Category Archives: The Road to Equality

The Revolution Bernie missed

12 Tuesday Apr 2016

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bernblog“I was there. Where were you?” It is a recurring theme, in fact the go-to defense for Bernie Sanders’ campaign. But the question has a particular resonance in the LGBT community. That’s because we were here when you weren’t looking, shouting when you weren’t listening, at times, sick and dying when you weren’t reacting.

That’s what makes the reaction to Barney Frank last week so startling. Frank committed blasphemy in the eyes of Sanders supporters by pressing for details on one–it doesn’t even matter which–of Sanders ideas. It took only hours for the standard response to show up in the Huff Post: “Where has Barney Frank been for the past 25 years?”

I suppose you could have missed Barney Frank if you were trying hard enough, and a lot of people were. But for starters, he was the one fighting for and passing the Fair Housing Act, which banned discrimination of HIV positive individuals. He was the guy fighting for and passing The Grove City Bill, which bans discrimination against HIV positive people from social services, or any service, that uses federal funds. He was the guy calling for emergency funding to shore up the AIDS Drug Assistance Program and that was him making the case for the Employment Non-Discrimination Act for the past decade.  He was also that guy who charged onto the House floor and threatening to out every gay Republican in Congress if they dared make sexual orientation grounds for denying security clearance (which they were about to do).

It’s not the first time Sanders surrogates, or the candidate himself, seemed to think LGBT history is open for revision. Sanders repeats the claim that he “was there” on marriage equality right from the beginning as though he’s actually begun to believe it. But history revised is history stolen.

LGBT history is particularly susceptible to revisionism because so little has made it into main stream consciousness.  The Stonewall-era activists didn’t leave much of a written legacy. They were more likely to be hijacking John Lindsay’s state-of-the-city address than drafting philosophical positions. Compared to other social movements, they leave a thin volume of memoir and reflection. That’s because by the 1980’s many had fallen to the only thing that could ever silence them. Their role in fighting AIDS, and the many battles that followed, is in the form of the intrepid spirit they left to future generations.

Whenever you co-opt the past you compromise the future. Sanders presents his vote against the Defense of Marriage Act as a grand statement on the dignity gay families. But it was far from it. He described his vote, at the time, as defending state’s rights not human rights. It was the same position that Mitt Romney held and had nothing to do supporting gay families. As much as this revisionism lifts Sanders, it diminishes the courage of men like Jerrold Nadler (D-NY) who actually were there. Nadler introduced a bill to repeal DOMA at every session of Congress since it passed in 1996 and did it for the right reasons.  

Sanders considers approving a Pride march while he was mayor of Burlington Vermont, a hallmark of his courageous leadership. In fact, approving a parade that your not even willing to march in as late as 1983, is closer to acquiescing to the norm than leading the way. Mayor Thomas Menino, was there in 1983.  He didn’t just march in the Pride parade, but began boycotting Boston’s legendary St. Patrick’s Day Parades that year because the sponsors banned gay groups.  Mayor John Lindsay was there, supporting a parade and ordering the NYPD to stop entrapment as early as 1970. Mayor George Moscone was there, vigorously opposing anti-gay city ordinances right up until the moment he and Harvey Milk were assassinated in San Francisco City Hall in 1978.

Most egregious of all, is Sanders’ own claim that “didn’t have to evolve” like his opponent, but was “there from the beginning” on marriage equality.  Two years after Chief Justice Margaret Marshall was there, crafting her historic decision as a call to justice, Sanders was still missing the call altogether.  As late as 2006 he’s on record stubbornly clinging to his opposition to marriage equality in his own state. 

While he pretends to have placed principle above political ambition, some actually did and they paid for it.  Chief Justice Marsha Ternus was there, along the with the elected judges on the Iowa Supreme Court.  They were threatened with losing their careers, and were eventually forced from the court, for having the courage to rule unanimously in favor marriage equality regardless of consequence. Every time Bernie lies about his principled position, he diminishes theirs.

Governor Andrew Cuomo was there, risking his new-found political capital pushing the New York Assembly to approve marriage equality. Sanders waited until after the Vermont legislature had already approved it to chime in with his support.

