It’s a pretty slow news day with a bunch of smaller stories, so I figured it was time for a linkfest. Here for your reading and commenting pleasure:
A recent poll found that 63% of LGBTs oppose the AZ law show me your papers law, 45% strongly. Meanwhile 33% of Heterosexuals oppose the Arizona law, 22% strongly. (via Pam’s House Blend)
Speaking of the AZ law, the Phoenix Gay and Lesbian Chamber of Commerce is asking that the LGBT groups end their boycott of the state and accused them of “grandstanding” on the issue. Yes, let’s just throw people under the bus so you can make more money.
Lt. Dan Choi and Captain James Pietrangelo have attempted to subpoena President Obama in their civil disobedience trial. However, the White House guards turned away the process server.
Aubrey Sarvis from SLDN is warning that the final vote on the defense bill that currently has a delayed DADT repeal included may not get voted on until December. That is of course when the Pentagon working group is done with their report. Who knows what will be in there and it could complicate efforts for final passage.
Elana Kagan was asked about marriage equality during her confirmation hearing. As would be expected, she really didn’t break any ground, refusing to talk about potential issues that could come in front of her as a judge on the Supreme Court. Video is up at Towleroad.
On a personal note, this will be my last post here as your faithful blogger, as it is my last day working for the Courage Campaign. Expect to see more of Robert Cruickshank’s writing around these parts. It’s been a pleasure writing here and getting to know the regular commentors. And I’ll be watching closely as this trial continues. Who knew real court cases could be as action packed as a John Grisham novel.
Ted Boutrous sent a letter today to Judge Walker about the relevance of the Supreme Court’s decision yesterday in Christian Legal Society v. Martinez. It turns out that I was hasty yesterday to say that there was little of relevance between Perry v. Schwarzenegger and the recent decision. Karen Ocam has the letter on LGBT POV.
June 29, 2010
The Honorable Vaughn R. Walker
Chief Judge of the United States District Court
for the Northern District of California
450 Golden Gate Avenue
San Francisco, California 94102
Re: Perry v. Schwarzenegger, Case No. C-09-2292 VRW
Dear Chief Judge Walker:
I write on behalf of Plaintiffs to bring to the Court’s attention yesterday’s decision in Christian Legal Society v. Martinez, No. 08-1371 (U.S. June 28, 2010) (attached hereto as Exhibit A).
In Christian Legal Society, the Supreme Court definitively held that sexual orientation is not merely behavioral, but rather, that gay and lesbian individuals are an identifiable class. Writing for the Court, Justice Ginsburg explained: “Our decisions have declined to distinguish between status and conduct in this context.” Slip op. at 23 (citing Lawrence v. Texas, 539 U.S. 558, 575 (2003); id. at 583 (O’Connor, J., concurring in judgment); Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 270 (1993)). This confirms that a majority of the Court now adheres to Justice O’Connor’s view in Lawrence, where she concluded that “the conduct targeted by [the Texas anti-sodomy] law is conduct that is closely correlated with being homosexual” and that, “[u]nder such circumstances, [the] law is targeted at more than conduct” and “is instead directed toward gay persons as a class,” id. at 583 (O’Connor, J., concurring in judgment) (emphasis added). See also Romer v. Evans, 517 U.S. 620 (1996) (treating gay and lesbian individuals as a class for equal protection purposes). The Court’s holding arose in response to Christian Legal Society’s argument that it was not discriminating on the basis of sexual orientation, but rather because gay and lesbian individuals refused to acknowledge that their conduct was morally wrong. The Court rejected that argument, holding that there is no distinction between gay and lesbian individuals and their conduct.
In his closing argument, counsel for Proponents claimed that High Tech Gays v. Defense Industrial Security Clearance Office, 895 F.2d 563 (9th Cir. 1990), and its dubious statement that “homosexuality is not an immutable characteristic; it is behavioral,” id. at 573, forecloses heightened scrutiny in this case. But as this Court explicitly recognized at the hearing on Proponents’ motion for summary judgment, High Tech Gays, which relied on the now-overruled Bowers v. Hardwick, 478 U.S. 186 (1986), rested on a moth-eaten foundation.
