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Posts for April, 2015

Maggies report card on Indiana

Timothy Kincaid

April 8th, 2015

Maggies report card on indiana

Maggie Gallagher has graded several potential Republican presidential contenders on their response to the Indiana FRFA brouhaha.

While Maggie highly regards those who wish Indiana to broadcast its antipathy towards its gay citizens, something I disavow, I think that this chart tells us something else, something useful. What this measures for me is the extent to which these potential candidates have their ear attuned to the nation’s current attitude on gay issues.

It would seem to me that those whom she grades lowest were the best capable of recognizing the quagmire the state had created and avoiding stepping in it.

NOM’s new Dump campaign

Timothy Kincaid

April 7th, 2015

As I’m sure you know, the National Organization for Marriage (theirs, not yours) has been promoting Dump campaigns wherein the get supporters to pledge not to use certain vendors and products.

It all started back in March 2012, when NOM launched their Dump Starbucks campaign in response to the coffee giant’s support of Referendum 71, a pro-equality vote. That was also when NOM still maintained some grasp on relevance, and the media took them seriously.

Helped by cross promotion from other conservatives, NOM was able to garner tens of thousands of signatures from those who promised not to drink Starbucks coffee, nearly 50,000 in three months (they currently have 71,193). Although this was laughably low, considering Starbucks’ ubiquitous presence, it did suggest that the National Organization for Marriage did have some reach.

Next on their Dump list, in July 2012, was General Mills. Although it wasn’t a complete and true boycott (signatories promised to ‘look for alternatives’ to the General Mills products), it didn’t catch quite the same success as their Starbuck effort. Perhaps more people were willing to give up over-priced coffee than were willing to ‘look for alternatives’ to Pillsbury or Green Giant. But for whatever reason, Dump General Mills only pulled about 23,000 in the next few months and now has topped out at 27,930.

That put NOM off the boycott business for a while.

Yes they set up a temporary and limited boycott of Target last August which drew at least 2,756 participants, but that was much more low-key and wasn’t sold on the scale of their Dump campaigns.

But now NOM is making another attempt. Among the hundreds of companies now supporting the gay community, NOM has selected Angie’s List as their next target.

It’s hard to guess why some garner their ire while others slide by. I suppose it must be driven by what they consider to be “theirs” or who they think is betraying them in some way. But, in any case, Angie’s List it is. (For those unfamiliar, Angie’s List is a bit like Yelp in that participants grade the quality of service providers).

In a petition titled “I DUMPED ANGIE FOR LIBERTY“, NOM now has 1,463 people who claim to have cancelled their membership in the service (something I very much doubt) along with another 3,662 non-members who are saying “ANGIE’S LIST: STOP YOUR ATTACK ON FREEDOM“.

It will, of course, go nowhere. But unlike some of their other efforts, you can read what NOM’s supporters think. Which is quite a revelation (if not exactly surprising).

Gold Tinsel Jesus does NOT love all

Timothy Kincaid

April 6th, 2015

Tinsel Jesus

Eureka Springs is a little corner of color and decency in Arkansas. Over the years it has developed a gay community and even managed to pass a local domestic partnership registry.

This did not sit well with the religious conservatives. After all, this tourist town was mostly known for it’s Passion Play and it’s giant Jesus statue. This was, in fact, so horrifying that in 2008 the American Family Association whipped up a video warning the world that the radical militant homosexuals had taken over the little town.

And the conservative Christians decided to fight back, taking a page out of the gay community’s playbook. In 2013, they organized a parade, the Celebrate Jesus Easter Parade.

Now I have nothing against Christians celebrating Jesus at the time of the most holy day in the Christian calendar. After all, it must be frustrating that during the Spring Equinox, bunnies and eggs and symbols of fertility seem to give more honor to Ēostre than to the Christian festival that borrowed her name.

So for the past three years, Christians have march and waved flags and driven floats, all for this stated purpose:

The focus of this family friendly event is simply to celebrate Jesus, bring unity to the body of Christ and be a visible expression of God’s love in Eureka Springs, Arkansas.

