Box Turtle Bulletin

Ex-Gay Group Warns: Change Or Die

Phillip Lee, of Bakersfield's His Way Out Ministries

It has been reported recently that Exodus International president Alan Chambers is trying to save his organization from financial ruin by rebranding itself with some sort of a softer, kinder image. An Exodus member ministry in Bakersfield, California, however appears to have taken the opposite tack. Pastor Phillip Lee, executive director of His Way Out Ministries at Chester Avenue Community Church penned an op-ed in Sunday’s Bakersfield Californian that looks like it came straight out of 1985. The upshot is this: everyone has a choice to either become straight or die of AIDS:

While AIDS is not solely a homosexual disease, the disease was confined almost exclusively to homosexuals in the beginning years of the epidemic in the United States. I personally witnessed this horrific tragedy unfold while living in San Francisco, having several personal friends die of AIDS at the beginning stages of what is now a pandemic. Tragically, the reality and threat of AIDS has not stopped men from engaging in unprotected sex and the continued risk-taking by many does not appear to result from a lack of awareness.

There is, therefore, little to no evidence that homosexual practice can be anything other than a severe threat to the sanctity of life. That said, all efforts should and must continue to better understand and find a cure for AIDS and AIDS-related diseases. However, if the sexual behavior that is fundamental to most homosexual practice constitutes the primary means of transmitting such disease, then it only makes sense for society to do all it can to decrease such behavior, which ultimately protects the sanctity of life.

I guess gay and bisexual women are off the hook. But what Lee fails to understand is that AIDS is the result of unprotected sex — whether that sex is gay or straight. It is not the product of being gay. If it were, AIDS wouldn’t be a predominantly heterosexual disease worldwide. But there’s no sense in grounding an ex-gay message in reality when the entire ex-gay movement is predicated on training people to ignore their own reality and embark on an lifelong struggle to try to achieve what does not come naturally to them. Stigmatizing people with AIDS is no small thing for people who have still have to deal with routine ignorance, but as far as Exodus-affiliated His Way Out Ministries is concerned, that stigma is just another tool in its toolbox.

This tactic is beyond merely deplorable. It is an outrageous throwback to the hysteria of twenty years ago. If Chambers really wants to rebrand his organization’s image, he really has his work cut out for him among his own affiliates.

Larry King’s Killer Pleads Guilty In Exchange for 21 Year Prison Term

Brandon McInerney (left), Lawrence King (right)

Brandon McInerney, who was a fourteen-year-old Oxnard Middle School student when he shot Larry King in school at point blank range in 2008, pleaded guilty to second-degree murder, voluntary manslaughter and the use of a fire arm in a plea deal which will result in a 21 year prison term in addition to time served. Under the terms of his plea deal, McInerney, who is now 17, will be released shortly before his 39th birthday. McInerney will be formally sentenced on December 19.

McInerney’s plea deal comes after a mistrial was declared in his first trial after jurors were unable to reach a verdict. They had deadlocked at 7 to 5 in favor of finding McInerney guilty of voluntary manslaughter, with the five holding out for either second or first degree murder.

The Gay and Lesbian Education Network’s Executive Director Eliza Byard applauded the plea deal:

“The plea deal announced today ends a tragic chapter in Ventura County. Holding Brandon McInerney accountable for his actions is necessary and right, but putting him behind bars does not solve the problems that led a boy to become a bully, and then a murderer. Homophobia and transphobia, compounded by the lack of counseling and other supports for struggling young people, resulted in Larry King’s death and the effective end of Brandon McInerney’s life. As adults and as a society, we must find the resolve to fix the broken systems that lost two young lives to hate and fear.

I echo Byard’s sentiments. I’ve always felt very uncomfortable with sending a fourteen-year-old to prison for the rest of his life. This, I think, strikes the right balance.

Why the California State Supreme Court’s Decision Is A Good Thing

Of course in my heart I wanted today’s ruling by the California Supreme Court to go differently than it did. But in my head I had little doubt about the outcome. In ruling that Prop 8 proponents have legal standing to defend their handiwork in court, the court established a precedent that upholds the spirit of California’s system of initiative and referendum. It also, if taken to what I believe should be its logical conclusion, can become a starting point for reforming some of the worst abuses of California’s initiative process by holding proposition supporters accountable for the propositions they’ve foisted on the state.

California’s initiative and referendum was initially implemented as part of a broader political reform movement intended to give citizens the ability to make the laws that their elected officials refused to do. In theory, that sounds like a very good idea, I think most of us can agree that its practice in California has been a disaster. The patchwork of accreted propositions over the decades have made the state effectively ungovernable, while the initiative process itself has been hijacked by powerful special interest groups who pump multiple millions of dollars into the campaigns to get their favorite measures approved. Prop 8 alone came with a price tag of more than $83 million. With that kind of money, the citizen-legislator that the initiative and referendum system was supposed to empower hardly matters any more. The obscene sums spent on various propositions by powerful interest groups makes the whole idea of harnessing the collective wisdom of citizen-legislators, well, sad. Look at what all that money got us: a discriminatory law written into California’s Constitution in a process that leveraged prejudices and fear to win votes.

It’s no wonder then that when Americans For Equal Rights sued to overturn Prop 8 on constitutional grounds, the state stepped aside and said they wouldn’t defend it. And why should they? Prop 8 wasn’t Sacramento’s doing. It was the product of anti-gay activists who put the proposition on the ballot and spent millions on a campaign pitting Californians against fellow Californians. Why should the state defend Prop 8 supporter’s pet cause?

