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    Fortnight in Review

    Fourteen and Counting

    Yay! Another free state has joined the growing list of places where American gays can tie the knot. New Jersey Governor Chris Christie basically had no choice but to abandon the fight against equality after the state supreme court refused to suspend a lower court order that legalized marriage effective October 21. In rejecting the stay, the unanimous high court noted that the arguments against marriage had little chance of succeeding on appeal should the case continue.

    That said, of course Christie did have a choice. He could have easily jumped on the grand stand and insisted on a doomed effort to force the state supreme court to hear arguments and deliver a ruling on the merits of the marriage lawsuit. Yes, marriages would have continued during the appeal, but Christie could have won a great deal of street cred with social conservatives by refusing to accept reality until he saw the river card.

    Assuming the man is considering a run in 2016, his decision to throw in the towel is interesting. It suggests that Christie believes a pointless crusade against marriage equality would hurt, rather than help, his chances in a general election, while a gracious concession would not doom his primary campaign. He’s betting that the GOP base has turned its obsessions away from marriage, and that the country as a whole is now willing to punish those who continue to lead the charge against same-sex couples.

    Bottom line. Marriage is now legal in 14 states plus the District of Columbia, and a third of Americans now live in a state where gay men and lesbians have the right to wed.

    Trying Our Patience
    in the Mitten State

    In Michigan, meanwhile, a federal judge has ordered the state’s Prop 8-style lawsuit to trial, a fairly rare outcome that we have only seen twice. Back in 1996, Hawaii’s state court marriage suit went to trial, and although we won, our victory was annulled by a hastily passed constitutional amendment. Second, of course we all remember the Prop 8 trial, another triumph that was put on hold for years until the U.S. Supreme Court finally let the ruling take effect.

    Normally, however, federal judges don’t order trials unless material facts are in dispute. In marriage cases, the facts are usually stipulated, and the decision involves only a matter of law. Here, as in the Prop 8 case, a trial serves two purposes: It elongates the case itself, buying time for a hot button to cool somewhat, and it inoculates the court against charges that a controversial issue was decided without careful analysis.

    As for the disputed “facts,” I suppose we’ll hear the usual testimony about how traditional marriage bolsters children and families, as if a ban on our families would somehow encourage the stability of our straight neighbors. (I particularly cringe at the mantra “every child deserves a mother and a father,” as if outlawing marriage recognition would prevent gay couples from having kids.)

    Here’s Mud in Your Buckeye

    That Michigan case, by the way, evolved from a challenge to the state’s ban on joint adoption by gay couples. But after the High Court struck the core of the Defense of Marriage Act in Windsor, the plaintiffs expanded the suit into a marriage case.

    I bring this up because the Windsor decision has set off a chain reaction of somewhat unusual litigation. In addition to the carefully planned strategic lawsuits filed by our legal eagles, we’ve seen court cases pop up organically as if Windsor summoned forth a rain shower on fertile ground.

    Let’s take Ohio, for example. Maybe you remember that two men flew to Maryland a few months ago, got married on the tarmac, and flew back to Ohio where they asked a federal court to force the state to recognize their marriage on the death certificate of one of the husbands (who was on his last legs at the time). The men wanted to be buried together in a family plot that required kinship.

    Based on Windsor, the federal judge issued an injunction against the state, (the guy died, by the way), and the court is now considering the merits of the underlying principle. Since you don’t issue an injunction unless the plaintiff is likely to win, we could be looking at a breakthrough in this admittedly macabre niche of marriage recognition.

    The point is, just as it’s impossible to be a little bit pregnant, the notion of recognizing marriage solely for the purpose of death certificates is hard to imagine. Remember, it is marriage recognition, not marriage itself, which was at issue in Windsor. By insisting on recognition rather than a full blown reversal of state marriage policy, this lawsuit stands on very firm ground, indeed it stands on recent Supreme Court precedent. And yet the distance between marriage recognition and marriage itself is a rather small one. Indeed, with so many marriage states it could be considered almost symbolic.

    Marriage Basically
    Legal in Oregon

    Meanwhile, speaking of marriage recognition, I’m not sure quite what to make of the situation in Oregon, where all state agencies have now been directed to recognize same-sex marriages from out of state. An official memo announced the policy in mid-October, based on an opinion by the state attorney general’s office that said the state’s current policy appeared to violate the federal Constitution.

    Don’t get me wrong! I think it’s great. For all practical purposes it legalizes marriage in the Pinot Blanc State. But Oregon also carries a constitutional amendment that says only a marriage between a man and woman shall be legal or recognized. Usually, and it seems these days that “usually” has been thrown under the bus, an opinion by an attorney general is a useful guidepost without force of law. “Usually” it takes a court to mandate a change in policy, particularly when that change contradicts the explicit text of the state constitution.

    But not anymore! At any rate, Oregon is also the venue for a federal lawsuit challenging the state amendment, as well as a petition drive to repeal the amendment by public vote next year. Let’s just say that Oregon’s joining our free state list in the near future, and indeed for all practical purposes it already has.

