Box Turtle Bulletin

Boies and Olson to go after ‘Yes on 8’ Campaign

I have been following the federal challenge to Prop 8, Perry v. Schwarzenegger, and thought I would give BTB readers an update (there’s not much in the rest of the LGBT press).

As you might remember, former Bush v. Gore foes Boies and Olson sparked controversy among gay legal rights groups after teaming up to file a federal challenge to Prop. 8 in California District Court. Organizations like Lambda Legal, which have spent years focusing on incremental legal wins are afraid it’s not the right time to put all the movement’s chips on the table, but seeing as Boies and Olson are going ahead anyway, they want in on the action and have asked to join the suit.

Judge Walker is set to hear opposing arguments tomorrow over whether they should be allowed in, a motion Boies and Olson have opposed. My guess is that the judge will allow Lambda Legal, the City of San Francisco, and similar organization to join the suit, or at least that’s what I hope; these organizations have been fighting the good fight long before the fame-mongering pair came on the scene.

Today, all parties to the suit filed another round of “case management statements,” proposals that outline what the trial will cover, what legal questions will be addressed, and which sort of evidence will be gathered and presented.  What is interesting about these statements is that the case is shaping up to be much broader than the state challenge to Prop. 8, which hinged on the technical distinction between an “amendment” and a “revision.”

Crucially, the plaintiffs plan to go after the Yes on 8 Campaign to show that they were motivated by anti-gay animus. This will involve having the Yes on 8 people testify and hand over documents relevant to the campaign.

If some gay rights groups were frustrated by the legal language and fine lines involved in the state challenge, this is looking like it will be the big fight they wanted.

Stay tuned.

Hint of Hope from Minneapolis

A vote at the Lutheran (ELCA) convention last night gives up a hint of hope that the body may side with inclusion in Friday’s vote on clergy in same-sex relationships.

Those opposed to allowing partnered gay ministers proposed that Friday’s vote require two-thirds for passage rather than a simple majority. (Christian Post)

supporters of the supermajority said a higher hurdle was needed to signal wide support for a proposal they view as a major change in the church’s approach to homosexuality

However, delegates defeated this parliamentary change by a margin of 57-43. Friday’s vote will be a simple majority.

All sides caution that Monday’s vote is not a predictor of the eventual vote on policy change. However, it does hint that the proposed change has significant support.

As an interesting side note, it was in Minneapolis in 2003 that the Episcopal Church ordained Gene Robinson as a Bishop, thereby igniting an international firestorm with has likely led to schism in the Anglican Communion. This midwestern city may earn a reputation as a site central to the greatest restructuring of American Christianity since the Civil War.

Washington Fail-Rate Up Slightly

With almost half of the signatures reviewed, the fail-rate of the petition is about 11%.

65,531 inspected (47.6%)
7,201 permanently rejected
10.99% fail-rate*

However, the cumulative fail rate by the end of the process must be above 12.4% or the domestic partner enhancements will be subject to the whim of the voters.

One area where there is hope is in the category of those rejected because they are duplicates. This rate is increasing daily. For example, the percentage of signatures found to be duplicate on the third day of inspection was 0.37%, those rejected last Wednesday were 0.74% of votes inspected, and those posted today as duplicates were 1.66%. This is expected to continue to increase.

* my fail-rate differs from that reported by the WA Secretary of State due to my excluding temporary rejections.

Anchorage AK Mayor Dan Sullivan Endorses Anti-Gay Discrimination

Of course the mayor of Anchorage, Alaska, has not formally announced that he supports and encourages anti-gay discrimination. But he might as well have.

Non-discrimination policies are hardly new, controversial, or unexpected. Currently 21 states, 85% of Fortune 500 companies, and dozens more cities and municipalities protect their gay and lesbian residents from discrimination in employment and housing. It is expected that Congress will pass with bi-partisan support, and the president will sign, a Employment Non-Discrimination Act into law.

So why then would Mayor Dan Sullivan veto a provision passed by the Anchorage assembly on a 7 to 4 vote?

“My review shows that there is clearly a lack of quantifiable evidence necessitating this ordinance,” the mayor said. “My review also shows that the vast majority of those who communicated their position on the ordinance are in opposition.”