Governor Jerry Brown was there too. He signed a bill to tell the truth and teach Gay and Lesbian History in California schools. It is just the first step in very long journey. But, when the truth is told and the heroes are named, part of that truth will be this:  Bernie Sanders’ name was never there. 

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Who’s Watching When the Legitimate Press Legitimizes Hate

19 Tuesday May 2015

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supremecourtScott Lively is nothing if not newsworthy. A public figure whose work has had punishing–often devastating–impact on thousands of people around the world, he likes to be described as “a lawyer, author and activist.” Although you really can’t argue with any of those, nearly all of the reporters who have covered him would consider it intellectually dishonest to ignore the rest of his story.

He is a defendant charged Crimes Against Humanity. Lively made a name for himself in Uganda as an “expert” homosexuality.  He helped draft and promote an infamous law imposing long prison sentences and, in some cases, the death penalty for homosexuality.  Uganda’s highest court eventually abolished the law, but Lively’s supporters continue his work.  He was recently handed a defeat when the First Circuit Court, denied his petition to dismiss and will stand trial for mass persecution of a minority.

He is also an author and master of exploiting the desperate and violent. His work,  The Pink Swastika, which argues that gays engineered the holocaust and warns of a homo-fascist agenda, has led to a 50-city speaking tour in Russia. He has thanked President Putin for sharing his vision and he personally takes credit for his role in increasing anti-gay intolerance and violence.  Mr. Lively also practices what he preaches; he was ordered to pay $30,000 in damages to a lesbian photographer he attacked and dragged around by the hair.

So, “lawyer, author, activist,” in any context, may be perfectly true, but indisputably inadequate. In the context of LGBT issues, though, concealing his background is concealing the truth.  It is lying by omission. What Lydia Wheeler has done in The Hill goes even further.  She doesn’t ignore his history, she rewrites it in order to give his position credibility. Her article, Faith Leaders Demand That Liberal Judges Sit Out Gay Marriage, is unequivocal, intentional lying.

It’s also the kind of thing I wouldn’t normally notice. I mean, everyone’s got a dog the fight. The point isn’t really reporting the news, it demonstrating how it proves you’re were right.  Fox might as well just end every broadcast with “we told you so!” But that’s what makes the Lydia Wheeler piece extraordinary: it’s not what she did it’s where she did it. The Hill, as Lively himself recently bragged, “is one of the most read and respected news sources inside the beltway.” In this case, he’s actually got a point.

When Lively showed up in D.C. last month to hold a “press conference” hardly anyone noticed. He was taking time from his other important work, raising public awareness of President Obama’s role as the antichrist leading a satanic-gay army into Armageddon.  He brought along a small cadre, a who’s-who of the Southern Poverty Law Center’s Hate Groups.

Lydia Wheeler, covering the event for the The Hill, reported a coalition of “religious leaders” had gathered to demand two Supreme Court justices recuse themselves from the marriage equality case.  The “religious leaders” is Scott Lively (the tense switch is hers, intentional and entirely transparent).  His lack of any affiliation to a religion, ordination, theology, ecclesiastical association, accountability, representation or anything typically associated with the term seems beside the point.

To be clear, it wouldn’t be Wheeler’s job to judge the quality of the title.  But, something remotely resembling vetting might in order when you’re using the same description you use for Archbishop of Canterbury.

A pile of empty boxes Lively posed with are described as “300,000 symbolic injunctions.”  But why nothing equals 300,000 as opposed to 3 or 3,000,000 or what “symbolic injunction” actually means, are apparently not worth asking.

I’m not going to go through the line by line absurdity. The fact is, not a single word in this story was meant to reflect reality.  It was as much an act of kindness as act of deceit. It was a gift Lydia Wheeler handed to Scott Lively courtesy of The Hill and God only knows the occasion.  

For Wheeler it’s no big deal, she has so little to lose in terms of integrity or respect anyway. For Lively it’s the best opportunity he’s ever had to look legitimate. For The  Hill, it is a stain that won’t, and certainly shouldn’t, be forgotten for a very long time.

