Posts - July 2006

Today is the 25th anniversary of the appearance of a famous, foreboding article in the New York Times: Rare Cancer Seen in 41 Homosexuals, by Lawrence K. Altman.

Here’s what I wrote on the 20th anniversary of the article.

Lately I’ve begun working with a book called The Pathfinder: How to Choose or Change Your Career for a Lifetime of Satisfaction and Success, by Nicholas Lore. It’s helped me figure out that I already know what my dream job is – it’s just been buried under too much self-doubt, fear, skepticism, and most of all, self-preservation.

My dream job, if I could achieve it, would be to become a paid author, commentator, essayist, columnist, et cetera, and make enough money on this to have a comfortable living, and be well-known enough to get invited onto talk shows and radio shows and opine. I’d love to be the next Michelangelo Signorile, Andrew Sullivan, or Dan Savage (gay essayists), or the next Jeffrey Rosen or Jeffrey Toobin (legal essayists), or what have you.

I have no idea how to get paid as a writer or if I’m any good. But I’m afraid to even try because I’m afraid I won’t be good enough. And the concept of actively working to become better at something is a foreign concept to me. I feel that if I’m not good enough at something, there’s no point in working at it and trying to become better, because it’s only inherent talent that is rewarded, and if my talent isn’t inherently mind-blowing, I’m a fraud. In other words, a primitive part of me thinks that people are rewarded for who they are instead of what they do. But I have to unlearn that.

As a first step toward something – I’m not sure what – I started writing a column-length piece this morning, 800 words. I was a university newspaper columnist in college and law school, but it’s been a long time. And it’s harder than I remembered. There’s something so stilted about the process. I think I’m trying too hard to write something presentable. I’m not being personal enough, I’m not putting enough of my own spin on it. Ordinarily, I would take that as a sign that obviously I don’t know what the hell I’m doing, I can’t possibly measure up to those who are getting paid to do this, and how dare I even bother trying. But instead I’m going to try to learn from the experience.

I’ve been thinking of creating a new website that I can use as a showcase for myself and my writing. For a few years I’ve owned the dot-com that contains my name, so I could put it there. Or I could just put it here. The point is that I worry too much about actively making my name public and maybe I don’t need to. I’m not really anonymous here, but it’s not necessarily easily to find my blog if you know my name. This is because I worry about employers or potential employers. But if I’m going to enter a field where it doesn’t really matter what my opinions are or if I voice them, I should be unafraid to publicize myself.

For the past five-plus years of writing this blog, I’ve subconsciously harbored the hope that someone will come across my fabulous writings and decide to hire me on as a writer, or at least ask me to write stuff for them. But it hasn’t happened. Things like that don’t happen if you’re passive. You have to seek those things out.

If this is really what I want, I really need to take action.

I’m a few days late, but Gay City News reported a few days ago :

Roberta Kaplan, the dynamic attorney who was one of the leads arguing for the right of same-sex couples to marry before New York State’s Court of Appeals in May, said that a decision in the case is “likely” to come down this coming Wednesday or Thursday – July 5 or 6 – unless the six out of seven high court judges who heard it are tied 3 to 3.

As I wrote here, I don’t know what any of these expectations are based on. I still think it would be unusual for the court to rule so quickly on such a non-emergent matter. Of course, Roberta Kaplan is an attorney on the case and I’m not, so perhaps she knows something we don’t know.

Anyway, the above-linked article has some interesting in-depth analysis of how the several judges on the New York Court of Appeals might vote in the case.

“One of the most widely held misconceptions about the Declaration is that it was signed on July 4, 1776, by all the delegates in attendance.”

- The Declaration of Independence: A History

Happy Independence Day!

The American colonies actually chose independence on July 2, 1776. The Declaration wasn’t signed until August 2, 1776, and all the signatures weren’t even added that day. But we celebrate July 4 because that’s the anniversary of the finalization of the text.

On June 7, 1776, Richard Henry Lee of Virginia presented to the Continental Congress, representing the 13 colonies, a resolution for independence from Great Britain. A Committee of Five was soon appointed to draft a statement of independence, and it worked throughout June. Among the five members of the committee (which also included Benjamin Franklin and John Adams), Thomas Jefferson was given the task of actually drafting the document.

On July 1, Congress reconvened.

On July 2, all 13 colonies except one adopted Lee’s resolution: New York abstained.

Revision of Jefferson’s document was completed by Congress on the morning of July 4, at which point the resolution was considered officially adopted.

The first printed copies of the Declaration of Independence were turned out from the shop of John Dunlap, official printer to the Congress… On the morning of July 5, copies were dispatched by members of Congress to various assemblies, conventions, and committees of safety as well as to the commanders of Continental troops. Also on July 5, a copy of the printed version of the approved Declaration was inserted into the “rough journal” of the Continental Congress for July 4. The text was followed by the words “Signed by Order and in Behalf of the Congress, John Hancock, President. Attest. Charles Thomson, Secretary.” It is not known how many copies John Dunlap printed on his busy night of July 4. There are 24 copies known to exist of what is commonly referred to as “the Dunlap broadside,” 17 owned by American institutions, 2 by British institutions, and 5 by private owners.

The Dunlap broadside.

On July 9 the action of Congress was officially approved by the New York Convention. All 13 colonies had now signified their approval. On July 19, therefore, Congress was able to order that the Declaration be “fairly engrossed on parchment, with the title and stile [sic] of ‘The unanimous declaration of the thirteen United States of America,’ and that the same, when engrossed, be signed by every member of Congress.”

During July, the document was engrossed – written out in a long, clear hand – and on August 2, 1776, what we familiarly know as the Declaration of Independence was signed, starting with John Hancock, the President of the Congress. But that’s still not exactly the image we’re familiar with.