In other words, the citizens want to discriminate against gay people… but gay people don’t need protection from this discrimination. Maybe it’s just the Monday blues, but I’m finding it difficult to fathom an interpretation of this statement that isn’t an unstated endorsement of anti-gay discrimination.

Did EQCA Collect Cash for a 2010 Campaign?

Queerty is reporting the claim that Equality California solicited contributions for a 2010 campaign to reverse Prop 8, only to turn around and oppose such an action.

It’s looking pretty obvious that EQCA benefited, whether on purpose or otherwise, by telling marriage equality supporters they would fight for 2010. They collected cash from Californians — our allies — under a falsehood. And with all the existing in-fighting between California’s gay rights groups, the last thing we need are accusations of fraud aimed at our own groups.

I don’t know whether there’s much fire behind the smoke. This may be more miscommunication than deception.

But I do know that when I was cold-called a week or so ago from EQCA looking for volunteers, I asked specifically which year they were supporting. I was told definitely 2010.

Lutherans to Vote on Gay Clergy

This week the Evangelical Lutheran Church in America will be holding their biennial convention in Minneapolis. And issues about the inclusing of gay clergy are predicted to dominate conversation and debate.

The ELCA has accepted celibate gay men and women as clergy, but has banned office from those who are in relationships. In February, a task force recommended that the leadership allow gay men and women in committed relationships to serve as clergy and further recommended that the church find some way to recognize “lifelong, monogamous, same-gender relationships.”

This year the church will make two decisions about gay Lutherans, one ideological and one structural. (Washington Times)

Of the two main documents on sexuality issues that will be considered at the ELCA assembly, one is a proposed social statement, “Human Sexuality: Gift and Trust,” which, as a statement of church teaching, must be passed by a two-thirds vote (about 700 people) of the 1,045 voting members present.

Eight years in the making, the 33-page treatise is a theological and teaching document that sets out denominational policy on a variety of topics ranging from marriage to pornography, and defines human sexuality as a “gift and trust.” It will be debated Tuesday afternoon and put to a vote Wednesday.

The other document, called a “Report and Recommendation on Ministry Policies,” recommends a change in ELCA ministry policies so Lutherans who are in “publicly accountable, lifelong, monogamous, same-gendered relationships” can serve as ELCA associates in ministry, deaconesses, diaconal ministers and ordained ministers.

The latter document, slated for debate on Thursday and a vote on Friday, would allow local synods to decide whether they would allow a gay minister in a committed relationship to serve. The vote is considered by all sides to be too close to call.

Should the 4.8 million-member church choose to follow the lead of the United Church of Christ and the Episcopal Church, it will be the largest denomination to side with gay Christians in the debate over full inclusion in the body of believers. And it will likely experience defections and condemnation based on such a decision.

Ultimately, as gay men and women are viewed by parishoners as a variation on life rather than a perversion of God’s Plan, this is a decision that will be faced by all of Protestant Christianity.

LA Times Says Wait Until 2012

An editorial in the Los Angeles Times endorses the decision by EQCA to wait until 2012 to try and reverse Proposition 8. They also criticize the Courage Campaign for moving forward.

To me, I think that they debate over the date may be partly due to objectives. I think that the LA Times fairly argues from the perspective of EQCA and others who counsel to delay.

The most important objective should be a decisive victory, sending a clear message that this state no longer will tolerate separate but not-quite-equal status for families based on sexual orientation. Given the opinion polls, the lack of a coherent campaign strategy and the current makeup of the U.S. Supreme Court, this most likely means an unfortunate wait. A loss at the ballot box or in the nation’s high court could set back same-sex marriage for years.

If you share the above beliefs about objectives, then waiting until 2012 makes sense. And I think that the language in the editorial highlights the differences in approach, objectives, and goals between those wanting to go in 2010 and those wishing to wait until 2012.

The LA Times – and gay groups urging a wait – are viewing this as an election effort. Their goal is how best to run a campaign, how to achieve votes, how to pass this particular referendum. This is seen as a stand-alone initiative designed to achieve a specific purpose. And winning is everything.