And all went just fine for a couple years.

But this year there was a little problem. You see, the local United Methodist Church wanted to join the Parade. And they wanted to carry a banner with a very controversial message: Jesus loves all.

Of course every Christian knows – and often announces – that Jesus loves all. But what the conservatives mean and what the Methodists mean by that are very different things.

The First United Methodist Church of Eureka Springs has recently become a Reconciling Congregation, meaning that gay people were welcome to full inclusion in the church and further that the congregation was committing to civil and religious equality for the LGBT community. So when they say “Jesus loves all”, they mean it without asterisks.

And that was quite the opposite message from what the Celebrate Jesus people wanted to say. They don’t really want to celebrate Jesus – or not, at least, the one who kept droning on and on about treating people the way you want to be treated, and who hung out with sinners, and who blew off tradition and argued with the religious exclusionists. Nope, wrong Jesus.

They want to celebrate Gold Tinsel Jesus. He’s the one who had the decency to shut up and die and not talk about feeding the hungry and caring for those in need. And he most certainly is NOT welcoming of the Homosexuals! Especially not into churches.

So they banned the Methodists from participating. Because the Eureka Springs conservative Christians want you to know that Gold Tinsel Jesus most definitely does not love all.

So why all the corporate support?

Timothy Kincaid

April 2nd, 2015

Lately in our efforts to live in a nation in which our lives are treated and valued equally, we have come to rely on certain corporate advocates on our behalf.

For many years allies such as Wells Fargo and Levi Struass have made it clear that they welcomed gay customers and employees. Over time they were willing to help finance our causes and put their corporate name on the line. Then some tech world giants such as HP and Apple joined them, followed by Wall Street.

But no one, not on our side nor that of those who oppose equality, expected the loud, immediate, and very unanimous voice of Corporate America who demanded that Indiana and Arkansas not enact pro-discrimination provisions of their newly passed Religious Freedom Restoration Acts. This wasn’t just the usual somewhat-liberal companies, but CEO’s who had long Republican ties.

And not only did they demand change, they personally met with Republican leaders to be certain that the changes were adequate.

And let’s not fool ourselves. No progressive alliance, nor media demands, nor twitter storm changed these laws. They helped, of course. They created impetus. They undoubtedly put pressure on the Governors.

But only those who had connections and a history of contributions could walk in the door and tell the Republicans in the state legislatures that they were going to change their votes and do it now.

But why did they do it?

Some within Corporate America have very strong personal reasons for supporting the community – family, friends, those they care about. Others live in a world where diversity is respected. And undoubtedly, some were concerned about the impact that a negative image would have on the business in the states.

But I think it comes down to this: discrimination is a huge colossal pain in the ass for large businesses.

Most have gay employees who they value and need and they long ago got over the notion that it’s better moralize than make money. And anything that causes consternation in the workforce is bad for human resources. And unhappy human resources makes everyone tense. Which loses money and causes ulcers.

Frank Gilbreth proved decades ago that the single biggest contributor to productivity is the attitude of the employee. If employers show that they care about their employees, turn-over drops, production goes up and profits rise. So employers know that they have show that they are looking out for their gay employees – not just for their sake but for the other employees who are watching to see how committed they are.

And then there’s logistics.

It’s hard enough planning travel and accommodations for employees without worrying that Sanctimonious Joe’s Bed and Breakfast is going to make your keynote speaker at tomorrow’s conference sleep in her car. Or deciding where to order lunch if the Holy Memories Pizza is going to cancel on you because you have gay employees and they don’t support the homosexual lifestyle.

And what do you do with employee benefits like a gym membership or health discounts or even trivial things like winning the office raffle for a spa trip if you don’t know whether the businesses around you are going to hassle your employees because the gender of their spouse offends someone’s self-righteousness?

It’s one thing to have religious objections. Business people can work around the personal needs of others.

You need to be home by sundown on Fridays? We can do that. You need to be free Sunday mornings? Not a problem. You need a few minutes to face Mecca every day? Sure.

