own bigotry with the mantle of civil rights. This from a lawyer who clerked at the United Supreme Court under Chief Justice Earl Warren!

Hopefully, more people will follow Fred and Marc's lead and call out Elder Oaks statements for the affront they are to all fair-minded Americans who understand and believe in civil rights for all people.

Utah Governor Doesn't Understand Basic Civil Rights

The new Governor of Utah Gary Hebert doesn't even realize how offensive he is being (or maybe he does and just doesn't care?) with the following statements:

In his most definitive comments yet on gay rights, Herbert told reporters he doesn't believe sexual orientation should be a protected class in the way that race, gender and religion are. "We don't have to have a rule for everybody to do the right thing. We ought to just do the right thing because it's the right thing to do and we don't have to have a law that punishes us if we don't," Herbert said in his first monthly KUED news conference.

In Utah, it is legal to fire someone for being gay or transgender. The gay rights advocacy group Equality Utah has been trying to change state law for several years but has always been rebuffed by the Republican-controlled Legislature. Last year, the group got Republican Gov. Jon Huntsman's support for extending some rights to gay people, although none of the bills it backed became law.

But, wait, there's more!

Herbert stopped short of condemning Salt Lake City's proposed anti-discrimination ordinance during his first appearance on the governor's monthly news conference on KUED Ch. 7, but said a fair-housing and employment law for the state's lesbian, gay, bisexual and transgender community would unnecessarily create a new "protected class."

"Where do you stop? That's the problem going down that slippery road. Pretty soon we're going to have a special law for blue-eyed blondes," Herbert said, adding "we get bogged down sometimes with the minutiae of things that government has really no role to be involved in."

The very first follow up question should be whether Governor Hebert supports the current classes protected against employment discrimination under state and federal law in Utah, which are age, race, religion, sex, national origin, color and disability (by virtue of state and federal law) and pregnancy, childbirth or pregnancy-related condition (Utah law only. An esteemed reader wrote in to make sure I made it clear that discrimination on the basis of pregnancy is illegal under federal law as well, but I do believe that Utah's statute goes even further in prohibiting discrimination in this area than under federal law).

If he does not support those laws, then he should be called out for the anti-historical bigot he appears to be. If he does support those laws, but doesn't see any need to expand them to cover sexual orientation and gender identity, he should be educated as to the vast amount of discrimination which openly LGBT workers face all over the United States (and I expect, in Utah) unlike the mythical history of discrimination against blue-eyed blondes the Governor seems so worried about.

And isn't it shocking that it is a wealthy white male who is making these statements of how unnecessary llegal protections for minorities are. Color me surprised. Not.

Delaware Legislature Passes LGB Rights Bill

It seems like state legislative sessions are extending forever this year. Well, better late than never: the Delaware legislature has completed passage of Senate Bill 121 (26-14 in the House and 14-5 in the Senate), a bill which would prohibit discriminmation on the basis of sexual orientation in employment, housing, insurance and public accomodations.

The bill now goes to democratic Governor Jack Markell, who is expected to sign it into law.

Hat/tip to Joe.My.God, who notes that the bill does not include protections based upon gender identity.

Note also, that the Employment Non-Discrimination Act introduced in Congress this week, while it covers sexual orientation and gender identity, only applies to employment thoughout the United States, and would extend those protections to the 31 states which currently do not have gay rights laws.

Trans-Inclusive ENDA Introduced in U.S. House Today

Nancy Zirkin, executive vice president of LCCR flanked by

openly gay U.S. Reps Tammy Baldwin (D-Wis.) and Jared Polis (D-Col.)

The Employment Non-Discrimination Act (ENDA), H.R. 2981, which would prohibit employment discrimination in the United States based upon sexual orientation or gender identity, was introduced in the United States House of Representatives on Friday, but publicized in a press conference today attended by all three openly gay Congressmembers Barney Frank, Tammy Baldwin, Jared Polis and several representatives from civil rights organizations.