By 1820, the ink on the original Declaration was starting to fade, so Secretary of State John Quincy Adams commissioned an official facsimile. It took three years; it was completed by William J. Stone in 1823, probably etched into a copper plate for easy, endless printing, “with the greatest exactness and fidelity.”

That’s the image we’re familiar with today.

The Stone facsimile.

More links:

The Declaration of Independence: A History – an essay about the creation of the Declaration and the travels of the original document since that time. (Most of this blog post is taken from there.)

The Stylistic Artistry of the Declaration of Independence – an essay about the document’s writing style. “The Declaration of Independence is perhaps the most masterfully written state paper of Western civilization… no assessment of it can be complete without taking into account its extraordinary merits as a work of political prose style.”

Declaring Independence: Creating and Re-creating America’s Document, an exhibit at the University of Virginia.

Happy Independence Day.

“New York’s highest court is expected to rule Wednesday on whether to permit gay and lesbian marriages in the state.”

Okay, so maybe it will happen this week after all.

No gay marriage decision today in New York.

“We hold that the New York Constitution does not compel recognition of marriages between members of the same sex. Whether such marriages should be recognized is a question to be addressed by the Legislature.”

I feel ill. More than I expected to.

Here is the decision.

There is a rally tonight regarding the gay marriage decision at 6:00 p.m. in Sheridan Square, at 7th Avenue and Christopher Street.

Today, in Hernandez v. Robles, New York’s highest court, the Court of Appeals, ruled that the state constitution does not require extending marriage to same-sex couples. The court didn’t even order the legislature to provide same-sex couples with civil unions. The decision was 4-2; there are seven judges, but one did not participate in the case because his daughter is involved in same-sex marriage litigation in another state.

Three opinions were issued: the opinion of the court, a concurring opinion agreeing with the result, and a dissent. This post summarizes and critiques the main opinion of the court – in layman’s terms, I hope.

The opinion of the court was written by Judge Robert S. Smith and joined by two other judges. (The other day, Gay City News stated that Judge Smith “is considered an iconoclastic conservative and libertarian and he aggressively questioned both sides in this case, displaying little patience for arguments that procreation wasn’t central to marriage and demanding more specific ‘studies’ on how children fare in homes headed by gay parents versus heterosexual parents.”)

1. Rational Basis Review

Bizarrely, the opinion of the court puts the cart before the horse. Normally, a court first explains what type of analysis is appropriate, and then analyzes the case. Here, the court first analyzed the case and then explained why the level of analysis was appropriate. The court gave the legislature’s limitation on marriage the lowest, most deferential level of scrutiny possible, and only afterwards did it explain why this was appropriate. Apparently Smith thinks a higher level of scrutiny is so patently inappropriate that it’s not even worth first explaining why.

Under this low-level review, a court basically accepts a legislature’s decision if the legislature gives a basically rational reason for it. Here, the court stated that the legislature could reasonably conclude that “for the welfare of children, it is more important to promote stability… in opposite-sex than in same-sex relationships” because heterosexual sex can naturally lead to the creation of children while homosexual sex cannot. The court also stated that “The Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father.” The court cited “intuition and experience” as supporting this argument.

(I never realized that “intuition” was a legal standard; as for “experience,” the court doesn’t cite any.)

Regarding studies showing that children raised by same-sex couples fare no worse than children raised by opposite-sex couples, the court stated that “the studies on their face do not establish beyond doubt that children fare equally well in same-sex and opposite-sex households. What they show, at most, is that rather limited observation has detected no marked differences. More definitive results could hardly be expected, for until recently few children have been raised in same-sex households, and there has not been enough time to study the long-term results of such child-rearing.” The court states, “In the absence of conclusive scientific evidence, the Legislature could rationally proceed on the common-sense premise that children will do best with a mother and father in the home.”

(I think that calling something “common sense,” with no further explaination, is an evasion of argument – it’s really no explanation at all.)

The court discounts the precedent of Loving v. Virginia, the U.S. Supreme Court case that struck down bans on interracial marriage. The court states that Loving was decided in the context of a long history of racism, but that the analogy doesn’t hold because opposition to same-sex marriage isn’t necessarily based on irrationality, ignorance or bigotry. (Or so the court states.)

2. Marriage as a Fundamental Right

Having dispensed with its analysis, the court next take a step backward and states why it finds low-level scrutiny of the legislature’s decision appropriate. Under constitutional theory, a higher level of scrutiny would be required if a fundamental right were at issue or if a particular class of people was being denied equal protection under the law.

First the court explains why it does not believe a fundamental right is involved. It states that “whether the right in question is ‘fundamental’ depends on how it is defined.” Crucially, the court states:

The right to marry is unquestionably a fundamental right… The right to marry someone of the same sex, however, is not “deeply rooted”; it has not even been asserted until relatively recent times. The issue then becomes whether the right to marry must be defined to include a right to same-sex marriage.

This definition of the question is vital. One of the main thrusts of Lawrence v. Texas, the U.S. Supreme Court sodomy case, was that the court in the case it overturned, Bowers v. Hardwick, had defined the right at issue too narrowly, as “whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy,” when it should have analyzed the issue more broadly as whether adults have a fundamental right to engage in private, consensual sexual conduct of their choosing.

Incredibly, the court in Hernandez v. Robles specifically acknowledges Lawrence’s admonition to frame the question properly and then goes ahead and frames it incorrectly. It does so by engaging in circular reasoning: it states that the question should be narrowly framed because same-sex couples are seeking “access to a State-conferred benefit that the Legislature has rationally limited to opposite-sex couples.” But the court can’t decide whether a rational-basis analysis is appropriate without first deciding whether a fundamental right is at issue. Oops.

3. Equal Protection

Under equal-protection analysis, a level of scrutiny higher than rational-basis scrutiny is appropriate if certain classes of people are being disadvantaged by a law. Courts have long held that laws creating certain classifcations merit higher scrutiny, primarily those based on race and those based on sex, along with a small number of others.

