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    Fortnight in Review

    By Ann Rostow

    Pussy Non Grata

    I read somewhere that a woman in one of those homophobic African countries had tossed her cat into the streets, evicting him from her home due to his unnatural interest in other male cats. I was all set to research this item and deliver a detailed report. Here is prejudice in all its purity, unreasoned condemnation unleashed on an innocent animal who (if memory serves) had been a part of the household for years.

    Sadly, we cannot afford to digress. Such stories cannot take precedence over the 47 marriage lawsuits now pending in 24 states. The hapless cat, whether gay or straight or perhaps just “questioning,” cannot overshadow the news that Scotland’s parliament has legalized marriage. He cannot displace a story on Maine’s top court, which just ruled in favor of a transgender schoolgirl who seeks bathroom access. Nor can he be allowed to distract us from the fate of California’s ban on reparative therapy, which could proceed to the High Court now that the full court of the Ninth Circuit has refused to rehear the matter.

    I read that Coke had a gay male couple in one of its Super Bowl ads. I see that Mayor de Blasio is going to skip the St. Patrick’s Day Parade in a tip of the hat to New York’s GLBT community. There’s lots of news out of Sochi, and the Indiana House has passed another antigay marriage amendment in a move that may or may not actually work in our favor. So you see, the cat must wait, and in doing so, may move off our radar screen into the empty void where old news stories fade away like background radiation from the Big Bang.

    But I feel so sorry for him! The seven-year old feline, named “Bull,” lives in Nigeria, where lawmakers recently enacted a ban on gay relationships and activism. We are all hoping that some kindly neighbor will overlook his purr-ient interests and welcome him into their home so that our gay cat is not doomed to a sad life cruising the dusty streets of Lafia. Also, a name change might be appropriate. How about “Bruce?”

    Meanwhile, in related news, a short article on how to tell whether your cat is gay advises us to look for some tell-tail signs. Does he lick his nether regions in public? Does he wander away at night on mysterious trips only to return in the morning with a self-satisfied smirk? Does he demand to be taken to the musical “Cats?”

    Thanks, But No Thanks

    I was astonished to read in Tuesday’s New York Times that our favorite team of rivals, Ted Olson and David Boies, would like to take over the two marriage cases that are now racing through the Tenth Circuit, presumably en route to the High Court. Say what? These are the same two guys, backed by the same organization, who nearly crashed the gay rights movement with their naïve approach to marriage litigation five years ago.

    Lost in the excitement of the Windsor ruling last June was the clear indication the Supreme Court would have ruled against us if they had accepted review of the merits in the Prop 8 case. (Fortunately, they voided the case on a technicality instead.) Even our allies at oral argument demanded to know how they could uphold the lower court without overturning bans on same-sex marriage throughout the rest of the country. The obvious implication was that such a sweeping decision was not an option.

    When Prop 8 was first filed in early 2009, Olson and Boies told the press that they expected a quick run to the High Court, followed by an easy victory based on prior rulings by Justice Kennedy. Convinced by the constitutional arguments in favor of marriage equality, they had zero knowledge of the pitfalls, no sense of the strategies put in place by the gay civil rights lawyers who had been fighting for decades, and they seemed oblivious to the profound emotional barriers that still protect antigay bias throughout society and the courts.

    We were saved by two men who bought us time: Judge Walker, who insisted on a lengthy trial, and Judge Reinhardt, who delayed the appeal for over a year with a question for the California Supreme Court, and who subsequently issued a narrow ruling designed to withstand High Court review. We also had the benefit of California’s decision to side with gay couples and the ensuing confusion over the status of the Prop 8 organizers who rose to the defense.

    If the Prop 8 case had somehow risen to the Supreme Court in 2011 instead of 2013, and if there had been no problem with standing, the High Court would likely have ruled that states had every right to pick their own definition of marriage. We would have been set back by a generation.

    Thankfully, that did not occur. And thankfully, our GLBT legal strategists succeeded in bringing a successful challenge to the Defense of Marriage Act to the High Court. Keep in mind, just as it was clear to experts that we would lose a Prop 8 challenge, it was equally clear that we were likely to win a DOMA challenge. That’s why the sudden appearance on the gay legal scene of two novices like Boies and Olson was alarming to say the least.

    Don’t get me wrong. I like Boies and Olson and appreciate their support. But much as I’d appreciate two small children volunteering to clear the dinner table of china that’s been in the family for a century, I still want them well supervised. According to Tuesday’s Times article, the team is now angling for a leading role in the Tenth Circuit cases based on the absurd idea that they are better suited than our own legal advocates— you know, the same incompetent group that won Romer, Lawrence, Massachusetts, and Windsor.