But there is another perspective which I think is motivating those who are urging a 2010 date.

They do not see a reversal of Proposition 8 in terms of an election. They do not view it as a referendum or really in terms of a campaign at all. They view this effort not in terms of politics and elections but in terms of civil rights and a battle in the war for equality.

While twelvers are wondering about funding and strategy, tenners are focused on momentum, energy, honesty, and courage. Tenners want to win in 10, but find it even more important to not concede defeat. While they think victory is possible next year, they are committed to fighting this battle until it is won, even if that means going to the polls every two years.

And there will be an effort in 2010. I spoke this weekend to a leader with Equality Network (a grassroots organization unaffiliated with any established gay groups), and an application will be submitted to the Secretary of State for a proposition on the ballot in 2010. They will then begin the process of collecting 694,354 valid signatures. Should they (or another tenner group) prove successful at this rather daunting task, then they will have earned the right to establish the date.

DOJ Files Reply Brief In DOMA Challenge Case

The Department of Justice filed its Reply Brief (PDF: 29KB/9 pages) in the case of Smelt v. United States this morning. That case seeks to overturn the Defense of Marriage Act through the courts. The restrained language in this brief indicates that the Obama administration heard loud and clear the outrage over its prior brief in the same case.

This time, the DOJ brief clearly states the administration’s belief that the Defense of Marriage Act, while constitutional, is discriminatory and should be repealed by Congress (p. 2):

With respect to the merits, this Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal. Consistent with the rule of law, however, the Department of Justice has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality, even if the Department disagrees with a particular statute as a policy matter, as it does here.

To reiterate that point, the White House issued this statement (no link yet):

Today, the Department of Justice has filed a response to a legal challenge to the Defense of Marriage Act, as it traditionally does when acts of Congress are challenged. This brief makes clear, however, that my Administration believes that the Act is discriminatory and should be repealed by Congress. I have long held that DOMA prevents LGBT couples from being granted equal rights and benefits. While we work with Congress to repeal DOMA, my Administration will continue to examine and implement measures that will help extend rights and benefits to LGBT couples under existing law.

Interesting though, this time the DOJ refutes the claim by other parties which are trying to intervene to defend DOMA, claiming that the defense of so-called “traditional marriage” is needed in order to further procreation — and the DOJ quotes none other than Justice Antonin Scalia’s Lawrence v Texas dissent for support (pp. 6-7):

Unlike the intervenors here, the government does not contend that there are legitimate government interests in “creating a legal structure that promotes the raising of children by both of their biological parents” or that the government’s interest in “responsible procreation” justifies Congress’s decision to define marriage as a union between one man and one woman (Doc. 42 at 8-9). Since DOMA was enacted, the American Academy of Pediatrics, the American Psychological Association, the American Academy of Child and Adolescent Psychiatry, the American Medical Association, and the Child Welfare League of America have issued policies opposing restrictions on lesbian and gay parenting because they concluded, based on numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents. Furthermore, in Lawrence v. Texas, 539 U.S. 558, 605 (2003), Justice Scalia acknowledged in his dissent that encouraging procreation would not be a rational basis for limiting marriage to opposite-sex couples under the reasoning of the Lawrence majority opinion – which, of course, is the prevailing law – because “the sterile and the elderly are allowed to marry.” For these reasons, the United States does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing and is therefore not relying upon any such interests to defend DOMA’s constitutionality.

That last sentence has Focus On the Family’s Drive-By, err, Drive-Thru blog all up in arms, who called it “a new low on marriage.”

This case particular case challenging the constitutionality of DOMA is considered by many legal experts as rather weak. Another case filed in Massachusetts by the Gay and Lesbian Advocates and Defenders is considered a much stronger case. Last month, the Massachusetts Attorney General announced a second lawsuit to challenge DOMA’s constitutionality.

Human Rights Group Documents Widespread Torture and Murder of Iraqi Gays

Human Rights Watch this morning issued a detailed report documenting the hundreds of gay men who have been tortured and murdered, some by members of Iraq’s security forces, and others by members of the Mehdi Army, the Shi’ite militia operating around Baghdad. Based on interviews with doctors, family members, and other surviving gay men, They Want Us Exterminated: Mirder, Torture, Sexual Orientation and Gender in Iraq indicates that hundreds of men have been killed in Baghdad, with authorities doing little to address the situation.