The court dismisses the notion that the same-sex marriage ban discriminates on the basis of sex, because the law does not disadvantage one sex over the other.

I generally agree. Sex discrimation is a weak argument in this field. However, one can argue that inter-racial marriage bans were unconstitutional despite ostensibly treating blacks and whites the same. On the other hand, the purpose behind such bans was to “keep the white race pure,” whereas there’s no analogous purpose here to privilege one gender over another.

Next, the court discusses classifications based on what it repeatedly calls “sexual preference.” (The use of a term that a great many gay people dislike shows that the majority judges have a tin ear for gay rights issues.) The court finds that such discrimination is not subject to heightened scrutiny here, because the law deals with characteristics relevant to an interest that concerns the State – namely, marriage. “A person’s preference for the sort of sexual activity that cannot lead to the birth of children is relevant to the State’s interest in fostering relationships that will serve children best.”

The court uses this as a pivot to return to rational-basis question. The court dismisses the argument that some same-sex marriage couples raise children, stating that the legislature’s decision was nevertheless rational. The court also dismisses the argument that some opposite-sex couples do not raise children, stating that “limiting marriage to opposite-sex couples likely to have children would require grossly intrusive inquiries, and arbitrary and unreliable line-drawing.” That’s generally true, although the dissent states that the legislature could limit marriage to couples of fertile age (but the dissent doesn’t address fertile couples who just don’t want to have children).

4. Conclusion

The court concludes with a hope that “the participants in the controversy over same-sex marriage will address their arguments to the Legislature; that the Legislature will listen and decide as wisely as it can; and that those unhappy with the result — as many undoubtedly will be — will respect it as people in a democratic state should respect choices democratically made.”

That last sentence rankles me. Minority rights should not be decided democratically. Then again, the majority of the court apparently doesn’t see this as a minority rights issue.

The concurring opinion is worse; I’ll get to that next.

Rather than deal with the concurring opinion in Robles right now (I analyzed the main opinion here), here are a number of quotes from the dissent of Chief Judge Judy Kaye in support of a constitutional right to same-sex marriage. Even though the dissent has no legal effect, it can be cited in court cases in other states, as well as by pro-marriage legislators when the debate in Albany comes.

“Simply put, fundamental rights are fundamental rights. They are not defined in terms of who is entitled to exercise them.”

“The purported ‘right’ of gays and lesbians to enter into marriages with different-sex partners to whom they have no innate attraction cannot possibly cure the constitutional violation actually at issue here.”

“In other words, it is not enough that the State have a legitimate interest in recognizing or supporting opposite-sex marriages. The relevant question here is whether there exists a rational basis for excluding same-sex couples from marriage, and, in fact, whether the State’s interests in recognizing or supporting opposite-sex marriages are rationally furthered by the exclusion.”

“But while encouraging opposite-sex couples to marry before they have children is certainly a legitimate interest of the State, the exclusion of gay men and lesbians from marriage in no way furthers this interest. There are enough marriage licenses to go around for everyone.”

“But no one rationally decides to have children because gays and lesbians are excluded from marriage.”

“Indeed, the protections that the State gives to couples who do marry — such as the right to own property as a unit or to make medical decisions for each other — are focused largely on the adult relationship, rather than on the couple’s possible role as parents.”

“Nor does the plurality even attempt to explain how offering only heterosexuals the right to visit a sick loved one in the hospital, for example, conceivably furthers the State’s interest in encouraging opposite-sex couples to have children, or indeed how excluding same-sex couples from each of the specific legal benefits of civil marriage–even apart from the totality of marriage itself–does not independently violate plaintiffs’ rights to equal protection of the laws. The breadth of protections that the marriage laws make unavailable to gays and lesbians is ‘so far removed’ from the State’s asserted goal of promoting procreation that the justification is, again, ‘impossible to credit’ (Romer, 517 US at 635).”

“The State’s interest in a stable society is rationally advanced when families are established and remain intact irrespective of the gender of the spouses.”

“To say that discrimination is ‘traditional’ is to say only that the discrimination has existed for a long time.”

“But this Court cannot avoid its obligation to remedy constitutional violations in the hope that the Legislature might
some day render the question presented academic.”

“The Court’s duty to protect constitutional rights is an imperative of the separation of powers, not its enemy.”

“I am confident that future generations will look back on today’s decision as an unfortunate misstep.”

Dude! I’m on the front page of the New York Times website right now.

Well, my green t-shirt is, anyway. Someone’s hand and someone else’s head is blocking most of my face. And you can only notice the green t-shirt if you enlarge the photo. You can see Andy bright and clear in his purple t-shirt, though. We’re in the upper center of the photo.

Matt, unfortunately, is completely hidden.

Here’s a screenshot of the New York Times website right now (with Andy and me circled). And here’s the photo:

Some people, including Art Leonard in his terrific write-up of Hernandez v. Robles in the Gay City News today and several of the speakers at the gay marriage this evening, point out a bizarre irony in the court’s opinion. The court states:

Despite the advances of science, it remains true that the vast majority of children are born as a result of a sexual relationship between a man and a woman, and the Legislature could find that this will continue to be true. The Legislature could also find that such relationships are all too often casual or temporary….

The Legislature could find that this rationale for marriage does not apply with comparable force to same-sex couples. These couples can become parents by adoption, or by artificial insemination or other technological marvels, but they do not become parents as a result of accident or impulse. The Legislature could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples, and thus that promoting stability in opposite-sex relationships will help children more.

Basically, straight couples deserve marriage because they’re more likely to have children thoughtlessly, by “accident or impulse,” whereas, because gay couples have to actually want children enough to take deliberate steps to have them such as artificial insemination or adoption, they can be barred from getting married.

The old stereotype about gay people and commitment is turned on its head, but we still lose out.

Welcome to Bizarro-Land.

