Box Turtle Bulletin

Ex-Gay Question to be Central to Federal Lawsuit

Timothy Kincaid

July 1st, 2009

In Perry v. Schwarzenegger, the federal lawsuit by Ted Olson and David Boies to overturn Proposition 8, the judge has decided against placing a hold on Prop 8 and instead is opting for a swift consideration. This is the position that was requested by Gov. Schwarzenegger and Atty. Gen. Brown; they felt that placing a hold would lend to confusion for all parties.

An article in the San Francisco Chronicle reveals that Olson and Boies will be relying on the precident set by Romer v. Evans in which the US Supreme Court determined that states cannot deny rights to gay people as a class based solely on animus.

The attorneys behind the challenge to California’s Proposition 8 plan to argue during a pretrial hearing Thursday that by stripping gays of the right to wed, the voter-approved ban runs afoul of America’s founding framework in the same way — and for the same reason.

“Romer is a strikingly similar situation to what we have here. You had a ballot initiative, a majority vote of the people, taking away a right,” said Theodore J. Boutrous Jr., a member of the legal team led by former U.S. Solicitor General Theodore Olson and veteran trial lawyer David Boies. “And there was no justification or rationale other than disapproval by that majority of that group.”

This case also will ask a question that is at the core of all civil rights legal issues: are gay people really a distinct group of people. Or, in other words, is sexuality immutable.

U.S. District Chief Judge Vaughn R. Walker on Tuesday issued a tentative order to fast-track the case in his San Francisco court.

Among the questions he said he wants covered at trial are whether sexual orientation is unchangeable, if permitting same-sex marriage “destabilizes” traditional unions and whether Proposition 8’s ballot history demonstrates the measure had “discriminatory intent.”

There is little doubt that ex-gays and ex-gay groups will testify before court. And there is little doubt that they will claim “change”.

However, will they be truthful? Will they admit that “change” is only in perspective, in behavior, in identity, but not in attractions?

Sadly, the history of ex-gay activists suggests that they will seek to confuse the court and to leave the impression that orientation can be “overcome through the power of Jesus Christ”. I hope I’m wrong.

Update: Marriage Recognition in the Nation’s Capital

Timothy Kincaid

July 1st, 2009

Back in May, the Washington D.C. City Counsel passed legislation to recognize same-sex marriages conducted in those states in which it is legal. On May 6, Mayor Adrian Fenty signed the bill.

Rev. Harry Jackson, a pastor of a large church in Beltsville, Maryland, decided that he wanted to take advantage of a provision in D.C. law that allows for a referendom on bills. He registered as a D.C. voter (using what appears to have been a fraudulent address) and took out a petition.

However, the D.C. Board of Elections & Ethics ruled that such a referndom was in violation of the city’s election code. Election law in D.C. prohibits votes on matters covered under the city’s 1977 Human Rights Act, which outlaws discrimination against gay men, lesbians and other minority groups.

Yesterday a Superior Court judge refused to put a stay on its enactment. (Washington Post)

A Superior Court judge decided yesterday not to delay enactment of a law stipulating that the D.C. government will recognize same-sex marriages performed in other jurisdictions.

Barring some action by Congress, the bill will become law on Monday when the congressional review period expires.

Enemies of marriage equality are not likely to accept defeat

Brian Raum, an attorney with the Alliance Defense Fund, the Christian conservative law firm that represented Jackson and his group, said they will file an appeal seeking to have the law overturned. The group announced after the ruling that it will seek a ballot initiative on a law defining marriage as being between one man and one woman.

The City Council is expected to move forward on their goal of legalizing marriage in the capital.

Update: Brian, a reader at our site, provided a link to the ruling.

As he reminded me, an important part of this case was that the judge did not find that the “proposed referendum is consistent with the DCHRA.” In other words, the referendum was contrary to the District’s Human Rights Act.

Civil Partnerships Come to Ireland

Timothy Kincaid

June 26th, 2009

Ireland has finally passed published its Civil Partnership Bill which provides many (but not all) of the rights, priveleges, and responsibilities to same-sex couples. (Reuters) The bill has strong support and is expected to become law.

“This bill provides legal protection for cohabiting couples and is an important step, particularly for same-sex couples, whose relationships have not previously been given legal recognition by the state,” Justice Minister Dermot Ahern said in a statement.

The legislation provides a range of previously denied rights including maintenance obligations, protection of a shared home and succession. “Balance is achieved by maintaining material distinctions between civil partnership and marriage, in particular between the rights attaching to both, while at the same time reflecting the equality rights protected by the constitution,” Ahern said.

The Irish Constitution requires that marriage be given preferential treatment (Irish Times).