    “The reason we were brought in,” Olson told the Times, “was the people in California who first contacted us were very concerned that lawyers would bring a challenge to Prop 8 that didn’t know how to take a case all the way to the Supreme Court, how to prepare it, how to build a foundation, how to present it, how to articulate the arguments.” But “the people in California” to whom Olson refers were not gay rights veterans, but clueless activists who had no idea what they were doing in the first place. The blind were leading the blind and those in our community with twenty-twenty vision had to warn them off the cliff.

    Olson and Boies are now arguing a federal case in Virginia, where oral arguments took place this week and where we expect another quick federal marriage ruling from an Obama-appointed judge. A second federal case is running on a parallel track in the Lovers State, this one launched by the American Civil Liberties Union. In a nice reversal, the Democrats who came to office last November have moved to our side of the fence and the state is now an ally rather than a foe. Stepping up to defend are several county clerks, represented by conservative legal activists.

    In short, even though they seem poised for a significant win and a trip to the Fourth Circuit, they apparently want more. It’s not enough to litigate one of the most important marriage suits in the country. They must be in charge of the cases at the front of the pack (Utah and Oklahoma), the ones that seem most likely to reach the High Court and the history books. Would Olson and Boies have asked Thurgood Marshall to step aside during Brown v Board? I won’t answer that one.

    Speaking of Utah and Oklahoma, both cases are coordinated and will be heard by the same three-judge panel. We’ll know the panel in late March or early April. Written briefs are being filed in February and March, and oral arguments are scheduled for April 10 (Utah) and April 17 (Oklahoma).

    Finally, do you remember the Ninth Circuit ruling in the gay juror case? Come on! It was only two weeks ago! Well, the decision instructed courts in the western U.S. to apply heightened scrutiny to cases involving gay bias. As a result, Nevada’s attorney general has announced that she will reevaluate her defense of Nevada’s ban on same-sex unions in the case that is now pending in the Ninth Circuit.

    Normally, the Nevada case would be considered “ahead” of the Utah and Oklahoma cases if you use a race metaphor. But the Ninth Circuit has delayed that litigation for all sorts of reasons, allowing the Tenth Circuit cases to zip out of nowhere and jump to the front. Now, Attorney General Cortez Mastro’s new deliberation may slow the case even further. But, in a good way.

    Ahead to the Past in Indiana

    I feel obliged to flesh out the stories I mentioned at the top, beginning with Indiana. I haven’t done much reporting on the anomalous situation in the Hoosier State, where lawmakers have been tasked with trying to amend the state constitution to ban same-sex marriage just as the rest of the country is moving in the opposite direction. Why not? Well who wants to hear about it? No one. Plus, I was sort of hoping the legislature would just drop the whole thing and slink away.

    The problem for Indiana is that amendments must pass in two subsequent two-year sessions. Since the previous legislature passed an antigay amendment, the current gang feels compelled to follow through. Last week, however, the house passed an amendment that leaves civil unions intact, a discrepancy that would hit the reset button on the whole process and require the next legislature to approve the newly phrased amendment. If the senate agrees with the language, the whole thing is shoved off for another two years, which might be the easiest solution.

    In Maine, the high court has ruled that the state’s ban on gender identity discrimination means that a young transgirl cannot be barred from the ladies room at her school. The law cannot be construed to mean that the average citizen can simply announce that he or she feels more comfortable in the bathroom of the opposite sex, wrote the court. But nor can obsessive fixations on the sanctity of bathrooms (my words) be used as an excuse to discriminate against someone who has transitioned.

    Indeed, obsessive is the correct description of the bathroom defenders who imagine burly lumberjacks peeing in the sinks next to delicate flowers of femininity adjusting their lipstick and trying to avert their eyes. In most places, there is no actual law against using the other bathroom. And yet, women have stuck to the ladies rooms and men have kept to the men’s rooms all the same with the possible exception of those annoying situations when ten women are in line and no one is using the other facility.

    As for the notion that a child molester could run amok in the girls room, this scare tactic presupposes that sexual predators have a deep respect for a nonexistent law that currently prevents them from entering any bathroom at will.

    And above all, in keeping with the gender comity that now keeps us all using the sexually correct bathroom, what would we think if some law suddenly required transmen to use the ladies room and transwomen to use the men’s room? Now there’s a law that could produce the lumberjack scenario, although the peeing in the sink was an unrealistic embellishment.

    At any rate, the question at hand wasn’t a bathroom law, but a discriminatory school policy. Still, this parade of horribles marches through every debate on transrights as it did in this case, and the Lobster Court got it right.

    As for the Coke ad, I missed it. I had the Super Bowl on, but I paid scant attention. My mild dislike of the Sea Hawks in combination with my vague affection for Peyton Manning could not overcome the sheer boredom of a sloppy blowout.