Monthly Archives: October 2013

The Cases

22 Tuesday Oct 2013

Posted by in The Road to Equality

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Yesterday, Governor Chris Christie seemed to see the writing the wall  when he withdrew his court challenge to reverse marriage equality in New Jersey.  He, wisely, put the passion and prayers aside to face the reality that a series of changes to the law, both in his own state and the nation, had boxed him and his social conservatives into an impossible position.

Here are some of the key changes in the law, that made Gov. Christie’s decision inevitable (in Supreme Court unless otherwise noted)

1965, Griswold v. Conn.: This, of course, was landmark case that first established a constitutional right to privacy.

1967, Loving v. Virginia: Beyond just striking down anti-miscegenation laws, which it could have done on civil rights grounds, this case elevated that status of marriage, “a fundamental freedom,” to the level of constitutional protection.

1978, Zablocki v. Redhail: In striking down a Minn. law that withheld marriage licenses from anyone with child support in arrears, the Court reaffirmed the “fundamental importance” of the right to marry.

1987, Turner v. Safely: Significantly expanding marriage protection the High Court ruled, that “prisoners have a constitutionally protected right to marry…and although such a marriage is subject to substantial restrictions as a result of incarceration, sufficient important attributes of marriage remain to form a constitutionally protected relationship.”

1996, Romer v. Evans: This case concerned Colorado’s constitutional amendment which barred municipalities and counties from extended civil rights protection to gay people.  In striking down the amendment, the court said that disqualifying “a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence.”

2003, Lawrence v. Texas: Basically, this case decriminalized being gay.  Reversing Hardwick v Bowers, the majority now quoted Justice Brennen’s original  dissent: “the State cannot demean their existence or control their destiny by making private sexual contact a crime.”

2003, Goodrich v. Dept of Public Health (in the Supreme Judicial Court of Massachusetts) The state’s highest court, now hearing the case in the context of constitutionally protected civil marriage, made history and ruled that limiting marriage to same-sex couples violated that state constitution’s guarantee of equal protection.

2008, Kerrigan v. C.P.H. (in The Supreme Court of Conn.) and 2009, Varnum v Brien (in The Supreme Court of Iowa): Again, in the context of a class of persons no longer criminalized and constitutionally protect marriage, neither court found any justification for banning same-sex marriage.

2012, Hollingsworth v. Perry (in the Ninth Circuit Court of Appeals): The Court ruled that California’s ban on same-sex marriage was unconstitutional and “serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California.”   In the absence of challenge from the state, the U.S. Supreme Court dismissed the appeal for lack of standing, securing marriage equality in California.

2013, Windsor v. the United States: The Supreme Court upheld the First Circuit Court’s decision and ended several pending cases, ruling once and for all that the federal ban on same sex marriage (DOMA) violates the Due Process guaranteed under the Fifth Amendment of U.S. Constitution.

Best Boys

21 Monday Oct 2013

Posted by in Tales from the School Yard

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Once, when I was in first, maybe second, grade this boy was going to beat me up.   He ran at me in the school yard and to everyone’s surprise—especially my own—I swung first, landing a pretty solid right to the jaw.  It was the only time I ever had any pushback for someone who hadn’t hit me first–at least once.  Anyway, I really didn’t have a choice, there was nowhere for me to run and, as it turned out, I didn’t have to.  He grabbed his jaw with both hands, looked horrified and ran inside the school.  I don’t know if it actually bled, but he certainly acted like it did.

Later, I remember Mrs. O’Hare talking with Mrs. Callahan (Cockeyed Callahan), wringing her hands and shaking her head while lamenting what a burden I put on them, “daydreamer, obstinate, uncooperative, unproductive and immature.” Then, as they both stood looking down at me, shaking their heads so vigorously that their turkey necks swung violently from side to side, she said “and today he hit one of my best boys.”

The Best Boys.  With their scrubbed faces, fresh haircuts and new sneakers, smacked baseballs with firm and even swings, never missed class, could dutifully recite their timetables and, on  Sundays, the Apostles Creed.  The Best Boys were only cruel when no one was looking and, if you really were a Best Boy, no one ever was.  It was as if they had some sort of arrangement with those in authority: a childhood version of don’t ask don’t tell.

I had no arrangement with anyone in authority.  That was the problem or, at least, one of them. Mrs. O’Hare, Mrs. Callahan, Mrs. Jeffries, Miss DeVoe and all the other ladies in flowered dresses liked classifications and arrangements and such.  They appreciated a simple order of things and who could blame them.  Life with more answers and less questions is so much easier to manage:  I would have done it the same way if I’d only known how.

They did what made most sense.  They simply took stock of their charges and invested where the return looked most promising. Separating the wheat from chaff you might say, they designated best boys, good boys and hopeless boys.