But it’s quite something else to pass a law whose unstated but unmissable intention is to invite discrimination. Because that’s going to cost time, energy, frustration, and money. That’s going to hurt some employees and cause hassle for others. That’s going to involve late night phone calls and interruption of golf games.

And that just won’t do.

Arkansas U-Turn: Gov Calls for Changes to License-To-Discriminate Bill

Jim Burroway

April 1st, 2015

Supporters of the Arkansas License-to-Discriminate bill have argued that their state version of RFRA “mirrors” the federal law signed by President Bill clinton in 1993 — which it clearly doesn’t. Arkansas Gov Asa Hutchison (R) had promised to sign the law as soon as it reaches his desk. It reached his desk yesterday, but Hutchison announced in a news conference today that he is instead calling for changes in the bill. In a statement that acknowledges that the state RFRA’s supporters had been much less than honest in claiming that it mirrored the federal law, Hutchison called on the General Assembly to either recall the bill or amend it to bring it in line with federal law:

Hutchinson said he is asking that HB1228 be recalled so amendments can be added that bring it closer to the federal law. Or, he said, the changes could be made by new legislation. “The bill that is on my desk at the present time does not precisely mirror the federal law,” he said.

Senate President Jonathan Dismang (R-Searcy) and House Speaker Jeremy Gillam (R-Judsonia) stood alongside Hutchison when he made the announcement. Hutchison didn’t say whether he would veto the bill if changes weren’t made, but he did suggest another option of issuing an executive order “to make it clear that Arkansas wants to be a place of tolerance.” He acknowledged however that an order “would not be the same as a legislative fix.” As with Indiana, caution is in order. Without concrete proposals and specific language changes available, we will still have to wait to see whether this represents a true backtrack or another try at a pig’s makeover.

Hutchison also acknowledged that the controversy has deeply divided ths state — and his own family: his son signed an online petition calling on the Governor to veto the bill. Walmart, the state’s largest employer, along with several state chambers of commerce and mayors had earlier called for a veto.

My most quickly-favorited and retweeted tweet ever

Rob Tisinai

March 31st, 2015

More Proof: They Really Want To Discriminate Against You, Eight Times Over

Jim Burroway

March 30th, 2015

Indiana Gov. Mike Pence (R) went into full damage control yesterday with an appearance on ABC’s “This Week.” George Stephanopoulos asked Pence straight up four times whether an Indiana florist is allowed to discriminate under Indiana’s new law, and six times Pence would not give an answer.

If anyone is asked whether a business is allowed to discriminate four times and he refuses to give answer  four times, you can safely take that answer as a yes. You can be doubly assured of that because Stephanopoulos asked four more questions about whether Pence would pursue protections for LGBT Hoosiers. Pence was a bit more direct about that. That answer is no.

Alabama marriage carnival goes on

Timothy Kincaid

March 19th, 2015

bama

Since our last update, the marriage situation in Alabama has continued to whirl and twirl to a wild caliope tune.

Mobile County Probate Judge Davis, having been told by the Alabama Supreme Court that he was not exempt from their order to discriminate against same-sex couples, turned back to Federal Judge Granade. He noted that the plaintiffs in the case have all gotten married now, and requested that she put a stay on her order so as to keep him from having to defy one court or the other.

Judge Granade didn’t let him off the hook. She said, no dear, it’s isn’t much good that you’ve issued the licenses if the state won’t recognize them. And really you haven’t given me any reason why my ruling shouldn’t be upheld, so go on now and do what you’ve been told.

So Davis is refusing to issue marriage licenses to anyone.

But his problems didn’t stop there. Part of the marriage lawsuit was driven by Cari Searcy, one of the plaintiffs, desire to adopt the child that she and Kim McKeand had raised since birth. Alabama doesn’t allow second-parent adoption, but now that she’s married to the mother, she should be eligible.

But the state is refusing to recognize the marriage so Davis tried to enact partial compliance. He issued an interlocutory decree granting Searcy temporary parental rights but said he would not rule on the adoption itself until after the Supreme Court made it’s decision.

