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Tag: "gay and lesbian rights"

There Are Blue States and Then There Are Blue States

[ 46 ] January 9, 2013 |

Rhode Island and Oregon are two of the most reliable states for Democrats each election cycle. If anything, Rhode Island is even more a sure thing than Oregon. But the reality of public policy in the two states shows some pretty large differences. Admittedly, the following is anecdotal, but it also provides more evidence for my thoughts after a lifetime of following Oregon and the last 18 months in Rhode Island.

Rhode Island is the last state in New England to have no form of marriage equality. A bill will be proposed in the next legislative section. Hopefully it passes. I suspect it will be pretty close, despite gigantic Democratic majorities in the legislature. One big reason why is the influence of the Catholic Church over public policy in the state. So when the Bishop of Providence rails against same-sex marriage in offensive ways that deny that gays and lesbians actually exist, it actually matters. Although I probably shouldn’t overstate his influence, it’s arguably a greater influence over state policy than any other bishop in the country.

Meanwhile, Oregon has now outlawed insurance company discrimination against transgender people.



[ 9 ] December 21, 2012 |

The word hero is used way too often in our society for any number of reasons. But actual heroes exist. One of them was the AIDS activist Spencer Cox, who died this week at the age of 44. He helped save thousands of lives through his actions, even if he couldn’t conquer his own demons in the end. Such is the way of life.

Free Speech

[ 23 ] December 4, 2012 |

I assume that conservatives’ spirited defense of free speech in fighting the California law banning the use of gay conversion therapies for minors means that they will provide equally full-throated arguments in favor of other sorts of speech that would expose children to ideas about sexuality that could potentially damage them, such as the display of pornography in convenience stores next to schools.

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 |


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.”

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