Box Turtle Bulletin

The Daily Agenda for Saturday, May 17

TODAY’S AGENDA:
Pride Celebrations This Weekend: Brussels, Belgium; Chisinau, Moldova; Eilat, Israel; Kraków, Poland; Long Beach, CA; New Hope, PA; São Paulo, Brazil; Springfield, IL.

AIDS Walks This Weekend: Minneapolis, MN; New York, NY; Poughkeepsie, NY.

Other Events This Weekend: Harvey Milk Day Events, various cities and dates; Bearcelona, Barcelona, Spain; Brighton Heroes Run, Brighton, UK; Bear Watch, Galveston, TX; Saints and Sinners Literary Festival, New Orleans, LA.

TODAY’S AGENDA is brought to you by:

From Wilde Side, September 1, 1976, page 22.

During its heyday, this Boston club had something for everyone: a jazz club, a cruise bar, one dance floor for rockers, another for disco, and a roof top deck with food and a view of Fenway Park. The club closed in 1988 after about fifteen years in business in the aftermath of a police bribery scandal. Documentary filmmaker Vincent-Louis Apruzzese said: “It was a big story at the time, and is probably the reason it closed. The owner videotaped policemen taking bribes at the club. I asked for the footage, and it does exist, but is in court records now.” The 1270, for some, was literally a life saver, providing refuge for gays and lesbians from the occasional gay-bashing baseball fans leaving Fenway. Today, it’s the gentrified Baseball Tavern, catering to Red Sox fans and tourists.

TODAY IN HISTORY:
Gays Cured Worldwide: 1990. It’s amazing that it took so long, but the World Health Organization finally removed homosexuality from the tenth edition of the International Statistical Classification of Diseases and Related Health Problems (also known as ICD-10). It took the WHO nearly seventeen years to catch up with the American Psychiatric Association, and when they did they followed the APA’s same cautious approach by including the diagnosis of “Ego-Dystonic Sexual Orientation,” for those who were troubled by their homosexuality. That diagnosis served as a loophole allowing therapists to continue to try to “cure” gay people of a mental disorder that no longer existed. The APA removed that diagnosis from its list of mental disorders in 1987. It is still in the WHO’s list of disorders.

10 YEARS AGO: Massachusetts Becomes First State With Marriage Equality: 2004. Six months earlier, the Massachusetts Supreme Judicial Court, in a 4-3 ruling, found that the state could not bar same-sex couples from marrying and gave the legislature 180 days to “take such action as it may deem appropriate” before issuing licenses to gay couples (See Nov 18). The state Senate responded by asking whether civil unions would suffice, but the four justice who made up the majority of the original decision wrote, “”The dissimilitude between the terms ‘civil marriage’ and ‘civil union’ is not innocuous; it is a considered choice of language that reflects a demonstrable assigning of same-sex, largely homosexual, couples to second-class status.”

Republican Gov. Mitt Romney issued a statement supporting an amendment to the state constitution which would have banned both same-sex marriage and civil unions (reversing a 2002 campaign promise that he had made to gain the endorsement of the Log Cabin Club of Massachusetts) but the legislature narrowly defeated it. The second proposal, a compromise amendment which would have banned marriage equality only,” mustered enough support, with Romney’s reluctant support (he still preferred the first proposal) to be held for a second vote a year later (proposed constitutional amendments require 25% support in two consecutive years before being passed on to voters). Meanwhile, the legislature took no action to implement the court’s decision.

On May 17, the day the court’s decision was due to go into effect, Gov. Romney cited a 1913 law prohibiting non-residents from marrying in Massachusetts if the marriage would not be valid in their home state, and instructed town clerks to deny marriage licenses to out-of-state gay couples. The 1913 law, which had been enacted to block interracial marriages for out-of-state couples subject to Jim Crow laws in their home states, hadn’t been enforced in decades.

When the compromise proposed constitutional amendment came up for a second vote in 2005, Gov. Romney withdrew his support, saying that it confused voters who wanted to ban both same-sex marriage and civil unions. The measure lost the necessary support in the legislature. Romney then backed a revival of the first proposed amendment which would have banned marriage and civil unions both, but that proposal failed to gain the necessary 25% support in the state legislature in 2006. Romney left office in 2007, and the  so-called “1913 law” was repealed in 2008. In the past ten years, the sky has not fallen, civilization did not collapse, and Massachusetts continues to enjoy the lowest divorce rate in nation.

10 YEARS AGO: IOC Allows Trans People To Compete In Assigned Gender: 2004. The International Olympic Committee ruled that post-operative transgender people will be able to compete in events in Athens according to their self-identified gender, provided the new gender is legally recognized and the athlete is two years into post-operative hormonal therapy. IOC Medical Commission Chairman Arne Ljungqvist announced the rule change in response to the increasing numbers of transgender athletes attempting to qualify for Olympic competition. “Although individuals who undergo sex reassignment usually have personal problems that make sports competition an unlikely activity for them, there are some for whom participation in sport is important,” he said. The IOC’s rule change came about after it become apparent that case-by-case evaluations were insufficient. Transgender advocates criticized the post-operative requirements, noting that many athletes cannot afford the surgeries where national or private health insurance doesn’t cover it.

TODAY’S BIRTHDAYS:
Howard Ashman: 1950-1991. Playwright and lyricists, Ashman first achieved acclaim for his collaboration with Alan Menken on Little Shop of Horrors. That collaboration put the songwriting duo on a course for greater hits to come. In 1986, Ashman wrote the screenplay for the film adaptation and wrote the lyrics for two new songs, “Some Fun Now” and “Mean Green Mother From Outer Space.” The latter of two received an Academy Award nomination. In 1989, he was co-producer, lyricist and occasional writer for Disney’s The Little Mermaid. It was his idea to give Sebastian the Crab a Jamaican accent, and the calypso song, “Under the Sea,” earned Ashman and Menkin the 1989 Oscar for Best Original Song. Asman died in 1991 of complications from AIDS shortly after completing work on the Disney films Beauty and the Beast and before he could complete Aladdin. Ashman was posthumously named a Disney Legend in 2001, and Beauty and the Beast is dedicated to him. Ashman was survived by his partner, architect William Lauch.

Annise Parker: 1956. The Houston native had worked for over 20 years in the oil and gas industry as a software analyst, but she was never far from public service. In 1986, she was president of the Houston GLBT Political Caucus, which is the South’s oldest LGBT organization. Taking the position at the height of the AIDS scare was daunting “It was a scary, very different time,” she said. “The two most visible lesbian activists in Houston were myself and Sue Lovell (who later became a City Council member). We had regular death threats, our tires slashed, vandalism.”

But the narrow focus of LGBT politics wasn’t a good fit for her. “I was bored with gay stuff,” she said. “I threw myself just as hard into 10 years of neighborhood activism.” That neighborhood activism led to her becoming president of the Neartown Association in 1995, and in 1997 she won an at-large seat on Houston’s City council, making her the first openly gay individual elected to citywide office in Houston. In 2003, she won her bid to become city controller, the second highest office in city government. But her greatest triumph came in 2009, when she overcame blistering attacks from anti-gay groups to win the race to become Houston’s mayor on December 12, 2009. When she assumed office on January 2, 2010, Houston became the largest U.S. city to have an openly gay mayor.

If you know of something that belongs on the agenda, please send it here. Don’t forget to include the basics: who, what, when, where, and URL (if available).

And feel free to consider this your open thread for the day. What’s happening in your world?

Arkansas Supreme Court Halts Marriages

In a simple one-sentence order, the Arkansas State Supreme Court has brought same-sex marriages in the state to a halt:

State Defendants-Appelants’ petition for emergency stay and separate White, Washington, Lonoke and Conway County appellants’ expedited motion for stay are granted.

The Arkansas Time blog describes what lies ahead:

Piazza’s decision will now go through the appeal process. A record of the lower court case must be prepared. A briefing schedule must be set and probably oral arguments. The court takes a two-month recess each summer. Even with an expedited schedule, it’s uncertain if the case can be decided this calendar year, when two of the current justices — Cliff Hoofman and Donald Corbin — will be replaced by Rhonda Wood and the winner of a race between Judge Robin Wynne and Tim Cullen. Typical there’s about 2.5 months for briefing after a record and transcript is completed. Part of this record has already been completed and it’s not an extensive record.  It conceivably could be completed by fall.