The heads of the Bill (giving an outline of the proposed legislation) were first published in late 2007 but progress was slowed by a number of complex issues. One of the issues is believed to have been the potential conflict between the strong rights conferred to marriage in the Constitution and the equality rights protected by Article 40.1.

With Ireland providing recognition, Europe now looks like this:

Texans Support Couple Recognition

Timothy Kincaid

June 26th, 2009

Good news from Texas. A new poll by Texas Lyceum shows 57% of Texans support either civil unions or marriage.

Most Texans don’t oppose same-sex unions, but they’re split in their support for marriage or civil unions. While more than a third (36%) oppose either arrangement, 32% said they would support civil unions and another 25% think same-sex marriages should be permitted. The poll found a distinct partisan difference, with civil unions as the preference of 29% of Democrats, 31% of Independents and 37% of Republicans; same-sex marriage the preferred alternative of 36% of Democrats, 25% of Independents, and 14% of Republicans. Allowing neither of those alternatives was the preference of 29% of Democrats, 35% of Independents, and 43% of Republicans.

In 2005, only 24% of Texans voted against a constitutional amendment that banned both marriage and civil unions. This poll reveals significant change in public attitudes in less than four years.

It is also worth noting that even a majority of Republicans support couple recognition. And Texas Republicans do not have a history of support for gay causes. In 2000 at the Republican National Convention the delegation from Texas made a point of showing contempt for gay Rep. Jim Kolbe during his speech on Trade by bowing their heads and praying while he was speaking.

Let’s hope that support continues to grow until Texans of all political stripe join together in reversing the discrimination they enshrined in their constitution and in providing marriage equality to all of their citizens.

Majority of New Yorkers Support Marriage Equality

Timothy Kincaid

June 23rd, 2009

A new Quinnipiac poll shows that a majority of New Yorkers support a law allowing same-sex couples to marry.

New York State voters support 51 - 41 percent, with 8 percent undecided, a law allowing same-sex couples to marry, according to a Quinnipiac University poll released today.

While it is news that support finally crossed the 50% mark, support from New Yorkers has been in the 40+ range for a couple years. But we can glean some other interesting facts from this poll:

• Marriage is supported by both NYC residents (52% - 37%) and by Upstaters (49% - 45%).
• Marriage is supported by whites (52% - 42%), by Hispanics (55% - 39%), and by blacks (43% - 42%). This is of particular interest because some NY anti-gay activists (Sen. Diaz, for example) have tried to make this a racial issue and claim that Hispanics oppose same-sex marriage. Additionally, it suggests that the much-discussed black opposition to marriage equality may be regional and that a winning approach can be crafted to appeal to this demographic.

The poll also asked about civil unions.

New York State voters support same-sex civil unions 68 - 25 percent, with support from all groups, including 55 - 37 percent among Republicans.

As stated, there were no demographics - age, race, religion, education, location - which opposed civil unions. The largest opposition, 39%, came from weekly church goers.

It appears that recent attention given to the issue - including anti-gay advertising by NOM - has only served to increase support for marriage equality in the state.

Fraudulent Maine Marriage Petitioners

Timothy Kincaid

June 23rd, 2009

Reports are coming in that some people collecting signatures in opposition to the new marriage law in Maine are doing so under false pretenses (Sun Journal):

Gerard Caron walked into the Auburn Post Office and was met by a woman with a pair of clipboards.

“This petition is against gay marriage and this other petition is to support gay marriage,” she said, according to Caron.

The Poland man said he asked her why there would be a petition to support something that already happened, referring to the petition “in support of” gay marriage.

“She just kinda gave me a little grin and didn’t say anything,” he said.

Then he looked at the two petitions and discovered they were identical, both were supporting the repeal of the same-sex marriage law, Caron said.

Although the Secretary of State thinks that collecting signatures under false pretenses is a “First Amendment issue”, I suspect that if it was shown that this is a widespread deception that a lawsuit claiming fraud could prevail. The language is adequately tricky that persons could reasonably be deceived into thinking they were signing a pro-marriage petition even after reading it.

I just think it is just another example in a long line of instances that illustrates the base immorality of those who will crawl through the gutter to demonstate just how Special They Are To God by denying civil equalities to others.

Marriage Vote May Come to NY Senate

Timothy Kincaid

June 22nd, 2009

The New York Senate may vote on marriage equality this week. And the vote may not originate with either Malcolm Smith, the deposed Democratic Majority Leader, or Pedro Espada, his Republican/Coalition replacement. Rather, the Governor himself may be forcing the Senate to vote on the issue.