This decision is as insulting as Bowers v. Hardwick, the 1986 anti-sodomy decision that was eventually sent to history’s dustbin by Lawrence v. Texas. Rallies were held in Sheridan Square on the sad day that Bowers was decided and again on the happy day 17 years later when Lawrence reversed it. I look forward to the day when a rally is held in celebration of New York State’s allowing its gay citizens to get married, a day when Hernandez v. Robles itself is relegated to the dustbin of history.

And we’d damn well better not have to wait 17 years for it.

Now that same-sex marriage is in the hands of the New York state legislature, it’s crucial to convince the Senate’s majority leader, Joseph Bruno, a Republican, to support a same-sex marriage bill. In order to become law, of course, a bill needs to pass both houses. While the state Assembly is controlled by Democrats, the Senate is controlled by Republicans, and Joe Bruno is their leader. In the past he has said that he opposes same-sex marriage. The senate majority leader controls what bills are even brought to a vote, so without his support, same-sex marriage goes nowhere.

He’s apparently changed his mind on things before – at first he opposed SONDA, the Sexual Orientation Non-Discrimination Act, but eventually he supported it – so he needs to be convinced that same-sex marriage, or at least the benefits thereof, is important.

Here is Senator Bruno’s contact information. The phone number of his Albany office is (518) 455-3191. You can call his office and express support for a same-sex marriage bill. Better yet, you can call his office and ask what Senator Bruno plans to do to support gay couples that already have children. Yesterday’s court decision ignored the reality that thousands of same-sex couples already have families. Ask the senator how he plans to protect those families and tell his office why same-sex couples deserve the same legal rights as opposite-sex couples. If you agree, that is. If you don’t agree, then you should.

And while Bruno’s support is necessary, it’s not enough. If you live in New York State, you should contact your own state senator. Find your senator by zip code.

And express your opinion. Senators’ offices keep records of these things, you know. A phone call may seem silly or fruitless, but it really does help.

Here’s a really good interactive map from NPR on the state of same-sex marriage across the nation, state-by-state.

Here’s some great footage from last night’s gay marriage rally in Sheridan Square, divided into several YouTube clips. It’s almost like being there. See what you missed.

From Salon.com: Ban on gay marriage denies justice to children.

The fact is, lesbians and gays are not going to stop having kids because we can’t marry. Our children are not going to disappear.

It would be nice if opponents of gay marriage recognized the fact that gay families with children already exist.

I kind of agree with Andrew Sullivan:

It seems to me that if children are the standard, then civil marriage should rationally apply only to those with kids, gay or straight, and civil unions should apply to everyone else. Everyone gets a civil union license at first (unless they already have kids) and can upgrade to a civil marriage license after and only after they have reproduced or adopted.

I’ve thought about this before and it makes lots of sense, even though it would probably be unworkable in practice.

The Los Angeles Times today has an editorial: “Setback for marriage justice – New York and Georgia courts will be on the wrong side of history of gay marriage.”

Noting that “an important function of marriage is to create more stability and permanence in the relationships that cause children to be born,” Judge Robert S. Smith wrote that the state could “offer an inducement — in the form of marriage and its attendant benefits — to opposite-sex couples who make a solemn, long-term commitment to each other.” Never mind that childless heterosexual couples also receive legal benefits from civil marriage — or that many gay couples are raising children.

It took the Supreme Court until 1967 — 1967! — to strike down odiously racist anti-miscegenation laws. Someday we’ll look back on the anti-gay-marriage hysteria with the same revulsion. Until then, with a high court seemingly disinclined to address marriage, states such as California should take the lead.

The future of gay marriage in Massachusetts is in jeopardy.

The procedural maneuvers over this issue are so confusing. You might have read today that the Supreme Judicial Court of Massachusetts – the state’s highest court, which ruled in favor of gay marriage in the Goodridge decision in 2003 – unanimously ruled this morning that a initiative petition to amend the Massachusetts constitution to ban gay marriage can go forward. (The lawsuit involved a procedural issue, and unfortunately I agree with the judges’ interpretation.) I was confused when I read about this, because I thought the process to amend the constitution to ban gay marriage had already been tried and failed. This timeline clears things up.

1) In November 2003, the court ruled that the state’s ban on same-sex marriage was unconstitutional.

2) In February 2004, in an attempt to overrule the court, the state legislature began attempting to amend the state constitution to ban gay marriage. To pass, the amendment needed to win a majority vote by two consecutive legislatures and then win the popular vote. In the first legislature, the amendment passed by 105-92, but in the next legislature (September 2005), it was defeated, 157-39. So it never went to a popular vote.

3) In the meantime, a new attempt to amend the state constitution was begun by the Massachusetts Family Institute, this time by ballot initiative. This is a multi-step process:

First, a certain number of signatures must be gathered. The MFI achieved this in December 2005.

Second – which is where we are now – two consecutive legislatures must vote. (The court ruled today that the vote can go forward.) But to approve a ballot initiative, majority votes aren’t needed in the legislature; just 25 percent of the legislature – 50 out of 200 legislators – needs to approve it! As of two months ago, people on both sides agreed that the measure seems to have at least 50 votes. But a coalition of 165 business leaders recently put an ad in the Boston Globe opposing the amendment. The first of the legislative votes occurs Wednesday; if it gets at least 50 votes, the next legislature votes in 2007. If that legislature approves the measure (again, only 50 votes needed), it goes onto the next step.

That next step is that the measure goes on the ballot in 2008 for a popular vote. If it passes the popular vote (by a simple majority), Goodridge is history and gay marriage in Massachusetts gets banned.

Strangely, though, in today’s court decision, two concurring justices suggested that such a constitutional amendment, if ratified, might conflict with the constitution as it now stands, under which a ban on gay marriage is unconstitutional. That really doesn’t make sense to me; Eugene Volokh explores that particular issue.

Photographic recreation of A Sunday on La Grande Jatte by Georges Seurat. (It’s hot in here!)