Searcy’s attorneys then sued Davis for failure to follow the order of the Federal Judge. But Davis used this to his advantage. He noted that he’s now a party to the suit and therefore no longer impartial and recused himself from the review of the adoption and asked the Alabama Supreme Court to give him a replacement for the case.

But, Searcy’s attorneys claim, a change in 2001 would have the replacement made by the presiding circuit judge. The matter is unclear because there is uncertainty whether the 2001 change applies to probate judges. This will undoubtedly delay the adoption further.

Meanwhile, Judge Granade has made her first ruling on the request by plaintiffs to add additional plaintiffs and to make the case class action. Attorney General Luther Strange had argued that too much time had passed, but Granade didn’t buy that.

She ruled that the case could be amended to allow additional plaintiffs and defendants.

There being no substantial reason to deny leave to amend, the court must allow the amendment. Accordingly, Plaintiffs’ motion for leave to file a second amended complaint (Doc. 76) is hereby GRANTED.

However, she did not rule on whether the case would be made class action.

Thus, although the court may dismiss class allegations “[w]here it is facially apparent from the pleadings that there is no ascertainable class,” …, the court finds that the Plaintiffs in this case have alleged adequate facts to support a potential class claim and the court will not engage in a detailed and rigorous analysis of the class claims until all of the current parties have had the opportunity to oppose or support the motion for class certification.

Grenade has given Strange until March 23rd to tell her why “all persons in Alabama who wish to obtain a marriage license in order to marry a person of the same sex and to have that marriage recognized under Alabama law, and who are unable to do so because of the enforcement of Alabama’s laws prohibiting the issuance of marriage licenses to same-sex couples and barring recognition of their marriages” is an ill-defined class definition.

It seems rather unlikely that Strange will convince Judge Granade that this class of people is vague and ill-defined. And it seems rather likely that Judge Granade will determine that her ruling applies to all such couples. This will eliminate all ambiguity about the extent and scope of the Federal ruling and may set the state on course for a showdown with the Federal government.

And then we will see what the Alabama Supreme Court has to say.

Presbyterians support marriage equality

Timothy Kincaid

March 17th, 2015

presbyterian logoCongratulations to the members of the Presbyterian Church (USA). (NYTimes)

After three decades of debate over its stance on homosexuality, members of the Presbyterian Church (U.S.A.) voted on Tuesday to change the definition of marriage in the church’s constitution to include same-sex marriage.

The final approval by a majority of the church’s 171 regional bodies, known as presbyteries, enshrines a change recommended last year by the church’s General Assembly. The vote amends the church’s constitution to broaden marriage from being between “a man and a woman” to “two people, traditionally a man and a woman.”

Although not all presbyteries have voted, the lopsided two-thirds results to date are sufficient to ensure the endorsement of the change.

They join Metropolitan Community Church (MCC), the United Church of Christ (UCC), the Episcopal Church, and the Evangelical Lutheran Church in America as major denominations that now support marriage equality.

There are also a number of independent or smaller churches that value equality. The United Methodist Church does not allow for marriage equality primarily due to Asian and African voters in the international denomination, but the church body in the US is in open revolt and has mostly ceased trying to punish the growing number of ministers who flout the policy.

‘Bama Supremes er at it agin

Timothy Kincaid

March 11th, 2015

bama

Remember when the Supreme Court of the State of Alabama declared that they and they alone know what is in the US Constitution and ordered all counties in the state to stop issuing marriage licenses to same sex couples? Well, at the time, they made one tiny temporary exception.

They told Probate Judge Davis that he needed to get back to them about whether he thought that he was under any obligation to perform the tasks that Federal Judge Granade had ordered him to do.

And Davis, not being a complete lunatic nor wishing to be held in contempt, requested that he be exempted from the state court’s orders. Yeah, like that was going to happen! (WSFA)

The probate judge sought an 11-day extension to comply with the court’s order motion and on March 9 advised the court that he should not be included in the March 3 order because it would require him to violate a federal district court order.

