The big news this week is the loss of the federal challenge to Don’t Ask Don’t Tell in Boston, a case that GLBT advocates hoped to win. No one expected to win more than the Servicemembers Legal Defense Network (SLDN), who filed the suit a year ago December on behalf of a dozen gay and lesbian former military personnel. The watchdogs are now trying to decide whether to appeal to the U.S. Court of Appeals for the First Circuit. Dollars to donuts says they will.

The case was the first assault on Don’t Ask Don’t Tell since the Supreme Court’s decision in Lawrence v Texas, which as Steve Ralls of the SLDN said, “changed the playing field” and undercut the “legal viability” of the prohibition on gay soldiers. But once again, a court found a way to avoid the core of the three-year old gay rights opinion, ruling that Lawrence was unclear, and that the High Court’s opinion did not explicitly state that the right to personal autonomy discussed at great length in its pages was “fundamental.”

The infuriating nitpicking with Lawrence (this judge is not the first nitpicker by any means) is thanks in part to the author of the opinion, Justice Anthony Kennedy, who in fact, did not use the legally significant “f” word in his text. But when the decision was released in June 2003, no one on our side quibbled with the omission. After all, Kennedy delivered a soaring defense of human rights and the American way of life.

“Freedom extends beyond spatial bounds,” he penned passionately. “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.” Kennedy went on to examine many of the High Court’s most venerable opinions under the Due Process Clause, all of which articulated fundamental rights. He then placed the right of gay couples to make intimate personal decisions squarely in this line of cases, striking down the Court’s most antigay precedent in the process.

The man even quoted a long paragraph from Planned Parenthood v Casey, the 1992 abortion rights case, which included the sentence: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe and the mystery of human life.” People in homosexual relationships, Kennedy then wrote, “may seek autonomy for these purposes just as heterosexual persons do.” Does that sound like a narrow ruling to you?

“Times can blind us to certain truths,” he concluded famously, “and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”

Why rehash so much of the text of Kennedy’s opinion? Because in the minds of an irritating number of activist judges, all this high minded prose is little more than inconsequential rhetoric when it comes down to dealing with actual gay rights cases. If the rights described by Kennedy are not “fundamental,” they are not held to a higher standard of protection under Constitutional law. And while it seems to us that he is saying that they are fundamental with a capital F, Kennedy didn’t actually use the term.

“It is true, as the plaintiffs argue,” wrote the DADT judge, George A O’Toole Jr., “that there is much language in the Lawrence opinion that would be consistent with a possible holding that recognized a fundamental liberty interest in ‘consensual intimacy and relationships between adults of the same sex.’” (Hello? Try the entire opinion.) “But despite all the foreshadowing,” he continues, “the anticipated denouement is missing.”

For lack of a denouement, the kingdom was lost. I just stumbled on Lambda’s press release the day after Lawrence was decided, headlined: “Lambda Legal to Announce Wide-ranging Plans to Use Momentum from its Landmark Supreme Court Victory to Advance Equality for LGBT People.” The decision, said Lambda’s Kevin Cathcart at the time, “starts an entirely new chapter in our fight for equality for lesbians, gay men, bisexuals and transgendered people.”

Well, tell that to the 11th Circuit, which upheld Florida’s ban on gay adoptive parents by employing the same Lawrence-parsing we saw last Monday in Boston. Tell that to the New Jersey judge who ignored Lawrence in upholding state marriage inequality a few months after the ruling. Tell that to the Kansas Court of Appeals who upheld a 17 year sentence for consensual gay sex for a teenager (before the state supreme court reversed them). There are many examples. And to be fair, there are many examples of courts making good use of Lawrence as well. But it’s annoying.

Long Island Tease
I didn’t mean to go on about that to such an extent, but what would you rather talk about, the frailty of our seminal gay rights precedent or, let’s say, the two-vote defeat of a domestic partner bill in Nassau County, New York? I thought so. Although the loss at the Nassau County Legislature was a stunner. How come a county has a “legislature” anyway?

We have other options as well. Some rightwing lawmakers are trying to intervene in the freedom to marry lawsuit filed by Lambda in Iowa, but it appears that they lack standing. A mother in Massachusetts is bent out of shape by the fact that her son’s second grade teacher read aloud King and King, the heart warming story of a prince who marries another prince. And there’s yet another measure that could conceivably reach the November ballot in Colorado, the fourth possible referendum on gay couples’ rights that may confront presumably confused voters in the High State.

Amend This!
Do you want to hear about the various proposals in Colorado? Again? OK then!