The Governor has had it with the squabbling of the two parties and is ordering emergency sessions to force both sides to meet and vote.

Paterson ordered senators to stay in Albany Tuesday, and likely for several more days to take action required by the end of the month.

Pending measures include authorizing local governments to raise municipal taxes needed for budgets due as early as July 1, extending mayoral control of New York City schools and continuing to provide lower-cost energy to companies in exchange for job growth.

The Democratic governor also says he will require additional special sessions to force the Senate to consider other bills, including the legalization of same-sex marriage.

The constitutionality of the Governor’s action may be presumed by the fact that the chief judge of the Court of Appeals (New York’s Supreme Court), Jonathan Lippman, had made himself available to preside over the Senate.

Dodd Supports Marriage Equality

Timothy Kincaid

June 22nd, 2009

Senator Dodd of Connecticut has adopted a supportive position on marriage equality (NY Times):

Senator Christopher J. Dodd, Democrat of Connecticut, has changed his position on gay marriage, announcing over the weekend that he now supports it.

Mr. Dodd, who finds himself in a tough fight for reelection next year, had already backed civil unions, but had rejected endorsing gay marriage during his campaign for the Democratic presidential nomination in 2008.

His reversal comes on the heels of growing upset among gay activists toward President Obama and his administration, many of whom called the president’s decision last week to extend partnership benefits extension as a minor move.

It’s interesting that in some places it’s a political liability to oppose marriage equality.

Ummm… Perhaps

Timothy Kincaid

June 21st, 2009

Occasionally I’m amused at the disconnect between an article and its headline.

Today the Albany Times-Union has an article about the New York State Bar Association, the statewide organization of attorneys. The lawyer group has endorsed gay marriage as the “only viable way to establish marriage equality.”

The headline reads:

Bar group backs gay marriage right

Although, based on some attorneys I’ve met, they may not be that far off.

Marriage Support Advances in Asian Communities

Timothy Kincaid

June 19th, 2009

From Reuters

Lost in the 2009 election wreckage for gays was the marriage campaign’s relative success in Asian communities, which have swung toward support of same-sex marriage at a faster rate than the rest of California and have become a model for other groups.

Asian Americans have been building grass-roots support in Chinatown, Little Tokyo, Filipinotown for four years. Gays, lesbians and straight allies have talked about the often-taboo topic of homosexuality, set up booths at festivals, harangued non-English language media to change coverage and lobbied elected officials for support.

How did that work for them?

polls of Asians by the Asian Pacific American Legal Center showed a 36 point margin of victory for the ban in 2000, falling to 6 points in 2008. The decline in support [for banning gay marriage] was clearly faster than in the state overall, the center said.

Perhaps there are lessons to be learned.

Race Differences on Marriage Equality in Los Angeles

Timothy Kincaid

June 19th, 2009

A new LA Times poll shows that support for marriage equality differs in Los Angeles by race:

White voters were most emphatic in their support for same-sex marriage, with 68% supporting it and 27% opposing. African American voters were strongly against it, with 54% opposing same-sex marriage and 37% supporting it.

Opposition to gay marriage by African Americans was widely seen as a major factor contributing to the passage of Proposition 8. Latinos in the current poll were split, with 45% supporting same-sex marriage and 46% opposing.

Wisconsin’s Domestic Partnerships

Timothy Kincaid

June 18th, 2009

In 2006, voters in Wisconsin passed the following amendment to their state constitution:

Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.

The second part of that amendment effectively bans the creation of civil unions or of domestic partnership agreements that are “identical or substantially similar to that of marriage”. However, as part of the budget process, the State Senate and Assembly have passed language (pdf 1,743 pages), at the request of the Governor, that establishes domestic partnerships within the state.

The domestic partnerships are dissimilar to marriage in that while marriage requires a license and the performance of a specific ceremony, domestic partnerships are recognized by means of a registry:

Under the bill, a domestic partnership may be formed by two individuals who are at least 18 years old, are not married or in another domestic partnership, share a common residence, are not nearer of kin than second cousins, and are members of the same sex.

To form a domestic partnership, the individuals apply for a declaration of domestic partnership to the county clerk of the county in which at least one of them has resided for at least 30 days. Each applicant must submit identification and a certified copy of his or her birth certificate, as well as any other document affecting the domestic partnership status, such as a death certificate or a certificate of termination of domestic partnership. The clerk must then issue a declaration of domestic partnership, which the parties must complete and submit to the register of deeds of the county in which they reside. The register of deeds must record the declaration and send the original to the state registrar of vital statistics.