In fact, why should the state defend anything they didn’t enact in the first place? And furthermore, in the spirit of citizen initiative and referendum, why would anyone want the state to defend something they had no hand in creating — whether it’s Prop 8 or any other proposition that had passed without the state’s support? The California court examined those questions and observed, “Because of their special relationship to the initiative measure, the official proponents of the measure are the most obvious and logical private individuals to ably and vigorously defend the validity of the challenged measure…” 

I think they’re on to something, and the Prop 8 case is a great example. When the state stepped aside and said they wouldn’t defend Prop 8, Federal District Judge Vaughn Walker let Prop 8’s supporters defend the law in his court. And look what we got: a mess so embarrassing that the defendants themselves have been fighting hard to keep the trial’s videotapes out of public view. Prop 8 supporters won their electoral campaign by playing on the worse prejudices against LGBT people, only to have to try to deny in court that prejudice played any role in the campaign. That didn’t work. They tried to claim that social science argued against same-sex marriage. That effort completely fell apart. After Prop 8 was ruled unconstitutional, Prop 8 supporters tried to claim that because Judge Walker was gay, his ruling should be overturned. That didn’t work either.

If you ask me, holding Prop 8 supporters accountable for their proposition has been nothing but a big plus for our side. Remember, these are the guys who are “the most obvious and logical private individuals to ably and vigorously defend” Prop 8. Don’t you just love it?

So if I had a complaint against the California State Supreme Court ruling, it would be that it doesn’t go far enough. I think state officials should be prohibited from defending any proposition placed on the ballot via citizen initiative. That burden should be borne by those who campaigned for the proposition’s passage. If they think it’s just a great idea during the campaign, they also ought to be able to explain why it’s a great law in court. And if they can amass the millions of dollars it took to win passage of their pet proposition, then they can stick around after the election to defend the law — and to raise the money for the legal bills — if it lands in court.

This could open the door to some substantive reform in California’s initiative and referendum process. If a campaign knew that they may be called upon to defend their handiwork in court, maybe they’d think twice about their efforts. Maybe they would more carefully consider the ramifications of their proposals before election day if they knew they’d have to defend them after election day. Maybe they would think twice about exploiting irrational fears and prejudices against a minority if they knew they’d have to explain how their law wasn’t irrationally fear-based and prejudiced in court. And yes, maybe monkeys might fly out of my butt. But holding people accountable for their actions has never been a bad thing. It has worked pretty well so far with Prop 8.

CA Supremes get it wrong on representing the state

The California Supreme Court has weighed in with their opinion as to who can appeal a federal decision in which the State itself is the defendant. Should elected officials which represent the state decide to accept the decision of the federal court rather than appeal, individuals or groups who disagree with the decision of the elected representatives can themselves assume the mantle of “the state” and act as though the electorate had chosen them instead.

In response to the question submitted by the Ninth Circuit, we conclude, for the reasons discussed above, that when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under article II, section 8 of the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state’s interest in the initiative’s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.

This is, I believe, an ill conceived decision, and not only because of its impact on Perry v. Schwarzenegger.

In California, initiatives serve a peculiar function. Decades of legislator-crafted districting and closed-structure power building have left the legislature in the control of a small handful of people. It is not infrequent that a large majority of the people of the state have a strong position that is in opposition to that which the oligarchy takes. So, from time to time the electorate will pass some initiative that is intended to serve as a “wake-up” to Sacramento. (1978’s Proposition 13, which limited the extent to which the state could increase spiraling property taxes, is an example.)

But Californians also have an erratic or whimsical approach to initiatives at times. And then we end up with the people placing a ban on eating horse meat.

But whether serious or wacky, initiatives are at times hastily or ignorantly drafted and – if applied literally – could be disastrous to the functioning of the state. So courts step in and toss out extreme provisions and, assuming that the end result addresses the concerns of the voters, the matter is concluded.

But that assumes that responsible parties can weigh the value of appeal, the importance of language, the constitutionality of various proposals and the way in which an initiative impacts other areas of law. And it also assumes that the State, in its official capacity, will conduct itself with honor and present its case based on the constitutions of the nation and the state, legal precedent, honest testimony, and cogent argument. For these purposes, the State of California elects an Attorney General.

But this decision opens the door for extremist wackos – of all political bents – to throw the state into chaos. If a Governor and Attorney General are not entitled to determine which provisions are worth fighting for and which can be conceded, and if we turn that decision over to idealists who believe that every word in their manifesto is of extreme importance, then my state is slated for some very confusing times.

The California Supreme Court, I believe, got caught up in the emotion of Proposition 8 and “the will of the people” and did not carefully consider the bigger question of representation.

CA Supreme Court: Prop 8 Supporters Can Appeal

The California Supreme Court has ruled that when state officials decline to defend a proposition, the proposition’s official proponents have legal standing to appeal (PDF: 343KB/72 pages):

In response to the question submitted by the Ninth Circuit, we conclude, for the reasons discussed above, that when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under article II, section 8 of the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state’s interest in the initiative’s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative. …

So now the appeal of the lower court’s ruling that Prop 8 is unconstitutional goes forward in the Ninth Circuit Court of Appeals.