The interviews given in the report indicate the kind of reign of terror Iraqi gays are living through:

He was very public, everybody knew he was gay. His family said his killers made a CD of how he was killed-they filmed it. They slaughtered him; they cut his throat. His family did not want to talk about it. And now they are killing people right and left in Shaab and al-Thawra. We heard 11 men were burned alive in al-Thawra. Everyone is talking about the numbers of people killed. And they just keep rising.

I think those two were tortured into giving my name, because two days after I learned they were killed I got this threat. … I spoke by phone to a friend of mine yesterday night: he is also gay but he’s very masculine and no one knows about him. He said, “Get out if you can and save yourself. They are killing gays left and right.”

They came to my parents’ house a day later. I was out of the house when it happened. The neighbor’s son has the same given name and so they kidnapped the wrong guy. When they found out they let the boy go, but they beat him severely-they wanted to kill him. They tortured him with electricity, they beat him with cables. He looked like a roast chicken when he came home. … When I came back everyone was yelling and screaming that Majid, this boy Majid, had been taken. When he was released, he staggered home and said, “They didn’t want me, they wanted the other Majid. They said he was gay.” I had to leave. My parents threw me out. I cannot face them anymore.

Human Rights Watch calls on the Iraqi government to put an end to the tortures and slayings, but the government appears unphased by the report. U.S. representatives, including U.S. Congressman Jared Polis (D-CO) have complained to the Iraqi government to no avail.

It’s Official: Being Called “Gay” Isn’t Libelous

Thus says the Judge in the Howard K. Stern’s libel suit against an Anna Nicole Smith biographer. Rita Cosby wrote in Blonde Ambition: The Untold Story Behind Anna Nicole Smith’s Death that Stern, Smith’s former lover, was gay, which Stern considered libelous:

U.S. District Judge Denny Chin ruled the defamation case could proceed on 11 of the statements.

Chin dismissed Stern’s claims that statements implying he was homosexual were defamatory, although he acknowledged that gays and lesbians still suffered prejudice.

“I respectfully disagree that the existence of this continued prejudice leads to the conclusion that there is a widespread view of gays and lesbians as contemptible and disgraceful,” the judge said.

Bill Clinton Talks About His Role On DADT and DOMA

Former president Bill Clinton spoke yesterday as the keynote speaker at the Netroots Nation conference in Pittsburgh. His speech was interrupted by a question from LGBT activist Lane Hudson, asking Clinton about “Don’t Ask, Don’t Tell” and the Defense of Marriage Act.

Clinton was definitely put off about being interrupted, but when he finally got around to answering the question, Clinton pointed out that DADT passed Congress by a veto-proof majority in both houses, the result, he said, of inadequate LGBT lobbying in Congress at the time. I think he’s right on this one. He has gotten the blame for DADT’s passage, when it actually came about by a Democratically-controlled Congress acting to block his initiative to allow gays to serve in the military. And indeed, DADT did pass with a veto-proof majority, which removed his role in the matter.

But that doesn’t hold true for DOMA. Clinton says that he “didn’t like signing DOMA,” but did so to head off “a very reactionary Congress” which, he said, was set to pass a constitutional amendment. But he didn’t address why his 1996 presidential campaign purchased advertising on Christian and right wing radio bragging signing DOMA into law as proof of his “pro-family” credentials.

Update: Lane Hudson posted on Firedog Lake about why he interrupted Clinton’s speech:

I love Bill Clinton, but we all make mistakes. Sometimes we even are forced to do things we don\’t want to. That\’s why I was prepared to ask Bill Clinton a tough question last night as he delivered the opening keynote address at Netroots Nation 2009.

But it became clear there would be no questions. As I sat in the audience thinking about how Netroots Nation is about celebrating the most open forum of discussion ever to exist, it occurred to me that we were nothing more than a captive audience being talked to. One way communication was NOT what we were there to celebrate and advance.