Rea Carey of The Task Force said:

“Today marks a critical milestone for our community and our country. Introduction of this important legislation signals the beginning of the end of a long-fought battle. For decades, a majority of people in this country have supported protecting their friends, family and neighbors from discrimination. Congress must act, at long last, this year.
“Passage of this critical legislation would help ensure that people are allowed to participate on a level-playing field in the workplace. ENDA reflects our country’s core values of fairness and equality. It is immoral to deny lesbian, gay, bisexual and transgender people the ability to earn a livelihood and provide for their families. People should not have to fear losing their job simply because of their sexual orientation or gender identity.
“We are pleased that President Obama has expressed support for this legislation and expect the administration to play a role in assisting with its passage in both the House and Senate.”

Senate Judiciary Hearing on Immgration Equality Wed

Immigration Equality sent out an announcement about the Senate Judiciary hearing being held on Wednesday June 3rd on the Uniting American Familes Act (UAFA).

On Wednesday morning, the Senate Judiciary Committee will hold the first-ever Congressional hearing on obstacles faced by lesbian and gay couples under U.S. immigration law. Senator Patrick Leahy (D-VT), chairman of the committee, has scheduled a 10 a.m. hearing on the Uniting American Families Act (UAFA). The bill, sponsored by Leahy in the Senate and Congressman Jerold Nadler (D-NY) in the House, would modify immigration policy to end discrimination against lesbian and gay Americans who want to sponsor their permanent partners for residency in the United States. Such couples are often separated, or torn apart, because current U.S. law does not allow for the same sponsorship rights for lesbian and gay citizens as for heterosexuals.

"Every day, an estimated 36,000 binational couples, nearly half of whom are raising children, are facing separation, or already living separately, because our country refuses to treat them equally under the law," said Rachel B. Tiven, executive director of Immigration Equality. "These loving, committed families are faced with an untenable choice between the person they love and the country they love. Many are forced to uproot their lives and leave their extended families, jobs and communities behind. It is long past time that Congress fixed our broken immigration system, including this pervasive discrimination against so many families. Senator Leahy's hearing, coming just as President Obama and Congress prepare to address comprehensive immigration reform, is a step in the right direction."

Wednesday's hearing will feature Shirley Tan, a Filipina mother of 12-year-old twins from Pacifica, Calif., who is facing deportation despite having been with her partner for 23 years. Though Tan's children and partner are American citizens, she cannot be sponsored for residency because her partner is female. Unless Congress takes action to pass UAFA, Tan will be forced to return to the Philippines.

Joining Tan as a witness will also be Gordon Stewart, a native of Vermont who was forced to sell his family's farm and relocate to London to be with his partner, who is Brazilian. Stewart, who transferred his job with Pfizer Pharmaceuticals to the United Kingdom, has been welcomed in that country, where his partner received a visa to be with him. Under U.S. immigration law, his partner was unable to join him in the United States, and Stewart was forced to leave his family behind to be with the person he loves. Other witnesses include Julian Bond, chairman of the National Association for the Advancement of Colored People (NAACP) and attorney Christopher Nugent, who will represent the American Bar Association (ABA).

"The cost of discriminating against lesbian and gay families is staggering and personal," Tiven noted. "Children are being separated from their mothers. Companies are forced to relocate employees or lose their talent altogether. In many cases, Americans must live on separate continents, thousands of miles from their immediate and extended families. All the while, this blatant discrimination could be fixed, and families could be brought together, simply by passing UAFA."

President Obama has said he supports the legislation. In a statement issued in March, the White House noted, "The president thinks Americans with partners from other countries should not be faced with a painful choice between staying with their partner or staying in their country. We will work closely with Congress to craft comprehensive immigration reform legislation."

"No reform can be truly called comprehensive," Tiven agreed, "unless it includes our families, too."

The entire witness list of the hearing, which starts at 10am EDT, can be viewed here:

Witness List

Hearing before the Senate Judiciary Committee

on

“The Uniting American Families Act: Addressing Inequality in Federal Immigration Law”

Wednesday, June 3, 2009
Dirksen Office Building Room 226
10:00 a.m.

Shirley Tan
Pacifica, CA

Gordon Stewart
London, England

Julian Bond
Chairman
National Board of Directors
National Association for the Advancement of Colored People
Washington, DC

Christopher Nugent
Co-Chair
Committee on the Rights of Immigrants
Section of Individual Rights and Responsibilities
American Bar Association
Washington, DC

Roy Beck
President
NumbersUSA Education & Research Foundation
Arlington, VA

Jessica M. Vaughan
Director, Policy Studies
Center for Immigration Studies
Franklin, MA

You can also apparently view a webcast of this hearing online.

