Today Lambda Legal filed a lawsuit in New Jersey seeking marriage equality. Here’s the complaint.

In 2006, in response to a previous lawsuit, the New Jersey Supreme Court ruled that the state had to provide equal treatment to gay and straight couples, but it left it up to the state legislature to decide whether this would come in the form of civil unions or marriage. The legislature chose civil unions. Now Lambda has sued the state, arguing that civil unions are not good enough and that only marriage will provide equality.

The complaint sets forth the reasons why civil unions aren’t good enough. Skip ahead to page 16 (paragraph 30) for some specific ways in which gay New Jersey couples in civil unions have experienced inequality even though civil unions supposedly provide equality. Complications have come up in hospital emergencies, in funeral homes, in the context of insurance benefits, and in other areas.

It’s interesting: right now, New Jersey treats gay couples better than New York does, but in a few weeks, New York will leap ahead of New Jersey, and New Jersey will be the inferior state.

Here’s hoping New Jersey follows New York’s lead.

I’ve been debating marriage equality today on a conservative website during some free moments. There was a time when I used to do more of this, but I gave up a long time ago, because (1) life is too short for the unpleasantness and stress that comes from experiencing the vitriol of people who don’t want you to have equal rights; (2) I got tired of saying the same things over and over again to different people; and (3) our side started winning in the court of public opinion. Still, for some reason I felt like doing it today.

There are many problems with trying to debate people online. The biggest problem is that you’re arguing with a disembodied entity. People who engage in online debates tend to forget that they’re arguing with fellow human beings, so there’s a certain amount of empathy and politeness missing. It’s easy to be nasty when you forget that the person you’re arguing with is an actual person.

And it’s not just that people forget they’re arguing with human beings; they forget that they’re arguing about human beings. It’s a lot easier to make silly arguments that gay people are trying to bring down society and are just being selfish little pricks when you don’t know any actual gay people. Human beings are not abstractions; we have desires, and interests, and hobbies, and friends, and hopes, and dreams, and thoughts, and feelings, and pasts.

And the problem works both ways. Sometimes no amount of logical argument will change someone’s mind. Sometimes it helps to try and understand where the other person is coming from and why they feel a certain way rather than fruitlessly try and “win the argument” right now. But on the internet, you have no idea whether you’re arguing with a 55-year-old guy with lots of life experience or a snotty college student who’s not as smart or worldly as he thinks he is. I might use different tactics with each person. But on the internet, that’s usually not possible. This is still one of my most fulfilling moments in more than 10 years of blogging, but it’s very rare.

So why bother? Well, maybe other people are lurking, and maybe they’ll be convinced by what you say. Or maybe those lurkers agree with you and they can use your arguments in other places.

Generally I find it’s not worth it. On rare occasions, like today, I just feel like it. But often I’d much rather have a discussion than a debate, and that’s not really possible in many places online.

It’s been a long road to marriage equality in New York State.

Five years ago next month, the New York Court of Appeals ruled in Hernandez v. Robles that the state constitution didn’t give same-sex couples the right to get married. I remember the anger, sadness and frustration I felt that day. The decision came out in the morning; in the evening, we went to a rally in Sheridan Square. Later that night, I wrote the following:

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.

It turns out it took just five years, not 17. The depressing 38-24 Senate vote two years ago was just a bump along the road, but an important one; without it, we wouldn’t have seen where senators stood and known who needed to be lobbied, and we might not have ultimately achieved victory this past Friday.

These last two weeks were excruciating. The Senate seemed stalled at 31 votes for, 31 against. It didn’t even seem clear that there’d be a vote. It felt like Groundhog Day, waiting and waiting and waiting day after day for the Senate to act. But part of me knew it would happen; it just didn’t seem possible that we would come this far, only to have the Senate not vote, or worse, reach a tie vote. There was a rumor that a 32nd vote had been found, but it didn’t seem to be sourced.

Some of Matt’s family was visiting this weekend, and as we traipsed around the city on Thursday night and Friday, doing touristy things with them, we both kept obsessively checking Twitter to see if there were any developments. Frustration began to set in as the process dragged out longer and longer. It started to seem like maybe the Senate session would end without a vote.

But then suddenly the dam broke. Things seemed to happen so quickly: they’ve agreed on amended language! The Assembly has voted on it! And then… the Senate will vote on it tonight!