I’ve begun doing some informational interviews in the area of gay rights law, in order to see what the work is like and (more importantly) where the jobs are, and also to start making connections. I met with someone yesterday at a prominent gay rights organization and learned a lot.

If any of you have any connections at gay rights organizations in New York with whom I might be able to speak about working in gay rights law, feel free to contact me.

In other news, last week I got the results back from my personality tests. I’d taken the Myers-Briggs (MBTI) and the Strong Interest Inventory.

On the Myers-Briggs I was classified as INFP. This means I am more:

Introverted as opposed to Extroverted
iNtuitive as opposed to Sensing
Feeling as opposed to Thinking
Perceiving as opposed to Judging

More explanation of the different qualities here.

Two of the categories were close calls. I was classified as only three points more introverted than extroverted, which makes some sense, because I do like parties and I do value relationships with people, but I also really need my quiet alone time. Even closer, I was only one point more feeling than thinking. That’s understandable, too, as I have a long-standing conflict between the emotional and logical sides of me; I find each mode of existence highly appealing in its own way.

I came out six points more perceiving than judging, and a whopping THIRTEEN points more intuitive than sensing.

As for the Strong Interest Inventory, it judges you on six characteristics: Realistic, Investigative, Artistic, Social, Enterprising, and Conventional. I scored most highly in the Artistic and Investigative categories.

The job categories with which my answers to the various questions correlated most closely are: Librarian, Translator, Technical Writer. I have no interest in being a translator, some interest in being a “technical writer” (which apparently encompasses such things as legal writing), and not a whole lot of interest in being a librarian.

Another job on which it ranked me pretty highly, though, was college professor. That’s another thing I’ve thought about before.

Anyway, I tend to think these kinds of tests are largely self-reinforcing – they confirm what you already know, and if you disagree with the results, you discount them. Still, they’re fun to take, and they’re not wholly unenlightening.

The freedom to marry: Keep dancing | Advocate.com

Evan Wolfson, executive director of Freedom to Marry, has a great piece online about last week’s marriage decision in New York. An excerpt:

In fact, the plurality’s strained rationalizing of the discriminatory exclusion fails on its own terms.

New York’s ruling came just a week after the Arkansas supreme court unanimously rejected precisely the same proffered rationale; unlike the four-member majority of New York’s highest court, the judges in Arkansas (!) instead relied on the evidence provided by experts in child welfare. That evidence was, of course, available to the New York judges. Institutions such as the American Psychological Association, the National Association of Social Workers, the American Psychiatric Association, the Association to Benefit Children, and the American Academy of Matrimonial Lawyers, among other authorities, submitted briefs to the court calling for an end to marriage discrimination in the interest of children and families.

And the very week of the New York decision, the American Academy of Pediatrics weighed in once again with an authoritative statement titled “The Effects of Marriage, Civil Union, and Domestic Partnership Laws on the Health and Well-being of Children” (see the academy’s full analysis on www.freedomtomarry.org). The nation’s kids’ doctors know best—and here’s what they said:

“There is ample evidence to show that children raised by same-gender parents fare as well as those raised by heterosexual parents. More than 25 years of research have documented that there is no relationship between parents’ sexual orientation and any measure of a child’s emotional, psychosocial, and behavioral adjustment. These data have demonstrated no risk to children as a result of growing up in a family with one or more gay parents. Conscientious and nurturing adults, whether they are men or women, heterosexual or homosexual, can be excellent parents. The rights, benefits, and protections of civil marriage can further strengthen these families.”

Not only was this evidence, this kind of careful consideration of what truly helps couples and kids missing from the New York plurality opinion, so was any actual logical connection between the ends ostensibly sought (promoting stability, helping children) and the means chosen (denying that stability and help to others).

“The silver lining of the decision,” he writes, “is, ironically, its thinness, illogic, and refusal to consider the lives of real people, including gay families, and the real meaning of the denial of the human experience that is marriage. While the dissent makes a convincing legal and moral case, the plurality and concurring opinions will present no impediment to a court or decision-maker wanting to do what is right and willing to apply real scrutiny to a constitutional and moral wrong.

Here’s a handy graphic illustrating the various possible outcomes regarding the debate over the proposed anti-gay marriage amendment in the Massachusetts legislature, which (possibly) happens today.

No vote on gay marriage in the Massachusetts legislature today: apparently they weren’t able to get to all 20 of the proposed amendments on the table, and the gay marriage amendment was last, so the vote has been postponed until November 9.

Jimmy Olsen’s gay. No, not the one from the movie, but Jack Larson, the actor who played him in the original Superman TV series starring George Reeves.

After a particularly humiliating encounter with the producer Mervyn LeRoy in 1961 — “He started castigating the casting director right in front of me, saying, ‘I can’t have him in my film! He’s Jimmy Olsen!’ ” — Mr. Larson sought advice from his onetime lover, the actor Montgomery Clift. He remembers the meeting at the Bel Air Hotel.

“Monty said, ‘This is going to continue,’ ” Mr. Larson recalled. “ ‘Don’t put yourself in these situations anymore. You need to leave this behind.’ And that’s when I decided to quit acting.”

He focused instead on his writing, becoming an award-winning playwright and librettist, receiving the first Rockefeller Foundation grant ever awarded to a playwright. He collaborated with composers including Virgil Thomson, Irving Fine and Ned Rorem, and his rhymed verse plays were performed all over the world. He was also a producer on films like “The Paper Chase,” “Urban Cowboy” and “Bright Lights, Big City,” often working with his domestic partner, the director James Bridges, with whom he lived for 35 years before Mr. Bridges’s death in 1993.

Here’s a liveblog of the dueling demonstrations outside the Massachusetts statehouse today for and against gay marriage, complete with lots of photos of people and signs. [via Jarrett House North]

Via Uffish, here’s The Top 30 Game Show Hosts of All Time, with links to lots of YouTube clips. This one from “Family Feud” is my favorite of the bunch.