The domestic partnerships receive certain specific rights which are similar to those granted by marriage:

• Inheritance Rights:
  • Inherit if intestate or if the will was written before registration
  • Full property interest the decedent had in a home
  • Inherit partner’s interest in a boat
  • The rights to probate court and summary procedures
  • Exemptions for certain personal items and for limited exemptions from the estate’s creditors
  • Inherit wages due from an employer
• Wrongful death actions and death benefits under workers compensation
• The right to bar former partners from testifying about private communications
• Employment Benefits:
  • The right to family leave to care for a domestic partner
  • Pension benefits provided to public employees
  • Fraternal benefit society may provide insurance coverage to domestic partners
  • Local governments may provide health and life insurance for domestic partners
  • Protection in state government employment from arbitrary discrimination based on domestic partner status.
• Joint tenancy rights in property

While these are far fewer rights than come with marriage, they will not be of insignificant benefit to same-sex Wisconsin couples. The budget has differences between the House and Senate versions which will be hammered out but domestic partnerships are likely to survive and to be signed by Governor Doyle.

Anti-Gays Seek to Overturn Maine’s Marriage Law

Timothy Kincaid

June 17th, 2009

Maine has a peculiar system by which citizens unhappy with a legislative action can stop and reverse a bill. Called a “people’s veto”, if petitioners collect the signatures of ten percent of voters within 90 days of the end of the legislative session, a question goes on the ballot as to whether the bill should be enacted.

After the legislature enacted marriage equality in Maine, anti-gay activists began to organize to oppose the bill and to seek to get it on the ballot.

“Do you want to reject the new law that lets same-sex couples marry and allows individuals and religious groups to refuse to perform these marriages?”

The above somewhat-confusing language was prepared on May 19. And the process began. The Everyday Christian website has a progress report on their efforts:

Emrich, a pastor, is the founder of The Jeremiah Project, a conservative non-profit. To date, he said between 10,000 and 12,000 signatures have been collected since late May. The goal, he said, is to get about 80,000 signatures before the petitions are handed in to account for potential duplications and errors.

However, to achieve their ends, the petitioners need to meet a date sooner than 90 days. Unless they file their signatures by August 1, they will miss the deadline for the November election and the article lays out several reasons why anti-gays think November is better for them than the following spring election.

So how likely is it that they will reach their goal?

With 500 and 600 people Emrich is aware of distributing, it now becomes a race against the clock. He said he would like to get petitions back by mid-July to get them certified by individual town clerks before sending them on to the Secretary of State.

In the four weeks since the beginning of the collection process, they have collected about 12,000 signatures. To meet their target date, they will need to collect an additional 68,000 signatures in the following four weeks; or, on average, each one of their 600 volunteers needs to get 114 additional signatures over the next four weeks.

This may not sound particularly large, but a few factors need to be taken into consideration:

• The first 12,000 were probably the easiest. Each additional signature will prove to be more difficult.
• Only about a third of Maine’s residents attend religious services. Of these, about 60% are Catholic. And while Catholic hierarchy stongly opposes marriage equality, lay Catholics are much less inclined to follow the directions of the church on social issues. Assuming that all Evangelical Protestants and half of Catholics are the target audience for signature gatherers - and discounting for 21% of the population below voting age - there is only a pool of about 257,000 adult church members from which to draw signatures.
• Signature gatherers in public places (other than churches) are likely to encounter active opposition.
• Michael Heath, executive director of the Maine Family Policy Council, is known in Maine as being radically exteme, far from the thinking of the average conservative Christian; he’s on par with his friend Peter LaBarbera. While Heath’s taking a public back seat on this issue, his is still probably the name most associated with this effort.
• Michael Heath’s last anti-gay signature collecting effort failed miserably.
• The Republican Party in Maine is not comprised of fire breathers. Both US Senators are Republicans, Olympia Snowe and Susan Collins, and both are supporting of the gay community. Neither made any criticism of the legislature in their state for enacting marriage and Collins was mentioned today by the President as a sponsor of the Domestic Partners Benefits and Obligations Act. The Party is not likely to expend much organizational effort on behalf of the petition.

I think that it will be quite difficult for the anti-gay activists to achieve their goal. But I don’t think it is impossible or even improbable. We need to hope for their failure but plan for their success.

Over the next month, we’ll keep you up to date on whatever we find about the progress of their efforts.

(hat tip to reader Brian)

Mormons v. Marriage Equality

Timothy Kincaid

June 16th, 2009

In an article in Time Magazine, David Van Biema discusses the unique pressures and theological beliefs that led to members of the Church of Jesus Christ of Latter Day Saints (the Mormons) contributing half the funds and nearly all of the manpower behind Proposition 8’s drive to remove civil marriage rights from same-sex couples.