On Friday night, Matt and I sat at home, watching the vote live on TV and following our Twitter feeds. And then Stephen Saland, a Republican who had remained publicly undecided, announced on the floor of the Senate that he was a yes. That was it: this was really going to happen. At one point I was afraid that that bigot Ruben Diaz was going to drag things out and that somehow there wouldn’t actually be a vote. But it happened. 33-29! It was done! All the frustration and anxiety melted away so quickly that for a while I almost forgot I’d spent the last two weeks feeling it. It wasn’t until I remembered the anxiety and realized I didn’t need to feel it anymore that it really began to hit me.

This new law obviously has very personal implications. Matt and I have been together for seven and a half years, and we’ve discussed getting married, but it’s always been a necessarily hypothetical discussion. Now the possibility is real. Whatever we decide, I’m thrilled that my state now treats me as an equal citizen and that we’re allowed to make the choice for ourselves.

I’ve been so proud and happy to be a gay New Yorker this weekend.

The torturously slow fight for marriage equality in New York State has been going on for the last week. There have been lots of rallies, pro and con.

Yesterday something interesting happened. State senator Ruben Diaz, the only Democrat to oppose equality, showed up at a rally with a bunch of anti-gay Hasidic Jews. Then suddenly Rabbi Sharon Kleinbaum of Congregation Beit Simchat Torah, the LGBT synagogue in New York City, appeared with her own pro-equality sign. A sign battle ensued for a few moments as each side tried to get their sign in front of the camera.

And then, for some reason, Rabbi Kleinbaum did something controversial: she put her arm around the shoulder of one of the Hasidic Jews. This is just not done. Hasidic Jews believe it’s wrong to physically touch people of the opposite sex other than your spouse.

Below is the video of what happened. For a moment the man did nothing; maybe it took him a few seconds to realize what was going on. But then he violently pulled away, as if he’d touched a pulsating pile of human brains, and he and his colleague ritually spit in Rabbi Kleinbaum’s direction and began shouting at her, “You are not a Jew!”

For some reason she seemed surprised that these guys were so upset. Come on, rabbi: you’re an expert on Judaism. How did you expect them to react?

I really don’t understand what her point was. Maybe she was trying to be friendly? At any rate, I think it was stupid of her to touch the guy. I don’t think she had any right to do so; would it have been proper to force feed him a ham sandwich?

And it undermines our message. One of the points of the marriage equality movement is that it is distinctly not about infringing on other people’s religious practices. Religion should not infringe upon the state, and vice versa. If marriage equality becomes law, Hasidic Jews and evangelical Christians will still have the right to refuse such marriages from taking place in their houses of worship; they will continue to have every right to practice their religion. They just won’t be permitted to make the rest of us practice it as well.

I can understand why some people might think it was okay for Kleinbaum to try to “teach the guy a lesson.” After all, Hasidic Judaism is homophobic and sexist; these men are trying to impose their beliefs on other people, and the imposition of their beliefs has harmful consequences for real-life couples and families; and they chose to protest in a secular location, and a crowded one at that, so they should have expected that they might accidentally touch someone of the opposite gender.

But Kleinbaum went out of her way to put her arm around the guy. She didn’t bump into him. She did it deliberately.

No, it’s not a terrible thing. But it wasn’t really necessary, either.

Matt has been bugging me to write something about the Obama administration’s decision to stop defending DOMA in court.

I just don’t consider it as big a deal as some other people seem to, for a few reasons.

One, contrary to what Newt Gingrich says, the administration is not suspending enforcement of the law. The law is still in place.

Two, we’re not talking about all of DOMA. We’re talking only about Section 3. If Section 3 is declared unconstitutional, the federal government has to recognize same-sex marriages performed in any state that allows them, but it doesn’t do anything about states that don’t allow them. Okay, that’s still a big step. But it’s not everything.

Three, the House can still step in to file a brief defending DOMA in court, and even if it doesn’t, independent organizations can always file amicus briefs putting forth their positions on the matter, and the court can take heed.

The ultimate decision-maker on this issue — barring DOMA repeal by Congress, which won’t happen anytime soon — will be the highest court in the land, the Supreme Court. And the Supreme Court will do what the Supreme Court will do, no matter what any lawyer argues. It’s become a judicial cliché that Justice Kennedy’s opinion in the only one that matters, but in this case it’s true. Although Roberts, Alito, Sotomayor and Kagan were not on the Court the last time it decided a major gay rights case — Lawrence v. Texas in 2003 — we can be pretty sure where they’ll line up. Kennedy’s the wild card.