Lane is certainly right about one thing: It’s pretty dumb to expect bloggers to sit down, shut up, and just listen. It’s even dumber when that same message comes from fellow bloggers and activists:

The immediate response shocked me at the time and still does. Those surrounding me yelled at me, booed, and told me to sit down. One elderly lady even told me to leave. While I was among the supposed most progressive audience in the country, they sought to silence someone asking a former President to speak out on behalf of repealing two laws that TOOK AWAY RIGHTS OF A MINORITY. I was shocked.

What was that expression about comforting the afflicted and afflicting the comfortable?

Click here to see a partial transcript of Pres. Clinton’s remarks

Washington Count Reaches 50,493

Currently:

50,496 signatures reviewed (36.7%)
5,375 permanantly rejected
10.65% fail rate

2010 or 2012: The California Debate Continues

Equality California may have settled on 2012 as the right time to try to repeal Prop 8, but that doesn’t mean everyone’s on board:

John Henning, who heads Love Honor Cherish, an LA-based volunteer organization which helped raised $500,000 last year for efforts to defeat Prop.8 — the ballot measure approved by voters in November which outlawed same sex marriage — says that some 50 activist organizations are already part of a growing coalition signed up for the 2010 effort.

Henning, speaking to the Chronicle today, said there is profound anger and disappointment with the decision of EQCA to hold off a Prop. 8 challenge for the 2012 general election.

On the other hand, San Francisco Gavin Newsom, noting the divisions in the LGBT community over the timing of a Prop 8 challenge, says he’s not convinced such an effort can be successful next year:

With the landmark state initiative outlawing same sex marriage approved by state voters in November 2008 and reinforced by a decision of the state Supreme Court, “it’s a different campaign,” he said. “We can’t rely on the courts..we can’t rely on the legislature, or the executive branch.”

“And so, now, the rights of a protected class of citizens are in the hands of the people,” he said. “And that means it’s a political endeavor. Which it should never, ever be. But it is: those are the cards that have been dealt since Prop. 8 passed.”

“So as much as I’d like to see it happen next year, I’m not convinced that it will,” he said.

As we debate whether Californians should push for 2010 or 2012, let’s keep one thing in mind: Remember Maine in 2009!

Another Reason Why a Gay Guy Shouldn’t Marry a Woman

You can leave stains on the carpet:

Housman told police they were drinking a lot the night of Aug. 2 and started arguing after “John began telling everyone, ‘I’m a gay guy.'”

Traci Housman says when they got home the fight got physical and she “broke away from John and ran towards the kitchen to get a knife to defend herself.”

She called 911 after stabbing him in the chest.

When paramedics arrived, Housman was performing CPR on her husband but he was already dead.

How Do We Win in 2012?

Earlier today I had a post on TAPPED (the blog of my new home, The American Prospect) about Equality California’s decision to shoot for 2012 instead of 2010 to repeal the marriage ban. Although I happen to agree with their decision, I expressed scepticism about the organization’s ability to run an effective campaign:

I have reservations, however, about Equality California’s campaign, given its relentless succession of faux pas last time. Equality California spent millions on a consulting firm with little political experience, only to fire them weeks before the vote. The campaign refused to produce ads that featured gay couples, fearing that seeing them would make undecided voters uncomfortable, and rebuffed the efforts of gay rights leaders to collaborate on the effort.

I hesitate to shoot off rounds of friendly fire, but while “what went wrong with Prop. 8” has been discussed to death, I haven’t seen any acknowledgement from EQ about their mistakes and how they plan to address these as they move forward. I spoke with their press office today, which said they haven’t come up with any overall strategy yet.

Even so, they seemed to have learned from their mistakes — at least a little. The latest commercials they’ve put out have been vast improvements on early efforts. And it looks like they are preparing and organizing early. These are good steps, but what should the approach/message be? How should we brand it? A civil rights issue, a fairness issue? How can we pre-empt the irrelevant accusations the other side will invariably make (i.e. do you want your child to learn about homosexuality? Vote yes on 8)?

In reading this article about how the Yes on 8 people won, I started wondering about whether a Machiavellian campaign of disinformation is really an approach we want to adopt. The BTB community is nothing if not a great laboratory for ideas, so I’m interested in what we come up with.