Why The Federal Lawsuit Against Prop 8 is Wrong

The day after the California Supreme Court announced its shameful ruling upholding Proposition 8, former Bush Administration Solicitor General Ted Olson and David Boies Gore's attorney in the classic Bush v. Gore announced a federal lawsuit challenging the legality of Proposition 8 under the United States Constitution.

The LGBT organizations were not amused:

The groups released a new publication, "Why the ballot box and not the courts should be the next step on marriage in California." This publication discourages people from bringing premature lawsuits based on the federal Constitution because, without more groundwork, the U.S. Supreme Court likely is not yet ready to rule that same-sex couples cannot be barred from marriage. The groups also revised "Make Change, Not Lawsuits," which was released after the California Supreme Court decision ending the ban on marriage for same-sex couples in California. This publication encourages couples who have legally married to ask friends, neighbors and institutions to honor their marriages, but discourages people from bringing lawsuits.

Pam at Pam's House Blend has posted a lengthy analysis of the implications of the federal lawsuit for the generally accepted strategy of the national LGBT civil rights organizations. She asks two Questions of the Day:

* is Boies' and Olson's rejection of the current legal strategy supported by our orgs a tactical error for the marriage equality battle? It represents a "Hail Mary" approach, polls and pols be damned, to solve the patchwork problem of uneven equality around the country all at once, taking the moral high road. But it's a chance the ball will be dropped and the setback with a loss could seriously damage the movement for marriage equality

* is pursuing equality on the path our LGBT organizations represent a sound strategy? The path of taking the state route gains rights for gay and lesbians with each success -- and it also ends at SCOTUS. However, it forces those in states with constitutional bans on marriage equality to languish without full civil rights until a favorable decision at that level at some unknown point in the future. It also relies on additional gains that can be made with the repeal of DOMA, for instance, something also promised but that we may not see any time soon.

My answer to both questions is Yes and one of the smartest legal minds in the LGBT community, University of Pennsylvania Law Professor Tobias Wolff agrees with me:

In 1972 -- 5 years after Loving v. Virginia, the anti-miscegenation case -- the Supreme Court actually did weigh in on the question of the federal constitutional argument for marriage equality. In a case called Baker v. Nelson, the Minnesota courts had denied a marriage equality claim by a gay couple. The case was appealed to the Supreme Court of the United States, which responded by dismissing the appeal "for want of a substantial federal question." This is a type of action that the Court uses only infrequently -- even a lot of lawyers have not heard of it. What it basically means is that the Supreme Court dismissed the appeal without issuing any written opinion, expressing the view that there was no serious federal or constitutional issue to be decided -- in other words, it said that it could dismiss without even issuing a written opinion because the claim on appeal did not have enough merit to warrant a full explanation.

This kind of dismissal is binding on the lower federal courts. (It is not binding on state courts, though some choose to follow it anyway.) What that means is that, when the Supreme Court has spoken to a federal issue in this backhanded way, and the exact same issue comes before a lower federal court in a later case, the proper thing for the lower federal court to do is to dismiss the case because it is bound by the Supreme Court's earlier action.

[...]

What does all of this mean for the Olson / Boies lawsuit? Insofar as their lawsuit argues that marriage equality for everyone is required under the U.S. Constitution, there is a strong argument that the lower federal courts should simply dismiss and decline to hear the case because they are bound by Baker v. Nelson. If that happens, then the Supreme Court itself is the only one that could overrule its earlier precedent and actually decide the case on the merits.

This is an important fact to understand for a number of reasons. First, as a simple matter of predicting what will happen, it's entirely possible that the Olson / Boies lawsuit will be dismissed very quickly by the lower federal courts. Second, it reinforces the point made by the LGBT groups about the importance of laying a solid groundwork before we get our one shot at litigating this issue before the Supreme Court (and, realistically, we will likely get only one shot). Baker v. Nelson prevents the lower federal courts from engaging in the ordinary process of wrestling with a contentious issue in a series of cases before the Supreme Court finally weighs in. It is therefore all the more important to develop a solid foundation of precedent in the state courts, because we may not have the opportunity to do that in the federal courts. And, with all due respect to Olson and Boies and despite my whole-hearted agreement that we should not have to wait to enjoy the rights that we deserve, the fact is that the Civil Rights Movement was the most strategic, careful and patient litigation effort that this country had ever seen, waiting decades to bring the school desegregation and anti-miscegenation cases until they knew that they had laid a sufficient groundwork to achieve a victory before the Supreme Court. I am thrilled at the outrage that these two men feel on our behalf and I welcome their input and their efforts. But they do need to learn their history.