On Wednesday, a Connecticut judge ruled that the state’s denial of marriage rights to same-sex couples does not violate the state constitution, because Connecticut’s civil unions law already provides all the rights and protections of marriage. The decision is here (it’s a PDF of a fax, but it’s the only copy I could find).

The plaintiffs made five arguments why civil unions are not good enough under the state constitution:

(1) marriage is a fundamental right,
(2) civil unions are a lesser status than marriage,
(3) civil unions are a form of “separate-but-equal” segregation,
(4) the term “civil union” lacks recognition and acceptance in common parlance, and
(5) civil unions are not recognized by other states.

Regarding these arguments, the judge found that

(1) it is the set of legal rights, not the traditional title of “marriage,” that is important, and “[n]ostalgia for past traditions ought not be an impediment to the current acknowledgment of basic civil rights”;

(2) there is nothing inherently insulting about the term “civil unions,” the term is “properly descriptive of the type of legal institution to which it applies,” and “offensiveness is largely in the eye of the beholder”;

(3) the “separate-but-equal” cases do not apply, because, unlike here, the separation in those cases was tangible and observable, and the “rhetorical separation of marriage vs. civil union” is not enough to invoke an equal protection or due process analysis;

(4) the fact that people may be ignorant of the civil-union law does not amount to a constitutional harm, and the plaintiffs would have to explain their status to people whether they were in a same-sex civil union or a same-sex marriage;

(5) while it’s true that other states don’t recognize civil unions, they don’t recognize same-sex marriage, either, and anyway, that’s the fault of those states, not the fault of Connecticut.

The parties are going to appeal.

From Gay City News: Optimism as Jersey Awaits Marriage Ruling. The ruling will likely come by mid-October, when the current chief justice reaches the mandatory retirement age. In support of a prediction of a favorable marriage ruling, the head of Garden State Equality cites the leanings of its Supreme Court (which issued a pro-gay ruling in Boy Scouts of America v. Dale before it was overturned by the U.S. Supreme Court), prior case law (a New Jersey court was the first in the U.S. to find a right to joint adoption by same-sex couples), and the strength of the state constitution’s equal protection clause. It’s a really interesting article that gives one (cautious) hope.

There’s a new Thomas Pynchon novel coming out in December! His first in almost 10 years. I can’t wait. No announced title yet. The news has apparently been floating around since last month, but Amazon posted the above listing for it a few days ago, along with a news release. There’s a book description that may or may not be true; it was posted on the book’s Amazon page but now it’s gone.

I’m not sure how I feel about Pynchon. I don’t get into the childish bathroom humor or the pointless songs, but his plots are wild, even though half the time you have no idea what’s going on. I’ve read Mason & Dixon and Gravity’s Rainbow. I liked M&D better. I’ll definitely have to read the new one, just because.

(Also found: Pynchonoid, a blog about Pynchon.)

Member of the U.S. Navy attends gay marriage rally in NYC, gives local radio interview, gets discharged. How much longer are we going to have to live with this nonsensical “don’t ask, don’t tell” policy? [via Good as You]

The highest temperature officially recorded on Earth was 136.4 degrees, registered on Sept. 13, 1922, in Al Àziziyah, Libya.

Silence of the City: a website for rejected New Yorker “Talk of the Town” pieces. [via the Village Voice]

Do any of my readers have contacts who work in legal publishing/editing? If so, please let me know. Thanks.

Whenever I finish my weight routine at the gym lately, I have this urge to punch something. I don’t know whether it’s the endorphins or my frustration at rarely being able to make progress over my previous session. Seriously, I keep written records of every set of weights I lift, and sometimes I even see regression in my ability. I give myself a few days between each session and I drink lots of protein powder and eat lots of chicken and other protein-laden meats. And yet little progress. I feel like I plateaued in March after two months of weights and have made very little headway since.

Oh, the other annoyance: people who set up weights on two different machines at once, when I want to use one of them. And these people are often staff members.

Grrrr. Angry.

After 17 months of deliberation, the Washington Supreme Court will issue its same-sex marriage ruling tomorrow at 8:00 a.m. (That’s 11 a.m. East Coast time.) See here, here.

Pins and needles.

I just finished a terrific book: Same-Sex Marriage and the Constitution, by Evan Gerstmann. It’s oriented toward legal scholars, but it’s only a bit over 200 pages and intelligent people should be able to understand it. Gerstmann’s position is that courts should find same-sex marriage constitutional because there is a fundamental right to marry. He opposes characterizing the issue as one of “gay rights,” because (1) that terminology tends to place gays in the role of victims, (2) it allows opponents to claim that gay people are seeking “special rights,” and (3) it divides instead of unifying. He prefers to see the issue as one of equality for all. Ultimately, rather than go via the route of equal protection or of fundamental rights, Gerstmann propose a hybrid theory: that certain rights are so fundamental that they should be granted equally. He says that government can grant equal marriage rights without making a moral pronouncement on the rightness or wrongness of homosexuality; after all, he states, courts grant gays the same free speech rights as anyone else, but it does so without making a moral judgment one way or another. The same is true of marriage.

It’s a slim book, but he covers lots of ground: whether courts should rule on the basis of unenumerated rights, how to decide what these are and aren’t, and whether it is pragmatic for courts to do so when there is great public opposition. He discusses the fundamental right to marry as it relates to polygamy and incest and makes some very interesting points; he states that we should not outlaw practices just because they seem disturbing to us, but rather that we should decide what our policy goals are and then make laws that further those goals.

I’m not really doing the book justice. It’s very clearly thought out. A good read.

No gay marriage in Washington. Concurrence and dissents here.