Prop 8 constituted a kind of perfect political storm of theology, demographics and organization. At the Alameda Meeting House last June (as at other Mormon churches statewide), a letter from Monson and his counselors advised believers to “do all you can to support the proposed constitutional amendment by donating of your means and time.” A string of Protect Marriage coalition meetings followed. They never occurred on LDS property, but they were overwhelmingly Mormon in attendance and sought Mormon support. Alaina Stewart, a church member, was asked to employ a list of “who in the ward we thought could contribute. We’d call and say, ‘We’re asking you to give such and such an amount,’” she says.

Some declined… But the general authorities in Salt Lake City increased the pressure. A broadcast to all churches outlined the pro-8 ground campaign, with titles like “Thirty People in Each Ward” and “More than Four Hours per Week.” Craig Teuscher, the Alameda ward’s regional stake president, reiterated in church the seriousness of Monson’s request to congregants.

The new push for the proposition had a rational side: the church claimed that the legalization of gay marriage would threaten its tax-exempt status if it refused to perform gay nuptials. (Most legal scholars disagree.) But belief in Monson’s supernatural connection also played a big role. Says Stewart: “The Prophet’s telling us to stand up. When he speaks, you’re realizing that there may be things that I don’t see.” Asks Gayle Teuscher, the stake president’s wife: “If I believe that the Prophet is a true prophet of God and disregard his counsel, what does that say about my belief in God?”

Secure in their own self-defined moral superiority, Mormons were shocked and surprised to find that gay people confronted them after the election. And in progressive parts of the state they experienced a reaction they didn’t expect, the response of neighbors who now viewed them as one might view a racist or other bigot.

Three months after the election, she says, “I don’t feel quite the same way about our community.” She felt frozen out of conversations among other parents. “You think, This will go away. But it doesn’t seem to. I think about my kids in school,” she says. “I want them to be accepted, to feel it’s O.K. to be different.”

As Californians go into another round of voting on marriage equality either in 2010 or 2012, individual Mormons throughout the state will have to determine whether they are willing to heed the call of their Prophet to donate tens of millions of dollars and countless manhours in continuing a high-profile battle against the rights of their neighbors. And they will need to consider what this could cost them.

Gay leadership has changed. And under fresh leadership, gay activists will be perfectly willing to publically portray the LDS Church as an oppressive religious bully seeking to impose its peculiar views about Celestial Marriage on gay Christians and non-believers. And individual Mormons may well find that they will be perceived as haters, bigots, and opponents of freedom and equality.

The New Miss California Also Does Not Support Same-Sex Marriage

Timothy Kincaid

June 12th, 2009

The Miss California Pageant has replaced one young Christian girl… with another, Teri Farrell.

According to the Kansas City Star,

She’s a Christian. Farrell recently finished recording her first demo CD and performed during a Christian cruise to the Bahamas last summer. Last fall she worked with Christian recording artists, Sonic Flood, on a new CD project.

And the Mercury News is telling us that she doesn’t support marriage equality

In a television interview Thursday, [Tami] Farrell said she believed marriage should be between a man and a woman. But she added: “I don’t think I have the right or anybody has the right to tell somebody who they can or can’t love.”

But it seems that Tami, unlike Carrie, doesn’t think her opinion on the matter is the result of some battle between God and Satan or that she’s qualified to weigh in authoritatively.

But what about gay marriage? Farrell feels it is “hilarious that the world is turning to beauty queens for the answers” on gay marriage, but she didn’t have a strong opinion on either side of the debate.

“I don’t think I have the right, or anyone has the right, to tell somebody who they can or cannot love. I think this is a civil rights issue, and I think the right thing to do is to let the voters decide.”

TMZ has video from CNN in which she says that the decision should be state by state and that she isn’t interested in hooking up with anti-gay organizations.

More Reactions to Obama Administration’s Defense of DOMA

Jim Burroway

June 12th, 2009

People are justifiably furious over the Obama administration’s DOJ brief filed with the Supreme Court defending DOMA. Here’s Pam Spaulding:

This is a President who said he is a “fierce advocate” for our rights. This doesn’t look much like an advocate, it looks more like an enemy pulling the pin on the grenade and tossing it at us. While this may not be the perfect test case for DOMA, the Obama administration, in its defense of the Act, has filed a brief that is a roadmap for every fundnut anti-gay argument against the right of same-sex couples to marry.