The Daily Agenda for Thursday, November 17

TODAY’S AGENDA:
CA Supreme Court To Issue Ruling on Prop 8 Appeals Standing: San Francisco, CA. There is a slim chance (in my opinion, at least), that tomorrow might be the day when marriage equality effectively returns to California. To see how that might happen, let’s review: On August 4, 2010, Federal District Judge Walker Vaughn found Prop 8 unconstitutional because, as the lawyers arguing against Prop 8 put it, junk science, fear and prejudice were put in trial and lost. Conservatives tried to force Gov. Arnold Schwarzenegger and Attorney General Jerry Brown to file an appeal, but the California Supreme Court said they didn’t have to if they didn’t want to. Which they didn’t. That was kind of important because it wasn’t clear that anyone besides the governor and attorney general had standing for appeal. Since this involved California law, the Federal Appeals Court asked the California Supreme Court to perform one of the roles that state supreme courts are supposed to do and Federal courts are not qualified to do: interpret California law and tell the Feds whether the authors of Prop 8 had standing to defend Prop 8 on appeals.

While that was going on, Judge Walker decided to come out of the closet, which sent Prop 8 supporters in a tizzy. So Prop 8 supporters sued to overturn Walker’s ruling because gay judges can’t rule on gay issues, just like women judges can’t rule on women’s issues and black judges can’t rule on black issues. Oh, wait. It was a black judge they got to hear the case. Good thing that wasn’t really their argument, but the one they did try to use wasn’t any better.  The new judge upheld Walker’s ruling, so now we’re back to waiting on the California Supreme Court to decide whether Prop 8 supports have standing to appeal.

And that wait ends tomorrow at 10:00 a.m. PST. If the California Supremes advise the Ninth Circuit Court of Appeals that Prop 8 supporters don’t have standing to appeal, then the Appeals Court is likely to accept that advice and rule the case over with Judge Walker’s ruling intact. If that happens, then it’s a crap shoot as to whether the U.S. Supreme Court would even accept an appeal of the Ninth Circuit Court’s ruling, although that remains a possibility. It’s also possible though that the Appeals Court may still want to hear more briefs and more arguments before they are prepared to rule on the issue of standing for Federal Court.

However, if the California Supremes say that Prop 8 supports do have standing to appeal, then we have another long schedule before the Ninth Circuit Court of Appeals for briefs, argument, and ruling on the appeal itself. And then, almost certainly, it goes to the U.S. Supreme Court.

If I were a betting man, I’d bet that the CA Supremes rule that Prop 8 supporters have standing. I doubt that for a question this important they’d be willing to effectively stop the process in its tracks right now on what many would see as a technicality. I really don’t see nondiscriminatory California marriage licenses showing up anytime in the near future. But hey, I’m not a lawyer. What’s your bet? Betting closes at 10:00 a.m. PST.

Transgender Day of Remembrance Several locations. While Sunday is officially the day set aside to remember those who have been murdered as a result of transphobia, some TDoR events are taking place today and through the weekend. TDoR began in reaction to the brutal murder of Rita Hester, who was killed on November 28, 1998. Her murder resulted in the creation of the Remembering Our Dead web site and a candlelight vigil in 1999. Observances typically consist of the reading of the names of those who have died because of their gender identity, expression, presentation or perception of gender variance. Observances are being held in cities all around the world. Click here to find an observance near you.

Transgender Day of Action: Washington, D.C. The nation’s capital has been the scene for several violent attacks against transgender and gender variant people, including LaShai McClean on July 20, and Gaurav Gopalan on September 10 (Golpan was a gay man dressed in drag when he was attacked). Beginning at 1:00 p.m. today, a broad coalition of organizations and concerned DC residents will be hand-delivering written goals, demands, and deadlines aimed at stemming the escalation of violent crimes against Transgender people in the District. Starting with Metropolitan Police Department Chief Cathy Lanier and U.S. District Attorney for Washington, DC (DA USAO) Ron Machen, who oversees the city’s federally-administered justice system, the activists will continue with Mayor Vincent Gray, and all 13 City DC Councilmembers. Click here for more details.

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).

As always, please consider this your open thread for the day.

Prop 8 may be decided at 10 a.m. tomorrow

Tomorrow at 10 a.m. (Pacific Time), the California Supreme Court will advise the Ninth Circuit Court of Appeals as to whether the anti-gay activist organizations that are seeking to step in place of the State of California to defend Proposition 8 have standing, under California law, to do so.

Should the CA Supremes advise that the Proponents of Proposition 8 have no standing, and should the Ninth Circuit accept that advice, then the case is over. Proposition 8 will be dead and marriage equality will return to California.

The Daily Agenda for Friday, 11/11/11

TODAY’S AGENDA (OURS):
Veterans Day: Nationwide. This will be the first Veterans Day commemoration since the repeal of “Don’t Ask, Don’t Tell,” which means that this will be the first Veterans Day commemoration in which gay and lesbian servicemembers will be able to participate fully. I know of two cities  in which LGBT veterans will be celebrated as part of the mainstream events:

• San Diego, CA: San Diego LGBT Pride extends its welcome to all LGBT veterans, active duty servicemembers, and their families and supporters to walk with us in the San Diego Veterans Day Parade. The contingent will meet at 10am on the west side of the north Parking lot of the Country Administration Building, 1600 Pacific Hwy, San Diego CA 92101. The Parade will kick off at 11am.
• San Francisco, CA: Today’s 92nd annual Veterans Day Parade will be led by San Francisco Freedom Day Marching Band. “It’s just the right thing to do,” said Wallace Levin, the parade coordinator. “Future generations of Americans will look back on this issue and wonder what all the fuss was about.” The parade begins at 11:00 a.m. at the corner of Market and Montgomery streets, and will go down Market Street to McAllister Street and then continue up McAllister to the reviewing stand across from City Hall.