 

[I provided links to the stories about Lively’s bizarre activities and, in most case, had several options: they are well publicized. I did not, however, provide links for any information that came from his own website.  I’m no more comfortable doing that, than linking readers to neo-Nazi or White Supremacist groups.  If you want to see his vile work, he’s easy enough to find.]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Sam Alito: No Girls Allowed

10 Sunday May 2015

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It is a magnificently American irony. A man who fought so hard to keep women out of Princeton University, ends up along side one of those Princeton women on The United States Supreme Court deliberating, no less, the biggest civil rights case in a generation. With only eight other in people world doing this job, what were the chances? But this is precisely the kind of thing Sam Alito was worried about.

PicMonkey Collage

Princeton graduates Sam Alito ’72 and Sonia Sotomayor ’76

To be clear, no one should hold Justice Alito to views he held decades ago. If this were a case of youthful exuberance, a collegiate ideology long since  tempered by maturity and pragmatism, I’d join the endless parade of white guys who defend him. But, the problem with Sam Alito isn’t just bygones.

The problem is not that he joined a group whose primary purpose was limiting the number of women admitted to Princeton (not just limiting the impact of Affirmative Action: they also opposed gender-blind admissions). It’s not that he claims to have been active in the group well into the 1980’s or bragged about it to prove his reactionary credentials when seeking a promotion in Reagan administration.  It’s not even that Justice Alito argues from a myopic world view centered on race and gender. The problem is that he demonstrates no ability nor interest in entertaining any other perspective. And he doesn’t see a damn the wrong with that.

During last week’s opening arguments on marriage equality (Obergefell v Hodges), Alito offered a stunning display of pretense and irritability. He was hardly the only one failing to see beyond the prism of his own experience, but he never appears to struggle with alternate viewpoints.  He dismisses them out of hand.

His dependence on ad populum fallacy belies his training. It also illustrates that narrowness of his thinking. He asked Mary Baunato (plantiff) if we can “infer that all those nations and cultures thought there was some rational practical purpose for defining marriage that way or is it your argument that they were all operating independently based solely on irrational stereotypes and prejudice?”  Playing off Justice Kennedy’s notion that millennia of tradition can’t be wrong, he seems legitimately perplexed. Irritated that Baunano doesn’t immediately grasp his assault on logic, he quickly loses patience with her reasonability : “You’re not answering my question.”

Just as Chief Justice Roberts can’t see how marriage has changed in any substantive way–because it hasn’t for him–Alito can’t see the error in subjugating a class of people that isn’t his class of people. For both, the defense is that it has always been that way and has served them just fine, exquisitely in fact.

Apparently having heard enough, Justice Ruth Bader Ginsburg leisurely interjects: “[The plaintiffs] wouldn’t be asking for this relief is the law of marriage was what it was a millennium ago…Same-sex unions wouldn’t have opted into a pattern of marriage which is a dominant and subordinate relationship.”

Alas, Justice Alito and Justice Ginsburg seem on equal footing. They make equally compelling cases for why we need women and minorities at Princeton, at Columbia and, God knows, on the Court.

You Don’t Have to be Spokesman to Speakout

27 Monday Apr 2015

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As far as brands go, Halliburton probably elicits more empathy than the Kardashians. It’s not so much that they’re terrible people; they’re just in a terrible business. It’s hard not to court contempt when your product is your own vacuous self-importance.

That may explain, if not excuse, at least some of the callousness directed at Bruce Jenner. I don’t mean just in the press either; anyone surprised by the ridicule and catcalls from the paparazzi should have better managed his expectations. I mean in real-life conversations, with people who know better in places I’d have never expected.

kardsBlogNormally, I’m pretty good at zoning out of celebrity chatter.  Any mention of which rapper dated which model and a switch is flipped; my mind’s searching out a melody, drafting an email, contemplating the universe’s first sound, anything, but hearing a word you’re saying.  But, when I heard a well-trained, demonstrably skillful, educator  “theorizing” that Jenner seemed to hate himself and may be “self-mutilating”, my instinct was to ask if he realized that he’d just said that out loud.