Two more quick points. This kind of "dismissal for want of a substantial federal question" is not a good way to decide cases, and there is a strong argument that it should always be construed narrowly. So, for example, in the challenge to the federal portions of DOMA that GLAD has brought in Massachusetts federal court, Baker v. Nelson should not pose any obstacle. GLAD is raising a very different kind of claim -- that the federal government can't discriminate against couples who have already been validly married by their home state. The lower federal courts are free to decide that issue on its merits.

By the same token, if Olson and Boies had brought a much narrower challenge to Proposition 8 -- if they had argued that the particular sequence of events in California raised a unique constitutional problem because Prop 8 took marriage away from a group of people who already enjoyed equal rights under state law -- then matters would be different. Baker v. Nelson probably would not control a more carefully drafted lawsuit like that, and the dangers associated with such a lawsuit might be somewhat more contained (though there would still be serious questions about whether it represents the right approach). There are hints of that more narrow argument in the Olson / Boies complaint, but only hints -- in the end, they do not make the more careful argument but instead just go for broke.

What do you think?

NEWS: Justice David Souter Retiring!

NPR is reporting that Justice David Souter, 69, has decided to retire at the end of the current United States Supreme Court in June, but will stay on until his replacement is confirmed by the United States Senate.

NPR has learned that Supreme Court Justice David Souter is planning to retire at the end of the court's current term.

The court has completed hearing oral arguments for the year and will be issuing rulings and opinions until the end of June.

Souter is expected to remain on the bench until a successor has been chosen and confirmed, which may or may not be accomplished before the court reconvenes in October.

Talk about being careful what you wish for! Most bets are on Barack nominating a female justice to fill the vacancy.

Gay Is NOT 'the New Black'!

Here is a brief preview of my talk entitled Gay Is Not The New Black, prepared for delivery at Bowdoin College in Maine on Friday April 10 2009 at 3:30pm in Beam Auditorium.

Gay Is NOT The New Black! OR "My Bad, Is The President Still White?"

Last year's campaign to amend the California constitution to say that “Only a marriage between a man and a woman shall be valid or recognized” was the nation’s most expensive ballot measure fight on a social issue in history: a combined 83 million dollars was spent on both sides. Proposition 8 passed by 600,000 votes out of 13.4 million cast, 52.3% to 47.7%, on November 4th 2008, the very same day that Barack Obama was elected the very first African American President of the United States. Early exit polls indicated that 70% of African American voters had voted Yes on Proposition 8. Later analysis revised this number down to 58% of African Americans voters supporting a constitutional ban on same-sex marriage, but a racially tinged firestorm in the LGBT community had already been ignited. On November 15th hundreds of thousands of Americans marched in parades protesting the passage of Proposition 8 in dozens of cities. Many of these protesters correctly (and incorrectly) made analogies between their actions and the Civil Rights movement of the 1960s, carrying signs with slogans like “Gay is the new Black.” As one of the 18,000 couples who were married while the practice was legal last summer and one of the leaders of the only Black LGBT political advocacy organization in Los Angeles County, I have a unique perspective on how issues of race and sexual orientation are portrayed and debated in the wake of the passage of Proposition 8 and will use this piece to discuss why I think Gay is NOT the new Black.

When (predominantly white) gay people say that "Gay is the new Black" they are invoking a common saying from the fashion world to send the message that discrimination against gay people is the same as discrimination against Black people. This is such a thoughtless exaggeration that it enrages African Americans and increases the divide between the two groups, causing people like myself who are both Black and Gay to become even more invisible. It is natural for LGBT activists to want to associate themselves with the successful Black civil rights movement and it is true there clearly are parallels between some of the legal discriminations that African Americans faced in the past (federal ban on serving in the military, state bans against marrying interracially, no laws banning employment or housing discrimination, et cetera). However gay people were never enslaved or murdered openly without legal recourse in great numbers and it is simply frivolous to attempt to equate the two experiences of being Black in America to being Gay in America.