Yet in an intangible way, the administration’s decision is important. Obama is using the bully pulpit of the presidency to make a statement in favor of gay rights, and any time the topic is raised for debate, more people become convinced of the arguments in favor of equality.

It’s just a matter of time.

In 1986, the U.S. Supreme Court ruled in Bowers v. Hardwick that anti-sodomy laws were permissible under the U.S. Constitution. Seventeen years later, in Lawrence v. Texas, the Supreme Court overruled that travesty of justice.

In 1993, the “don’t ask/don’t tell” policy was instituted. Seventeen years later, Congress is about to repeal another injustice against gay Americans.

I can’t believe this is actually going to happen. Just over a week ago, DADT repeal seemed dead. The Republicans had blocked it not once, but twice. Nancy Pelosi and Harry Reid and Joe Lieberman could have given up, but instead of just giving repeal their pro forma support and saying, “Sorry, we tried,” they actually worked to make it happen. A standalone bill seemed like a Hail Mary pass — there might not be enough time, and both the House and the Senate would have to pass it.

But it’s happening. At 3:00 p.m. today, the Senate will vote on the actual repeal bill, after 63 senators — including six Republicans — voted this morning to allow a simple majority up-or-down vote on repeal.

I don’t know if it’s significant that each of these mistakes — Bowers v. Hardwick and don’t ask/don’t tell — took the same amount of time, seventeen years, to reverse. Seventeen years is not quite a full generation, although it’s close: a gay person born in 1993 will be able to join the military as an openly gay American when he or she becomes a legal adult next year. Perhaps the seventeen-year time frame is just a coincidence.

What we do know is this: each step toward justice builds on the steps that came before. Before Lawrence v. Texas in 2003, being gay itself was practically a crime. In the 1990s, in a child custody case in Virginia, a judge ruled that a lesbian had no right to custody of her own child because Virginia’s anti-sodomy law made her a felon.

After Lawrence, such a ruling was no longer possible. Opponents of marriage equality can no longer use anti-sodomy laws to show that gay people are unfit to marry or raise children. A weapon in their arsenal was taken away.

And now the ban on gays in the military is about to be repealed. In and of itself, this is a wonderful thing and long overdue. But it will also give more ammunition to the fight for marriage equality. After all, how can you argue convincingly that someone who has served his or her country as a member of the U.S. military should not allowed to marry the person he or she loves, or is unfit to be a parent? We’ll see example after example of openly gay soldiers, sailors, Marines, and airmen and airwomen; we may not see tons of them right away, but we’ll begin to see more and more of them. Anti-gay bigots will start to see a mismatch between their own stereotyped preconceptions of gay people and the reality out there. A does not compute message will begin to form itself in their heads, and either they will change their minds or their heads will explode.

No victory stands alone. Each one is helped by previous victories and helps to create future victories. Our president likes to quote Dr. King: “The arc of the universe is long, but it bends towards justice.”

Each step nudges the trajectory a little bit more in the right direction.

By the way, the comments that numerous readers have left on the page containing the Jewish Standard’s original craven apology are pretty terrific, almost uniformly in condemnation. Most of them are wonderfully heartfelt and well-written.

And some of them are just funny. This one made me laugh.

You people are just a “ray of sunshine” for everyone, aren’t you?

Good luck with your Einstein decision to align yourselves with the haters.

I don’t know how to explain why, but there’s just something so great and Jewish about that comment.

This is my other favorite:

There are not words strong enough to shame you. Not even in Yiddish.

There’s some fascinating follow-up to the story of the Jewish newspaper in New Jersey that decided to discriminate against gay couples.

Yesterday, the newspaper published a new statement saying that it may have acted too quickly in deciding to discriminate:

We ran the wedding announcement because we felt, as a community newspaper, that it was our job to serve the entire community — something we have been doing for 80 years.

We did not expect the heated response we got, and — in truth — we believe now that we may have acted too quickly in issuing the follow-up statement, responding only to one segment of the community.

We are now having meetings with local rabbis and community leaders. We will also be printing, in the paper and online, many of the letters that have been pouring in since our statement was published.

We urge everyone to take a step back and reflect on what this series of events has taught us about the community we care so much about, and about the steps we must take to move forward together.