Well, I’ve read the main opinion by the Washington Supreme Court stating that the legislature is empowered to limit marriage to opposite-sex couples. I have to say – although I disagree with the ruling (primarily on the issue of fundamental rights), the three justices who signed onto the main opinion go out of their way to be respectful of gay relationships. (Except for granting them any rights, of course.) This decision is much better written than the recent New York decision, which came out a mere month after oral arguments and appeared to have been a rush job. This decision took 17 months.

Basically, the decision says, “Gay marriage would probably be a good thing, but as judges our hands our tied.” For instance, the court acknowledges that the lack of the marriage option for gay couples can be harmful to them:

We do not dispute that same-sex couples raise children or that the demographics of “family” have changed significantly over the past decades. We recognize that same-sex couples enter significant, committed relationships that include children, whether adopted, conceived through assisted reproduction, or brought within the family of the same-sex couple after the end of a heterosexual relationship. We do not doubt that times have changed and are changing, and that courts and legislatures are increasingly faced with the need to answer significant legal questions regarding the families and property of same-sex couples. …

We are also acutely aware, from the records in these cases and the briefing by the plaintiffs and the amici supporting them, that many day-to-day decisions that are routine for married couples are more complex, more agonizing, and more costly for same-sex couples. A married person may be entitled to health care and other benefits through a spouse. A married person’s property may pass to the other upon death through intestacy laws or under community property laws or agreements. Married couples may execute community property agreements and durable powers of attorney for medical emergencies without fear they will not be honored on the basis the couple is of the same sex and unmarried. Unlike heterosexual couples who automatically have the advantages of such laws upon marriage, whether they have children or not, same-sex couples do not have the same rights with regard to their life partners that facilitate practical day-to-day living, involving such things as medical conditions and emergencies (which may become of more concern with aging), basic property transactions, and devolution of property upon death.

In its conclusion, the court states that “given the clear hardship faced by same sex couples evidenced in this lawsuit, the legislature may want to reexamine the impact of the marriage laws on all citizens of this state.”

Some other points:

Washington Supreme Court justices are elected, not appointed. That might have had a bearing on the outcome.

Interestingly, the court states that the plaintiffs didn’t ask the court to consider civil unions or the rights inherent in marriage, but merely to consider marriage or nothing. If that’s true, one can ask whether that strategy was a good one. Still, I’m pretty sure that courts aren’t limited to considering the narrow issue before them, and this court could have ruled for civil unions if it was so inclined. Instead, it appears to have been very cautious.

The opinion singles out the author of the concurrence, Judge James Johnson, four times for criticism. The concurrence is somewhat more hostile in style, and the concurring judge refers to one of the dissenters as “paranoid.” (Judge Johnson also cited a discredited study finding that same-sex relationships don’t last as long as heterosexual relationships; it’s been pointed out that such studies don’t take into account the fact that marriage is not available to same-sex couples.)

In sum: while I’m not happy with the main opinion, at least it’s not mean.

What’s next? The forthcoming New Jersey opinion. Things are not looking good this summer for court-granted gay marriage. Legal strategies are bound to change and focus more on state legislatures, which haven’t been accepting of gay marriage.

At least the decisions of the Washington and New York courts show strongly why a Federal Marriage Amendment is unnecessary.

If you like sci-fi TV shows, I have a recommendation: Life on Mars, a British show that debuted in the U.S. this week on BBC America. The premiere repeats this Sunday night at 9:00 p.m. and again at midnight. It’s about a Manchester detective in 2006 who’s in the middle of trying to solve a crime when he gets hit by a car and is suddenly transported back to 1973. He has no idea how he got there or why; even weirder, he can’t tell whether everything around him is real or whether he’s just in a coma and imagining everything. It’s really eerie and unusually emotionally resonant. I watched the first episode the other day and I highly recommend it.

One more reason I love Dahlia Lithwick:

Even the most deferential review should grapple with whether banning gay marriage really encourages straight marriage; whether there is something about marriage that magically lures heterosexual parents into its grasp—something that would evaporate if it were also extended to gay parents. Even deferential review that was also deaf, dumb, and blind would do more than just assert that gay marriage is illegal because kids “thrive” in straight homes. That claim is not just slightly over- or underinclusive, as the majority would have it. It’s nonresponsive.

Lately I’ve wished that I’d taken better advantage of being in law school when I was there. I floated through those three years like a ghost. I didn’t make any good friends among my classmates; I didn’t become close to any of my professors; I didn’t join any extracurricular groups, except for the lesbian and gay law student group during my final year, the only year of law school that I was out of the closet, and that group didn’t do much. I managed to graduate without leaving any impression on anyone. I didn’t do a judicial clerkship (although I did intern with a federal judge after my first year), and I didn’t work as a summer associate with a law firm. I had no idea why I was there.

I didn’t particularly like my first-semester classes, which were all mandatory: torts, contracts, civil procedure, criminal law, and legal writing. My torts professor was a joke; my contracts professor taught the concepts in the reverse order (we didn’t even learn the definition of a contract until the end of the semester); civ pro and criminal law were manageable, or at least they would have been without the monkeywrench thrown into the works: my legal writing class. On top of that, the law school was undergoing renovations during that first semester; there was lots of plywood. Every day I had lunch with a group of male classmates in my section, but I was the odd man out, because they insisted on talking about concepts from class, which I had no desire to discuss, or sports, in which I had zero interest. Plus, several of them were married and a few years older than me, while I was only 22 and a closeted homosexual with nobody to confide in.

I asked myself why I’d been foolish enough to go to law school. The reason I went was because I spent the year after college remaining at UVa, working for the university as a temp, with no idea what to do with my life. That Thanksgiving, I went home to visit my parents, and I saw their beautiful, stable house filled with beautiful, stable furniture and their beautiful, stable marriage, while my life felt totally slapdash and directionless. I needed direction. I’d taken the LSAT during my last year of college at the prodding of my parents and I’d done well, and my mom had continued to suggest law school even after I’d graduated college. It finally seemed like the answer, so when I got back to Virginia after Thanksgiving I applied to UVa Law and nowhere else. If I got in, great; if not, no big loss.