I’m sure there are others. If you know of any, please let us know in the comments.

Lou Engle at TheCall in Nashville, 2007

TODAY’S AGENDA (THEIRS):
Lou Engle’s TheCall Rally: Detroit, MI. Engle is apparently transfixed by certain numbers when they repeat themselves on the calendar. When July 7, 2007 rolled around, Engle held a TheCall rally in Nashville which he believed would mark the end of a forty year period of rebellion since the “Summer of Love” in 1967. Apparently believe that God conforms himself to the man-made western Gregorian calendar, Engle has managed to read some sort of significance into the date 11/11/11, although what that would be is anybody’s guess. Targeting the substantial Arab-American community of Dearborn, Engle’s goal for TheCall Detroit is the conversion of “millions of Muslims” to Christianity and what he calls the transformation of “urban communities.” And gays. Don’t forget the gays, although it looks like he really has his sights set on Muslims this time. He took care of the gays in 2010 at a rally in Kampala, Uganda, where he lent tactical support for the proposed “Kill the Gays” Bill.

Today’s rally begins tonight at 6:00 p.m. and continues for twenty-four hours until tomorrow night at 6:00 p.m. And Engle has issued some pretty crazy warnings if he doesn’t get a massive turnout in Detroit: ” If we actually have The Call and you don’t sustain prayer ongoing you open a vacuum for demons seven times worse to come in. If black and white can’t move together in prayer and sustain it, forget it let’s not even go there, you get demons seven times worse.” So yeah, there’s that to chew on.

TODAY IN HISTORY:
Woman Who Posed As Man 60 Years, Dead: 1907. That was the headline in The Trinidad (Colorado) Advertiser above this news item:

Katherine Vosbaugh, who for sixty years posed as a man, wearing male garb, living the rough life of the pioneers in the Southwest and who even “married” another woman, died yesterday morning at the San Raphael Hospital in this city, where she had been a county charge since he secret of her life was discovered by Dr. T.J. Forham, of this city two years ago.

Born nearly four-score years ago in France of a good family, this remarkable woman donned male garb when but a slip of a girl, came to America and worked as a back clerk, bookkeeper, restauranteur, cook, and sheep herder for over half a century without her sex being known.

In July, two years ago, “Frenchy,” a cook and sheep herder on the Sam Brown ranch, near this city, was taken with pneumonia and brought to the hospital where her secret was revealed. Even then, this strange woman refused to wear skirts. Clad in regulation man’s attire, she has since worked about the hospital and was known by the nickname of “Grandpa.”

Katherine Vosbaugh was left an orphan at the age of twenty years. Her father, a well educated man of considerable means, gave her an excellent business education. At hi death she was an expert accountant and spoke her native tongue, English, German, and Hungarian. Her only motive in assuming the disguise at first seems to have been to enable her more easily to secure employment.

She worked in several cities all over the country before settling at Joplin, Mo., where she worked for fifteen years as a bank clerk, and it was in this city where she married. The name of her “wife” was never learned, but the ceremony seems to have taken place for the purpose of saving the woman’s good name. A few months after the marriage a child was born to the wife, which died after a few months.

Shortly after the death of the child the two women came to this city and opened a restaurant on Commercial street. Here she was known as “Frenchy” and the establishment was one of the most popular restaurants in the Southwest.

Wheat became of “Frenchy’s” wife is not known. She drifted away and her “husband” refused until the time of her death to reveal the woman’s name.

After leaving here the woman secured a position as cook on a big sheep ranch near Trinche ranch. The eccentricities of youth became more pronounced as she grew older and more and more she came to look like a man. For years she lived with men on the ranch, cooking for them, assisting them in the ranch work, and sleeping in the same rooms, but her secret was never suspected.

Two years and four months ago she was stricken with pneumonia, and it was then that her secret was discovered. Since then she failed rapidly in body and mind and her death was due to a general breakdown.

From Jonathan Ned Katz’s Gay/Lesbian Almanac (New York: Harper & Row, 1983), pages 323-324.

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).

As always, please consider this your open thread for the day.

EQCA takes a smart step

I continue to believe that Equality California is a defunct organization that just hasn’t realized it yet. However, they have taken one step that I think is wise: (from a Send Us Money email)

So we are excited to share with you that, thanks to a generous leadership grant from the Evelyn and Walter Haas, Jr. Fund, we have engaged veteran LGBT civil rights leader and nonprofit advisor, Joan Garry to serve as EQCA’s chief strategy and transition consultant over the next few months to conduct a focused assessment of the organization, create an interim management plan and develop a short-term strategic plan that will serve as a roadmap for a new executive director search. Joan will be joined in this effort by Dr. Julie Anderson.

I respect Joan Garry. Back when GLAAD was changing Hollywood (instead of being the Word Police), Joan’s instinct and hard work was instrumental in ensuring that gay people on film were not just demeaning stereotypes.

Perhaps she and Anderson can find a purpose and focus for Equality California. But I’m still not betting on it.

The purpose of marriage

Gage Raley, a good ol’ Texas Mennonite studying law in Japan has come up with his most excellent reason for denying civil marriage rights to gay folk. And it’s all based on the marital presumption of paternity.

Or so Mr. Raley informs us in a late-filed amicus brief to Perry v. Schwarzenegger. And Judge Walker’s ruling should be overturned.