In other words, this may kick things down the road to 2015 or so.

CDC Gets Behind PrEP

The New York Times reports that the CDC is now advocating the drug regimen commonly known as PrEP:

Federal health officials recommended Wednesday that hundreds of thousands of Americans at risk for AIDS take a daily pill that has been shown to prevent infection with the virus that causes it.

If broadly followed, the advice could transform AIDS prevention in the United States — from reliance on condoms, which are effective but unpopular with many men, to a regimen that relies on an antiretroviral drug.

It would mean a 50-fold increase in the number of prescriptions for the drug, Truvada — to 500,000 a year from fewer than 10,000. The drug costs $13,000 a year, and most insurers already cover it.

Aaron Hicklin of Out picked up the thread, summarizing some of the thinking behind the CDC’s new stance:

Although doctors advise patients to take the PrEP pill, Truvada, in conjunction with condoms, the move is an acknowledgement that after decades of public health education, condom use is in sharp decline among gay men. A C.D.C survey last November showed that the number of gay men reporting unprotected sex had risen nearly 20 percent from 2005 to 2011. Given the stigma around admitting to unprotected sex, that figure is probably much higher. Now, the hope is that by encouraging gay men who have unprotected sex to take Truvada, the number of new infections will continue to fall as scientists continue to hunt for a cure.

Even though PrEP as a regimen is not exactly new, Tim Murphy’s piece in Out last September rekindled what’s now a vigorous debate among gay men about whether or not PrEP should be offered more widely. Box Turtle’s last post about PrEP, here, is now at a healthy 69 comments (yup) with two main threads emerging. One side, now joined by the CDC, essentially says that the status quo focusing on condoms isn’t working and a new model which recommends both PrEP and condoms is needed. The opposing view, shared by Michael Weinstein of the AIDS Healthcare Foundation, worries that advocating that gay men get on PrEP will not only lead to an explosion of other STDs but also to higher rates of HIV because gay men won’t take the pill as directed and will use it instead as an excuse for unprotected sex:

“If something comes along that’s better than condoms, I’m all for it, but Truvada is not that,” said Michael Weinstein, president of the AIDS Healthcare Foundation. “Let’s be honest: It’s a party drug.”

Some of the concerns have been more directly pragmatic – many assume PrEP is too expensive and, also, many clinicians either haven’t been on board or haven’t been well-informed. Back to today’s story in the NY Times:

Advocates said there were several reasons there had been little clamor for the drug regimen. First, while many doctors prescribe statins as prophylaxis against heart attacks, for example, only AIDS specialists are likely to prescribe AIDS drugs as prophylaxis. But uninfected gay men have no reason to see AIDS specialists, and usually see general practitioners if they see doctors at all.

Also, Truvada is expensive. However, private insurers and state Medicaid programs have thus far generally covered such prescriptions, and Gilead has a program covering co-pays and giving Truvada to the uninsured.

While many in the gay community still share Weinstein’s fears, the CDC’s new position is getting a lot of heavy-hitting support – today, 69  HIV/AIDS groups cheered the CDC’s new guidelines calling them “a powerful additional tool in the AIDS response.”

The Daily Agenda for Friday, May 16

TODAY’S AGENDA:
Pride Celebrations This Weekend: Brussels, Belgium; Chisinau, Moldova; Eilat, Israel; Kraków, Poland; Long Beach, CA; New Hope, PA; São Paulo, Brazil; Springfield, IL.

AIDS Walks This Weekend: Minneapolis, MN; New York, NY; Poughkeepsie, NY.

Other Events This Weekend: Harvey Milk Day Events, various cities and dates; Bearcelona, Barcelona, Spain; Brighton Heroes Run, Brighton, UK; Bear Watch, Galveston, TX; Saints and Sinners Literary Festival, New Orleans, LA.

TODAY’S AGENDA is brought to you by:

From Arizona Gay News, May 5, 1977, page 3. Available online here (PDF: 449KB/12 pages).

 
Tucson’s Front Runner opened in 1977 in the space that had previously been another gay bar, Lucky Pierre’s. The new owners bought the old business, closed it down, and renovated the building into a discotheque featuring a sound system that “has just arrived in time from New York with two direct drive turntables, mixer, tape deck and the best in sound Cerwin Vega speakers.” Early plans included a special promotion called the “weekend workout” from noon to 5 p.m.: anyone wearing cutoffs, shorts or body shirt could get draft beer for 35¢ and bottle beer for 60¢. Today it’s just a generic, nondescript commercial building that’s just sitting there wondering where the party went.

TODAY IN HISTORY:
“Homosexual Coed Tries to End Life”: 1950. That was the headline of a brief United Press article, datelined May 16 in Seattle:

A 25-year-old University of Washington co-ed, who police said admitted being a homosexual for the last eight years, was in jail today after threatening to kill herself.

The pretty coed, whose name police refused to divulge, telephoned the police department late yesterday and told officer Kenneth Dahl she had a high-powered 30.06 rifle “and I’m going to use it.”

“I haven’t anything else to live for,” she sobbed hysterically.

Dahl persuaded her to give him her address and he would try to help her out of her trouble. Meanwhile, four prowl cars were sent speeding to the rooming house district adjacent to the university campus. In the basement of one of the houses officers found the woman with the rifle she had taken from a locker.

Detective L.W. Webb said she begged to be locked up. She said she just “gave up” and after quitting school last week decided she might as well kill herself. The woman told officers she had wanted to become a social worker but every time she applied she was turned down because of her affliction. She said she was from Los Angeles and that she had been studying zoology at the university before she quit.

Webb said the girl would be examined by a psychiatrist today and “probably be committed to a mental institution.”

Tamara de Lempicka (top) and “Auto-Portrait (Tamara in the Green Bugatti),” 1925 (bottom)

TODAY’S BIRTHDAYS:
Tamara de Lempicka: 1898-1980. The Polish Art Deco painter known as “la belle Polonaise,” she personified the glamor of the Great Gatsby society of the interwar years. In 1978, The New York Times called her the “Steel-eyed goddess of the automobile age.” Her famous self-portrait, Auto-Portrait (Tamara in the Green Bugatti) portrayed a woman who was utterly free, independent, and self-assured. Automobiles provided women with a freedom and mobility that they had never known before, and the portrait’s depiction of a 400 horsepower Bugatti added raw speed and power to the mix.

During the roaring twenties, Tamara lived the bohemian life in Paris, hanging out with Pablo Picasso, Jean Cocteau, and André Gide. She was famously, infamously bisexual, and she scandalized society with her very public affairs. She reveled in her notoriety. “I live on the fringe of society,” she announced, “and the rules of normal society have no currency for those on the fringe.”

In 1928, she was commissioned to paint a portrait of the mistress of Baron Raoul Kuffner. By the time she was finished, she replaced the mistress’s position, and eventually became Kuffner’s wife in 1933. In 1939, the couple took an “extended vacation” to America, and ended up staying through the Second World War, where she became a favorite in Hollywood. But by the time the War ended, her style was no longer popular. She switched from using a brush to a pallet knife, but critics savaged her work. She retired from active painting in 1962, determined never to show her work again.

In subsequent years, she not only complained that the paints and materials were now inferior to the “old days,” but that people in the 1970s lacked the qualities and “breeding” that inspired her art. After her husband died, she moved to Cuernavaca, Mexico in 1978 to rejoin the society of aging artists and aristocrats. By then, the art world was rediscovering the Art Deco era and her paintings were rediscovered and became highly sought after. She died in 1980, and her ashes were scattered over the volcano Popocatepetl.

Top: Liberace’s signed photo to his mother. He was always Walter to her. Bottom: Liberace’s transparent closet.

95YEARS AGO: Liberace: 1919-1987. Born Wladziu Valentino Liberace, he was known as Lee to his friends, Walter to his family, and Liberace to everyone else. His father, a french horn player, loved music but his mother saw it as an unfordable luxury. His father prevailed, taking his children to concerts and insisting on excellence in their music lessons. Liberace later recalled, “My dad’s love and respect for music created in him a deep determination to give as his legacy to the world, a family of musicians dedicated to the advancement of the art.”