Best boys, good boys, hopeless boys…how any of us got that way is still a question for ages.  That was the stuff of long forgotten thesis papers and scholarly journals left unread and yellowing in a teacher’s lounge.  It is truly without sarcasm that I suggest that those questions were probably too much to ask of people who signed up to teach reading, writing and arithmetic. They had homes to get to, dinners to cook and little time for anything out of order.

I didn’t expect them to do more than they were asked or to look for what they didn’t really want to see.  I don’t hold teachers responsible for clearing the paths or healing the wounds of children randomly thrust into their care.   But, I did expect them not to be among those who inflict the damage.  I expected, still expect, them to have the wherewithal—let’s call it the intellectual courage–to know when they’re the problem and when they’re the solution.

I expect that now more than I ever did and I still don’t think it’s too much to ask.

How we got to New Jersey

19 Saturday Oct 2013

Posted by in The Road to Equality

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If New Jersey’s marriage equality fight were a chess game, opponents heard a resounding “check” yesterday and don’t seem to have another move.  The case won’t be heard until January 2014,  yet The New Jersey Supreme Court took an extraordinary step denying the state’s request to stay Judge Mary Jacobson’s order that same-sex marriage must go forward on Monday.  It’s hard to overestimate the significance of a court denying the status quo while the case is still pending.

This wasn’t missed by Len Deo, president of the New Jersey Family Policy Council when he indignantly asked, “in what universe does it make sense to let the question at hand be answered before it’s asked or argued?” Well Len, in a universe where courts have all but begged you to produce, even hint at, a logical argument and got nothing but your heartfelt  feelings, personal theology and gut instincts.

Not exactly the stuff of vigorous constitutional engagement.

The issue that seems to confound opponents of marriage equality is that to get a ruling in your favor, courts expect you to present a logical argument. Though taglines like “traditional marriage” work fine as conversational euphemisms, they hardly hold up to the sort of scrutiny one ought to expect in a courtroom.

Perhaps the value of “traditional” marriage ought to be self-evident, but it really isn’t. Throughout most of our history, concepts like married women owning property were inconsistent with our culture and our legal system’s definition of marriage: How could a property own property?  As late as the 1970’s, the concept of marital rape was equally incompatible with our definition of marriage.  The problem with this argument is it requires a dizzying level of cherry picking and courts don’t seem to like–even get insulted by–cherry pickers.

This is one in a series of clumsy, ill prepared arguments that left conservations looking completely caught off guard and struggling to figure out what the hell happened.  They still seem unaware of the two tracks of history which converged leaving them backed into a corner, this time in New Jersey.

Their first problem, oddly enough, is that the sanctity of marriage has actually strengthened over the past four decades. The U.S. Supreme Court has staunchly defended the institution against anti-miscegenation laws and from limits on prisoners, dead-beat dads and others.  The Court did what conservatives seem to be asking it to. It has decreed this institution too big and too important to be limited by anything less than compelling state interests.  It set the standard high: If you want to block a marital union you’d better have a really, really good argument.  Oops.

It goes without saying that the concept of what it means to be gay has also changed profoundly. This change though, to their chagrin, wasn’t just about how we all feel about it. It also meant that new and compelling evidence would develop. The law-and-order folks were about to find out that their feelings don’t account for much in the cold, hard world of constitutional law.

If there was a seminal moment when the evidence began to shift, it was when the American Psychiatric Association removed homosexuality from its diagnostic manual in 1973: The notion that sexual orientation is as immutable as gender, race or physical attribute was becoming the norm.  Eventually, courts would have to be convinced, not of necessity to restrict the mentally ill, but the necessity to restrict people for being different.

By the time this became a constitutional issue in Judge Vaughn Walker’s courtroom, the marriage equality side had lined up expert witnesses that included The American Psychological Association, The American Medical Association, The National Association of Social Workers, The American Academy of Pediatrics, the American Association of School Counselors The American Association of Secondary School Principals and others. The opposition countered with, what amounted to, personal theology and a few anecdotes.

So yes, the 40 years of research, analysis and evidence, from the organizations that govern and define medical, social, psychological and educational activity in our country, beat out personal theology and anecdote in a constitutional fight in an American courtroom. Exactly why that surprises so many of us is still beyond me.

Of course, similar scenes had played out in the Supreme Judicial Court of Massachusetts, The California Supreme Court, The Iowa Supreme Court, The Connecticut Supreme Court and, later, in the Ninth Circuit of Appeals and the First Circuit Court of Appeals for the very same reason: courts just haven’t heard a valid argument against marriage equality. Now, New Jersey’s Supreme Court seems to doubt that there even is one.