Now first I’d like to congratulate Mr. Raley on a most informative essay. The history of the legal and social efforts to ensure that men support their offspring – going back as far as the first human who stood erect on her hind legs – is actually a fascinating read.

But sadly, it seems that young Gage is pursuing the wrong career. He should have chosen history so as to take advantage of his story telling skills. Because law requires logic, a tying of facts to consequences that reflect a process of thinking that can withstand and opponent’s review.

And, sadly…. well, let me just give you his premise.

Mr. Raley tells us that in the American judicial system, there is a maternal presumption of paternity whose purpose is to “provide every child with a legal father.” And, though he probably doesn’t realize it, for some dozens of pages he uses the word “father” in terms of the role he plays, providing for the survival of the child.

Interestingly, a great deal of attention is spent on the argument that a genetic father must be known in order to naturally trigger this provision (a biological imperative for the continuation of his genes). And marriage’s purpose was to tie the care of the child to the continuation of his lineage. The result being that through marriage a man knew who his children were (or, at least, thought he did).

But by page 47, Raley’s evolution of law has come to the point where legal requirements are as much in play as emotional ones. And it is there that he finally tells us what the marital presumption of paternity actually is: “presuming a woman’s husband to be the father of her children”.

Irrespective of biological reality, the legal father of a child, the one responsible for its care and needs, is presumed to be the mother’s husband at the time of the child’s birth. And that is true.

Even if the child is of another race, if the husband is sterile, and if everyone in town knows that they mother is carrying on an affair, that child’s father is presumed to be her husband. Follow me? Even if it is impossible for the man to actually be the genetic father of the child, in the eyes of the law, as long as no one disputes it, he is the father.

And while there are ways to void this presumption, if the father is aware but doesn’t act in a timely manner, then he will remain that child’s father. And if they divorce, he can be legally responsible for child care. Courts have upheld such rulings.

(And this is a presumption that is not entirely unfair to men. More than a few children have been born to fathers who cannot impregnate with the full intention and even participation of men who want to be a dad.)

And it is at his grand “and thus” moment that Mr. Raley beams and presents his smoking gun: in a same-sex marriage, there’s no man to be the presumptive father of the woman’s child. A state has an interest in ensuring that its children are cared for and, it is impossible for both parties in a same-sex marriage to be the genetic parents, then the legal presumption of paternity of a child born in such a union can’t apply and no one can be held liable for that child’s care.

Oh, but what Mr. Raley didn’t notice (the elephant which was not only in the room but tap dancing while playing a trumpet) is that it was for just such a purpose that the presumption of paternity (or, from the state’s perspective, the presumption of a legally obligated provider) came to be. This presumption assigns a provider even when the neighbors scoff at the notion. It’s a legal assumption, not a literal one.

And Mr. Raley apparently is unaware that legal presumption is one of the tools that gay couples use to establish parental rights in states that allow marriage equality. It gives the child a legal parent even when biology fails to do so.

So, Mr. Raley’s argument (like most of the arguments presented to defend Proposition 8) ultimately supports same-sex marriage. But it was a nice history lesson, nonetheless.

UPDATE: 11/3/11

It seems Mr. Raley made an eensie teensie mistake. In filing the brief, he states:

Both parties have granted their consent to the filing of this amicus brief.

Well, no. Not exactly. The Plaintiffs have a quite different perspective:

Plaintiffs-Appellees have not consented to the filing of Mr. Raley’s untimely brief. Rather, Plaintiffs-Appellees informed Mr. Raley that the parties previously had consented to those amicus briefs that complied with this Court’s rules. Because Mr. Raley’s brief is filed long after the deadline established by the Court for the submission of amicus briefs, it does not comply with the Court’s rules and Plaintiffs-Appellees do not consent to its filing.

Ooooosie.

Thomas Sowell makes a point or two worth considering about bullying

Economist and conservative commentator Thomas Sowell has a new complaint out about the efforts to end gay bullying. Oddly, I find that while our reasoning and perspectives are far apart, he says some things that we should consider.

The premise of his column is that media attention and activism follow trends and popularity rather than even handedly reporting facts with context and perspective enough to allow the customer to see the full picture. I hardly think that is worth debating; we all have felt frustration over what has and what has not received media attention.

Sowell compares the attention given to gay kids being bullied to that of Asian-American kids being beaten in Philadelphia. I don’t know much about that situation, but it appears to be localized, a year or so old, and does not appear to have resulted in suicides. And Sowell’s general snittiness and petty whininess discourages any sympathy that he might have otherwise elicited.

The school authorities can ignore the beating up of Asian kids, but homosexual organizations have enough political clout that they cannot be ignored. Moreover, there are enough avowed homosexuals among journalists that they have their own National Lesbian and Gay Journalists Association — so continuing media publicity will ensure that the authorities will have to “do something.”

Had Sowell used google, he would have discovered the existence of the Asian American Journalists Association. Or he could have glanced at a news station to see some avowed Asian Americans with his own eyes.

And had he been even peripherally aware, he would know that the anti-bullying stories were home grown, finding life first on gay blogs and then through efforts to send messages of encouragement to our own and only after paid advertising by a socially responsible corporation did America really take note of the problem.

But, despite the inaccuracies and false comparisons, what Sowell said next is interesting and worth a careful look by our community.

But political pressures to “do something” have been behind many counterproductive and even dangerous policies.

