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Tag: "gay and lesbian rights"

Another Myth Begins to Die

[ 53 ] October 19, 2012 |

The idea that Latinos are like a ripe mango ready for Republicans to pick (no doubt they would hire people to pick those mangoes–Republicans don’t pick fruit) as soon as the party stopped being the open party of white supremacy was always a stereotype. The argument is that these Latinos are socially conservative Catholics who agree with Republicans on social issues. Well some do, some don’t. But that’s too much complexity for most people. The reality is that Latinos are changing like the rest of the country on social issues like gay marriage:

For the first time since the Pew Hispanic Center began asking the question in its National Survey of Latinos, more Hispanics favor allowing gays and lesbians to marry legally than oppose same-sex marriage, by 52 percent to 34 percent. As recently as 2006, those figures were reversed, with 56 percent of Latinos opposing same-sex marriage while 31 percent supported it.

Despite increased activism against same-sex marriage by some U.S. Roman Catholic bishops this election season, Latino Catholics are more supportive of same-sex marriage than Latino evangelical Protestants, the Pew survey found, by 54 percent compared with 25 percent. Latinos who are religiously unaffiliated favor same-sex marriage by 71 percent.

Sally Ride

[ 9 ] July 24, 2012 |

Sally Ride indeed blasted through the space ceiling for women.

Her death is a sad day.

It’s made even sadder by the fact that despite her pioneering past, she couldn’t crack another ceiling–the one allowing same-sex partners to receive the same death benefits from the government that partners in heterosexual marriages receive.

Here’s a bit about her partner, Tam O’Shaughnessy. Although they didn’t become partners until 1985, they were friends from the age of 12.

They’re Crazy Over There

[ 33 ] March 19, 2012 |

Meeting a political leader who supports bans on sodomy must indeed be awkward. Fortunately, here in the United States of America nobody who held such barbaric positions would be allowed anywhere near a position of power and influence.

To be clear, the Liberia law is barbaric. Sirleaf’s position should be strongly criticized (whether or not is was appropriate to do so in that particular context.) But let us recall that Tony Blair’s good friend and fellow Iraq War mastermind George W. Bush was also a supporter of sodomy laws.

Lawrence, Gideon, and Legal Storytelling

[ 4 ] March 6, 2012 |

I’m still waiting for my copy of Dale Carpenter’s book, but Dahlia Lithwick’s review is a beautifully written and important piece in its own right.    Lithwick’s piece focuses on a central irony of the case.  Kennedy’s opinion famously focused on the importance of relationships and intimacy, but Lawrence and Garner — the two men who were arrested for violating Texas’s sodomy laws, leading to the legal landmark — were not in a relationship and never had sex.   (Of the two of four policemen who claimed to see Lawrence and Garner engaged in sexual relations, one suggested that they were engaged in oral sex and one said they engaged in anal sex.   Were it not for the broader issues involved, it seems safe to say that the charge would have had trouble holding up even in a Texas court.)    Lawrence and Garner were not plaintiffs with the kind of story who get movies made about them, a necessity created by the fact that a couple in a same-sex relationship with children would have had too much to lose:

That’s the punch line: the case that affirmed the right of gay couples to have consensual sex in private spaces seems to have involved two men who were neither a couple nor having sex. In order to appeal to the conservative Justices on the high court, the story of a booze-soaked quarrel was repackaged as a love story. Nobody had to know that the gay-rights case of the century was actually about three or four men getting drunk in front of a television in a Harris County apartment decorated with bad James Dean erotica.

Although this wasn’t the case LBGT rights litigators would have chosen, it worked — because the Supreme Court wanted to act and had a story it wanted to tell.

Another example of this phenomenon, which worked from the other direction, is Gideon v. Wainwright, the 1963 case that held that the 6th Amendment’s right to counsel was applicable to the states. Clarence Earl Gideon was also living on the economic margins, but his basic story — a very possibly innocent man, denied a fair trial, who scrawled an in forma pauperis petition in longhand from his jail cell and got his rights vindicated by the Supreme Court of the United States — is different. Unlike the tale of Lawrence and Garner, this is an inherently compelling legal story. Gideon was literally portrayed by Henry Fonda in a movie based on the excellent bestselling book about his case that remains in print.

And yet, as Scot Powe’s classic history of the Warren Court makes clear Gideon v. Wainwright was in its own way a Court-created story as much as Lawrence. (For that matter, in its details, the Anthony Lewis book does as well.) As Powe says, Gideon isn’t exactly the story of a lone defendant triumphing against insurmountable odds, as the fact that his case was argued at the Supreme Court by LBJ’s personal legal fixer and future two-time Supreme Court nominee would make readily apparent:

Somewhat less well-known are the facts that twenty-two states filed amicus briefs on Gideon’s side and that Florida could gain the amicus support of only Alabama and North Carolina for its claim that an accused could be validly convicted without the aid of counsel; Mississippi and South Carolina were the only other states not offering counsel — hardly, especially in 1963, a stellar lineup. Moreover, hitherto unmined files in the Clark and Douglas Papers reveal that five of the eight justices had already joined an opinion in another case holding that a defendant was entitled to counsel on appeal even if he could not afford a lawyer. If there is a right to counsel after trial, there is surely a right to counsel at trial. That opinion, however, was not published at the time because the case was put over to the next term so that Fortas could win Gideon. (pp.179-80.)