I got in, and from the first day it seemed like a mistake.

In November, people started outlining their notes for December’s final exams. Outlining? I had no idea what that was – it seemed like everyone knew so much about law school before they’d even started, except for me. I balked at outlining my course notes; I wasn’t about to do something I’d never heard of just because everyone else was doing it. Instead I studied in my own traditional way. I wound up getting the mean grade in two classes and below the mean in two others. (Legal writing was pass/fail; fortunately I passed.)

It wasn’t until my second semester that I truly enjoyed a couple of classes: constitutional law and a course that profiled particular Supreme Court justices over the course of American history. I got an above-average grade in the latter.

I tried out for the Law Review and one other law journal that spring. I didn’t really want to, but all the other first years were doing it, and I figured that I should probably do it too. The tryout consisted of a writing assignment that was handed out on a Friday and due the following Monday. We received a packet of materials – cases, commentaries, et cetera – involving the existence or lack thereof of a constitutional right to die, and we had to turn in a sample judicial opinion resolving a made-up set of facts. Apparently I didn’t do so well, because I didn’t make it onto the law review or the other journal, even though it seemed like lots of people made it onto a journal.

It wasn’t until my final year of law school, year number three, that I enjoyed a majority of my classes: U.S. constitutional history, voting rights, federal courts, family law (mostly), and “Schools, Race and Money,” about school desegregation and school financing. I received my one law school “A” in U.S. Constitutional History to the Civil War.

(When I got that grade I was thrilled and stunned. I wanted to talk to my professor to find out what I’d done right – and also to get some praise, perhaps, which I’d ached to get from anyone for more than two years. I passed him in the hallway one afternoon and asked, “Professor H—-, are you on your way to your office?” He responded, very coldly, “No, I’m on my way to class.” I was so intimidated that I never followed up with him. He had no idea who I was; I’d never spoken to him before, and that was my one and only conversation with the professor who gave me an A.)

There are some things I truly enjoy about the law. I love constitutional law and constitutional history. I like scholarship. I like reading law review articles about it; I have a few downloaded on my computer that I want to read. I wish I could write one, even though I’m not a professor. I wish I’d had this book in law school.

Sometimes lately I think it would be fun to be a law professor, even if I’d like the research and writing aspects more than the actual teaching aspects. I don’t know if I’m a quick enough thinker to teach law, although it’s always possible that I am and I just don’t know it. And becoming a law professor is hard, I think, although I haven’t fully researched it. I didn’t have a good judicial clerkship or get great grades or anything like that.

I don’t necessarily think law school was a mistake for me, like I used to think. It’s just that I should have waited longer before going; I should have waited until I was out of the closet, and had a better idea of my interests and focus; and I should have applied to schools that might have been better suited to me socially.

Ah, well.

I’ve found a beautifully moving personal essay [PDF] by gay law professor William B. Rubenstein about his experience attending Harvard Law School and discovering himself as a gay man. (I didn’t realize he was so cute!) Rubenstein is the author of a major casebook on sexual orientation and the law, which is coming out in a new edition next year.

I chose Harvard so I could come out, or, more precisely, I chose Harvard because it was in Boston, a large anonymous city that enabled me to come out at my own pace. I looked forward to the education, but Harvard promised something Yale could not: not just law, but sex and reason, flesh and the word, beauty and truth.

Quote of the day:

“Don’t make the mistake of keeping up with the Joneses. No matter what you have or what you do, there will always be someone with more. Just focus on living and doing what you enjoy… doing it well… and feeling your sense of success and satisfaction.”

- Kathy Morris

This is brilliant: a synchronized split-screen of simultaneous scenes from Back to the Future and Back to the Future II. I’ve always wanted to see something like this.

Also, a documentary about the making of the trilogy is being made. An initial version was apparently shown at a DeLorean convention last month.

Bryan of Faggoty-Ass Faggot writes that the gay-rights movement is focusing too much on gay marriage:

If you truly believe that we should just keep doing more of the same – harping on one issue, getting shot down by voter initiative after court decision, believing that some miracle will come along to bring us the all-encompassing victory without winning the incremental fights first, forgetting that only a small percentage of our community will actually benefit from same-sex marriage when all of the community would benefit from employment, housing, education and hate crime laws – then come stand in front of me, nose-to-nose, eye-to-eye, and tell me straight to my face.

There’s some merit in this view. Granted, he doesn’t say that we should stop fighting entirely. But he’s not the only one who’s discouraged by the recent losses. Some wonder if the fight has even hurt us.

However, I urge people to read this paper: The Backlash Thesis and Same-Sex Marriage: Learning from Brown v. Board of Education and its Aftermath, by Carlos Ball. (At the bottom of that page you can download the entire paper.) Particularly the final section beginning on page 33.

Ball argues that the gains from same-sex marriage litigation have outweighed the losses.

One, some gay couples in the U.S. are now married. That, in and of itself, is a gain. Furthermore, the example of Massachusetts will show people that society doesn’t fall apart when gay people are allowed to marry.

Two, look what the gay marriage fight has done: it’s made civil unions the moderate position. Even George Bush has said he supports civil unions! The struggle has opened people’s eyes to why gay couples need at least some sort of legal recognition.

Three, the gay marriage fight has led to progress on other gay rights issues by making some people more willing to support other forms of equality for gay people.

That said, however, at this point there do seem to be diminishing returns from the litigation strategy. We’ll see what the New Jersey Supreme Court decides, probably next month. After that, a strategy shift might be necessary.

One final thing, though. It seems that we’re damned if we do fight for gay marriage and we’re damned if we don’t. The thing is, though, any social movement is going to lead to social disruption. We can’t get anywhere if we don’t fight at all.