A grand jury report about bullying in the schools of San Mateo County, California, brought all sorts of expressions of concern from school authorities — but no definition of “bullying” nor any specifics about just what they plan to do about it.

Sowell is right on several points.

The programs put in place by schools to “address it and move on” do not seem to be significantly reducing the abuse. Often they are just the process the administration goes through in order to deflect blame or criticism. And even those schools which care and in which administrators genuinely and sincerely are trying to stop the bullying, the programs have not proven to be as effective as we would like. The problem of bullying is a cultural problem and one which needs to be addressed on a grander scale.

And (though this may anger some readers) sometimes our goals fall victim to a emotion/reason divide in which we have an abundance of people who feel and care and love and support but not too many who are cranky but make tough decisions, plot out strategies, and know how to effect change in real and tangible ways.

We have a narrow window before the public gets bored and the latest and newest urgent issue fad sweeps bullying into the corner. We simply don’t have the time to let our feelings drive our response.

We need specific definitions; we need exact and evenly applied consequences; we need to let the greater community know what it is that we are trying to accomplish with clear and specific language and get their support; we need to set aside hostilities and partner with the churches in town including the most conservative – as tempting as it is to believe otherwise, they don’t want gay kids to be bullied into suicide and if we don’t make this about taking sides then they could be our most powerful allies.

I am appreciative of the support our kids have gotten from the President to the small town citizen who all offer encouragement. And I’m thankful for the efforts of those who have worked tirelessly on this issue long before it came in vogue and will continue to do so when attention is elsewhere. Let’s take this opportunity to corral our energies behind them and bring about real structures of change.

This is a rare moment – lets use it to change the culture and teach a new generation that choosing to bully will come with social consequence: visibly disappointed family (and that is a tough role for parents who want to rush to their child’s defense), religious condemnation, and social rejection. If all of society tells a child that bullying has no supporters or defenders, if his peers consider bullies to be jerks, then this can be beat.

And that message will not only save the lives of gay kids, it will make the beating of Asian American kids in Philadelphia less likely. So even if Thomas Sewell is the one to inspire it, let’s make it happen.

But finally, Sewell discussed in his concluding paragraphs an issue that I have been reluctant to address. I’ve started and stopped a dozen times in my mind and even drafted a few times. I know this is not going to be popular and may well be seen as traitorous, but I think I need to say it.

First Sewell:

Meanwhile, a law has been passed in California that mandates teaching about the achievements of gays in the public schools. Whether this will do anything to stop either verbal or physical abuse of gay kids is very doubtful.

But it will advance the agenda of homosexual organizations and can turn homosexuality into yet another of the subjects on which words on only one side are permitted. Our schools are already too lacking in the basics of education to squander even more time on propaganda for politically correct causes that are in vogue. We do not need to create special privileges in the name of equal rights.

Bullying is too important and the consequences are too real for this issue to be squandered on political grandstanding and organizational fundraising. And that is what California’s Senate Bill 48, the Fair, Accurate, Inclusive and Respectful (FAIR) Education Act, seems to me to be.

California’s laws are about as inclusive as it is possible to be. Other than marriage – about which the legislature can do nothing – gay and lesbian (and to a great extent transgender) Californians have full civil equality. In much of the state social equality is a given and in some places religious equality is the norm.

And while that is great for gay Californians, it isn’t so great for the employees of gay organizations who don’t want to go out of business or for politicians who rely on the contributions and votes that come with being “your champion in Sacramento”. It isn’t even good news for anti-gay activists who need to have a good scare to stir up the masses.

And consequently, in the past few years we have seen the California legislature deal with the establishment of Harvey Milk Day and SB48. They were created expressly for the purposes of giving State Senator Mark Leno a pretense of defending the community, giving the Democratic super-majority an opportunity to demean the minority party, giving extremist Republicans a chance to pander to the base, and giving Equality California a reason to ask for money.

And so they did. Especially Equality California, who emailed me about the need to defend the legislation from “enemies of equality” who were employing “every dirty trick in their handbook” so please send money. Repeatedly.

Harvey Milk Day is unnecessary. It does nothing, it mandates nothing, it impacts nothing. But at least it is benign. There isn’t much harm in naming a day after someone, even if the motivations were an example of politics at its most cynical.

But the FAIR Act is not symbolic. It changes what will be taught in public schools and does so with arrogance and intentional disdain and in language so blatantly biased that when I first read the bill I thought they had to be kidding.

Sewell is not being hyperbolic when he said “it will advance the agenda of homosexual organizations and can turn homosexuality into yet another of the subjects on which words on only one side are permitted.” That is exactly what the bill says.

Specifically:

• Instruction in social sciences shall include the early history of California and a study of the role and contributions of both men and women, Native Americans, African Americans, Asian Americans, Pacific Islanders, European Americans, lesbian, gay, bisexual, and transgender Americans, and members of other ethnic and cultural groups, to the economic, political, and social development of California and the United States of America, with particular emphasis on portraying the role of these groups in contemporary society.
• A teacher shall not give instruction and a school district shall not sponsor any activity that reflects adversely upon persons on the basis of race or ethnicity, gender, religion, disability, nationality, sexual orientation, or because of a characteristic listed in Section 220.
• The state board or any governing board shall not adopt any textbook or other instructional materials for use in the public schools that contains any matter reflecting adversely upon persons because of their race, sex, color, creed, handicap, national origin, or ancestry on the basis of race or ethnicity, gender, religion, disability, nationality, sexual orientation, or because of a characteristic listed in Section 220.