The multiple reasons why electing a non-white American President resonated with so much of the country (and the world) was that such an important break from the past reveals how far the country has come from its shameful mistreatment of people of color. Barack Obama's success eloquently illustrates that race is still a central dividing line in American life while Proposition 8's passage is simply another example that the rights of minorities should never be subject to the whims of a tyrannical majority.

MadProfessah will probably not be posting oo much this weekend as I enjoy the pleasures of Maine.

Washington Post Editorializes In Favor of UAFA!

The Washington Post on Monday editorializes in favor of passage of UAFA (Uniting American Families Act) which would allow LGBT Americans to sponsor their same-sex foreign partners for permanent resident status. Here's the editorial in its entirety:

THE UNITING American Families Act would allow gay and lesbian Americans and permanent residents to sponsor their foreign-born partners for legal residency in the United States. The bill, introduced last month in the Senate by Patrick Leahy (D-Vt.) and in the House by Jerrold Nadler (D-N.Y.), would add "permanent partner" and "permanent partnership" after the words "spouse" and "marriage" in relevant sections of the Immigration and Nationality Act. If passed, it would right a gross unfairness.

Under the proposal, a "permanent partnership" is defined as a "committed, intimate relationship" with another adult "in which both parties intend a lifelong commitment." The couple must be financially interdependent and not married to or in a permanent partnership with anyone else. And the partners can't be related. The benefit comes with the same immigration restrictions and enforcement standards that apply to heterosexual couples. Fraudulent permanent partnerships face the same penalties as fake marriages: up to five years in prison and up to a $250,000 fine.

"Under current law, committed same-sex foreign partners of American citizens are unable to use the family immigration system, which accounts for a majority of the green cards and immigrant visas granted annually by the United States," Mr. Leahy said upon introducing the bill. "The promotion of family unity has long been part of federal immigration policy, and we should honor that principle by providing all Americans the opportunity to be with their loved ones." According to the most recent census, he added, about 35,000 binational, same-sex couples are living in the United States. The new legislation would ensure that the family connections valued under immigration law are extended to gays and lesbians.

The strain of the status quo on gay and lesbian binational couples should not be discounted. Because their relationships are not legally recognized by the United States, some couples have resorted to illegal marriages where the foreign nationals marry Americans to get green cards that allow them to stay in the country permanently. In other cases, Americans have exiled themselves to be with their partners. Sixteen countries, including Australia, Brazil, Canada, Israel, South Africa and the United Kingdom, allow residents to sponsor same-sex permanent partners for legal immigration. American gays and lesbians should not have to choose between their country and their partners.

For a full list of the 16 countries which allow their nationals to sponsor their same-sex partners and to contact your Congressperson about your thoughts on H.R.. 1024/ S. 424, go to the website of the advicacy organization Immigration Equality. (NOTE: MadProfessah is a member of their board of directors.) This is great news. Hopefully the bill will either be a stand-alone measure enacted by the Obama administration to show a tangible success for the LGBT community, or as part of comprehensive immigration reform.

Field Poll Shows Trend On Marriage Equality

I have long argued that we really can not win an electoral battle to legalize "gay marriage' unless there is 50% support for the concept, regardless of what the precise ballot question is. I was under the impression that support for marriage had never cracked the magic 50% barrier, but as the table above shows, in May 2008 the Field Poll has support for marriage at 51% with opposition at 42%. I believe this poll was taken a few days after the landmark California Supreme Court cases legalizing marriage equality in In Re Marriage Cases was released on May 15 2008, so it is more likely this is a serious outlier in public support for the concept.

The table does show a general favorable trend on the question of marriage equality. The question is will we be consistently be above 50% in 2010 or will it take to 2012 or (yikes!) 2016?

What do you think?

NAACP National Supports HR 5 and SR 7 Declaring Prop 8 Unconstitutional

Wow! Despite turning 100 years old a few weeks ago on National Freedom To Marry Day, this is not your grandfather's NAACP! Despite repeatedly refusing to follow along with the California State Chapter's favorable position (refusingt o even debate the measure!) on marriage equality, the Board president Julian Bond AND the new CEO Benjamin Jealous have weighed in on the side of the vast majhority of civil rights advocates who believe that Proposition 8 is unconstitutional.