Andrew Sullivan:

There’s a completely decent reason to keep DOMA in place for the time being, especially in the federal courts right now - where bad precedents could wound us in the future. But to file an actual brief re-stating some of the worst and most denigrating arguments against gay civil equality is just bizarre. They could have argued for a narrow ruling or kept the “reasonable” arguments to a minimum. What they did - without any heads up to any of their gay supporters and allies - is unconscionable. Citing incest precedents? Calling gay couples free-loaders? Arguing that our civil rights are not impinged because we can marry someone of the opposite sex? Who on earth decided that that was a great idea?

…I’m baffled by this, I really am. The content of this brief is a massive political error from an administration that is making it impossible for its gay supporters to stay supportive. What’s next? A Clintonian political ad boasting of these arguments?

John Aravosis, when he’s not mad at others for not pushing the incest meme. Sorry, John. I love you and admire your work, but we disagree on that point. But not on this:

Today is the 42nd anniversary of Loving v. Virginia, the Supreme Court case overturning Virginia’s ban on inter-racial marriages. The Obama people, working for the product of an inter-racial marriage, sure have an eye for irony.

Chris Geidner at Law Dork:

Even if one argues, as I often have, that a government lawyer — from the Department of Justice to state attorneys general — must defend even those laws with which one disagrees*, such a lawyer needn’t overstate his or her case. The government lawyer defending a statute with which she disagrees needn’t add gratuitous demeaning statements into the legal brief she files.

Unlike the Obama Administration’s brief filed in the Don’t Ask, Don’t Tell case turned away by the Supreme Court this week, last night’s filing in Smelt v. United States goes too far.  It’s offensive, it’s dismissive, it’s demeaning and — most importantly — it’s unnecessary.  Even if one accepts that DOJ should have filed a brief opposing this case (and the facts do suggest some legitimate questions about standing), the gratuitous language used throughout the filing goes much further than was necessary to make its case.

…Perhaps the simplest way to express my anger at this filing is to reprint what is easily the most disingenuous line of the brief, at p. 32:

DOMA does not discriminate against homosexuals in the provision of federal benefits.

Another lawyer, Dale Carpenter at the Volokh Conspiracy:

More bluntly put, the Obama DOJ is saying that DOMA doesn’t discriminate against gays and lesbians because they are free to marry people of the opposite sex. No “homosexual” is denied marriage so homosexuals qua homosexuals suffer no hardship. Gay man? Marry a woman, says the DOJ. Lesbian? There’s a nice boy across the street. It’s identical in form to the defense of Texas’s Homosexual Conduct law in Lawrence v. Texas: a law banning only gay sex doesn’t discriminate against gays because it equally forbids homosexuals and heterosexuals to have homosexual sex and because it equally allows homosexuals and heterosexuals to have heterosexual sex. This sort of formalism has incited howls of laughter over the years when made by religious conservatives. Now it’s the official constitutional position of the Obama administration.

…My point here is not to claim that the DOJ’s arguments are anti-gay, homophobic, or even wrong. Much of the brief seems right to me, or at least entirely defensible, as a matter of constitutional law. My point is only to note how much continuity there is in this instance, as in others, between the Bush and Obama administrations. In short, there’s little in this brief that could not have been endorsed by the Bush DOJ. A couple of rhetorical flourishes here and there might have been different. Perhaps a turn of phrase. But, minus some references to procreation and slippery slopes, the substance is there.

Obama says he opposes DOMA as a policy matter and wants to repeal it. Nothing in the DOJ brief prevents him from acting on that belief. He is, he says, a “fierce advocate” for gay and lesbian Americans. When does that part start?

David Link at Independent Gay Forum:

It is gratuitously insulting to lesbians and gay men, referring (unnecessarily) to same-sex marriage as a “form” of marriage, approving of congressional comparisons between same-sex marriages and loving relationships between siblings, or grandparents and grandchildren, and arguing (with a straight face, I can only assume) that discrimination against same-sex couples is rational because it saves the federal government money.  There are some respectable arguments in this motion, and this kind of disrespect is offensive.

Chris Crain:

The people in the Justice Department writing this brief made so many discredited and ridiculous arguments for DOMA, I hope these were really intended to help the court see the fallacy of DOMA to persuade the court to strike it down. Otherwise my only other conclusion is that the Obama White House has thrown us overboard.

Dan Savage:

Barack Obama’s record on gay rights so far: disturbing, unsound, false, discriminatory, damaging, nonsensical. Before today you could argue that the Obama administration was too busy with the economy and the war and health care to focus on making good on his campaign promises to gays and lesbians, that Obama simply didn’t have the time to take up our issues. But you can’t make that argument anymore. The Obama administration has the time to take up gay rights issues—but only, it seems, to do harm.

I can’t take my vote back. And I’m not sure I would if I could. But I sure as hell would like to have my money back.

And Andy Towle:

Happy Stonewall anniversary everybody!