Actually racial minorities already had law requiring inclusion and banning discrimination. This bill makes two changes: it adds LGBT Californians and changes the prohibition from “discriminatory bias” to “reflects adversely”.

Ignoring the complete nonsense of lessons about the numerous and significant contributions of LBGT Americans to the early history of California, and setting aside the political cover provided by pretense that this only addresses matters which are “on the basis of” a characteristic, we can readily know what this bill does in real terms and practical application.

A teacher should introduce role models, successful politicians, admirable persons, and celebrities so as to or reference his minority ethnicity or that she is lesbian. However, should any person be discussed who is disreputable or a villain, any mention of their ethnicity or orientation should be discouraged.

And this is to be done so as to accomplish the goal of contrasting the positive contributions of ethnic and gay groups with their “role in contemporary society”.

I suppose it could be more blatant. After all , the bill does not seem to mandate that membership cards be distributed or a collection plate be passed to assist those organizations who represent such groups in their current “role in contemporary society”.

And though I share Sewell’s doubt that this law will reduce bullying or even improve self-esteem, it is certain to further increase division and to give a tangible example for those who scream that ‘homosexuals are trying to brainwash our children.’

But what is most frustrating to me is that by prioritizing their own personal goals, Leno and Equality California ignored a real problem and squandered an opportunity to draft a law that could significantly impact the way in which gay people are viewed by society. Rather than attempt to draft soldiers for the Great Culture War, they should have focused on what is perhaps our society’s greatest example of heterosexist presumption: the whitewashing of the sexuality of the people whom these kids already have in their textbooks.

Although it serves partisan politicians, there is little real value to extolling the virtues of Harvey Milk, to whom our community owes a debt of gratitude, but who ultimately was a politician with a checkered history and questionable ethics. And placing emphasis on the social role of groups shifts the focus from education to activism.

However, I think it would be of tremendous value for school kids to learn about Alan Turing, Isaac Newton, Michelangelo Buonarroti, Leonardo DaVinci, Oscar Wilde, Alexander the Great, the Sacred Band of Thebes, Sapho, Virginia Wolfe, William Shakespeare, Baron Friedrich von Steuben, Frida Khalo, Jane Addams, Bayard Rustin, Socrates, Hadrian, Daniel (of lion’s den fame), Francis Bacon, Richard the Lion-Hearted, E. M. Forster, Truman Capote, Nikolo Tesla, Savador Dali, and Luca Pacioli. These people, who did not live the heterosexual lifestyle, gave contributions that make Milk and the “early California contributors” seem inconsequential.

And this is an off-the-top-of-my-head listing. A comprehensive listing on “not heterosexuals” in history would truly shock most Americans. And it would add to the recognition that sexual minorities have always been a part of society and as individual contributors have disproportionately provided the sparks of genius that have propelled society forward.

But they threw this away. And for nothing.

As far as I can tell, no one was clamoring for SB 48. If any gay Californians had ever felt any need for a bill that mandated propaganda, they kept it a secret.

And even though Equality California tried to create an artificial emergency, it didn’t work. No one passionately defends a bill they don’t need, didn’t ask for, and which has no positive impact on their life. And I certainly can’t be the only gay Californian who finds the idea to be an affront to their concept of liberty.

And now Equality California is in complete disarray. Their new executive director has resigned and their time as the advocate for gay Californians is at an end. And as they fade, Sen. Mark Leno loses his biggest cheerleader.

But there’s a lessor for us here as well. Perhaps we can have higher expectations of our activists and leaders. Perhaps we can let them know that they exist to advance the needs of our community, not the other way around. And perhaps we can recognize that as we come into our place in society, we need to be cautious that we do not reverse roles and become callous careless oppressors.

But if we are not yet ready to recognize that risk, folks like Thomas Sowell will be there to remind us. Let’s determine not to make him right.

Marriage Opponents Lose Pursuit Of Special Rights

It’s been a bad week for the National Organization for Marriage. Two separate courts this week ruled against NOM’s attempt to enshrine a special right to flout laws intended to lend transparency to the electoral process. The first loss came on Monday when Federal Judge Benjamin Settle ruled in Doe v Reed (PDF: 112KB/34 pages) that the state of Washington must disclose the names of citizens who signed the petition putting Referendum 71 on the ballot. Protect Marriage Washington, a NOM affiliate, sued to block the release in a bid to stake a special exemption to Washington’s campaign disclosure laws, claiming that signatories would be subject to threats and harassments. Judge Settle rejected that claim:

While Plaintiffs have not shown serious and widespread threats, harassment, or reprisals against the signers of R-71, or even that such activity would be reasonably likely to occur upon the publication of their names and contact information, they have developed substantial evidence that the public advocacy of traditional marriage as the exclusive definition of marriage, or the expansion of rights for same sex partners, has engendered hostility in this state, and risen to violence elsewhere, against some who have engaged in that advocacy. This should concern every citizen and deserves the full attention of law enforcement when the line gets crossed and an advocate becomes the victim of a crime or is subject to a genuine threat of violence. The right of individuals to speak openly and associate with others who share common views without justified fear of harm is at the very foundation of preserving a free and open society.

The facts before the Court in this case, however, do not rise to the level of demonstrating that a reasonable probability of threats, harassment, or reprisals exists as to the signers of R-71, now nearly two years after R-71 was submitted to the voters in Washington State.