More to the point, I’m wondering why he thought he could.

After I had joined that conversation and said my piece, somebody raised the issue again. “I’m a very liberal person” she said, “but I just don’t get this…do you?” The truth is, I don’t know if I get it.  But I know that it doesn’t matter, it can’t matter.  Nobody has to sell me, or any of us, on the value of another person. You don’t have to get it.

Throughout history, people no worse than us, no less intelligent or conscientious watched terrible things happen to one another over differences we would barely notice today or transgressions we no longer recognize. I doubt they ever imagined how wrong it would seem in our time, any more how than we can imagine how it ever seemed right in theirs.  I think, certainly hope, that when we exercise such unflinching judgment, history returns the favor.

So, it seems that Bruce Jenner is sort of a P.R. nightmare. “The worst possible choice,” says  Zoey Tur in The Washington Post. CNN reports that activists are wary of the spectacle he’s causing.  The Post also says that “the transgendered experience will be swept up in the ultimate symbol of abnormality and dysfunction,” apparently referring to Kardashians.

I don’t know when the right transgendered role model will come along or exactly how we’ll know them when we see them. Outside the Washington Post, at least, abnormality and dysfunction are still hard to quantify. But, that doesn’t mean it’s open season while we wait; you don’t get a pass to point and talk about the most disenfranchised like carnival attractions.

Just for the record, I have said my share of stupid and insensitive things in my time. I suppose it happens when I failed to make a connection or know enough history.  It’s mostly because its so difficult to see beyond the prism of my own experience.  Unless, someone tells me, I can’t see what it looks like from where they’re standing. But it is my responsibility to try.

Traditional Marriage: What’s Behind the Veil

08 Sunday Mar 2015

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When I heard Jeb Bush say he was “for traditional marriage,” I thought one of us must be terribly confused.  I know, everyone else at the CPAC conference was saying the same thing.  But, that’s because most of them like sounding crazy.  Jeb’s supposed to be the smart brother.  

Jeb Bush at CPAC '15 Should I have known what he meant? I don’t think so, this isn’t just code for opposing marriage equality.  That position needs no code. If Marco Rubio could say he believes marriage is between a man and a woman so could Jeb if that’s what he wanted to say. But, it’s still more difficult for me to believe Jeb Bush supports traditional marriage than to believe he’s a complete idiot.  On the surface, both seem like reasonable conclusions, but still premature and not entirely fair. 

Across the conservative press and with remarkable consistency, “traditional marriage” refers to marriage based on thousands of years of scripture, custom and law.  Browse the back issues of any conservative journal: the deeper you go the clearer it gets. Vested in religious, Roman and common law, culturally transcendent, timeless and immutable. It is above the vagaries of social change. Or, at least until now, anyway.

The problem this argument just can’t get around is the last century.

Not to sound pedantic, but it’s hard not to state the obvious when being told the world is flat. But what had seemed so irrefutable, the fact that “traditional marriage” never really made it through the last century, has somehow reentered  political discourse among people who should know better.   The fact that traditional marriage, in both form and substance, proved incompatible with twentieth century sensibilities isn’t threatened by ignorance, but by revisionism.   

How does anyone not notice that married women are not compelled to automatic dispossession or “domestic chastisement,.” The legacy of these concepts, excluding women from  signing contracts, establishing credit, incurring liabilities or the right to know if their husbands remortgaged or sold marital property remained in practice through the 1970’s (The Fair Credit Access Act was introduced in 1984; after Congresswomen Geraldine Ferraro discovered that credit established in marriage only applied to her husband).

Lest anyone think this is merely about the form and not the substance of marriage,  consider the how dramatically the role and responsibilities of men has changed. No longer responsible the actions of their wives, men are not entitled, certainly not expected to discipline their wives. The collapse of  the “domestic curtain” that kept marriage beyond the reach of the state, meant that husbands be charged  with assault, rape or attempted murder (since the 1970’s in criminal, not family courts).