To the extent that anything is left of High Tech Gays after Lawrence, Christian Legal Society has abrogated it entirely.
Respectfully submitted,
/s/ Theodore J. Boutrous, Jr.
Theodore J. Boutrous Jr.
Counsel for Plaintiffs
TJB/eam Attachment
Boutrous is arguing that this case further buttressed several fundamental arguments they are making, that sexual orientation is immutable and that the LGBTs are a class that can be protected.
It will be interesting to see what if anything the defendants send to Judge Walker about Christian Legal Society v. Martinez.
The best summary of this case I’ve seen was by Adam Bonin over at Daily Kos, who writes:
And today it’s My Religion Doesn’t Like The Gays versus Our Policies Say You Can’t Discriminate Against Gays, in the context of the a student religious group at the Hastings College of Law — a part of the California public educational system.
The schools won with a 5-4 ruling. The Supreme Court upheld the ability for public schools to deny recognition and funding to campus organizations who violate the school’s non-discrimination policies. In this case the University of California’s Hastings School of Law had in place a non-discrimination policy against LGBTs and the had a request for recognition/support from Christian Legal Society, whose by-laws include:
In view of the clear dictates of Scripture, unrepentant participation in or advocacy of a sexually immoral lifestyle is inconsistent with an affirmation of the Statement of Faith, and consequently may be regarded by CLS as disqualifying such an individual
from CLS membership…. [including] all acts of sexual conduct outside of God’s design for marriage between one man and one woman, which acts include fornication, adultery, and homosexual conduct.
Ruth Bader Ginsberg, whose husband recently passed away read the majority decision in court today. Kennedy and Stevens wrote concurring decisions. Alito wrote the dissent.
Adam adds this crucial reminder of the limitations of this ruling:
It’s important to recognize the limits of today’s decision. It’s not “all student groups must allow all students at all campuses.” It’s simply this: if a school wants to have an “all comers” policy, then it’s allowed to enforce it and override the discriminatory beliefs of a group seeking recognition — in other words, that the government is not required to fund discrimination. Different universities, however, can make their own decisions as to what works for them.
We can’t really see this as a test of how Perry v. Schwarzenegger would go, but it is heartening to once again see Justice Kennedy on the side of the good.
This segment on CNN with Soledad O’Brien speaking with current gay soldiers in the closet, those who have been kicked out and SLDN’s Aubrey Sarvis is well worth a watch.
SOLEDAD O’BRIEN, CNN CORRESPONDENT: You may not be able to see it, but this man is nervous. He has every reason to be. He is one of an estimated 60,000 members of the U.S. military serving in the closet.
UNIDENTIFIED MALE: Wondering if this is the day that my secret is going to fly out. Is this the day.
O’BRIEN: You live like that? Everyday?
UNIDENTIFIED MALE: Well, whenever you get the e-mail to come to the office by your boss or somebody is on the phone, and who is on the phone? I don’t know. You never know, is this that phone call.
O’BRIEN: The phone call that will kick you out of the military?
UNIDENTIFIED MALE: Yes.
O’BRIEN: He is a 10-plus year veteran are army intelligence and currently serving overseas. He can’t reveal his identity because of the military policy “don’t ask, don’t tell,” but that is about to change.
SEN. JOHN MCCAIN (R): The committee’s focus is today on the “don’t ask, don’t tell” policy.
O’BRIEN: The service members’ legal defense network has been lobbying Congress to pass the Pentagon’s military spending bill. It has an amendment that would repeal “don’t ask, don’t tell.” You think you have it?
AUBREY SARVIS, SERVICE MEMBERS’ LEGAL DEFENSE NETWORK: This bill will be close. We won the voting committee. We are going to win the vote on the Senate floor. Senator McCain has threatened to filibuster, and so we may have to come up with 60 votes. If we have to we will.