On “Mr. Showmanship’s” terms, the advancement of the art took on an entirely new meaning. The word “synonymous” doesn’t do justice to the connection between Liberace’s name and flamboyance. He raised eyebrows by wearing a relatively simple white tuxedo at the Hollywood Bowl in 1952, and he continued to wear it so he could be easily seen in darkened concert halls. But it didn’t take long before that gave way to sequined jackets, then entire rhinestone-encrusted, fur-trimmed monstrosities that were “just one tuck short of drag,” as he put it. In the 1950’s he installed a Plexiglas lid on his piano so as to not obstruct the view; by the 1960s his pianos were often encrusted with jewels and mirrors. And then there was the candelabrum. Always the rococo candelabrum. His entrances at the start of his Las Vegas shows were legendary. Sometimes he’d step out of a sequined limousine that rolled onto stage (driven by his very young and handsome lover, Scott Thorson), sometimes he flew in by invisible wires. After making a grand runway walk, he’d hold out his arms to show off his outfit and yet, “I hope you like it! You paid for it!” The audience roared back their approval.

He was as out as any closeted gay man could possible be, and as closeted as every fearful performer was determined to be. But the difference between Liberace and everyone else is that, his verbal denials aside — he even sued London’s Daily Mirror in 1956 when they questioned his sexuality in print and, incredibly, won! — he didn’t otherwise put a lot of effort into trying to fool his audience while on stage. Art critic Dave Hickey, in his essay “A Rhinestone as Big As The Ritz,” I think, put it best:

He never came out of the closet; he lived in it like the grand hypocrite that he was, and died in it, of a disease he refused to acknowledge. But neither, in fact, did Wilde come out of it, and he, along with Swineburn and their Belle Époque cronies, probably invented the closet as a mode of subversive public/private existence. Nor did Noel Coward come out of it. He tricked it up with the smoke and mirrors of leisure-class ennui and cloaked it in public-school double entendre. What Liberace did do, however, was Americanize the closet, democratize it, fit it out with transparent walls, and take it up on stage and demand our complicity in his “open secret.” …”A bit like cousin Ed, ain’t he,” my grandfather said. Getting it but not saying it.

Scott Thorson and Liberace

In 1982, Thorson, by then Liberace’s 24-year-old lover of five years, sued Liberace for $113 million in palimony after they broke up. The lawsuit made for sensation headlines, but Thorson wound up settling for a pittance. Liberace’s closet remained sealed right up until he died in 1987. The official cause of death was cardiac arrest due to congestive heart failure brought on by sub-acute encephalopathy. Before he died, Hank Greenspun, publisher of the Las Vegas Sun, wrote in a front-page story that he had known Liberace for 40 years and that he, Greenspun, had the medical records, laboratory reports and other documentation to prove that Liberace had AIDS. Liberace and his handlers continued to deny the reports. After Liberace’s death, Thorson published a tell-all book, Behind the Candelabra: My Life With Liberace, in which Thorson described the “tender love” he shared with Liberace and their reconciliation at Liberace’s death bed. But despite that, and even despite Betty White’s 2011 revelation that she was a beard for some of Liberace’s dates for publicity’s sake, Wikipedia had an entire section devoted to “allegations of homosexuality” until 2013. That question was apparently settled in the public’s mind, once and for all, when HBO’s biopic, Behind the Candelabra, based on Thorson’s book and starring Michael Douglas as Liberace and Matt Damon as Thorson, premiered in May.

If you know of something that belongs on the agenda, please send it here. Don’t forget to include the basics: who, what, when, where, and URL (if available).

And feel free to consider this your open thread for the day. What’s happening in your world?

Ninth Circuit Temporarily Blocks Idaho Marriages

The Ninth Circuit Court of Appeals has issued a temporary stay of a lower court’s ruling that found Idaho’s ban on same-sex marriages unconstitutional. The lower courts ruling was set to go into effect on Friday at 9:00 a.m., but Gov. Butch Otter filed an emergency request with the Ninth Circuit asking for a stay until the pending appeal is completed. The Ninth Circuit has partially granted that request:

In a one-sentence order, a three-judge panel of the 9th Circuit Court of Appeals wrote, “The district court’s May 13, 2014 order is temporarily stayed pending this court’s disposition of appellants’ emergency motions for a stay pending appeal.”

In other words, the three-panel court (consisting of Judges Edward Leavy, Consuelo Callahan, and Andrew Hurwitz) have decided to issue a temporary stay to give them time to decide whether to keep the stay in place throughout the appeals process.

Arkansas marriages resume

Yesterday the Arkansas Supreme Court chose not to stay the decision by Judge Chris Piazza in which he found that the state constitutional amendment banning same-sex marriage was in contradiction with other provisions of the state constitution. However, then noted that his temporary order only addressed the amendment and not the legislator-passed state law.

Today Judge Piazza clarified that when he found anti-gay marriage bans unconstitutional, he really did mean all of them. (AP)

A day after the state Supreme Court effectively halted gay marriages in the state, Pulaski County Circuit Judge Chris Piazza expanded his ruling striking down a constitutional ban to also include the prohibition on clerks issuing same-sex marriage licenses. Justices had ruled Wednesday that Piazza’s decision on the gay marriage ban did not change that license law.

Piazza also rejected a request to suspend his ruling, saying there’s no evidence the state would be harmed by allowing gay marriages to continue.

So marriages in certain counties in Arkansas will resume.

Of course, now that he has issued his final ruling, the state Supremes may decide to place a stay on the ruling until they consider the appeal. Frankly, I’ll be surprised if they don’t; but should they choose not to, it will basically mean that the marriage question is over in that state.

The Daily Agenda for Thursday, May 15

TODAY’S AGENDA:
Pride Celebrations This Weekend: Brussels, Belgium; Chisinau, Moldova; Eilat, Israel; Kraków, Poland; Long Beach, CA; New Hope, PA; São Paulo, Brazil; Springfield, IL.

AIDS Walks This Weekend: Minneapolis, MN; New York, NY; Poughkeepsie, NY.

Other Events This Weekend: Harvey Milk Day Events, various cities and dates; Bearcelona, Barcelona, Spain; Brighton Heroes Run, Brighton, UK; Bear Watch, Galveston, TX; Saints and Sinners Literary Festival, New Orleans, LA.

TODAY’S AGENDA is brought to you by:

From the Advocate, May 24, 1972, page 11.

 
San Francisco’s South of Market (SOMA) has been the center of the city’s leather scene since the 1960s, when the famous Tool Box opened in 1961. The Barracks opened in 1972 as a combination hotel/bar/bathhouse, with emphasis on the latter and each room set up to cater to a different fetish fantasy. By the late 1970s Folsom’s Miracle Mile, as that stretch of Folsom Street came to be known, featured nearly thirty bars, clubs, and retail shops within walking distance of each other. One magazine described the Barracks this way: “The Folsom Barracks created a world standard as to what baths could be in terms of hotness, honesty, outstanding music and general outrageousness.” The Barracks closed in 1981 for renovation, but was destroyed in a fire that was described as the worst since the 1906 earthquake.

Jefferson Withers

TODAY IN HISTORY:
“Writhing Bedfellows”: 1826. Few intimate letters between men survive from the early nineteenth century, which makes this one so remarkable. Back when the nation was young, Jefferson Withers, 22, wrote to his dear friend, James Hammond, 18, a letter which is both frank and playful — even “campy”:

Dear Jim:

I got your Letter this morning about 8 o’clock, from the hands of the Bearer . . . I was sick as the Devil, when the Gentleman entered the Room, and have been so during most of the day. About 1 o’clock I swallowed a huge mass of Epsom Salts — and it will not be hard to imagine that I have been at dirty work since. I feel partially relieved — enough to write a hasty dull letter.