This, my traditional friends, the dignity and equality of women, is what altered the meaning of the meaning of marriage. Marriage, which defined gender roles as much as it was defined by them, would have a radically different purpose in world where women defined their own roles. The rejection of immutable gender roles, universally codified, violently enforced, crucial to the institution and beyond the reach of the state is what changed the definition of marriage.  In fact, every  single advancement women have ever won was the result of hard fought battles against “thousands of years of scripture, law and custom.”

Marriage equality will not result in the redefinition of marriage, it is the result of the redefinition of marriage.  

Yet, the argument for traditional marriage persists, not because it works, but because is fits the classic conservative defense of exclusivity.  It won’t impact marriage equality, but won’t go away either.  It will just be another valiant loss to modernity, another piece of the essential folklore, another legend form a bucolic past, another reason to limit the franchise. 

Corporations are….Christians too?

20 Thursday Mar 2014

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This month the Supreme Court will again take up the question of whether or not corporations are people too.  The Court has already ruled that Citizens United was not guilty of electioneering, as widely seen,  but simply exercising the free speech guaranteed to all citizens, just a bigger, louder, wealthier, ubiquitous version of you or me. So,  are corporations also entitled to same, or even greater, religious freedom than individual citizens?  That’s the question before the court in three cases to be argued this month.

The first is the New Mexico case that caused a firestorm in neighboring Arizona. After the New Mexico Supreme ruled that Elane Photography violated the state’s Equal Access law with it’s “traditional weddings only” policy, Arizona attempted to preempt similar cases by expanding the scope of the Religious Freedom Restoration Act.

RFRA is the federal law that includes “religiously neutral” laws among those that may infringe upon the free exercise of one’s religion.  Previously, only laws directed at imposing or curbing religious practice were considered under the Free Exercise Clause. Based on federal law, Arizona’s bill proposed two significant changes.  First, it secured the right to deny services where RFRA had only legitimized the right to be heard in court. Secondly, Arizona attempted to extend the definition of “person” to include businesses.

Despite the highly publicized veto by Arizona’s conservative governor, expanding RFRA remains a cornerstone of current conservative policy dealing with marriage equality, the Affordable Care Act and birth control access. The Heritage Foundation’s Jennifer Marshall passionately argues that these changes are merely clarifications of a reasonable interpretation.  In fact she seems downright flummoxed that anyone thought it was such a big deal writing that “the Arizona law simply would have explicitly clarified that ‘person’ in the law includes groups of persons—in other words, churches, associations, and businesses.”

Except, of course, the term “person” has never included businesses.  Even in cases where religious exemptions are extended to organizations, those organizations have always been churches or church sponsored non-profit services.  The government has never treated secular, for-profit business the same way it treats churches.  The rhetorical strategy of  simply linking the terms together every time you say them, churches-and-businesses, comes off as a sophomoric attempt at revisionism.  It’s not the kind philosophical argument one might have expected from The Heritage Foundation.

Nevertheless, this notion is at the heart of the other two religious freedom cases before The Court.  Hobby Lobby and Conestoga Wood Specialties will each argue that the religious convictions of their owners entitles them to equal status with churches and non-profit organizations, namely, the Affordable Care Act’s exemption on birth control coverage.

The Obama administration argues that the exemptions, written into the law, do not apply to secular for-profit organizations. However, unfair or un-Christian this position is, it is based on precedent. It’s nothing personal, just the closest we have to an objective standard: if a business seeks the privileges of a religious institution, it must show that it functions like one.

What’s striking is just how emotional the response has been, not from tea party extremists, but from the conservative establishment.  Rather than acting on precedent, the administration is imposing a sexual revolution upon us (The American Conservative) codifying “complacency in the destruction of human life” (The National Review) and “wielding their sweeping new powers to assault freedom of religion in the name of their preferred social order” (The Weekly Standard).

In a world where religious, ethnic and tribal passions are so publically irreconcilable, it’s surprising–even disappointing–that the right relies entirely on righteous emotionalism when addressing important social policy.  It reflects just how desperate they’ve become.

Actually, it is a “damn game.”