O’BRIEN: But some say that the military is not ready for openly gay service members. For former air force Major Mike Almy, the upcoming vote comes late. How did you find out that you had been caught?
MIKE ALMY, FORMER AIR FORCE MAJOR: My commander called me into his office for a routine meeting which was not out of the order and the first thing he did was to read me the DOD policy on homosexuality, just like and I’m sure I turned ghost white, because I was completely flabbergasted and as if somebody had pulled the rug out from under me.
O’BRIEN: Five years ago, a co-worker found his e-mails to a man he was dating. Almy was booted from the air force.
ALMY: I’m pissed off. I really am. I want my job back. I want my career back.
O’BRIEN: Can you get it back realistically?
ALMY: There have been about 14,000 men and women who have been thrown out under “don’t ask, don’t tell.” So you’ve got to figure there’s maybe two or 3,000 of those who want to come back in. How do you revive a career that’s been completely derailed like mine where I’ve been out for four years now?
O’BRIEN: The repeal won’t automatically lift the ban, and the services could take months to implement the policy. There is no guarantee that ousted members like Almy could return. As it moves forward what advice would you give the members of the military who are closeted? What do you tell them? Wait?
SARVIS: Well, they have to keep in mind that this law has not gone away and serve in silence until you get the green light.
O’BRIEN: When the time comes, breaking that silence will not come easily. UNIDENTIFIED MALE: If it is repealed soon, and I decide to come out, I think it will be some pushback from the colleagues.
O’BRIEN: Pushback in what way?
UNIDENTIFIED MALE: Pushback and major penalties from the co- workers.
O’BRIEN: You will lose friends?
UNIDENTIFIED MALE: Yeah, I will probably lose some friends.
O’BRIEN: Make it worth it, still?
UNIDENTIFIED MALE: Yeah, because I am me. I am who I am.
O’BRIEN: For CNN in America, I’m Soledad O’Brien, Washington, D.C.
If you get a chance to watch it, vs. reading the transcript, do. It is always incredibly powerful watching someone who is serving silence speaking about how physiologically difficult it is to hide who you are on a daily basis and fear you are going to lose your career.
This is the type of clip that is so useful in changing the minds of Americans, as they hear from themselves the stories told by LGBTs about the impact of current laws and policies on their lives.
As we await the decision in Perry v. Schwarzenegger from Judge Vaughn Walker – in a case we expect to make it to the US Supreme Court – the Supreme Court has today issued a ruling in another marriage equality case that has many implications for the fight here in California.
You might recall that in 2009, the state of Washington (where I lived from 2001 to 2007) passed a law providing domestic partner benefits to same-sex couples, as part of the LGBT equality movement’s strategy to slowly but steadily eliminate the state’s barriers to full equality. Almost immediately after Governor Christine Gregoire signed the bill, anti-gay groups organized a petition drive to have the law placed before voters as a referendum. They barely succeeded in gathering the signatures, but Washington voters approved the referendum, known as R-71, upholding the domestic partnership law at the November 2009 election.
In Washington, as in California, the names of those that sign a ballot initiative petition are a matter of public record. This has been the case for nearly 100 years, and flows from the basic legal principle that for the public to have trust in the system – whether it’s the legal system or the electoral system – there must be public disclosure. In this case, that means disclosing the names of those who signed the petitions.
However, the anti-gay groups did not want these names to be disclosed, as part of a broader strategy to hide their names and intentions from the public – a strategy that we have seen repeatedly in the Prop 8 trial, from the successful effort to keep cameras from the courtroom to the effort to suppress unfavorable testimony. The anti-gay groups in Washington, led by Protect Marriage Washington, sued the Secretary of State, Sam Reed, on behalf of the petition signers to block disclosure. Since some of the signers wished to remain anonymous, the case was filed on behalf of a John Doe – hence the name of the case, Doe v. Reed.