FOR IMMEDIATE RELEASE

Feb. 23, 2009
Contact: Leila McDowell
Richard J. McIntire
(202) 463-2940 x1021
rmcintire@naacpnet.org

NAACP EXPRESSES SUPPORT FOR CALIFORNIA LEGISLATURE’S CHALLENGE TO PROP. 8, CALLS FOR ITS OVERTURN
Resolution would put California legislature on record as opposing Prop. 8
and urging California Supreme Court to overturn it

The National Association for the Advancement of Colored People today announced support of measures before the California legislature challenging Proposition 8, which altered the California Constitution to deny same-sex couples the freedom to marry and equal protection under the law.

In a letter to legislative leaders, NAACP national board chair Julian Bond and President and CEO Benjamin Todd Jealous urged passage of House Resolution 5 and Senate Resolution 7 to put the legislature on record calling for invalidation of Prop. 8 as an improper and dangerous alteration of the California Constitution.

"The NAACP's mission is to help create a society where all Americans have equal protection and opportunity under the law," said President Jealous. “Our Mission Statement calls for the ‘equality of rights of all persons.’ Prop. 8 strips same-sex couples of a fundamental freedom, as defined by the California State Supreme Court. In so doing, it poses a serious threat to all Americans. Prop. 8 is a discriminatory, unprecedented change to the California Constitution that, if allowed to stand, would undermine the very purpose of a constitution and courts - assuring equal protection and opportunity for all and safeguarding minorities from the tyranny of the majority."

SR 7, sponsored by Equality California (EQCA), will be heard in the Senate Judiciary Committee on Feb. 24th and will proceed to the full Senate for a vote shortly thereafter. Its companion bill, HR 5, also sponsored by EQCA, passed the Assembly Judiciary Committee on Feb. 17th and is eligible for a vote before the full Assembly as early as today.

The California State Conference of the NAACP filed briefs with the California Supreme Court in the legal challenge against Prop. 8, arguing that the measure drastically alters the equal protection guarantee in California’s Constitution and that the rights of a minority cannot be eliminated by a simple majority vote. Several other civil rights organizations, faith leaders, unions and leading corporations also filed briefs urging the invalidation of Prop. 8.

“The NAACP has long opposed any proposal that would alter the federal or state constitutions for the purpose of excluding any groups or individuals from guarantees of equal protection,” said Chairman Bond. “We urge the legislature to declare that Proposition 8 did not follow the proper protective process and should be overturned as an invalid alteration that vitiated crucial constitutional safeguards and fundamental American values, threatening civil rights and all vulnerable minorities.”The state Supreme Court will hear oral arguments in the case on March 5th and could rule as early as June 2009.

Founded in 1909, the NAACP--the nation's oldest, largest and most widely-recognized grassroots–based civil rights organization—is celebrating its 100th anniversary this year. Its more than half-million members and supporters throughout the United States and the world are the premier advocates for civil rights in their communities, conducting voter mobilization and monitoring equal opportunity in the public and private sectors.

NYT Op-Ed Calls For "Gay Marriage Compromise"

Today's New York Times carries an op-ed written by Jonathan Rauch and David Blankenhorn which proposes a compromise on gay marriage:

Whatever our disagreements on the merits of gay marriage, we agree on two facts. First, most gay and lesbian Americans feel they need and deserve the perquisites and protections that accompany legal marriage. Second, many Americans of faith and many religious organizations have strong objections to same-sex unions. Neither of those realities is likely to change any time soon.

Further sharpening the conflict is the potential interaction of same-sex marriage with antidiscrimination laws. The First Amendment may make it unlikely that a church, say, would ever be coerced by law into performing same-sex wedding rites in its sanctuary. But religious organizations are also involved in many activities outside the sanctuary. What if a church auxiliary or charity is told it must grant spousal benefits to a secretary who marries her same-sex partner or else face legal penalties for discrimination based on sexual orientation or marital status? What if a faith-based nonprofit is told it will lose its tax-exempt status if it refuses to allow a same-sex wedding on its property?

[...]

Gay couples have concerns of their own. Most, of course, want the right to marry, and nothing less. But federal recognition of same-sex marriage — leave aside what you think about the merits — is not likely in the near future. The federal Defense of Marriage Act forbids it. Barack Obama and most other Democratic presidential candidates opposed gay marriage. And most Americans continue to oppose it.