There’s also word that the editor of the paper, Rebecca Boreson, personally disagreed with the decision to discriminate but was pressured into it by the Orthodox community of Teaneck, NJ, where the newspaper is published.

It’s also possible that the newspaper was essentially blackmailed into this decision by the organization that certifies kosher restaurants, which threatened to decertify any kosher restaurant that continued to advertise in the newspaper if the newspaper continued to run same-sex marriage announcements:

It is my understanding that the Jewish Standard was basically being blackmailed. The RCBC, the Orthodox Rabbinate threatened to take away the hechsher, the certificate of kashrut, from any restaurant that continued to advertise in the Jewish Standard if they did not announce that they would never publish another gay wedding announcement. This would effectively put the Standard out of business, as it is advertising and not subscriptions that keeps their doors open, and it would have put the Kosher restaurants, caterers, and other Kosher food providers in the position of having to find another hechsher, which in Bergen county would be hard to do. It would alienate the Orthodox community from all of the liberal Jews who keep Kosher and it could cause financial havoc in the Jewish community. RCBC should be ashamed.

If true, these are disgusting and thuggish tactics.

On the other hand, this is not an example of courageous journalism, either, and it could have been handled much better. The publishers of the newspaper look like total cowards. As one commenter here says:

I’m not going to say “thanks” for your reconsideration on the subject like some other people. I’m taking a step back and I’m still baffled by the quick kowtowing to these Orthodox Rabbis SO quickly- like they were the Sopranos threatening cement shoes.

Additionally, here’s an interview with the couple who was the subject of the original wedding announcement that started this whole thing. They talk about what they think of all this:

I would hope that people don’t jump to conclusions and blame the newspaper. I think they made a mistake but are a generally good and pluralistic newspaper. The Jewish Standard will stay afloat with support from the greater community. They don’t need to toe the Orthodox line.

Finally, the New York Times might be working on a story about all this. That wouldn’t be surprising.

Two weeks ago, a Jewish newspaper in New Jersey, the Jewish Standard, published a wedding announcement for a totally adorable same-sex Jewish couple.

Now the newspaper is apologizing for it and saying it won’t happen again:

We set off a firestorm last week by publishing a same-sex couple’s announcement of their intent to marry. Given the tenor of the times, we did not expect the volume of comments we have received, many of them against our decision to run the announcement, but many supportive as well.

A group of rabbis has reached out to us and conveyed the deep sensitivities within the traditional/Orthodox community to this issue. Our subsequent discussions with representatives from that community have made us aware that publication of the announcement caused pain and consternation, and we apologize for any pain we may have caused.

The Jewish Standard has always striven to draw the community together, rather than drive its many segments apart. We have decided, therefore, since this is such a divisive issue, not to run such announcements in the future.

In an incredibly heartening turn, tons of fellow Jews have posted comments on that page in response, strongly disagreeing with the decision.

The Jewish Standard claims to be “not affiliated with any program, organization, movement, or point of view, but is dedicated to giving expression to all phases of Jewish life.” It is based in Teaneck, NJ, home to a large number of Orthodox Jews, but it puts itself forth as a newspaper for all Jews, not just for the Orthodox community.

As a gay man, a Jew, and a New Jerseyan by upbringing — heck, as a human being — I find this decision to be disgusting, cowardly, and hurtful. It makes me sick.

It would be one thing if this newspaper marketed itself as an exclusively Orthodox newspaper, catering to that steadily shrinking segment of the Jewish community. But it doesn’t. Its mission, as stated is, in part:

TO PROVIDE the Jewish communities of Bergen, Hudson, Passaic, and Rockland counties with an indispensable newspaper that will present local, national, and world news of Jewish interest….

Not just the Orthodox community. The entire Jewish community: Reform, Conservative, Reconstructionist, unaffiliated.

According to many of the commenters, the newspaper has no problem advertising restaurants that serve non-Kosher or inadequately Kosher food. It has no problem publicizing events that occur on Friday night or Saturday, when observant Jews would be celebrating Shabbat. But somehow a small portion of its readership has experienced “pain and consternation” at the announcement that two people have fallen in love and wish to spend the rest of their lives together.

What kind of heartless human being would feel “pain and consternation” at the joyful celebration of two people who love each other? What about the pain and consternation caused to gay Jews and their families and friends who now know that their life events are not worthy of being publicly celebrated in a community newspaper? What’s even more callous and disgusting is that this happened several days after a gay New Jersey college student killed himself after his asshole roommate decided to air live video of him “making out with a dude.” It’s because of decisions like the one the Jewish Standard has made — decisions that encourage the idea that gay relationships are never as good as straight relationships — that young gay people decide to kill themselves.