That was on Monday. To bookend the week perfectly, Federal Judge Morrison England, Jr., today issued a bench ruling denying ProtectMarriage.com and NOM’s quest for a special right to withhold the release of campaign finance records related to the passage of Propositon 8 three years ago. Judge England said that the groups failed to prove that they should be exempt from campaign finance laws which are designed to protect the public during expensive initiative campaigns.

Judge England is expected to issue a written ruling later.

Prop 8 Proponents: still skurrred

As we noted yesterday, no anti-gay activists are actually frightened of gay people. None. Zero.

But they are very very frightened of the idea that clips of them defending anti-gay positions will be used in law schools, history lectures, and the like in the future. No one, not even a dedicated anti-gay activist, wants to have as their legacy the claims made in Perry v. Schwarzenegger. And no one wants to have video evidence of their claims being eviscerated – slowly, carefully, and completely with all the calmness and formality that a courtroom inspires.

“But please don’t let the world see me making a fool of myself” is not exactly the most compelling legal argument. So the Prop 8 Proponents are stuck with, “I’m skurrred of Teh Gheys. They’s out ta get me.”

And that was the argument that they presented to Judge Ware in seeking to keep the digital record sealed.

Defendant-Intervenors contend that “public dissemination of the [digital recording] could have a chilling effect on … expert witnesses’ willingness ‘to cooperate in any future proceeding.'”

Judge Ware didn’t buy it, finding it to be “unsupported hypothesis or conjecture”.

Upon review of the papers and after a hearing conducted on August 29, 2011, the Court concludes that no compelling reasons exist for continued sealing of the digital recording of the trial.

But we also found a few other gems in Ware’s ruling.

For example, we find that the Intervenor-Defendants (the Proponents) yet again failed to recognize the strategic importance of what was going on around them (my impression of lead attorney Charles Cooper has plummeted during this case). They didn’t object to Judge Walker making the video recording of the testimony part of the judicial record. While that is not an odd action, it is out of the ordinary and would have been the logical time to protest.

But once the recording was part of the record, courts must “start with a strong presumption in favor of access to court records”. Ooops. This left the Proponents needing to “articulate compelling reasons supported by specific factual findings”; and we all know that the Proponents don’t have any of those.

And one last item from the Ware ruling that is amusing. It appears that Cooper presented a brand new reason to keep the recordings secret: the Ninth Circuit Court judges might watch them. Yeah, I can see how that might be a problem for the Proponents.

But as for the witnesses and their monstrous fear of Teh Gheys, let’s see how much they are trembling in their boots. Here were the witnesses supporting Proposition 8:

Prof. Kenneth Miller – although Miller’s testimony in the case was first, it was not integral to the defense of Proposition 8 and it seems that he is happily teaching at Claremont McKenna College. As best I can determine he has not gone in hiding nor is he shaking in his books – though considering that he testified under oath that he disagreed with a book he himself had written the year before, perhaps he should be. I’ve inquired with Professor Miller and will inform you if it turns out that he is, in fact, terrified.

David Blankenhorn – David is a nice enough guy who thought that trial testimony just wanted his opinion on things. And as a supporter of gay rights generally, he thought his reasons for not quite going so far as marriage were good. And perhaps they are at a cocktail party, but not in court. He didn’t fare well under cross examination. I’ve inquired with him as well.

Hak-Shing William “Bill” Tam – Mr. Tam started as a witness for the defense and when they Proponents opted not to call him, our side did. Bill Tam was a most unusual witness and, in many ways, more of a victim of the Proponents than an ally. They had convinced poor Mr. Tam that the sky was falling and Teh Gheys were out to get his children.

Tam is one who probably has been impacted by his testimony. While its rather unlikely that any gay people have bothered him in any way, Tam probably feels some emotional consequence of his testimony. And if anyone is going to be living in terror of Teh Gheys, it is Mr. Tam. I wouldn’t be surprised if the fear mongering of the legal team has Mr. Tam taking precautions to protect this horrific (but nonexistent) threat against his life. I have not inquired with Mr. Tam.

Judge Orders Prop 8 Trial Tapes Unsealed Effective September 30

U.S. district chief judge James Ware ruled today (PDF: 65KB/16 pages) that video recordings made during the Proposition 8 trial should be made public. Judge Ware wrote, “Foremost among the aspects of the federal judicial system that foster public confidence in the fairness and integrity of the process are public access to trials and public access to the record of judicial proceedings,” and dismissed Prop 8 supporters’ claims as “unsupported hypothesis or conjecture” that releasing the tapes would have a “chilling effect” on witnesses.

The judge accompanied his ruling with a stay effective until September 30 to allow opponents to the move to file an appeal. Prop 8 supporters are expected to appeal.

Beware The Hordes of Homosexuals

Anthony Pugno, head of California’s Yes on 8 campaign known as Protect Marriage, is worried that some of teh gay might accidentally rub off on him as he is forced to “push through the hordes of homosexual activists” on their way to the San Francisco State Supreme Courthouse this morning:

Please join us, and thousands of other supporters, in prayer this evening and tomorrow morning for safety as our Legal Team pushes through the hoards [sic] of homosexual activists into the courthouse in the heart of San Francisco, and for the wisdom and grace needed to prevail in court.

Protect Marriage is arguing before the California Supreme Court this morning for standing to pursue an appeal of the Federal Court decision which declared California’s Prop 8 unconstitutional. That ruling is stayed until the California Supreme Court and the Ninth Circuit Court works out whether Protect Marriage has standing to appeal since the State of California has refused to do so.