Last year a US federal judge in Tacoma agreed with the anti-gay groups and agreed to block the release of the names of the petition signers. The US 9th Circuit Court of Appeals – the same court that will hear the inevitable appeal of the Perry v. Schwarzenegger decision – overturned that decision, and Protect Marriage Washington appealed to the Supreme Court, which heard oral arguments in the Doe v. Reed case in April 2010.
Today the Supreme Court issued a complicated ruling in the case. In an 8-1 ruling, the Court held that generally these petitions ARE subject to public disclosure, and that there is no presumption that the petition signatures can be private. However, the court also ruled that it is possible for disclosure to be prevented if plaintiffs could prove that they would suffer specific harm as a result of disclosure. And most importantly, the court did NOT decide whether the R-71 petitions in particular could be disclosed or not, remanding that to a lower court.
The ambiguity of the decision was compounded by the fact that there were no less than seven different opinions written by the justices in this case. Some of them were more favorable and some of them gave a reed of hope to Protect Marriage Washington in their effort to block the disclosure of the names. Over at Daily Kos Adam Bonin has a good overview of these opinions, which I’ll summarize here.
The main decision, written by Chief Justice John Roberts and signed by Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito and Sonia Sotomayor, was very strong in its defense of the principle of public access and political disclosure:
The State’s interest is particularly strong with respect to efforts to root out fraud, which not only may produce fraudulent outcomes, but has a systemic effect as well: It “drives honest citizens out of the democratic process and breeds distrust of our government.”
Of course, we at the Courage Campaign said much the same thing in our letter to Judge Walker asking him to televise the trial, a letter that over 140,000 people signed and was cited by Justice Breyer in his dissent against the January 2010 SCOTUS ruling barring cameras from the Prop 8 trial. It’s unfortunate that Chief Justice Roberts has been inconsistent in his application of the public’s right to know, but at least here in Doe v. Reed he understood the need to err on the side of disclosure.
When it comes to the issue of when disclosure can be blocked – as it was, for example, in the 1950s when the state of Alabama sued to get the membership list of the NAACP – Chief Justice Roberts argued that disclosure could be blocked:
if there were a reasonable probability that the group’s members would face threats, harassment, or reprisals if their names were disclosed.
I would demand strong evidence before concluding that an indirect and speculative chain of events imposes a substantial burden on speech. A statute “is not to be upset upon hypothetical and unreal possibilities, if it would be good upon the facts as they are.”
And of all people, right-wing Justice Antonin Scalia wrote strongly in favor of the need for disclosure, and slammed the argument that somehow it is undemocratic to make petition signatures public:
And it may even be a bad idea to keep petition signatures secret. There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously (McIntyre) and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.
Given this strong defense of disclosure by the majority of the Supreme Court, it is unfortunate that they did not rule on the R-71 disclosures themselves. We must hope that the federal court in Washington State will rule in favor of disclosure.
With regard to the assertion by the anti-gay groups that they would be harmed if petition signatures were subject to public disclosure … the Supreme Court has in the past allowed exemptions to public disclosure where there’s a clear minority party that has suffered both official and societal retaliation by the majority such that disclosure presents a very real threat. With regard to Referendum 71, however, the groups making this claim were not the minority, but to the contrary, were the ones trying to diminish the rights of the minority. They will be hard pressed to convince a judge the record here is otherwise.
WFST also reminded us that there has so far been no evidence of harassment of anyone who signed the petitions, indicating there is no legal basis to deny disclosure even according to today’s Supreme Court ruling:
In an amicus brief provided to the Supreme Court in Doe v. Reed, a group of political scientists reported that not only was the assertion of alleged harassment unsubstantiated in Washington State, but the plaintiffs did not present a single verified threat to any signer of a ballot measure petition in any state in any election. As their brief said, “More than a million names of signers of petitions for referenda and initiatives opposing gay marriage have been posted on the Internet, yet there is no evidence that any of these signers has faced any threat of retaliation or harassment by reason of that disclosure.”