    Next in Line:
    New Mexico, Hawaii

    Finally, we have the rogue clerk syndrome, states where clerks have taken it upon themselves to interpret Windsor as obliging them to issue marriage licenses.

    In New Mexico, rogue clerks have led the state supreme court to accept what amounts to an emergency marriage case. The justices heard arguments a week or so ago and could interpret the state’s marriage anytime now. New Mexico is the only state that does not clearly outlaw same-sex marriage either by statute or amendment, although by practice it has never allowed a same-sex marriage. For that reason, our allies had already filed suit in the Land of Enchantment, but Windsor and the clerks forced the state to put its foot on the accelerator.

    Likewise, we had already filed a federal suit against Pennsylvania when a clerk took unilateral action that has led to a state court suit. As for North Carolina where we also have a federal suit in progress, a rogue clerk has issued licenses but hasn’t really processed them. I’m fuzzy on this. The NorCal clerk asked the attorney general for advice, and while the attorney general supports equality, he has agreed to defend state law.

    I started this item with “finally,” not because I couldn’t spend another 1,000 words on breaking marriage news, but only because I think this is enough, don’t you? Every two weeks we have another new case, another state on the verge of equality, another this, another that. As I write, the Hawaii legislature is poised (we hope) to make marriage a reality (perhaps as soon as next month) a state of affairs that could have led this column were it not for the other equally exciting events of the fortnight. I’m not even getting into the weird lawsuit in Wisconsin (don’t ask), or the disappointing situation in Illinois (where it appears the house cannot bring marriage to a successful vote at this time).

    I think I just broke a record for parenthetical remarks in one paragraph.

    Christians Behaving Badly (Again!)

    So what else is new? Can we lighten up? I read about a straight guy in Omaha who was beaten up for defending his gay pals against a basher. That was nice of him, but it’s not particularly light hearted.

    Or how about the Christian diners who left the following note for their waiter at a Carrabba’s restaurant in Overland Park, Kansas:

    “Thank you for your service, it was excellent. That being said, we cannot in good conscience tip you, for your homosexual lifestyle is an affront to God. Queers do not share in the wealth of God, and you will not share in ours. We hope you will see the tip your fag choices made you lose out on, and plan accordingly. It is never too late for God’s love, but none shall be spared for fags. May God have mercy on you.”

    Say what? According to reports, many locals who read about the incident went out of their way to go to this restaurant, request the same guy, and leave him a nice tip to compensate for his ill treatment at the hands of these despicable customers. Note to Christian couple: check out Luke 6:24-26.

    And here’s something that annoys me. I keep stumbling over articles that focus on the idea that even though same-sex marriage is increasingly within our grasp, there are some gay couples who…wait for it…do not want to get married!

    What next? Some women don’t bother to vote? Some African Americans don’t like rap music? Some straight men don’t watch football? How about some journalists don’t pursue platitudes? OK. Maybe that last one was a bit far fetched.

    I Heart SCOTUS News

    So here are a couple of High Court tidbits that might not involve GLBT rights, but that concern us none-the-less. First, the town of Easton, Pennsylvania has decided to appeal the “I Heart Boobie” bracelet ruling to the Supreme Court. We’ve discussed this case in the past, only because the question of whether a school district can ban kids from wearing “I Heart Boobie” bracelets is identical to the question of whether a school can ban a gay T-shirt, or an anti-gay T-shirt for that matter.

    In this case, some middle school girls were told to take off the cheeky bracelets, which purported to make a statement against breast cancer. The school district claimed, to no avail, that the bracelets were provocative and could disrupt the educational environment. The U.S. Court of Appeals for the Third Circuit agreed with the girls, basically ruling that the bracelets were no big deal. Now, for reasons unclear, the school district has decided to go all the way to the top.

    I can’t imagine the High Court will take this case, because the facts here are so innocuous. Still, I mention
    the petition, because if the Court should accept review, we’ll have to watch closely.

    Second, on November 6 the High Court will hear arguments on the question of whether a small town in New York can start the vast majority of their board meetings with a Christian prayer. The U.S. Court of Appeals for the Second Circuit has already agreed with plaintiffs that the prayers constitute an impermissible entanglement with religion, breaching the wall between church and state if you will.

    So why did the High Court agree to take a look? It’s a little frightening to think that the Supremes might want to weaken the wall, but what else could they have in mind? The High Court has delivered controversial and conflicting rulings on the separation of church and state over the last decades. Most recently, in 2005, the justices threw everyone for a loop by ruling that a Ten Commandments monument on the grounds of the Texas Capitol was fine, while another one at a Kentucky courthouse (or somewhere like that) was unconstitutional.

    Oh, they had their reasons. But let’s just say that the one-two combo did not result in a coherent legal rationale. In view of the existing mess, you have to wonder what they’re up to now.