It seems to me that this was a business decision. The Jewish Standard is probably worried that the powerful Orthodox community will cancel its subscriptions and its advertising if the newspaper persists in being inclusive.

Well, a few years from now, the editors of the Jewish Standard are going to look upon themselves and their decision with great regret, embarrassment, shame, and remorse — just like businesses in the 1960s that used to cater to racism out of fear of losing money or rocking the boat.

I don’t see how this is any different from the newspaper in Maine that apologized last month for showing American Muslims celebrating Ramadan on September 11.

I’d never heard of this newspaper — it doesn’t publish in the county where I grew up. I’m more familiar with the New Jersey Jewish News, which I think my parents subscribe to. So, congratulations to the Jewish Standard: your cowardly, hurtful business decision has broadened your public profile.

The chapel at the University of Virginia hosted its first same-sex commitment ceremony over the summer. Very cool. Of course, since it was in Virginia, it didn’t have the status of law, but the couple is planning to get married in Washington, D.C. in November, where it will be legal.

I’m pleasantly surprised to hear that this was allowed. It’s always been hard to peg UVa on the political spectrum. When I was there, it was said that compared to the Ivies, UVa was conservative, but compared to the other top college in Virginia, it was liberal. Charlottesville, of course, is a bastion of blue in central Virginia.

Maggie Gallagher meets St. Peter.
[via]

The Ninth Circuit panel has stayed Judge Walker’s Prop 8 ruling. No marriages for same-sex couples on Wednesday.

This is a situation where it would be really great not to be able to say I told you so.

As I said, despite my caution, Judge Walker’s decision on the stay is a nice read.

My favorite part is how he takes apart the anti-equality folks’ disingenuous plea not to harm those poor gay couples by letting them getting married under a cloud of uncertainty (how nice of them to show concern for gay couples when they’ve spent years demonstrating they don’t care about us at all):

Proponents also point to harm resulting from “a cloud of uncertainty” surrounding the validity of marriages performed after judgment is entered but before proponents’ appeal is resolved…. Proponents have not, however, alleged that any of them seek to wed a same-sex spouse. Proponents admit that the harms they identify would be inflicted on “affected couples and * * * the State.” … [T]he court considers only whether the party seeking a stay faces harm, yet proponents do not identify a harm to them that would result from denial of their motion to stay.

. . .

If proponents had identified a harm they would face if the stay were not granted, the court would be able to consider how much weight to give [this] factor. Because proponents make no argument that they — as opposed to the state defendants or plaintiffs — will be irreparably injured absent a stay, proponents have not given the court any basis to exercise its discretion to grant a stay.

Boom.

Since the state government of California has decided to sit this thing out, there’s basically nobody defending Prop 8 except the anti-equality people. This also shows how crucial it is that the state government is choosing not to defend Prop 8. If only the Obama administration would do the same thing on the federal level.

Like many people this afternoon, I was madly refreshing a Twitter search for “prop8″ and reloading the California district court’s website, over and over. Finally, at about 3:15, unsubstantiated rumors began to show up on Twitter that Judge Walker was denying the motion for a stay, meaning that same-sex couples in California would be able to get married immediately. Other twitterers then retweeted those tweets, and a live online feed of local San Francisco TV outside city hall showed a crowd of pro-equality people cheering at the apparent denial.

But I was feeling cautious. There was no decision posted online, and no official word — just rumors, with no explanation of where the rumors came from or who was supplying them.

Finally, at about 3:40, the official decision appeared online. Yes, it grants a stay.

But not right now.

Judge Walker writes:

Because proponents fail to satisfy any of the factors necessary to warrant a stay, the court denies a stay except for a limited time solely in order to permit the court of appeals to consider the issue in an orderly manner.

(Emphasis mine.)

On the last page, Judge Walker states that his decision to deny a stay is itself stayed, until August 18 at 5 p.m. PDT. That gives the Ninth Circuit six days to hear and decide an appeal of Walker’s decision to let gay couples immediately marry. Six days is a long time. It’s perfectly conceivable that the Ninth Circuit will overrule Judge Walker and issue a stay. Now, Judge Walker lays out a very strong case for why there should not be a stay, and at 11 pages it makes a great, short read. But who knows what the Ninth Circuit will do?