The Alabama Supreme Court denied Davis’ request saying his concern was without merit.

“Davis has made no showing that he was, or is, the subject of any previously entered federal court order other than the one issued in Strawser,” the justices wrote, “and he makes no showing that that order has any continuing, binding effect on him as to any marriage-license applicants beyond the four couples who were the plaintiffs in that case and who already have received the relief they requested.”

I rather suspect that if Judge Granade was not pissed off already, this might have done it. And the ‘Baba Supremes may well discover that her idea of “without merit” is quite different from the one the good ol’ boys have.

Oklahoma may be getting out of the marriage business

Timothy Kincaid

March 10th, 2015

Governments love control. That’s a given.

So while many people – right, left, or center – have exclaimed, “the government get out of the marriage business, anyway!”, I’ve mostly ignored those cries as impractical. But by a vote of 67 to 24, the Oklahoma House of Representatives has voted to do just that.

HB 1125 removes all references to issuing marriage licenses and instead allows a provision by which the officiant of a marriage files a certificate after the fact informing the state that a legal marriage has occurred (and those who don’t wish for an officiant can file a common-law marriage affidavit). In this way, such county clerks or other public employees as don’t wish to issue licenses that offend their faith won’t have to issue any licenses at all.

Currently the marriage certificate is the final step in the process. And that would remain the same. Except that the certificate, once recorded and certified, is returned to the couple as their legal proof of marriage.

It’s not completely clear why receiving and documenting the certificate is less offensive to a clerk than issuing a license, but perhaps it’s a matter of filing the record of an event rather than issuing a license which is a form of permission.

Or, though unlikely, perhaps this whole fight has caused the Republicans in Oklahoma to ponder on some of the supposed small-government positions that they like to spout and ask themselves why it is that a couple should have to ask the state for permission to marry in the first place.

Interestingly, the law omits any ‘male-female’ requirements and the certificate has signature spaces for “first spouse” and “second spouse”. It does continue restrictions on under-age marriage.

The bill now goes to the state Senate and, if passed, would go into effect November 1, 2015.

Libertarians on Equal Protections

Timothy Kincaid

March 10th, 2015

The Cato Institute, a libertarian think-tank, has filed its brief before the Supreme Court in support of marriage equality. In it, Cato seeks to show a distinction between original meaning and original understanding.

Some opponents of equality have taken an ‘original intent’ position and argued that the framers of the Fourteenth Amendment did not intend to include gay people in their promise of equality under the law.

Cato argues that the meaning of equality is the same and that their intent was, indeed, equality. They merely didn’t understand their meaning to include gay people at that time.

This is interesting in that they don’t throw ‘original intent’ out the window, but rather sees intent in terms of principle and objective rather than in terms of some list of people that the framers may have or may not have had in mind.

The lower court erred by focusing on a certain kind of original understanding (the immediate effect supporters “understood” the Fourteenth Amendment to have). This Court has rejected that approach to constitutional interpretation, focusing instead, on original meaning. … In the Fourteenth Amendment context, this Court has asked how the well-established meaning of terminology added to the Constitution in 1868 applies to modern exclusions of new as well as established social groups.

Laws can and must have consequences beyond those understood or anticipated by the generation of their promulgation. … As one prominent originalist scholar recently put it, original-meaning originalism “is entirely consistent with updating the application of its fixed principles in light of new factual information. Indeed, such updating is often not only permitted, but actually required by the theory. Otherwise, it will often be impossible to enforce the original meaning under conditions different from those envisioned by the generation that framed and ratified the relevant provision.”

And rather than rely on speculation about intent as imagined by pundits or certain Supreme Court justices, they turn to the language of the framers:

Contemporaries explained the meaning of the Equal Protection Clause in precisely this way. Introducing the Fourteenth Amendment, Senator Jacob Howard said that the Equal Protection Clause “establishes equality before the law, and . . . gives to the humblest, the poorest, and most despised . . . the same rights and the same protection before the law as it gives to the most powerful, the most wealthy, or the most haughty.” The clause plainly “abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another.” Cong. Globe, 39th Cong.,1st Sess. 2766 (1866) (Sen. Howard); see id. at 2961 (Sen. Poland) (similar). House Speaker Thaddeus Stevens explained that the public meaning of the clause was that “the law which operates upon one man shall operate equally upon all.” Id. at 2459 (emphasis in the original).