The first is an amendment to ban same-sex marriage. This one, still in the petitioning stages, was deliberately written to define marriage and marriage only. It does not mention civil unions or any other marriage-like types of relationships. Second, the legislature is about to send a referendum to voters that would enact a statewide domestic partner registry with a range of marriage-like benefits. Third, in response to said domestic partner plan, another group of conservatives drafted a measure that would amend the constitution to ban benefits for same-sex relationships that are “similar” to marriage. And now, in response to these last jokers, gay rights advocates have drafted their own initiative that would define the status of domestic partner as NOT similar to marriage, effectively supplanting measure number three. Except for the legislative initiative, all these drafts have to reach the ballot through petitions.

Sounds like quite the zoo up there.

I think, given the lengthy analysis of Colorado’s amendment status, we can ignore marriage developments in other states this week. Wait a second while I cross them off my list. Thank you. That was satisfying.

Oh, I wouldn’t do that for real. There’s actually not much news on the amendment front. Virginia lawmakers are bitching about the text of their ballot measure, which is already cleared for November. And the bad guys in Illinois are falling short in their name gathering for a non-binding referendum on a same-sex marriage amendment. I gather that their aim is to send a message to the legislature about voter attitudes in order to light a fire under lawmakers, who retain the power to amend the state constitution.

No Word from Mount Olympia
As for the marriage battles themselves, the most significant news this week is, again, the lack of news from Washington state. As the months drag on without an opinion on marriage equality from Olympia, or wherever the high court justices like to hang out, it becomes increasingly possible that New Jersey’s high court will beat Washington to the punch. The Garden State jurists heard arguments in their marriage case last February, and I read somewhere they have a reputation for issuing relatively fast decisions. Like in three months.

Meanwhile, our friend of the court briefing was due before the high court of New York this week, and we inundated the panel with 14 briefs, on 14 separate issues, drafted with the help of a raft of pro bono lawyers. Oral arguments in four coordinated marriage cases is scheduled May 31, putting New York on track right behind Washington and New Jersey. Wouldn’t it be nice to have three state courts legalize marriage this year? Can you imagine what that would do to the Colorado election? Bring it on!

I’ve tried to elicit gossip or speculation from my high placed legal sources on the stall in Washington. After all, the court heard oral arguments in early March of last year, and last January, the Chief Justice of the Washington Supreme Court said that he hoped to see a decision before early March of this year. Not! So what the hell is going on over there?

Are they hopelessly split? Are they waiting until New Jersey rules in order to avoid some of the flak that will shred the next high court to follow Massachusetts’ lead? Are they fine tuning their decisions, or issuing a collection of concurrences and dissents that in turn are constantly being drafted and redrafted? Are they perhaps just fucking with us, along with our nemeses on the right who are just as anxious for this ruling as we are? Maybe the court dog ate the opinion.

No Deal for Straight Activist
Speaking of opinions, there was an interesting one out of the Ninth Circuit this week. A split three-judge panel ruled that a lower court was correct in not issuing a preliminary injunction against a school district that took a sophomore boy out of class rather than allow him to wear an antigay T-shirt. The little devil was sporting a homemade article of clothing that read “Be Ashamed, Our School Embraced What God has Condemned” on the front, and “Homosexuality is Shameful Romans 1:27” on the back. The authorities at Poway High told him to take it off, or spend the rest of the school day in the front office. Tyler Chase Harper picked Door Number Two.
That reminds me. Don’t you love “Deal or No Deal?” I hate game shows, with the classic exceptions of Jeopardy and Family Feud. But there is something compelling about this new entry. It captures this exquisitely human combination of greed and risk. The worse you do, in some ways, the better your chances for succeeding in the next round since all the small briefcases are still out there. The game itself is simple in an elegant way—- a showcase for pure emotion that inspires you to love or hate the contestants with an absorbing personal commitment..

But back to Tyler, who I gather is called Chase. His case is one of those Free Speech conundrums, where as much as we’d like to rip that nasty shirt off his back and consign him to study hall for three weeks, we have to keep in mind his GLBT counterpart, the young activist who wears his gay pride shirt to class and gets punished by the conservative powers that be. But, as the school district argued successfully, the shirt was not a political comment. It was an aggressive attack that trespassed on the rights of a minority population, and as such was not constitutionally protected in the school context.

Harper’s mean message was inspired by the annual Day of Silence, a national student protest that by sheer coincidence is taking place this week as I write. Should the school district have allowed a counter-protest in response to the Day of Silence? The Ninth Circuit said no.

“A school that permits a ‘Day of Racial Tolerance’ may restrict a student from displaying a swastika or a Confederate flag,” wrote the majority. “In sum, a school has the right to teach civic responsibility and tolerance as part of its basic educational mission; it need not as a quid pro quo permit hateful and injurious speech that runs counter to that mission.”

Harper’s case now continues at a lower court, without the injunction that would have forced Poway to let him wear the shirt during the litigation. So there.