We can expect the anti-gay groups to make such a claim and continue fighting to block public disclosure of petition signers’ names. It’s important to remember why they want to block that disclosure – and why they wanted to keep cameras out of the courtroom, why they tried to undermine California’s own disclosure laws to hide the names of donors to Prop 8.
The reason is simple: Because it helps them politically. By claiming that they would somehow be harmed by public scrutiny and disclosure, Prop 8 supporters are reinforcing a narrative of victimhood that serves their broader agenda of painting marriage equality supporters as the bad guys. They also are able to keep their true feelings hidden, as their radicalism is masked by vague and reassuring images of smiling people protecting children and families from some existential threat that is supposedly inherent in same-sex marriages.
Conservatives have for decades cultivated a politics of victimhood – presenting themselves as victims of some group, usually liberal and often an oppressed minority, in order to gain sympathy for their insane beliefs and to delegitimize progressive ideas and actions. The result is a massive distortion of the true effects of Prop 8, and the normalization of support for discriminatory policy.
In other words, what we’re witnessing in America right now is a broad right-wing effort to hide the truth from the public so that voters can be more easily manipulated to embrace right-wing and/or corporate-friendly policies that voters might otherwise reject. It is an insult to our democracy and to our intelligence.
Ultimately, the desire to prevent public disclosure is very deeply linked to the desire to block same-sex marriage. Those who oppose marriage equality want to make it safe in this country to discriminate against LGBT people. They understand that overt statements of dislike of LGBT people don’t fly in California, so they have to hide it, whether it’s in their deceptive campaigning, their push for a closed courtroom, or their efforts to hide their names from mandatory disclosure.
The Supreme Court’s ruling is ambiguous. But in one way it is quite clear: that disclosure and public access is essential to our democracy. That flies directly in the face of what the anti-gay groups have been arguing. In that sense, the Supreme Court has given us an important victory, even as we wait to see what happens with the R-71 signatures.
Remember that precocious 10 year old that refused to say the pledge of allegiance because he felt that there was not liberty and justice for all if LGBTs were not able to marry or adopt children?
The Northwest Arkansas Pride has invited him to be their Grand Marshall, which the American Family Association, a far-right group is calling it “child abuse”. The Advocate:
“It’s shameful that adults would abuse a brain-washed child in this way,” AFA president Tim Wildmon writes in a press release. “He’s obviously just parroting the nonsense he’s been told by manipulative adults. For gay activists to trot out this child and make him the poster child for promoting unnatural sexual expression is a form of child abuse.”
Anyone who has seen a video of Will talking knows how ridiculous Wildmon’s claims of brainwashing and child abuse. Speaking of that here is Will accepting an award from GLAAD.
More from the Adocate:
Wildmon then uses the Food and Drug Administration’s ban on gay blood donors as justification for discouraging acceptance of gays. “There is nothing about homosexual conduct to be proud of, and much to be ashamed of,” Wildmon writes.
Wildmon is referring to the recent decision by the FDA not to suspend the ban on men who have had sex with other men from donating blood. It’s decisions like this one that has a negative impact on the general public’s perception of LGBTs. Wildmon is taking advantage of that and using it as an opportunity to encourage the perception that gays are unclean and shameful. That’s the danger of the failure to make progress or small incomplete gains. They further buttress the impression that LGBTs are different and less worthy of equal treatment under the law.
Take the advancement we made this week with the Family Medical Leave Act. LGBTs are able to take unpaid leave take care of their partner’s kids, but not their partners themselves. It perpetuates the notion that there is a reason LGBTs should be treated unequally, attaching a negative stigma to this class of people.
Activists like the readers of this site know that it is DOMA that is preventing the ability to take time off to care for a partner, but that detail often gets lost in the shuffle of the news.
That’s why we need major reforms, not piecemeal efforts that can be repealed when another party takes the presidency. We’ve seen what happened in Virginia after a conservative Republican replaced a moderate Democrat and started rolling back the protections that were gained. That can happen federally and is one of the reasons why this trial is so important. It has the potential to get DOMA fully repealed and ensuring LGBTs are treated completely equally under the law.
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