At the same time, federal law links many important perquisites to marital status, including Social Security survivor benefits, tax-free inheritance, spousal immigration rights and protections against mutual incrimination. All of these benefits are currently denied to same-sex couples, even those living in states that permit same-sex marriage or civil unions. But these same benefits could be conferred by federally recognized civil unions.

Jonathan Rauch is openly gay and a supporter of same-sex marriage, although a relatively conservative one. He first came to my attention over a decade ago for his opposition to hate crimes laws and his support for marriage equality primarily due to its "civilizing impact" on potentially promiscuous homosexuals, especially gay men. David Blankenhorn is the founder and head of the Institute for American Values (for which he makes over a quarter-million dollars a year, primarily from ultra-conservative Republican financial sources) who posed as a "liberal Democrat" in a controversial Los Angeles Times op-ed that opposed marriage equality during last year's Proposition 8 battle.

What the Blankenhorn-Rauch compromise proposes is federal recognition of same-sex relationships (including already legal CT and MA marriages and civil unions/domestic partnerships in states like CA, OR, WA, NJ, VT, ME as well as DC) in exchange for stronger religious exemptions in state discrimination laws that will be preempted by this proposed federal legislation.

My first response to this proposal was to scream "bullsh*t" but then someone pointed out to me that is not really about how religions deal with civil marriage but about how religious institutions accomodate (or are accomodated by) anti-discrimination laws.

I actually might go along with this "compromise" if they throw in very strong federal anti-discrimination language based on sexual orientation and gender identity in areas of credit, education, public accomodations, housing and employment.

However, from Utah, we know how well the other side treats a "middle of the road" (common ground) initiative, so I doubt anyone else will go for this "compromise," even the Obama administration.

In the end (as usual) Rauch's piece will go to support the arguments by the opponents of LGBT people, in this case it bolsters their argument that marriage for same-sex couples infringes on their religious liberties.

Pam Spaulding has a similar view.

Utah Legislature Kills Gay Rights Bills

After the bitter electoral fight over Proposition 8 in the 2008 elections an official statement from the Mormon Church said that "[The Mormon Church] does not object to rights for same-sex couples regarding hospitalization and medical care, fair housing and employment rights, or probate rights."

In response, Equality Utah created the Common Ground Initiative which was a group of bills that would enact these principles into Utah law:

Expanding Health Care-most gay Utahns can not insure their family. Currently, Equality Utah is working to secure an Executive Order, which would extend benefits for State of Utah employees and their adult designees. Since the State of Utah is the state’s largest employer, this is a great start in getting insurance plans to cover all family structures.

Fair Housing & Employment-Right now it is legal in Utah for people to be fired from their jobs or evicted from their homes just because they’re gay or transgender. All Utahns should have the chance to provide for their families and stay in their homes without fear of being unjustly fired or evicted for reasons that have nothing to do with ability to work or pay rent. A Fair Workplace bill was introduced in the 2008 session as HB 89. This year, the Fair Employment portion was added and the bill has been introduced as HB 267.

Wrongful Deaths-The sudden death of a loved one is painful. When someone dies because of the negligence or malpractice of another, we can help families stay in their homes by removing existing barriers to inheritance and insurance. This bill was introduced in the 2007 session as SB 58 and in the 2008 session as SB 73. The bill is SB 32 in the 2009 session. *This bill was defeated in the Senate Judiciary Committee by a 4-2 vote.

Adult Joint Support Declaration- Apart from marriage, we can do much more to help committed couples in Utah care for each other. This bill creates a joint support declaration and will attach rights of inheritance, insurance, and fair housing. This bill's number is HB 160.

Clarifying Amendment 3- A government registry involving inheritance, housing, and insurance is nowhere near the legal equivalent of marriage. But the second part of Amendment 3 has been misinterpreted to prevent any recognition of gay and transgender couples in Utah. This bill would repeal the portion of Amendment 3 which states “no other domestic union, however denominated, may be recognized as marriage or be given the same or substantially equivalent legal effect.” It will not change Utah’s current definition of marriage, which is one man and one woman.

How did the Utah Legislature respond? They killed every single legislative bill they could get their hands on.