I feel some inclination to learn whether you yet sleep in your Shirt-tail, and whether you yet have the extravagant delight of poking and punching a writhing Bedfellow with your long fleshen pole — the exquisite touches of which I have often had the honor of feeling? Let me say unto thee that unless thou changest former habits in this particular, thou wilt be represented by every future Chum as a nuisance. And, I pronounce it, with good reason too. Sir, you roughen the downy Slumbers of your Bedfellow — by such hostile — furious lunges as you are in the habit of making at him — when he is least prepared for defence against the crushing force of a Battering Ram. Without reformation my imagination depicts some awful results for which you will be held accountable — and therefore it is, that I earnestly recommend it. Indeed it is encouraging an assault and battery propensity, which needs correction — & uncorrected threatens devastation, horror & bloodshed, etc. …

[The letter goes on for two more pages on unrelated matters, then signs off–]

With great respect I am the old
Stud,
Jeff.

James Henry Hammond

Withers would later become a judge in South Carolina and delegate to the conferences that established a provisional government for the Confederacy. He also served as a Congressman for the Confederacy from South Carolina. Hammond became a Congressman, Senator and Governor of South Carolina, and one of the South’s more important advocate for slavery as a Christian institution, as a blessing and a moral good. the greatest of all the great blessings which a kind Providence has bestowed upon our glorious region.” Slavery was also, according to Hammond, “is not only not a sin but especially commanded by God through Moses and approved by Christ through His Apostles.” Hammond’s personal diaries revealed he made sexual advances on his three teenage nieces, and he detailed his sexual relationship with a slave who bore him several children, and his sexual exploitation of her twelve year old daughter who bore several more children. Neither Withers nor Hammond, from the standpoint of American history, come across as admirable people, yet Hammond has become a modern-day hero for David Barton and others who promote the “Christian Nation” view of American history.

But all of that came later. Meanwhile back in 1826, Hammond replied to Wither’s letter  on June 3, although that letter is now lost. But Withers followed with another  letter the following September (see Sep 24.)

[Source: Martin Duberman. “‘Writhing Bedfellows’: 1826.” Journal of Homosexuality 6, no. 1 (1981): 85-101. Available online here.]

Homosexual Drives As Menstrual Cycles: 1950. This was a time when Congress was preoccupied with two color-coded scares: The Red Menace of imaginary communists hiding in every cupboard and The Pink Menace of homosexuals working in federal offices. Congressman Arthur L. Miller (R-Nebr) was particularly incensed over the latter. He was also a doctor and a surgeon, which made this speech during a committee hearing particularly strange:

Some of these people are dangerous. They will go to any limit. These homosexuals have strong emotions. They are not to be trusted and when blackmail threatens they are a dangerous group. … It is found that the cycle of these individuals’ homosexual desires follow the cycle closely patterned to the menstrual period of women. There may be three or four days in each month that this homosexual’s instincts break down and drive the individual into abnormal fields of sexual practice.

Episcopal Church Allows Ordination of Gay Deacons: 1996. An Episcopal Church court threw out a heresy charge and ruled that an Bishop Walter C. Righter, did not violate the church’s core doctrine when he ordained openly gay Barry Stopfel as a deacon, the rank below that of a priest, in the Dioceses of Newark in 1990.

Phyllis Lyon and and Del Marton

California State Supreme Court Strikes Down Ban on Same-Sex Marriages: 2008. In a 4-3 decision, the California State Supreme Court ruled:

“[T]he language of section 300 limiting the designation of marriage to a union “between a man and a woman” is unconstitutional and must be stricken from the statute, and that the remaining statutory language must be understood as making the designation of marriage available both to opposite-sex and same-sex couples. In addition, because the limitation of marriage to opposite-sex couples imposed by section 308.5 can have no constitutionally permissible effect in light of the constitutional conclusions set forth in this opinion, that provision cannot stand.”

The decision took effect on June 16, 2008, when gay rights pioneers Phyllis Lyon and Del Martin’s 55-year relationship was solemnized by the first official same-sex wedding in San Francisco. But two weeks earlier, California’s Secretary of State reported that marriage equality opponents had turned in enough signatures to place a proposed amendment banning same-sex marriages on the November ballot. Prop 8 passed, but was later declared unconstitutional in Federal Court. That decision is now working its way through the Ninth Circuit Court of Appeals, where a three-judge panel has upheld the lower court’s ruling but narrowed its reasoning. The case was then appealed to the U.S. Supreme Court, which refused to rule on the merits because the appellants lacked standing. That sent the case all the way back to the Federal District Court which declared Prop 8 unconstitutional in the first place, making that original decision the one that stuck.

Jasper Johns’s “Map,” 1961 (Click to enlarge.)

TODAY’S BIRTHDAYS:
Jasper Johns: 1930. He probably best known for his 1955 painting Flag, which is, just as its name implies, simply a painting of an American Flag. His focus on the mundane as subjects have led some to consider him a pop artist with an abstract impressionist streak, but it’s probably more accurate to see him as a ne0-Dadaist. Flag exemplifies that movement by taking an object or a popular image imbued with intense meaning and removing it from its context and thereby reducing it to a simple abstract design. Map (1961) does the same thing. It’s an ordinary map of the United States portrayed in an abstract impressionist style which reduces the iconic image to a series of color splotches and shapes. Flags, maps, stenciled words and numbers — all of these mundane yet symbolic images were subjects for Johns’s paintings.

Jasper Johns receiving the Presidential Medal of Freedom.

Johns was born in South Carolina and studied for three semesters at the University of South Carolina before moving to New York to study briefly at the Parson’s School of Design in 1949. After a stint in the military during the Korean War, Johns returned to New York where he met Robert Rauschenberg and they became lovers for eight years. It was through his connection with Rauschenberg that Johns was discovered by the art world.  When prominent gallery owner visited Rauschenberg’s studio in 1958 and saw Johns’s work, he offered Johns a show on the spot. At that debut show, the Museum of Modern Art anointed Johns as a major figure in the art world by purchasing three of his paintings. By the 1980s, John’s paintings fetched higher prices than any other living artist in history. In 2011, Johns was awarded the Presidential Medal of Freedom from President Barack Obama, making him the first painter to receive the award since 1977.

If you know of something that belongs on the agenda, please send it here. Don’t forget to include the basics: who, what, when, where, and URL (if available).

And feel free to consider this your open thread for the day. What’s happening in your world?

Judge Denies Idaho Gov’s Request for Marriage Ruling Stay

U.S. Magistrate Judge Candy W. Dale, who yesterday ruled that Idaho’s state constitutional amendment banning same-sex marriage violates the U.S. Constitution, has denied a request by Gov. Butch Otter (stop that, you guys!) to stay the ruling pending a planned appeal to the Ninth Circuit Court of Appeals. Idaho Attorney General Lawrence Wasden and Gov. Otter are expected to file an emergency motion with the Ninth Circuit asking for a stay pending an appeal. Otter and Wasden are optimistic they can get a stay somewhere:

In the request to Dale, Otter’s attorneys said they were convinced that if the judge wouldn’t issue a stay, the 9th Circuit or Supreme Court would.

“That conviction is based on the fact that the Ninth Circuit granted such a stay in the California same-sex marriage’ case, the Sixth district did the same in the Michigan same-sex marriage case, and the United States Supreme Court did the same in the Utah same-sex marriage case,” Otter’s attorneys wrote.

If the Ninth Circuit denies their motion for a stay and the U.S. Supreme Court doesn’t intervene, then same-sex marriages will become legal in Idaho at 9:00 a.m. Friday.

Meanwhile:

After the ruling, the Idaho Republican Party issued a statement reaffirming the organization’s stance against same-sex marriage, and contending that the Tenth Amendment gives states the power to regulate and define marriage.

“The disintegration of marriage will lead to the disintegration of our society,” Idaho GOP Chairman Barry Peterson said in a prepared statement.

Arkansas Supremes Deny Stay, Dismiss Marriage Appeal for Now

But it looks like same-sex marriages in Arkansas will come to an end anyway, at least temporarily. From the Arkansas Times blog:

The Arkansas Supreme Court has denied an request for an emergency stay of Judge Chris Piazza’s order overturning the ban on same-sex marriage. The court also dismissed as premature an appeal of Piazza’s ruling because it wasn’t a final order.

Marriage equality remains the law of the land in Arkansas, but the court injected a wrinkle that will give counties cover to continue to refuse marriage licenses to same-sex couples. And that wrinkle has prompted Pulaski Clerk Larry Crane to say that, for the time being, his office likely will cease issuing licenses to same-sex couples.

