There’s a broad range of GLBT news this week, but the most significant story is an overlooked item out of New Jersey, where the state supreme court split over whether to take direct review of Lambda’s case for marriage equality. As a result of the 3-3 divide, Lambda will have to start from scratch and take the suit through several years of litigation. 

You remember, of course, that New Jersey’s supremes coughed up a cowardly ruling on marriage rights back in 2006, mandating “equal” rights for same-sex couples but giving the green light for the legislature to institute civil unions as a remedy. After four years, a commission report, and the daily experience of gay and lesbian couples around the state, it’s clear that civil unions do not offer the equality that was required under the high court’s decision.

After the legislature defeated marriage equality in the lame duck session, Lambda went directly to the high court, asking the justices simply to enforce their original ruling. Our legal eagles had no desire to re-litigate the entire case for marriage. Been there, done that. It took four years and it resulted in a flawed separate and non-equal category of second-class marriages that flouted the constitutional principles articulated by the justices. Lambda was asking the court to fix its own mistake and stand by its own interpretation of the constitution. 

Instead, the court sent Lambda back to square one, where I guess we’ll be arguing our case before Judge Whoever in Toms River or Hackensack and inching our way up the tedious appellate ladder until we wind up back before the high court in 2013. Rather than have marriage recognized in the Garden State within a few months, we’ll have to wait for a moment of legislative courage or go through an extended and unwarranted judicial process. 

In their decision to avoid review, the court claimed that it needed a full trial record in order to evaluate the results of the civil union experiment. That’s nonsense. The court was asked to decide one question and one question only: are civil unions and marriage equal? For this they would have had the report of a lengthy commission, as well as extensive briefs and oral arguments. Shame on them for giving equality and the constitution the back of their hand not once, but twice, in the interests of political expediency.

Suing Montana
Meanwhile, in what appears to be a deliberate new strategy, gay legal groups are targeting some of the states that have banned marriage by constitutional amendment. In Montana, the ACLU sued the state for equal rights on behalf of several same-sex couples, arguing that even if marriage was foreclosed by law, the equality principles in the constitution still require that Montana offer all the rights and benefits of marriage to gay couples, short of the name itself.

I think Lambda and the ACLU are poised to file a similar suit in Hawaii, now that Governor Lingle has vetoed the state’s civil union bill. 

So, you might ask, how many of the states that have a constitutional amendment banning same-sex marriage do not include a ban on civil unions and the like? I should know the answer to that one, and I could find out for you if I had the energy. But you know what? It would require staring at one of those maps where some states are green, some are red, some are checkerboard, some are striped, some are white, and then reading all the little disclaimers and exceptions at the bottom. 

Plus, back when I knew all the statuses of all the states, I would constantly find inaccurate maps and lists and encounter erroneous figures in various press reports about marriage and civil unions. That used to infuriate me! I certainly don’t want to toss out a bad number and incite rage in any of you.

Wait. Before I write another word, may I mention that I am sick and tired of hearing that the gay community has lost all 32 referendums on marriage rights? Even Rachel said it the other day! For God’s sake, we won Arizona in 2006! Yes, we lost it in 2008, but my point is, it is wrong to say we have never won a marriage plebiscite. It’s wrong wrong wrong. It is not factual. 

Anyway, the bottom line is that if I gave you a number, I would have to research every state myself in order to make sure the number was correct. OK.

I did it. I come up with eight states that fit the category (plus another dozen that have no constitutional bans on either marriage or civil unions). These are perhaps potential targets of a fight for equality lite. Yes, of course a civil union or reciprocal whatever is better than nothing, but let’s just say that Hallmark is not about to launch a “Happy Domestic Partnership!” anniversary card anytime soon. Plus, it’s a little counterintuitive for Lambda to be insisting that civil unions are not equal in New Jersey, but that equality demands civil unions in Hawaii.

I don’t feel like thinking too hard about that one, particularly after my laborious session on the Freedom To Marry website looking up all the states one by one. Oh, and please note. I do not stand by the number eight. I would have to double-check the language of all those state amendments which I don’t feel like doing at the moment.

Court Slams Arizona On Revoking DP Benefits
Yay! Mel is back from the grocery store with all sorts of essential amenities. I requested coffee, white wine and cigarettes in order to fuel the back half of this column. I guess she also got some vegetables and bread and stuff. Whatever. It’s a nice stormy day in Austin (the seventh gay-friendliest city in the nation) and the house is pleasantly cool and dark. Frankly, I’d like to take a nap, but duty calls.

So speaking of domestic partner benefits, do you recall that Arizona decided to drop gay partner benefits for state workers in order to help balance the budget? And do you remember from our enjoyable legal colloquies that states must have some kind of reasonable justification for laws or acts that discriminate against a particular group?