The Fourteenth Amendment was not an amendment to give rights to black people, but rather an amendment to prohibit legislatures from establishing castes of people with varying laws and benefits by class. Irrespective of how well that worked, that was its original intent.

Their blog commentary may put it in more approachable terms

Essentially, the Equal Protection Clause means, in 1868 as in 2015, exactly what it says: states cannot have one set of laws for the rich and another for the poor, separate schools for white and black students, or marriage licenses only for opposite-sex couples.

More on the amicus briefs

Timothy Kincaid

March 7th, 2015

The plethora of amicus briefs have now been filed encouraging the US Supreme Court to find that anti-gay marriage bans violate the Equal Protections and Due Process provisions of the US Constitution. They included

Mayors for the Freedom to Marry. This brief was signed by the 229 mayors from the nation’s largest cities to tiny burgs, from cities with vastly different racial, religious, and cultural heritage, by Republicans and Democrats, along with several dozen towns that signed on.

Corporations. Leaders of the nation’s largest corporations circulated a brief which garnered support from the Who’s Who of business. Most of the names you would expect to see – such as Apple, Microsoft, Target and Wells Fargo – are there. But also included in the 379 names are some less obvious supporters like Alcoa, New England Patriots, and ConAgra Foods.

Project Right Side. Ken Mehlman circulated the brief obtaining support from Republicans, Libertarians and other conservatives. Among the 300-plus signatures are some expected names: Massachusetts Governor Charlie Baker, Senator Susan Collins, and Congresswoman Ileana Ros-Lehtinen. Other names were less expected, such as Meg Whitman, who did not support equality while running for California Governor in 2010, Andrea Saul, Mitt Romney’s press secretary, and Former Michigan Attorney General Mike Cox, the guy who hired Andrew Shirvell. They range from longtime supporters to newly evolved to some I assumed were foes of equality.

Alabama attorneys petition for class action on marriage case

Timothy Kincaid

March 6th, 2015

The attorneys who won their case against Alabama’s anti-gay marriage ban have gone back to Judge Granade and requested that the case be made a class action, impacting all same-sex couples who wish to marry.

Specifically, Plaintiffs seek: (a) a declaration that Alabama’s prohibition of marriage for same-sex couples violates the Due Process and Equal Protection Clauses of the United States Constitution; (b) a declaration that Alabama’s refusal to recognize the marriages of samesex couples under state law violates the Due Process and Equal Protection Clauses of the United States Constitution; and (c) a temporary restraining order and/or preliminary injunction, as well as a permanent injunction, (i) preventing Defendant Class members from denying Plaintiffs and Plaintiff Class members the right to marry, (ii) directing Named Defendants Davis and Russell and the members of the Defendant Class to issue marriage licenses to all same-sex couples who otherwise satisfy the qualifications for marriage under Alabama law; and (iii) directing Defendants to recognize for all purposes the marriages of all same-sex couples validly entered into pursuant to marriage licenses issued in Alabama or any other jurisdiction at any time.

Whatcha gotta say about that, Roy Moore?

Eighth Circuit stays Nebraska ruling

Timothy Kincaid

March 5th, 2015

Washington Blade

Without explanation, the court announces in a two-page order it has stayed pending appeal a decision by U.S. District Judge Joseph Bataillon against Nebraska’s prohibition on same-sex marriage, which was set to take effect at the start of next week.

The court has included Nebraska into the joint hearing they are having for rulings lifting bans in Arkansas, South Dakota and Missouri.

Directing the clerk to expedite briefing in the case, the court announces that oral arguments for all three lawsuits will take place in Omaha on May 12.

Which is between the time that the US Supreme Court will hear arguments (April 28) and the time that the high court issues its ruling in June.

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