The court noted that Piazza’s ruling didn’t mention a statute that prohibits clerks from issuing marriage licenses to same sex couples. It remains in effect. Action will now shift to Piazza’s court to pursue final orders, injunctive relief and a cleanup on the omitted statute.

Said Jack Wagoner, attorney for the plaintffs:

We’ll fix that tomorrow and be back here again…. How can you  find something unconstitutional but not affect a statute that would require the clerks to do something unconstitutional?

Right now, this is throwing everything into chaos. The Carroll County (Eureka Springs) Clerk, which issued fifteen same-sex marriage licenses last Saturday, had already stopped issuing licenses by Monday after the local prosecutor issued a statement saying, “there was a law left on the books prohibiting a county clerk from issuing a marriage license to persons of the same gender. This  law was not addressed by Judge Piazza, and because of this, we advised the county clerk to stop  selling marriage licenses to persons of the same gender.” Marion and Saline Counties reversed course and stopped issuing licenses yesterday. Washington County  has indicated that it may also halt the issuing of licenses to same-sex couples.

Once the trial court fixes its order and enters a final judgment, I think you can expect that some counties will honor the ruling and some won’t, and the state will be back again before the Arkansas Supreme Court for another go at a stay and appeal.

You can read the Arkansas Supreme Court’s statement here (PDF: 237KB/7 pages).

No No NOM

The National Organization for Marriage’s delaying tactic seeking to intervene in the marriage ban trial in Oregon has been slapped down. (Oregon Live)

After a nearly hourlong hearing, McShane ruled that the National Organization for Marriage was unreasonably late in filing its request to intervene. He also said that the group couldn’t simply seek to intervene in the place of Rosenblum to defend the law. “The attorney general is answerable to voters,” the judge said. “NOM is not.”

In addition, McShane said the Washington, D.C.-based group didn’t make its case that it should be allowed to intervene on behalf of three anonymous Oregon members of NOM: a county clerk who issues marriage licenses, a wedding provider and a voter who supported the 2004 constitutional amendment banning same-sex marriage.

McShane said he understood the group’s concerns that its members might face harassment if they were named in the case. But he said Eastman’s group made no attempt to provide confidential information to the judge that would allow him to assess any harm to their members if gays and lesbians are allowed to marry in Oregon.

NOM is appealing.

However, at this point it seems likely that Judge McShane will simply rule on the matter and not wait for NOM to be told by every court in the land that they don’t have standing to represent imaginary people.

If he rules quickly enough, the organizers of the petition to bring the ban back to the voters will stop their campaign.

The Daily Agenda for Wednesday, May 14

TODAY’S AGENDA:
Pride Celebrations This Weekend: Brussels, Belgium; Chisinau, Moldova; Eilat, Israel; Kraków, Poland; Long Beach, CA; New Hope, PA; São Paulo, Brazil; Springfield, IL.

AIDS Walks This Weekend: Minneapolis, MN; New York, NY; Poughkeepsie, NY.

Other Events This Weekend: Harvey Milk Day Events, various cities and dates; Bearcelona, Barcelona, Spain; Brighton Heroes Run, Brighton, UK; Bear Watch, Galveston, TX; Saints and Sinners Literary Festival, New Orleans, LA.

TODAY’S AGENDA is brought to you by:

From the Advocate, May 13, 1982, page 38.

 
I don’t have any information about the Ruins of Indianapolis, except that it was, for a while, a popular Indianapolis dance bar. Later, the address was home to a lesbian dive bar called Ten, which apparently closed sometime in the past year or so. The entire building is now vacant and boarded up.

P.M. Pierre Trudeau: “There’s no place for the state in the bedrooms of the nation, and what’s done in private between adults doesn’t concern the Criminal Code.”

TODAY IN HISTORY:
45 YEARS AGO: Canada’s Parliament Votes to Decriminalize Homosexuality: 1969. In 1967, Justice Minister Pierre Trudeau introduced a large omnibus bill, The Criminal Amendment Act of 1968, in the 27th Canadian Parliament, which, if passed, would have had far-ranging effects on Canadian Law. The bill proposed, among other things,to allow provinces and the federal government to set up lotteries, expand laws on gun possession, impose penalties on drinking and driving, regulate misleading advertising, allow abortions and contraception, and decriminalize homosexuality. In 1968 when Prime Minister Lester Pearson announced he was stepping down as Prime Minister and head of the Liberal party, Trudeau sought the party’s leadership and won. After elections that summer, Trudeau became Prime Minister and John Turner became Trudeau’s Justice Minister. Turner re-introduced the massive omnibus bill into the 28th Parliament and described it as “the most important and all-embracing reform of the criminal and penal law ever attempted at one time in this country.”

The most controversial elements of the bill, the provisions legalizing abortion and same-sex relationships, drew the sharpest criticism from the opposition. The government fought back amendments from Conservative and Creditiste party members to leave the homosexuality sanctions intact. MP Marcel Lambert (PC-Edmonton West) asked, “If it is right to remove the legal sanction from acts of homosexuality between consenting adults … and from certain acts between husband and wife, why do we not remove a whole gamut of offenses, including attempted suicide and other acts involving an individual only and not other human?” MP Andrew Fortin (Creditiste-Lotbiniere) claimed that homosexuality “like tuberculosis,” could be brought under control with proper treatment. MP Rene Matte (Criditiste-Champlain) found the whole debate an abomination, saying it was “almost scandalous to see representatives of the people being obliged to discuss these questions.” England had decriminalized homosexuality two years earlier, but Matte declared, “we’re not obliged to follow the decadence of England.”

Justice Minister Turner countered that the removal of homosexuality from the criminal code would merely lift “the taint or stigma of the law,” and repeated the government’s position that “areas of private conscience, private behavior had better be left to private judgment,” and added that a law that was not enforceable was not a good law. Trudeau also rose to defend the provisions, telling reporters that “there’s no place for the state in the bedrooms of the nation, and what’s done in private between adults doesn’t concern the Criminal Code.” After the acrimonious debate finally came to a close, the criminal code amendments dealing with abortions and homosexuality cleared the House of Commons late on Wednesday night, May 13, 1969, in a 149-55 vote.

You can see the CBC’s archival newsclips of Trudeau speaking to reporters about decriminalizing homosexuality and other provisions of the omnibus bill here.

A diagram from 1971 of a system to deliver electric shock aversion therapy to gay men. (Click to enlarge.)

“Shock Doc” Protested at APA: 1970. Gay advocates had long observed that the APA’s labeling of homosexuality a mental disorder served as a handy excuse to enforce widespread discrimination and legal sanctions against LGBT people in all areas of life. What’s more, psychiatry’s attempts to cure homosexuality were often physically torturous, with electric shock aversion therapy a not uncommon method. One of the stars of aversion therapy, an Australian psychiatrist by the name of Nathaniel McConaghy, was in San Francisco Francisco to read a paper American Psychiatric Association’s annual meeting, and gay advocates saw it as a perfect opportunity to confront the organization. As McConaghy coolly described the methods he used — his patients’ penises were wired to measurement devices and they were shown porn; once twinge of arousal and they were delivered powerful electric shocks — gay advocates in the crowd began shouting “vicious!” and “torture!” and “where did you take your residency, Auschwitz?”

When the moderator announced the next session, the gay advocates exploded and demanded to be heard. The moderator refused, and the meeting broke down into shouts and recriminations. Conference chairman Dr. John Brady told the protesters to restrain themselves, whereupon one demonstrator shouted back, “We’ve restrained ourselves for 5,000 years!” Another psychiatrist shouted back, “It won’t hurt to restrain yourselves for another half-hour. Another physician reportedly called for the police to shoot the protesters. Most psychiatrists left the room, but some stayed and the conversations that ensued over the next three years finally led to the APA’s delisting of homosexuality as a mental disorder.

In 1981, McConaghy was still unapologetic about his treatment of gay people. In an article he published in the journal Behavior Research and Therapy, he was still presenting the results of his electric shock experiments on gay men. He defended his work as ethical and continued to voice resentment over the interruption of his presentation eleven years earlier. By the mid 1980’s he abandoned aversion therapy, but he kept trying to cure an illness that no longer existed.