Well, last week a federal judge issued a preliminary injunction against the state, ordering Arizona to maintain the health insurance program for the partners of gay state employees while Lambda Legal’s lawsuit continues in court. In doing so, Judge John Sedwick acknowledged that Lambda was likely to prevail on the merits of its equal protection case.

I haven’t read the ruling, simply because New York Law Professor Art Leonard has such a good summary on his blog. But according to Leonard, the judge was not convinced that Arizona’s decision to drop the benefits could pass the lowest standard of judicial review, which requires that a law have a rational relationship to a legitimate state interest. 

The notion that the scheme would save money goes out the window when you take into account the burden of newly uninsured citizens in need of state medical subsidies. As for the idea that the state wanted to reserve resources for families raising children, the judge noted that gay families are raising children as well. Plus, the money involved was minimal, about a quarter of one percent of the state insurance program, Leonard reports.

The wine apparently has to be chilled and I’ve waiting for what seems like quite some time for Mel to serve me a glass. Now she’s fixing the backed up sink in the kitchen on her knees with a coat hanger and seems oblivious to my needs. I must admit that she has saved us $75 in plumbing fees with her initiative, and just think of the fine wine we can buy with the extra cash. Maybe a couple of Bandol roses.

Stay Off Target
But time is flying, and I must move on. Oh, here comes the wine! Thank you thank you. Anyway, our latest target of community outrage is Target itself, which gave $100,000 in cash and $50,000 in goods and services to a conservative PAC in Minnesota that will be funding the antigay gubernatorial candidate Tom Emmer. 

Based in Minneapolis, Target has been good to the local community, supporting the pride parade, paying partner perks and so forth. And the retailer’s CEO, Gregg Steinhafel insists that the donation to MN Forward was based on Emmer’s plans for the business community, not his opposition to gay marriage. No one seems to be buying it, however. A boycott page is up on Facebook, and the Human Rights Campaign, which gives Target a 100 percent rating in its corporate listings, called itself puzzled by the donation.

Target’s giveaway was made possible by the U.S. Supreme Court’s ruling in Citizens United that opened the floodgates for corporate campaign spending. I’m wondering why we don’t also boycott Best Buy, which gave $100,000 to MN Forward. Why don’t we get the whole list of Emmer’s corporate sponsors just to be consistent? I suppose there’s an element of betrayal in Target’s shift from friend to foe that inspires a more dramatic reaction. Yet I saw the Best Buy Geek Squad in our Austin pride parade, so? 

In the wake of Citizens United and the Target contribution, HRC hinted that it might start taking corporate campaign donations in account when it creates its gay friendly rankings.

Heather is Fine
Much is being made of a new study of gay parents that echoes the results of all the other studies of gay parents. The kids are fine. The interesting thing, however, is that we haven’t had that much time to study the children of gay parents. Up until, let’s say 20 years ago, it was relatively rare for gay couples to raise kids from birth, particularly for men.  

Many of the studies that have been conducted involved self-selected families, and used data collected from the families themselves. And it’s perhaps not surprising that studies of lesbian families by lesbian researchers produce happy lesbian results. Not that they’re wrong. It’s just that it has been fairly easy to refute this kind of research if you’re a right wing conservative lawyer.

The latest effort, published in the journal Applied Developmental Science, compared preschool children adopted at birth by 27 lesbian couples, 29 gay male couples and 50 heterosexual couples. It also used evaluations from independent sources, such as teachers and sitters, in reaching the conclusion that there is no measurable difference in the development of children raised by gay or straight families.

If memory serves, I think there was a recent study that suggested lesbians were actually better parents in some respects, but since I don’t pay too much attention to studies in general, I can’t be sure. Have you seen that movie yet? I haven’t, but it got great reviews. We went to see the Girl Who Played With Fire the other day, which was pretty good. However, the vast supply of popcorn and the half-gallon of diet coke sold as part of a bargain package made me sick by the end of it.

Want to Talk About It?
I don’t have the space to tell you much about the Christian grad student, who was kicked out of a counseling degree program in Michigan for refusing to treat gay or lesbian clients. She sued and lost in a recent court decision, triggering cries of religious persecution from the right. 

A similar case is going on in Georgia, where Jennifer Keeton is trying to get her degree in social work at Augusta State University. Keeton was told to get some professional help to overcome her antigay views before continuing her counseling degree program, and she too has filed suit with the help of the Alliance Defense Fund. 

Both schools note that the ACA Code of Ethics states that: “Counselors do not discriminate against clients, students, employees, supervisees, or research participants in a manner that has a negative impact on these persons” on the basis of sexuality, gender identity, and other factors. I’m guessing ACA stands for American Counseling Association or something like that. Anyway, would these schools graduate a student who insists that people with brown hair are spawn of the devil? 

I guess I did have the space to discuss the counseling students. But I don’t have the space to describe the bizarre bus tour underway by the National Organization for Marriage. Next week. The story will be even more interesting by then.

-arostow@aol.com