Lewis didn’t have access to the information about the case Powe discusses at the time, but as Powe says the conference vote ironically meant that Gideon himself could have argued his case in front of the Supreme Court and won. In addition to that case, the Court could easily have used the 1962 case Carnley v. Cochran to incorporate the right to counsel. But the Court decided that case on narrow procedural grounds because Warren’s clerks had already found Gideon and the Court preferred to announce the overruling of a major precedent in a case involving someone who was possibly innocent of a minor burglary rather than in a case involving someone who was probably guilty of incest and child molestation.

I don’t mean to suggest that this means that the selection of plaintiffs and case facts isn’t important; it certainly is. But courts can often find a way to tell the story they want to tell.

By the way, the sad conclusion to the Lithwick review:

At a press conference after the decision was announced, Lawrence read a brief prepared statement and Garner said nothing. Some advocates hoped that Garner might have a career as a gay-rights spokesman. After he gave a drunken speech at a black-tie dinner in the plaintiffs’ honor, that idea was scratched. The case is called Lawrence v. Texas. John Lawrence died last November. Almost no one took note. Garner died five years earlier, at the age of thirty-nine. When Lambda Legal proved unable to raise funds for a proper memorial or burial, Harris County cremated him and sent his ashes home to his family in a plastic bag. There was no funeral.

I’m glad Carpenter has chosen to tell their story, and I’m looking forward to his book.

You Can Play

[ 2 ] March 4, 2012 |

It contradicts the very core of my worldview to have anything good to say about anything associated with in any way with the Maple Leafs, but obviously I can have nothing but praise for this. Hopefully another year out of the playoffs will give Burke, Phanuef, and Lupul more time to make an actual contribution to society…

Backlash: Still Substantive, Not Procedural

[ 22 ] March 2, 2012 |

Remember all the assertions that same-sex marriage would be easily preserved as long as the rights were declared by legislatures rather than courts? Well, there was never any actual evidence for the theory, and New Hampshire provides us with yet another dis-confirming data point.

To state the obvious, opponents of same-sex marriage are outraged by decisions like Goodridge because they oppose same-sex marriage, not because they have some a priori commitment to Bradley Thayer‘s theory of judicial review.

How the Prop 8 Case Should Change Equal Protection Law

[ 11 ] February 27, 2012 |

I have a piece for the Prospect that, among other things, argues that making “immutability” a major factor in whether a classification should be subject to heightened scrutiny is anachronistic:

I don’t blame White for applying the existing legal standard, and also agree with him that if forced to choose from what is essentially a false dichotomy I would put sexual orientation into the “immutable” box rather than the “freely chosen” box. (In addition, White does acknowledge that sexual orientation may not be immutable for all individuals.) But, like Graff, I believe both that this is an oversimplification and that gay and lesbian equality does not depend on entirely removing agency from the equation. People who choose same-sex partners from a group of potential partners of both genders deserve the same right to marry as people who rate a “6” on the Kinsey scale.

Fortunately, White’s compelling opinion should make it clear that the question of “immutability” should be considered superfluous. What really matters is the first category—whether people have been subject to “invidious discrimination.” As Judge White notes, there can “no dispute … that lesbians and gay men have experienced along history of discrimination.” Classifications that deny people rights based on sexual orientation act to stigmatize and subordinate, and this should be the crucial inquiry for equal protection law. Whether sexual orientation is entirely “immutable” is beside the point; based on an extensive history of oppression, sexual orientation clearly merits heightened scrutiny.

Another aspect of White’s opinion worth noting, as a commenter here also caught, is footnote 5:

The question of whether DOMA impacts a fundamental right is addressed briefly by the parties but it is not at issue here as it is undisputed that Ms. Golinski is already married under state law. The failure of the federal government to recognize Ms. Golinski’s marriage and to provide benefits does not alter the fact that she is married under state law.

While White doesn’t consider it applicable to this specific set of facts, he seems to be signalling that he would be open to the argument made persuasively by Evan Gerstmann that bans on same-sex marriage are constitutionally defective because marriage is a fundamental right. It’s a compelling argument that would help move us away from the “class based” equal protection models that aren’t really working.

Incidentally, I also agree with Gerstmann that the valiant attempts to claim that bans on same-sex marriage should be subject to strict scrutiny because they constitute gender discrimination won’t really fly. Bans on same-sex marriage treat people of both genders the same, and while this formal equality obviously entails subordination and stigmatization, the invidious discrimination is directed at people based on their sexual orientation, not their gender per se. To argue that  bans on SSM are unconstitutional, you either have to argue that 1)sexual orientation should be subject to heightened scrutiny, or 2)same-sex marriage burdens the fundamental right of marriage and hence should be subject to heightened scrutiny. Fortunately, I think both of these alternatives are good arguments, one of which is likely to prevail eventually (although probably not as a result of this case.)