Obama Administration Moves To Uphold DOMA Before Supreme Court

Jim Burroway

June 12th, 2009

John Aravosis has finally gotten a copy of the Justice Department’s brief urging the U.S. Supreme Court to dismiss the legal challenge to the so-called “Defense of Marriage Act.” The case was brought by Arthur Smelt and Christopher Hammer, who were married in California last year.

Avarosis goes out on a few limbs in his post, claiming that the Obama administration compares same-sex marriage to incest and pedophilia, and others are blindly running with it. The problem with that is that the brief does no such thing. It does mention that different states do regulate the qualifications for marriages differently with regard to kinship or age of consent, emphasizing that some states allow some marriages while others don’t. But trying to figure out if second and first cousins or sixteen-year-olds should marry isn’t the same as pedophilia or incest as Aravosis claims. If you really want a good example of how such a comparison has been made, go back and remember Rick Warren’s comparison and his reiteration that he does see it as equivalent. The Justice Department brief is not even close to being in the same league.

Nevertheless, there is plenty to be upset about without descending into histrionics and melodrama. For example, the administration’s brief reveals one cynical reasoning behind DOMA: that Congress has a right to determine how it preserves “the scarce resources of both the federal and State governments” (i.e. they save money by denying marriage equality to same-sex couples).

It also gives a tortured reasoning as to why DOMA does not violate the Equal Protection clause of the constitution. In case the court is inclined to see gay people as a suspect class, the brief points out that DOMA doesn’t mention gay people, but simply defines the gender of those who must be recognized as married by the federal and state governments — a legal re-casting of the utterly facetious “gays can marry people of the opposite sex” argument.

And the mere fact that the Obama administration sees fit to try to justify the constitutionality of DOMA is very troubling. When Obama ran for the Democratic nomination for President, he distinguished himself from other front-runners by declaring that he was for DOMA’s full repeal. That contrasted with Sen. Hillary Clinton’s position of advocating for only partial repeal of DOMA and leaving intact the provisions allowing states to refuse to recognize same-sex marriages performed in other states. When Obama became president, the new White House web site repeated his call for repealing DOMA. But that commitment has since been quietly dropped when the web site was revamped in April.

This case, Smelt v United States, is separate from the highly publicized case of Perry v Schwarzenegger, which was brought by the two prominent lawyers Ted Olson and David Boies and funded by the American Foundation for Equal Rights. In Smelt v U.S., the plaintiffs are a married couple seeking federal recognition of their California marriage, as well as the recognition of their marriage in other states. Perry v Schwarzenegger was brought by two unmarried same-sex couples and challenges California’s ban on same-sex couples’ access to marriage. There is also another separate DOMA challenge filed by GLAD on behalf of the widower of the late openly gay Congressman Garry Studds.

Update: Want another reason to be upset about this move by the Obama administration? How about this statement from Justice Department spokesman Matt Miller:

As it generally does with existing statutes, the Justice Department is defending the law on the books in court. The president has said he wants to see a legislative repeal of the Defense of Marriage Act because it prevents LGBT couples from being granted equal rights and benefits. However, until Congress passes legislation repealing the law, the administration will continue to defend the statute when it is challenged in the justice system.

Miller is hiding behind the fact that the administration is charged under the constitution with the duty to enforce the law. But that is not the same as saying the administration is obligated by that same constitution to defend the law in court. The constitution does no such thing. In fact, virtually every administration has gone to the courts on behalf of plaintiffs or on their own behalf seeking to strike down laws they don’t like. This is a weak statement from a meek administration.

Marriage Continues to Play Central Role in NY Senate Drama

Timothy Kincaid

June 10th, 2009

More rumors fly on the NY Senate coup, some involving whether the alliance will hold. And at this point it continues to be likely that the best chance for a vote on the marriage bill will be with the new shared-power Repulican alliance. (Buffalo News)

The new leader added that legalizing gay marriage “is my signature issue at this point.” Espada is actively trying to woo Sen. Thomas Duane, a Manhattan Democrat who is pushing the gay marriage bill, to join with him and the Republicans in running the Senate.

Espada said he hopes to bring the bill to the floor next week. Its passage is far from certain, however, but Espada said he wants to end the days of the Legislature’s only bringing bills to the floor that are certain to pass.

NOM Loses It Over Carrie’s Lost Glittering Tiara

Timothy Kincaid

June 10th, 2009

Here is the National Organization for Marriage’s full press release in all of its fabulous hystronic wild-eyed glory:

THE NATIONAL ORGANIZATION FOR MARRIAGE RESPONDS TO THE FIRING OF MISS CALIFORNIA USA CARRIE PREJEAN:

(Princeton, NJ) - Today, the National Organization for Marriage (NOM) issued the following statement in response to the firing Miss California USA Carrie Prejean:

“Hollywood hates Carrie. First they abuse her, then they try to get her to recant, then they threw mud, and now they are doing what they wanted to do from day one: Get rid of Carrie.