Somehow, his colleagues’ esteem for him remained intact. After he died in 2005, the Archives of Sexual Behavior published a memorial lauding him as a pioneer in behavioral therapy who “inspired many to pursue truth and beauty through his example.” The memorial was notable for three things: 1) it briefly mentioned his attempts to cure gay men and painted his response to the “near riot” of 1970 as heroic (“He remained a fearless champion of the application of scientific methods to the study of human sexuality.”), 2) the memorial neglected to mention his use of electric shock therapy, and 3) the memorial was unsigned.

40 YEARS AGO: First LGBT Civil Rights Bill Introduced in Congress: 1974. Rep. Bella Abzug, the Democratic Congresswoman for Manhattan and part of the Bronx, was a civil rights attorney before she entered Congress, where she became an outspoken supporter of the Equal Rights Amendment and opponent of the war in  Vietnam. Her stands earned her the nickname “Battling Bella,” along with a position on President Richard Nixon’s famed “Enemies List.” On this date in 1974, Rep. Abzug introduced the first federal gay rights bill, the Equality Act of 1974. The bill, which would have banned discrimination in employment, housing and public accommodations, went nowhere then, and similar efforts to ban discrimination have come to naught in the 39 years since then.

The proposed Equality Act of 1974 can be viewed here.

TODAY’S BIRTHDAYS:
Magnus Hirschfeld: 1868-1935. Sometimes known as “The Einstein of Sex,” German-born Magnus Hirschfeld was the most prominent advocate of gay emancipation in his day. In 1897, Hirschfeld co-founded the Wissenschaftlich-humanitäre Komitee (Scientific-Humanitarian Committee), whose first project was to repeal Germanys infamous Paragraph 175, which criminalized homosexuality between men (women were unmentioned in the anti-gay code). While the committee managed to gather signatures of some 6,000 Germans calling for repeal, the committee failed in its goal. In 1919, Hirschfeld founded the Institut für Sexualwissenschaft (Institute for Sexual Science), and he became widely recognized as a prolific writer and speaker on sexual minority issues. He also figured in film history, when he made a cameo appearance in the 1919 film Anders als die Andern (Different from the Others, see May 28), the first film to portray a homosexual love story in a sympathetic light.

While Germany’s Wiemar Republic saw homosexuality becoming somewhat accepted in Berlin, extreme right-wing forces reacted with violence. In 1920, Hirschfeld was attacked and severely wounded in Munich after a conference, and in 1921 his skull was fractured in another attack. From 1929, Nazis repeatedly disrupted his lectures. In 1930, Hirschfeld began a lecture tour of the United States, which was expanded to a world-wide tour. By the time he returned to Europe in 1932, conditions in Germany had become so dangerous that he decided not to return to Berlin. On May 6, 1933, the Nazis attacked and destroyed the Institute for Sexual Science, and on May 10, they burned its library and files, the largest of its kind in the world. Hirschfeld wandered Europe before settling in Nice, France in 1934. He died there in 1935, with his death coming also on this very same date in history.

Julian Eltinge: 1881-1941. He was, perhaps, America’s first famous drag queen. One story has it that he first donned women’s clothing at the age of ten for an appearance in Boston. Another one suggests that his mother helped him to dress in drag at a very young age to perform in the saloons in Butte, Montana, and that his father nearly beat him to death when he found out. Eltinge himself claimed that he learned to perform drag as a member of Harvard’s Hasting Pudding Club, but in fact he never attended school there.

At any rate, we do know that he was performing drag onstage and touring Vaudeville after the turn of the century, and unlike most female impersonators at the time, he didn’t place farcical caricatures of women for laughs. He sought to create the full illusion of actually being a woman. He toured Vaudeville under the his last name “”Eltinge,” which gave no hint of his gender. He sang, he danced, he recited soliloquies, and at the end of his act, he stepped forward on stage, and in a dramatic gesture emulated later in the 1982 film Victor/Victoria, he reached up and removed his wig to the surprise of his often unsuspecting audience. He arrived on Broadway in 1907 at the Alhambra Theater, and through the next decade he was reputed to be the highest paid stage actor. He started appearing in films in 1914, and by 1920, had one of the most lavish mansions in Southern California, where he lived with his mother.

Eltinge countered rumors of his homosexuality offstage by presenting a unrelentingly masculine presence in public. He smoked cigars, was an amateur boxer, got into bar fights, and had long engagements with women. Funny though, he never married. “I am not gay,” he protested, “I just like pearls.” But by the 1930;s, his heyday was over. He gained weight and started drinking as his career took a nose-dive. He was reduced to performing in a Hollywood nightclub catering to a gay clientele, but local laws intended to contain the “homosexual menace” banned dressing in drag. Eltinge had to perform in a tuxedo alongside mannequins dressed in his outfits. He’d point to them while enacting his characters. He died in 1941, reportedly of a brain hemorrhage, although some suspect suicide. His will, dated October 13, 1938, stated “I declare that I am a bachelor” and left everything to his mother.

If you know of something that belongs on the agenda, please send it here. Don’t forget to include the basics: who, what, when, where, and URL (if available).

And feel free to consider this your open thread for the day. What’s happening in your world?

That’s Right. Idaho.

As Timothy already mentioned, U.S. Magistrate Judge Candy Dale has ruled Idaho’s ban on gay marriage is unconstitutional. Judge Dale’s order goes into effect on Friday, May 16 at 9:00 a.m. Her 57-page ruling his here (PDF: 235KB/57 pages). You know it’s going to be a good one when she leads off with this on the front cover:

I. INTRODUCTION

It is precisely because the issue raised by this case touches the heart of what makes individuals what they are that we should be especially sensitive to the rights of those whose choices upset the majority.

— The Honorable Harry Blackmun ¹

————-

1 Bowers v. Hardwick, 478 U.S. 186, 211 (1986) (Blackmun, J., dissenting), overruled by Lawrence v. Texas, 539 U.S. 558 (2003).

She gets right to the heart of one of the main arguments put forward by marriage equality opponents. “This case asks a basic and enduring question about the essence of American government: Whether the will of the majority, based as it often is on sincere beliefs and democratic consensus, may trump the rights of a minority.”

Although 17 states legally recognize same-sex marriages, Idaho is one of many states that has chosen the opposite course. Like courts presiding over similar cases across the country, the Court must examine whether Idaho’s chosen course is constitutional. Significantly, the Supreme Court of the United States recently held that the federal government cannot constitutionally define marriage as a legal union between one man and one woman. United States v. Windsor, 133 S. Ct. 2675 (2013). Writing for the majority in Windsor, Justice Kennedy reasoned the “purpose and effect” of the federal  man-woman marriage definition was “to disparage and injure” legally married same-sex couples in derogation of the liberty, due process, and equal protection guaranteed by the Fifth Amendment to the United States Constitution. Id. at 2696. Here, the Court considers a related but distinct question: Do Idaho’s Marriage Laws deny Plaintiffs the due process or equal protection guaranteed by the Fourteenth Amendment to the United States Constitution?

After careful consideration, the Court finds Idaho’s Marriage Laws unconstitutional. This conclusion reaffirms a longstanding maxim underlying our system of government—a state’s broad authority to regulate matters of state concern does not include the power to violate an individual’s protected constitutional rights. See, e.g., id. at 2691 (“State laws defining and regulating marriage, of course, must respect the constitutional rights of persons. . . .”). Idaho’s Marriage Laws deny its gay and lesbian citizens the fundamental right to marry and relegate their families to a stigmatized, second-class status without sufficient reason for doing so. These laws do not withstand any applicable level of constitutional scrutiny.

Judge Dale later went further on the question of scrutiny:

With respect to Plaintiffs’ due process claim, Idaho’s Marriage Laws are subject to strict scrutiny because they infringe upon Plaintiffs’ fundamental right to marry. Under the Equal Protection Clause, Idaho’s Marriage Laws are subject to heightened scrutiny because they intentionally discriminate on the basis of sexual orientation. The Court finds that Idaho’s Marriage Laws do not survive any applicable level of constitutional scrutiny and therefore violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution.