Yet there are still people all over Twitter expressing happiness and congratulations. I don’t get it. I don’t want to be a party pooper, but look, this thing is not over. The Ninth Circuit could slam it down before any gay couples can get married again.

This is exactly why you should take unsubstantiated tweets with a grain of salt until you actually see proof of something. It’s silly and irresponsible to tweet to all your followers that the motion has been denied, on an issue of this emotional magnitude, just to try and be the first person to break the news, unless you’ve actually read the decision yourself.

Maybe the Ninth Circuit will do the right thing. I hope so. But six days is ages. The Ninth Circuit could overturn Judge Walker tomorrow. Or even tonight.

Tweet responsibly.

Here’s a great segment from CNN yesterday: Anderson Cooper moderating a debate between Evan Wolfson, head of Freedom to Marry and civil rights legend, and Maggie Gallagher, opponent of equality. I love how Wolfson calmly deflects all of Gallagher’s contentions. (I’ve done some work for Wolfson before, so I might be biased.)

I’ve read the Prop 8 ruling, which was of course announced this afternoon.

And you know what? I found it boring.

This is not the first court to rule that a ban on marriage for same-sex couples violates the Constitution. Courts in Massachusetts, Connecticut, Iowa, Hawaii, and, of course, California, have issued similar rulings before, and judges in New York and New Jersey have put forth the same arguments in dissenting opinions. The arguments for marriage equality have been put forth over and over again. How many different ways are there of stating the obvious?

And that is why the arguments are boring — because they’re so obvious. Of course we deserve the right to marry. How can anyone not understand this?

And yet a large but steadily shrinking portion of the country doesn’t seem to get it. Or just plain refuses to.

It’s not really about marriage. It’s about thinking that gay people are just not as good as straight people.

To quote Judge Walker:

In the absence of a rational basis, what remains of proponents’ case is an inference, amply supported by evidence in the record, that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples.

Not everyone who opposes marriage equality is a gay-hater. Not all of them spew out lies like Maggie Gallagher, who must be a really unhappy and unloved person to spend so much time trying to prevent other people from being happy.

Many people who oppose marriage equality say they have no problem with gay people. They may even say they like gay people. They may even say they like me. They may have gay friends or gay workers and think that they’re perfectly nice people.

Hey, they have such great fashion sense and they’re so entertaining to watch! But, you know, they don’t deserve the same rights that we have. Because, I like them and all, but gay couples are still not as good as real couples. Two men or two women together just aren’t as real or good as a man and woman’s relationship.

I like gay people, but I sure hope my son or daughter doesn’t turn out to be one!

They don’t realize that this doesn’t make any sense, and that it is in fact contradictory. If you oppose marriage equality, then you oppose gay people. If you think, even in a small part of your brain, that gay people are not as good as straight people, then you oppose gay people.

Don’t patronize me. If you don’t think I deserve equal rights, then you have no respect for me, and you have no respect for gay people. Don’t pretend that you do. I don’t want to be friends with you.

So yes, this decision was boring. Nothing new here. Just the same old, crystal clear, logical, obvious arguments.

Even if this case gets to the Supreme Court and we lose — come on, Anthony Kennedy, we’re counting on you! — Judge Walker’s decision will still be right. People need to read it, so they can understand the obvious, self-evident truths.

Stating the obvious is not always interesting. But it is often necessary.

The Supreme Court issued a fascinating decision this morning in connection with the marriage equality movement. It pits Justice Scalia against the anti-gay folks, and I’m not totally sure which side I agree with here.

Last year, in Washington State, the governor signed a same-sex domestic partnership bill into law. In response, a group called Protect Marriage Washington tried to get an initiative onto the ballot to repeal the law. They managed to get enough signatures to do so. In response to that, a coalition of groups sued under the state’s Public Records Act to learn the names of everyone who signed the petition.

Protect Marriage Washington argued that this would be a violation of the First Amendment rights of everyone who signed the petition, because it would have a chilling effect on speech. They argued that if you can’t sign a petition without staying anonymous, this will discourage people from signing petitions and thereby their free speech rights will be curtailed. They also argued that in this particular instance, the signers of the petition were subject to threats from gay-rights people.

This morning, the Court, in Doe v. Reed, ruled that there is no blanket right to anonymity if you sign a petition. But they refrained from ruling on the particular circumstances of this case; they kicked back to the lower court the issue of whether there’s a legitimate threat against the petition signers that would necessitate keeping their identities secret.

