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Fortnight in Review

Illinois, We Hardly Knew Ya

As our last issue went to press, the Illinois House passed the long stalled marriage equality bill with one vote to spare, upending the conventional wisdom that thought the pro-equality side lacked a majority. Indeed, according to the Chicago Tribune, supporters decided to bring the measure to the floor knowing only that the vote would be close.

Like a lemming scuttling towards the sea, I followed along, echoing reports that the marriage bill would not be brought to a vote during this special session. Ever since the state senate passed marriage equality last February, we’ve been watching Illini activists struggle to overcome a five to ten vote deficit in the house, and although we’ve seen them win a commitment or two over the summer, most of their target lawmakers have remained stubbornly undecided. Or so it seemed.

Apparently, even after a barrage of lobbying from the antigay National Organization for Marriage, the wavering handful wound up on the side of the angels. A key element in their calculus may have been rising public support; where once politicians feared a backlash for voting yes on marriage, many districts may now punish a representative for voting no.

At any rate, I blame myself for not picking up on the possibility that the Illinois House would try and vote on marriage last week. It’s one thing for the mainstream media to be surprised. But marriage equality is supposed to be our specialty here in the gay press. After quick confirmation from the senate, Governor Pat Quinn is planning to sign the marriage bill on November 20, and weddings will start some time next year.

Twenty Years After Baehr v Lewin, Hawaii Marriage Materializes

Honestly, I was absurdly furious when I heard the news from Illinois. Instead of being excited to add another state to our growing list, I berated myself for my inattention. On further reflection, however, I realized that such an oversight is only possible at a time when so many dominoes are falling at once, so many cases are filed, so many bills are up for debate. The notion that I would be oblivious to the possibility of a major marriage development on my deadline even a year ago would have been laughable.

It’s an amazing time. Even as Governor Quinn prepares to sign his bill, the Hawaii legislature has beaten Illinois to the punch, sending marriage equality through the house and senate like a warm breeze. Governor Neil Abercrombe is signing the bill as I write, and marriages will begin December 2, making Hawaii technically the 15th state to authorize gay weddings. Counting Illinois, we’re now at 16, plus the District of Columbia. With Oregon deciding to recognize marriages from out of state, you could call it 16 ½.

Next up, unless I’m missing something, which is highly possible, is a decision from the New Mexico Supreme Court that fast-tracked its marriage case a couple of months ago. The hurry-up offense was triggered by the sad case of a dying woman, who sought and won lower court permission to marry in a state that does not explicitly ban same-sex unions.

On Friday, November 8, Jennifer Neuman-Roper died of brain cancer, and her death certificate listed Angelique Neuman-Roper as her spouse. The two won permission to marry last August as Jennifer’s condition worsened, forcing the high court to make a quick determination. Oral arguments in the case were heard, I don’t know, maybe four or five weeks ago. At any rate, we should soon hear from the justices.

I’m not sure why I’m so convinced the high court will legalize marriage in the Land of Enchantment. Maybe it’s because the state has resisted anti-marriage laws and amendments. Maybe it’s the avalanche of new marriage states. Maybe it’s the surprisingly powerful impact of the Windsor ruling. Maybe it’s the fact that Santa Fe has already allowed same-sex marriage. It just seems unlikely that New Mexico would take a step backward just as everyone else is moving forward. That said, there’s no guarantee that this state will fall into our column. Just a hope.

Another Notch in ENDA’s Belt

Forgive me if I don’t shout from the rooftops now that the Employment Nondiscrimination Act has passed the U.S. Senate. It’s not that I have reservations about the bill, which I do. It’s just that the bill isn’t going anywhere!

Does anyone out there believe that the same bunch of yahoos who spent tax payer dollars to defend the Defense of Marriage Act are going to turn around and pass ENDA? Does anyone believe that the man who can’t or won’t bring immigration to the floor, will offer a vote on gay employment rights? Does anyone think that the gang that brought us the government shutdown, and nearly defaulted on our national debt is going to advance this bill? No, they’re not. Ergo, our ENDA victory can be filed away with the many other symbolic wins that ENDA has enjoyed over the past 25 years.

Yes, of course it takes time to enact civil rights laws. And yes, of course these mini-victories are steps in the right direction. But come on. If we’re going to keep beating our heads against the wall, let’s punish ourselves by trying to add sexual orientation to Title VII of the Civil Rights Act. It can’t be that much more difficult than trying to pass ENDA, which it seems will only pass once we have a strong gay friendly majority in both houses of Congress.

Let me bring up one example of the difference between ENDA—- a stand alone bill that was conceived at a time when nothing else was feasible—- and Title VII, the federal law that has protected everyone else against sex and race bias in the workplace
since 1964.

Under Title VII, an employer may not create tests or stumbling blocks to advancement that appear neutral, but are actually designed to discriminate. You cannot, for example, limit higher paying manual jobs to those with a high school degree at a time when the overwhelming number of high school graduates is white.