Her acceptance of heightened scrutiny was based on the analysis made by the Ninth Circuit Court of Appeals in the SmithKline case, which “establishes a broadly applicable equal protection principle” for gay people. The Ninth Circuit, in turn, based their decision to apply heightened scrutiny on last summer’s Windsor decision striking down Section 3 of the Defense of Marriage Act. She wrote:

Apart from SmithKline, Plaintiffs also contend Idaho’s Marriage Laws are subject to heightened scrutiny because classifications based on sexual orientation are constitutionally suspect. The Court need not dissect this argument because the Supreme Court has accepted it by implication. If homosexuals are not a suspect or quasi-suspect class, the Supreme Court would have applied rational basis scrutiny in Windsor. But, as recognized in SmithKline, the Supreme Court applied heightened scrutiny. Indeed, the Supreme Court affirmed the Second Circuit without questioning (or even discussing) the lower court’s express holding… The Second Circuit’s holding was both approved and essential to the scrutiny the Supreme Court applied in Windsor. Had the Supreme Court disagreed with the Second Circuit, it would not have applied heightened scrutiny. It is not necessary to repeat the Second Circuit’s analysis, for that analysis is implicit in both Windsor and SmithKline.

Because Idaho’s Marriage Laws impermissibly infringe on Plaintiffs’ fundamental right to marry, the Laws are subject to strict due process and equal protection scrutiny. But SmithKline directs the Court to apply heightened equal protection scrutiny to laws that discriminate on the basis of sexual orientation. Idaho’s Marriage Laws do not withstand this heightened scrutiny.

Judge Dale spent considerable effort to review the place that marriage has in the constellation of civil and human rights, as well as prior court rulings that specifically addressed the rights that gays and lesbians are entitled to under the law:

More recently, the Supreme Court confirmed that gay and lesbian individuals do not forfeit their constitutional liberties simply because of their sexual orientation. Lawrence, 539 U.S. 558. The Court observed that “our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.” Id. at 574. Emphasizing that these are personal rights, the Court concluded “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” Id. (emphasis added). And, less than one year ago, the Supreme Court struck down the federal Defense of Marriage Act’s man-woman definition of marriage because it amounted to unconstitutional “interference with the equal dignity of same-sex marriages” recognized by some states. Windsor, 133 S. Ct. at 2693. The message of these cases is unmistakable—all individuals have a fundamental right to marry

…Finally, and most critically, the Supreme Court’s marriage cases demonstrate that the right to marry is an individual right, belonging to all. See Lawrence, 539 U.S. at 574. If every individual enjoys a constitutional right to marry, what is the substance of that right for gay or lesbian individuals who cannot marry their partners of choice? Traditional man-woman marriage is no answer, as this would suggest that gays and lesbians can switch off their sexual orientation and choose to be content with the universe of opposite-sex partners approved by the State. Defendants offer no other answer.

In their effort to avoid the question, Defendants commit the same analytical mistake as the majority in Bowers v. Hardwick, the decision that declined to “announce a fundamental right to engage in homosexual sodomy.” 478 U.S. 186, 191 (1986), overruled by Lawrence, 539 U.S. at 577. The crucial mistake in Bowers was that the majority narrowed and thus “fail[ed] to appreciate the extent of the liberty at stake.” Lawrence, 539 U.S. at 567. For that reason, the Supreme Court in Lawrence concluded “Bowers was not correct when it was decided, and it is not correct today.” Id. at 577. Lawrence instructs not only that gay and lesbian individuals enjoy the same fundamental rights to make intimate personal choices as heterosexual individuals enjoy, but that judicial attempts to parse those rights out of existence will be met with a harsh rebuke.

She dispensed with the “what’s best for children” argument raised by the defendants:

The best that can be said for Defendants’ position is that some social scientists quibble with the prevailing consensus that the children of same-sex parents, on average, fare no better or worse than the children of opposite-sex parents. (Id. ¶¶ 35-41.) But the Court need not—even if it could at the summary judgment stage—resolve this sociological debate. The parties’ debate over the scientific literature distracts from the essential inquiry into the logical link between child welfare and Idaho’s wholesale prohibition of same-sex marriage. That link is faulty for at least four reasons.

First, civil marriage in Idaho is and has long been a designedly consent-based institution. The law speaks of marriage as a “civil contract . . . to which the consent of parties capable of making it is necessary.” Idaho Code 32-201. True, “throughout human history and across many cultures, marriage has been viewed as an exclusively opposite-sex institution and as one inextricably linked to procreation and biological kinship.” Windsor, 133 S. Ct. at 2718 (Alito, J., dissenting). But Idaho law is wholly indifferent to whether a heterosexual couple wants to marry because they share this vision or simply seek a tax break. That such a crass objective would be sufficient to obtain a marriage license does not mean marriage is a cheap convenience. Instead, it means that the value of marriage derives from a place beyond the law’s reach.  Important as the child-centered vision of marriage is, Idaho’s consent-based marriage regime does not require heterosexual couples to accept or follow this norm….

Second, Idaho does not condition marriage licenses or marital benefits on heterosexual couples’ ability or desire to have children. No heterosexual couple would be denied the right to marry for failure to demonstrate the intent to procreate…

Third, Idaho does not withhold marriage licenses from heterosexual couples who might be, or are, non-optimal parents. Under Idaho law, everyone from multiple divorcees, “dead-beat dads,” see Zablocki, 434 U.S. 374, to prison inmates, see Turner v. Safley, 482 U.S. 78 (1987), may marry, as long as they marry someone of the opposite sex. …

Finally, and most importantly, the Governor’s child welfare rationales disregard the welfare of children with same-sex parents. It is undisputed that “poverty and social isolation [are] associated with maladjustment [in children], and adequate resources support[] healthy adjustment.” (Lamb Dec., Dkt. 47 ¶ 18.c.) It is also clear that “[m]arriage can yield important benefits for children and families, including state and federal legal protections, economic resources, family stability, and social legitimacy. These benefits are equally advantageous for children and adolescents in families headed by same-sex and different-sex couples.” (Id. ¶ 48.). …. In this most glaring regard, Idaho’s Marriage Laws fail to advance the State’s interest because they withhold legal, financial, and social benefits from the very group they purportedly protect—children.

And finally, she addressed the “religious liberty” question:

Finally, Governor Otter argues that Idaho’s Marriage Laws should be upheld because they serve the related goals of supporting religious liberty, avoiding the potential  for religion-centered conflicts, and affirming a prevailing social consensus on marriage. …

The Governor’s argument concerning religious liberty is myopic. No doubt many faiths around the world and in Idaho have longstanding traditions of man-woman marriage rooted in scripture. But not all religions share the view that opposite-sex marriage is a theological imperative. In fact, some of the Plaintiffs actively worship in faiths that recognize and support their unions. (S. Watsen Dec. ¶ 13, Dkt. 51.) To the extent Governor Otter argues that Idaho has a legitimate interest in validating a particular religious view of marriage, that argument blithely disregards the religious liberty of congregations active in Idaho. “By recognizing the right to marry a partner of the same sex, the State allows these groups the freedom to practice their religious beliefs without mandating that other groups must adopt similar practices.” Kitchen v. Herbert, 961 F.Supp.2d 1181, 1214 (D. Utah 2013).

Likewise, a desire to protect or maintain a particular social consensus does not withstand constitutional scrutiny. “A citizen’s constitutional rights can hardly be infringed simply because a majority of the people choose that it be.” Lucas v. Forty-Fourth Gen. Assembly of Colo., 377 U.S. 713, 736-37 (1964). … Rather, the dispositive principle in this case is that “fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943). The Supreme Court has endorsed this principle again and again. …

This principle resonates today, as 10 federal courts across the country have in recent months reached similar conclusions on the very issues present in this case. Considering many of the same arguments and much of the same law, each of these courts concluded that state laws prohibiting or refusing to recognize same-sex marriage fail to rationally advance legitimate state interests. This judicial consensus was forged from each court’s independent analysis of Supreme Court cases extending from Loving through Romer, Lawrence, and Windsor. The logic of these precedents virtually compels the conclusion that same-sex and opposite-sex couples deserve equal dignity when they seek the benefits and responsibilities of civil marriage. Because Idaho’s Marriage Laws do not withstand any applicable form of constitutional scrutiny, the Court finds they violate the Fourteenth Amendment to the United States Constitution.