Chief Justice Roberts wrote the majority opinion, which was 6-3, although the lineup is a little splintered. Only Justice Thomas dissented completely, arguing that the First Amendment in all cases protects the anonymity of petition signers.

Scalia’s concurrence is the most interesting, though. He argues that there is no protection of anonymity regardless of whether there are threats; he examines American history and finds that there is not even a First Amendment right to a secret ballot in an ordinary election, because until the late 19th century, most states didn’t have secret ballots, and the secret ballot was instituted not because of First Amendment concerns, but in order to minimize election fraud.

The highlight of his concurrence is at the end:

There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously… and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.

He’s basically saying to the anti-equality people: don’t be such wimps. Have the courage to argue your opinions in public.

And I kind of respect that.

I’m still not sure if I agree whether petition signers should have the right to their anonymity. I think I’d say, no, except in certain circumstances, such as someone signing a petition for racial equality in the South during the 1960s, in a time and place where there was a history and demonstrated threat of racial violence.

And I don’t like the idea that you can sign a petition to take away someone’s rights and then turn around and falsely complain that you’re subject to the threat of violence for doing so.

Finally, it’s interesting to read this decision alongside the Court’s January ruling that the Prop 8 trial in California shouldn’t be broadcast because it could cause “irreparable harm” to the anti-equality side’s witnesses.

It’s always funny to me that lots of anti-gay people make fun of gay men for being sissies and yet cower in fear of physical harm from them.

I sing with a gay men’s chorus called the Empire City Men’s Chorus, and I really should plug our upcoming spring concerts, where we’ll be premiering a newly-commissioned work about marriage equality.

The name of the piece, Prothalamia, translates as “songs in celebration of marriage.” In concept it’s a bit subversive: its structure mirrors the Latin mass (its five movements are called Kyrie, Gloria, Credo, Sanctus, Agnus Dei), but the texts are secular, by Walt Whitman, Gertrude Stein, the ancient Roman writer Martial, and others. The music, by Charles Norman Mason and Dorothy Hindman (who are themselves married), is very modern and complex and quite beautiful.

We’re doing two concerts:

Sunday, May 23, 2010, 3:00 pm
Riverside Church
490 Riverside Drive, New York, NY

Tuesday, May 25, 2010, 8:00 pm
Church of St. Ann & The Holy Trinity
157 Montague St., Brooklyn, NY 11201

You can buy tickets online or at the door.

It strikes me that some of what’s going on in the Prop 8 trial can be hard to follow. So I’m going to put on my constitutional law hat here and give a little primer. We’ll see how well I’ve remembered most of this stuff from law school.

Broadly, the plaintiffs in the Prop 8 case — the lawyers who are trying to get Prop 8 overturned — are trying to prove two things: (1) that marriage is a fundamental right that should be open to gay couples as well as to straight couples, and (2) that gays as a group are deserving of equal protection. Basically, discriminatory laws are subject to a high level of scrutiny if (1) they involve a fundamental right (like marriage) or (2) the discrimination is against certain protected groups (like blacks).

(Very little of this doctrine is actually set forth in the Constitution; it has been enumerated in bits and pieces by the Supreme Court over the decades in various constitutional law cases.)

To use a classic example: a state can allow optometrists to conduct eye exams but prevent opthamologists from doing so, because there is a rational reason for the law (one group has the expertise to conduct eye exams, the other does not). But you can’t pass a law permitting optometrists to get married but prohibiting opthamologists from doing so, because marriage is a fundamental right. And you can’t pass a law preventing black people from conducting eye exams, because they are a protected class with a long history of discrimination against them. You also can’t do either of these things because on a minimal level, there is no rational basis for the discrimination.

So this case is, to put it very simply, about (1) whether treating gays differently from straights in the area of marriage is the same as treating optometrists differently from opthamologists in the area of eye exams (i.e. is there a good reason for letting straights get married but not gays), and/or (2) whether sexual orientation should be a protected class like race is.

So here’s how that all plays out:

One, the lawyers on our side are trying to show that sexual orientation should be a protected class, i.e. a “suspect classification.” In other words, they are trying to prove that laws that discriminate on the basis of sexual orientation should be subject to a higher level of scrutiny just as laws that discriminate on the basis of race are subject to higher scrutiny.