02 Saturday Nov 2013

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I’m not sure if it’s just me, but Mitch McConnell always looks like he’s been crying.  Beyond the puffy damp cheeks, he’s got that befuddled look in his eyes. It’s as if someone suddenly flicked the light-switch on, exposing him sniffling and teary-eyed and struggling to get his bearings.   Whenever I see him, I feel like I should look away and give him a few  moments to collect himself.

He reminds me that politics is hard. It requires a certain constitution, especially when it doesn’t go your way.  Being good at it means, not just knowing how to win, or even how to lose,  but how to constantly negotiate the in-between. In fact, that’s what politics is, negotiating the in between.   So, when John Boehner, who also looks like he’s been crying–usually because he has been, said “this isn’t some damn game,” he just sounded like a sore loser. In fact, it was nothing but a game when he strategized to force the Administration out of the in-between and off the field completely.

If Boehner doesn’t seem to like the game very much these days, it’s just because he sucks at it. Legislatures are places where people fight to get the most of what they promised while doing the least amount of damage to the relationships and process on which they survive. At any other time in history it would have been too obvious to be worth saying,  but politics requires nimbleness, fair play, discipline, institutional respect and delayed gratification.

The problem for the current Republican leadership is these are the very qualities on which the tea-party has declared war.  If Boehner and McConnell had seen this less as less of a holy war and more like a game, they wouldn’t be in this position.  Now, they can’t seen to put the fire they started.

When I was a kid, the comparison between political leaders and sports figures wasn’t that much of a stretch, even here in the home of John Havlicek, Carl Yastrzemski and the Boston Bruins.  Kevin White was mayor and in my memory he’s in perpetual motion, zig-zaging across a Washington St. parade route.  White shirt sleeves rolled up to the elbows and sinewy forearms in constant flex, he gripped hands, flashed grins, and moved with supreme confidence.

In New York, John Lindsay was mayor.  Looking far more like a basketball star than a politician, Lindsay too embodied all “the right stuff.” Both of them new how to rally their troops when the odds looked impossible and how to pull them back when the game was over. They looked measured and capable.  They looked like people you wanted to be like.

I don’t want to romanticize the past, though.  Boston and New York were far more dangerous, troubled cities than they are now and neither White nor Lindsay were without fault.  In the midst of failing schools, urban flight, racism, police bias and uprising for every sort, they each made their share of miscalculations.

Lindsay was badly wounded by a series of labor crises, including the strike that would shut down the NYC transit system.  White faced a school desegregation plan that tore his city in two, pitting allies and neighbors against each other, leaving scars that would last for decades. And, whether or not he did anything wrong, the appearance of impropriety certainly hurt him with his essential liberal base.

They lost sometimes and, although they understood the difference between quitting and knowing when the game’s over, their constituents often did not.  Both Kevin White and John Lindsay frequently found themselves under fire from their own side.

I’d record these kinds of events in a scrapbook my mother and kept when I was 10-years old. She had filled it with presidential biographies that ran as series in The Boston Globe.  Later, we’d add quotations, trivia or news articles.  People sometimes smirk at the thought of just how much of a geek you’d have to be to sit at the kitchen table with your mom carefully transcribing lines from Barry Goldwater into your “Political Stuff Scrapbook”. So, I get it. It’s hard for people of this generation to imagine that there were once politicians as dynamic as sports figures, and even at that, it was still a little geeky. But, public service could attract these kinds of all-stars.  Many of them really were the guy you wanted to be like when you grew up.

I recently shared this idea with Michael Dukakis. A spry and optimistic eighty-year old, he shot back, “you gotta remember that there were a some real bastards back then too.”  I don’t think I’m missing that point, or even the fact that the bastards won sometimes.  But watching Republicans change make the up of D.C. Circuit Court simply because this President shouldn’t have the right to make appointments, making filibustering status quo because this president shouldn’t have the right to govern and shutting down the government because this president shouldn’t have been elected…I’m pretty sure that these bastards are different.

The Cases

22 Tuesday Oct 2013

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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.

How we got to New Jersey

19 Saturday Oct 2013

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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.