Judge Dale ended with this observation:

The Fourteenth Amendment guarantees of due process and equal protection lie at the core of our constitutional system. While the Supreme Court has not expressly decided the issues of this case, it has over the decades marked the path that leads to today’s decision. “[T]he history of our Constitution . . . is the story of the extension of constitutional rights and protections to people once ignored or excluded.” United States v. Virginia, 518 U.S. 515, 557 (1996). Slow as the march toward equality may seem, it is never in vain.

And Idaho

Idaho Statesman

U.S. Magistrate Judge Candy Dale has ruled Idaho’s ban on gay marriage is unconstitutional.

In her 57-page decision, Dale stated, “Idaho’s Marriage Laws withhold from them a profound and personal choice, one that most can take for granted. By doing so, Idaho’s Marriage Laws deny same-sex couples the economic, practical, emotional, and spiritual benefits of marriage, relegating each couple to a stigmatized, second-class status. Plaintiffs suffer these injuries not because they are unqualified to marry, start a family, or grow old together, but because of who they are and whom they love.”

And Idaho makes… ummm, I have no idea what number this one is.

Update: You can read some choice excerpts from Judge Dale’s smack-down opinion here.

Do they even listen to what they say?

Dean Nelson

Today the Fourth Circuit Court of Appeals heard arguments for and against overturning Judge Arenda L. Wright Allen ruling that Virginia’s gay marriage ban was in violation of the US Constitution (the Olson-Boies case). There were, as expected, protesters on either side.

The anti-gay side made some interesting remarks.

Dean Nelson, chairman of the Frederick Douglass Foundation, told the crowd, “Things have gotten so bad that even when you’re watching ESPN on Mother’s Day we have the kisses of homosexuals forced down our throats.”

Sometimes it’s just too easy.

The Daily Agenda for Tuesday, May 13

TODAY’S AGENDA:
Virginia Marriage Challenge Goes to the Fourth Circuit: Richmond, VA. In February, a federal judge ruled that Virginia’s ban on same-sex marriage was unconstitutional in one of two lawsuits filed in Virginia seeking marriage equality for sam-sex couples. The couples in that first case, Bostic v. Schaefer (previously Bostic v. Rainey), were represented by Ted Olson and David Boies, of Prop 8 fame. A second case brought by the ACLU and Lambda Legal, Harris v. Rainey, has been put on hold while the first case goes before the Fourth Circuit Court of Appeals, which will hear oral arguments today. While the court will hear the  Bostic v. Schaefer case, it has granted the ACLU’s and Lambda Legal’s request to join in oral arguments with Olson and Boies, over the California pair’s objections.  Oral arguments are scheduled to begin at 9:30 E.D.T.

Arkansas Supreme Court.

Arkansas Supremes To Consider Marriage Stay Request: Little Rock, AK. Nearly three hundred same-sex couples have managed to get marriage licenses in five Arkansas counties by the close of business yesterday, with more expected to line up today. Those marriages have been taking place in Carroll County (Eureka Springs), Marion County (Yellville), Pulaski County (Little Rock), Saline County (Benton), and Washington County (Fayetteville). Later yesterday, Carroll County stopped issuing licenses after the local prosecutor issued a statement saying, “there was a law left on the books prohibiting a county clerk from issuing a marriage license to persons of the same gender. This  law was not addressed by Judge Piazza, and because of this, we advised the county clerk to stop  selling marriage licenses to persons of the same gender.”

Meanwhile, lawyers for the state Attorney General’s office requested yesterday that the state Supreme Court issue a stay against Pulaski County Circuit Court Judge Christopher Piazza’s late Friday ruling striking down the state’s same-sex marriage ban as unconstitutional. The Supreme Court set a deadline of noon today C.D.T. for the plaintiffs to respond. The Arkansas Times says, “It is unclear how quickly the Supreme Court will rule. It normally issues opinions on Thursdays, but in extraordinary cases sometimes issues them immediately.”

TODAY’S AGENDA is brought to you by:

From Wilde Side, September 1, 1976, page 21.

TODAY IN HISTORY:
“Cambio de Sexo” Premieres: 1977. Generalissimo Francisco Franco’s death in 1975 brought a new permissiveness in Spanish film-making, and Catalonia-born director Vicente Aranda probed the limits in what was acceptable in a still-conservative society. Cambio de Sexo (“Change of Sex”), which debuted on May 13, 1977 to critical acclaim, starred Victoria Abril as José Maria, a shy, introverted teenager living in the outskirts of Barcelona. Bullied and harassed by his schoolmates, José is expelled from his school. His father tries everything to “cure” him of his effeminate mannerisms, including, in a pivotal scene, taking him to a strip club in Barcelona. But unbeknownst to his father, one of the acts in the strip club is a pre-operative transgender. The father, clueless to the situation and determined to see his son lose his virginity, insists that José goes home with the stripper. Let’s just say the entire experience is revelatory as José understands that he was actually meant to be a girl. But the movie is more than just a story of the teen’s metamorphosis into a young woman. The transgender theme served as a reflection of the larger social changes which were just beginning to overtake Spain.

TODAY’S BIRTHDAYS:
Bea Arthur: 1922-2009. After serving thirty months in the Marine Corps as one of the first members of the Women’s Reserve. Her enlistment officer wrote that she was “officious — but probably a good worker — if she had her own way!” That would have described just about every one of the characters she would portray on television. After working on and off Broadway, she landed the breakout part as Maude Findlay on Norman Lear’s groundbreaking sit-com All in the Family. The Maude character was Edith Bunker’s cousin who was the polar opposite of bigoted Archie Bunker. That 1971 episode led to her own spin-off in 1972, Maude. As the theme-song said, she was “uncompromisin’, enterprisin’, anything but tranquilizing.” The series tackled women’s liberation, menopause, drug and alcohol addiction, and spousal abuse. In one memorable two-part episode which aired two months before Roe v Wade, Maude decided to terminate a late-life pregnancy with an abortion. Maude ended in 1978.

After a few other roles in television and the movies, she landed the role of Dorothy Zbornak in the hit series Golden Girls. Between Maude and Golden Girls, Arthur became an LGBT icon. The Advocate in 1999 asked her why she thought that was. “You play strong, honest people,” she said, “and gays buy it because it’s real and it’s slightly anti-establishment.” She was certainly real. Also she was on Broadway in Mame, so there’s that, too. Arthur died in 2009, after a battle with cancer. Three days later, the lights of Broadway dimmed for one minute in her honor.

Armistead Maupin: 1944. He was born in Washington, D.C. but grew up in Raleigh, North Carolina. He began working as a newspaper reported in Charleston, S.C. before he moved to San Francisco in 1971 to work for the Associated Press, In 1976, he released the first installment of his Tales of the City serials, first in a now-defunct Marin County newspaper and later in the San Francisco Chronicle. Those columns were re-worked into a series of books in 1978. In 2007, Maupin married his husband Christopher Turner in Vancouver. During a trip to Australia in 2011, Maupin and his husband were denied the use of a restroom at a saloon in Alice Springs where they were having lunch. The bartender told them to go across the street because their rest room was reserved for “real men.” “So we did what real men do and crossed the street to the visitor’s center where we filed a complaint,” Maupin wrote. “Impressively we received an e-mail apology from the bartender that afternoon. Fair dinkum, mate. Next time don’t [expletive] with the poofters.”

Alan Ball: 1957. Screenwriter, director, actor and producer Alan Ball was born in Atlanta George and graduated from Florida State University with a degree in theater arts. He has written two films, American Beauty (for which he won an Oscar for best original screenplay) and Towelhead. He is more familiar to television audiences for his role as creator, writer and producer of the HBO drama series Six Feet Under (for which he won an Emmy in 2002) and True Blood, a series that has been seen as a paper-thin allegory for the LGBT community. Ball has called the comparison “kind of lazy”, adding “I just hope people can remember that, because it’s a show about vampires, it’s not meant to be taken that seriously. It’s supposed to be fun.”

Ball not only has to contend with critics, but in 2011 he and his partner, actor Peter Macdissi, got tangled in a legal tussle with their neighbor, Quentin Tarantino, who filed a lawsuit claiming that the pair’s collection of exotic birds constantly emit “blood-curdling” and “pterodactyl-like screams” each day which have disrupted Tarantino’s work as a writer. That lawsuit between neighbors was quietly buried six feet under.

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