Now, one of the characteristics of a group that is subject to this special protection is that the group lacks the political power to achieve its goals through the democratic system. So our side is trying to show that gays lack political power and therefore deserve protection, whereas the other side is trying to show that gays have adequate political power so what’s the big deal. The theory is that the courts will only look out for groups for whom the political system is rigged against them: i.e. blacks in the mid-20th century (who in many cases were being prevented from voting). Basically, the anti-gay folks are saying, “Look, gays have just as much political power as anyone else — see, people like watching TV shows and movies about gay people and there are lots of politicians who support them! Therefore, if they can’t win ballot measures about same-sex marriage, it’s not because of a fault in the political system, it’s just that they lost in a fair democratic vote!”

The whole thing about lacking political power is silly, because it’s paradoxical. Basically, we have to prove simultaneously that (1) gays are getting screwed by the political system and (2) society has evolved enough so that same-sex marriage isn’t that much of a further step. It’s never made much sense to me.

Another characteristic of a group that gets special protection is that that group has an immutable characteristic. So, some of the testimony has been about what makes people gay, can gay people change, etc.

So that’s the “suspect classification” argument.

But if they fail on that point, there is another tack: they are trying to show that Prop 8 does not even have a rational basis and is therefore unconstitutional.

One way to do this is to show that it was motivated by animus. The Supreme Court said in Romer v. Evans that even if a particular group does not deserve special protection, you can never constitutionally discriminate against a group merely because of animus and nothing else. Romer was the 1996 case in which the Court threw out a Colorado constitutional amendment that banned any laws protecting gay people from discrimination; there, the Court found that the reason the people of Colorado passed that amendment had no basis other than animus. That’s one of the reasons why our guys wanted to put William Tam on the stand — to show that he had a hand in the Prop 8 fight and that his reasoning was based on irrational, animus-driven prejudice (i.e. gays are child molesters, gays want children to be able to get married, etc.), and that his thinking reflects the thinking of most of the Prop 8 forces generally.

Another way to show that it lacks a rational basis is to go into the substantive stuff about why gays should be able to get married, why it does not harm children, etc.

So, all of that is the “equal protection” strand of the argument.

The other strand of the argument is the “fundamental right” strand, which also involves much of the substantive stuff about gays and marriage. But the main thrust on the “fundamental right” issue is that the Supreme Court has already, in the past, declared that marriage is a fundamental right: you can’t deny interracial couples the right to marriage, and you can’t even deny someone in prison the right to get married, even though the prisoner might never be able to have conjugal relations with the spouse. So the lawyers are trying to show that this already-declared fundamental right of marriage should not be denied to same-sex couples.

So this is basically what’s going on in the Prop 8 trial.

During the Prop 8 trial, I’ve been following the Prop 8 Trial Tracker blog created by the Courage Campaign. It seems like our side has been putting on a great case, and the Prop 8 folks have been putting on a pretty lackluster case.

Of course, none of this really matters, because even if Judge Walker rules in our favor, and even if the Ninth Circuit upholds that decision, this will eventually wind up in the U.S. Supreme Court, where Justice Kennedy will be the deciding vote. No matter how rational our side’s arguments are, we’ll never get the votes of Roberts, Scalia, Thomas or Alito.

It’s really unclear what side Kennedy would be on. He’s written a couple of seminal pro-gay decisions — Romer and Lawrence. But what would he think about the validity of marriage equality?

No matter what happens in the Supreme Court, though, this trial has been a net plus. While I don’t know how much publicity the trial has had since the first week, it can only change people’s minds in favor of equality. I seriously doubt it would turn anyone againstmarriage equality who wasn’t already opposed.

Even if we lose in the Supreme Court, that’s not so bad. The Court wouldn’t outlaw marriage equality; it would just leave everything up to the states, which is where we are now. And any state-based marriage case that involved the interpretation of a state’s constitution would be unaffected, because the U.S. Supreme Court has no legal say over how to interpret a state constitution.

There are some who say that an adverse decision in the Supreme Court would set back the cause of equality, but that’s not necessarily so. As last week’s campaign finance case shows, the Court has no compunction about overturning its own precedents, even if those precedents are less than ten years old.

So I think that whatever happens, this trial has been a net win.

There’s a Martin Luther King quote that Obama has often used in the last couple of years:

The arc of history is long… but it bends towards justice.

In the long run, we’re moving toward equality.