DOMA Ruled Unconstitutional in Federal Court

[ 24 ] February 22, 2012 |

A good first step, anyway. More when I have a chance to read the opinion, although we can be confident that the George W. Bush appointee Jeffrey White is some sort of free-thinking anarchist.

Bending Toward Justice

[ 6 ] February 17, 2012 |

Excellent:

The Obama administration has announced that it will not defend laws that prevent married same-sex couples from obtaining military benefits. In a letter to Congress today, Attorney General Eric Holder argued, “[t]he legislative record of these provisions contains no rationale for providing veterans’ benefits to opposite-sex couples of veterans but not to legally married same-sex spouses of veterans … Neither the Department of Defense nor the Department of Veterans Affairs identified any justifications for that distinction that would warrant treating these provisions differently from Section 3 of DOMA.”

Glad that the administration is acting consistently with the values of the Constitution.  Or, as Jeff Goldstein would call it since it’s not Reagan doing it, “tyranny.”

Same-Sex Marriage in Washington

[ 9 ] February 13, 2012 |

It’s official. Should the expected referendum ensure, hopefully this time the “put fundamental rights up for a plebiscite” strategy will fail as well.

Meanwhile, in the competition for the very dumbest SSM opponent in Washington, I think I have to vote for Hargrove.

What Would AMK Do?

[ 4 ] February 13, 2012 |

With respect to how Kennedy is likely to rule on the Prop 8 case, a few additional points. First, in response to Murc here, I should make it clear what I’m not arguing, namely that Reinhardt’s opinion will somehow be able cleverly manipulate Kennedy into supporting a position he’s not otherwise inclined to go along with. As I said when similar claims were made during the Kagan nomination hearings, I regard arguments that Kennedy can be manipulated to support liberal positions as roughly on a par with arguments that Evan Bayh and Ben Nelson can be made to vote like Paul Wellstone based on arguments that rely on terms such as “bully pulpit” or “mandate.” Rather, my argument is simply that Reinhardt’s holding is one that, based on his past writings, Kennedy is likely to agree with, and hence less likely to vote to overturn and create a terrible precedent. “Manipulation” per se has nothing to do with it. Mazzone believes that this is about manipulation because he thinks that Reinhardt’s analogies to Romer are invalid, but I think he’s wrong about that. At any rate, Kennedy will make up his own mind, which is another reason why it made sense for Reinhardt not to go well beyond Romer and declare a broad right to same-sex marriage; if this is what Kennedy believes he’s free to do so anyway.

As for how much we can read into Lawrence and Romer, here’s another way of putting the argument I made here. Kennedy has demonstrated, in several cases, a willingness to vote to strike down the death penalty as applied in certain narrow ways: in cases of people under 18, people with severe mental disabilities, or in cases of sexual assault. It would be very foolish, however, for a litigator to assume that because he’s willing to strike down applications of the death penalty that are rare even in the minority of states that use the death penalty with any frequency he would therefore be willing to endorse the Marshall/Brennan theory that the death penalty is obviously unconstitutional. Kennedy is more likely to endorse a broad national right to same-sex marriage than is he is to rule that the Eighth Amendment makes any application of the death penalty unconstitutional. But, still, to be confident that he will do so based on Romer and Lawrence is deeply problematic. These cases, whose direct national impact was very modest, are a lot more like Roper v. Simmons than they are like Roe v. Wade (which would be the clearest equivalent to declaring a national right to same-sex marriage.)

There’s a final argument, made by Mazzone and also by the great Pam Karlan, that Kennedy is very concerned about his legacy and won’t want to be seen as being on the wrong side of history. Well, maybe. It’s certainly possible that Kennedy would like to see himself as being on the forefront of an important extension of civil rights that will broadly accepted very soon. It’s also possible that Kennedy has no interest in being a pariah among has valued conservative colleagues in support of social change he believes is inevitable anyway. And it’s possible that he’s aware of conservative complaints that he’s susceptible to the “Greenhouse Effect” and wants to show his backbone in a high-profile case. There are a million different essentially unfounded narratives one can create when one plays the armchair psychologist. What I do know is that his past decisions indicate that Kennedy is much more likely to uphold a narrow decision striking down Prop 8 than a broad one, and both 9CA was sensible to act accordingly. Particularly since that if Kennedy is in fact ready to go beyond a narrow ruling nothing in Reinhardt’s opinion can or would stop him.

In Defense of Reinhardt

[ 28 ] February 9, 2012 |

A couple people in comments endorsed Jason Mazzone’s critique of the Ninth Circuit panel’s narrow opinion ruling Prop 8 unconstitutional and asked for my reaction. To paraphrase Byron White, I agree with Mazzone that the best outcome would be for the Supreme Court to declare a nation-wide right to same-sex marriage, but our agreement ends there. In short, I think Mazzone’s reading of Reinhardt’s opinion is uncharitable and erroneous, and more importantly I think he is far too optimistic about Kennedy’s willingness to make bans on same-sex marriage illegal in all 50 states.

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