This cover story about a contract dispute doesn’t pass the smell test. Americans aren’t fooled that easily. God knows, and we know, the truth about Carrie: She’s a young woman of great beauty who chose truth over the glittering tiara that Hollywood offers,” said Brian Brown, Executive Director for NOM. “Of course they will try to punish her, but we know she will be fine in the end, because her values are in the right place.”

“Hollywood will dance its tribal war dance over her body–the hatred generated against her has been extraordinary–but Carrie will be free to define her own mission and message from now on. Congratulations,” stated Maggie Gallagher, President for NOM.

Cue the war dance.

I’ve been informed that depicting Maori and other Indiginous Peoples is a “racist misappropriation” and that “acontextual stereotypes of Native people being warlike and savage” are offensive. Although I doubt that my Native American ancestory would qualify me as entitled to use a depiction of a Cherokee war dance, I trust that my Scottish ancestory and last name will suffice to allow for a Highlander to be shown. So I have replaced the photograph of the Maori dancers with a painting by Robert Griffing which depicts a Highland war dance, the Sword Dance.

Although it probably isn’t the type of “tribal war dance” that Gallagher was picturing, it is likely the only image that would be deemed acceptable by those who do such deeming. Scots don’t much complain about such imagery. And if anyone continues to be concerned about the racist misappropriation of the honorable Highland Scots, it may calm your concerns to note that this particular dancer appears to be wearing Kincaid Plaid.

Marriage Rumors Fly in New York

Timothy Kincaid

June 10th, 2009

New York is still in a whirl over the Republican coup in the Senate. And with Democrats locking refusing to concede and locking the doors of the chamber, uncertainty reigns. Republicans are planning on calling the Senate to order, even if they have to do so in a park.

Naturally, amidst the turmoil rumors of all sorts abound. And many of them involve the gay marriage bill.

Perhaps the most startling is the idea that Republicans may be wooing Democrats by promising to pass the marriage bill. (NY Times)

One of the senators who is believed to be considering breaking ranks with the Senate Democratic conference, Thomas K. Duane of Manhattan, would not say Tuesday where he planned to cast his political allegiance. “I am not considering anything but trying to get passed all the legislation I’ve spent my whole life fighting for,” he said. Mr. Duane, who did not attend meetings with his Democratic colleagues on Tuesday, said he had spent all day in discussions with senators from both parties.

Mr. Duane did not attend the meeting of Democrats on Wednesday morning, and he has not been seen in the Capitol since Monday.

City Hall News takes the story further

But the scuttlebutt among several lawmakers and aides, which many of Duane’s colleagues and supporters seem to believe, is that he is hashing out a deal with the Senate Republicans to bring a bill legalizing same-sex marriage to the floor for a vote.

That would not surprise those close to Duane, who say the Manhattan Democrat is committed above all else to passing same-sex marriage legislation before the end of the session—even if it means joining the coalition majority, some of whose members “he despises,” according to one close friend and adviser. Cooperating with Republicans would offer Duane the opportunity to pass landmark civil rights legislation that could have ripple effects across the country.

They provide some history

The move would not surprise Republicans, either. GOP leaders, including then-Majority Leader Dean Skelos, courted Duane intensively as early as December of last year, according to a Republican official familiar with the conversations.

At the time, Smith was struggling to appease a group of dissident Democrats who were threatening to throw their support behind the Republicans. One, Sen. Ruben Diaz Sr., tried to extract from Smith a promise not to bring the same-sex marriage bill to the floor for a vote.

As Smith mulled that deal, Republicans reached out to Duane, enticing him with the possibility of bringing gay marriage to the floor themselves and, with his support, passing the bill. Duane ultimately rebuffed those overtures after Smith rejected the terms of Diaz’s deal.

The plan some Republicans had hatched involved letting a handful of their safer and more moderate members, such as Sen. Betty Little, vote along with most of the Democratic conference in favor of the gay marriage bill. That way, Republicans would co-opt a key plank in the Democrats’ platform and claim that they had succeeded where the Democrats had failed.

Republicans now appear to have resurrected those plans in a political maneuver they feel would neutralize a key voting bloc and further debilitate a wounded Democratic conference.

There is even speculation that Duane is willing to change party registration.

If any of this is true, it would be perhaps one of the strangest political turns that I’ve seen.