This kind of disparate impact case is tricky, and indeed the High Court has ruled that the underlying discrimination must be deliberate, not inadvertent. But still, it’s an important feature of Title VII law that is explicitly excluded from ENDA’s text. Why? Because of the unfounded notion that employers might feel obliged to have a “gay quota” in place in order to defend themselves against an accusation of disguised bias.

There’s always something in a gay-only law that needlessly caters to prejudice. Religious exclusions. Loopholes. Limits on money damages. Listen, if I were convinced that ENDA was our only avenue to workplace protections, I’d be for it. But as I mentioned, it looks as if we’re never going to pass ENDA until conditions are overwhelmingly in our favor. If we have to wait until that glorious day, whenever it might be, why make these compromises?

Hoosier Daddy?

I hope you didn’t assume that we were done with marriage news. Mais non! These days there’s always another story on the front burner, and quite a collection on the back burner as well.

I haven’t mentioned for example that the Wisconsin Supreme Court is deliberating over whether to strike down the state’s domestic partner law, a status that delivers some, but not all, of the rights of marriage to same-sex couples.

Yes, even as we progress in leaps and bounds, bad things are still happening, including a debate in the Indiana legislature over whether to send an antigay marriage amendment to voters next November. We have only the cumbersome amendment procedures in Indiana to thank for the fact that our brothers and sisters in Hoosier land have escaped an amendment thus far. Lawmakers have been trying to ban marriage for a decade, but they need to pass a bill in two successive legislatures to succeed. They did so in the last legislature, but we’ll see if they can make it two in a row.

Spud State In The Mix

And we have more lawsuits! The National Center for Lesbian Rights has filed a federal suit for marriage in Idaho, a Ninth Circuit state. And in Tennessee (Sixth Circuit), the NCLR has filed a suit for recognition only, asking a federal court to force the Volunteers—not to legalize marriage—but to recognize the marriages of state residents.

That’s a tactic that may work well in red states that are governed by conservative appellate courts. After all, the Supreme Court has just ordered the federal government to respect legal same-sex marriages, and the vagueness of Justice Kennedy’s ruling may work in our favor as a precedent to force states to follow suit. We know a state like Tennessee is not going to legalize marriage anytime soon. And the Sixth Circuit is unlikely to force them to do so. But might they simply order them to recognize marriage? Maybe.

Litigating Texas

Last week, we even saw a couple of federal marriage suits filed in Texas, although not with the blessing of the strategic thinkers at Lambda and elsewhere. Texas falls under the jurisdiction of the draconian Fifth Circuit, generally seen as the least friendly appellate bench in the nation.

A couple of years ago for example, the full Fifth Circuit ruled that Louisiana was within its rights to withhold a revised birth certificate for the child of two New York adoptive fathers. The astounding opinion, which flew in the face of every other court decision, including one from the Tenth Circuit, still stands as one of the worst recent gay opinions on record and it was sad to see the High Court subsequently duck review of that case. Let’s just agree that the Fifth Circuit will rule for marriage equality when pigs fly and leave it at that.

That said, I really like the handsome and charming lawyer who filed one of those cases, Jody Scheske. Last week, Scheske argued a long delayed same-sex divorce case before the Texas Supreme Court, asking the justices exactly how the Lone Star state can expect a couple to remain technically married, years after they have split and agreed on a division of property.

Think about it. After the Windsor decision, these two men, who married in Massachusetts but moved to Texas for work, must file joint federal taxes and indeed are considered legally married for all federal purposes. As Texas residents, they may not divorce in Massachusetts. Yet the only option Texas offers is a proposal to have their marriage declared “void” in the state. Neither man would have the right to remarry anywhere else, and as for those taxes, they’d be filing jointly for the rest of their lives.

It’s ludicrous. And it’s an example of how the Windsor ruling will gradually, but inexorably, force even the reddest states to recognize marriages. First in one context. Then in another.

Scheske had no choice but to argue that a state court need not recognize a marriage in order to grant a divorce, but in fact, divorce is a subsidiary of marriage. The Texas court is between a rock and a hard place, twisting itself into knots to avoid making an exception to its antigay marriage amendment. Yet the justices have no good options. And if they deny the divorce, Scheske and company would have a federal case that even the Fifth Circuit might have to swallow. (OK. Maybe not the Fifth Circuit.)

That’s So Apple

Finally, check this out. A high school student, Becca Gorman, was using the Apple dictionary and looked up the entry for “gay.” Definition one was a homosexual guy or whatever. No problem. Definition two was the erstwhile fun and carefree. But definition three, prefaced as “informal” read: “foolish; stupid; ‘making students wait for the light is kind of a gay rule.’”

Can you believe that? Does Apple have an “informal” definition for “Jew?” Something like: “to bargain for a lower price?” Someone actually composed that “definition,” someone oblivious to the fact that the GLBT community has been fighting the use of “gay” as a pejorative term for decades! Apple, a company that is run by a gay man by the way, called Becca and said they were also appalled, but it’s not clear at press time if they’ve fixed the problem.

arostow@aol.com