Hereâ€™s a significant development to start our column. The Maryland attorney general, Doug Gansler, has at last released his formal opinion on the status of out-of-state marriages in the Soft Shell Crab State. According to Gansler, Maryland can and should recognize legal same-sex marriages from elsewhere, a view that will no doubt lead to a flurry of legislative attempts to slam the door on gay unions with a big bang.
Not only are legal marriages available in much of New England, which is not too far away. But marriage is likely to begin in early March in the nationâ€™s capital, just a hop, skip and a jump from the state border. As I write, conservative groups are making their last desperate efforts to block DCâ€™s marriage bill in the courts, and Congress still has a few days to meddle in the process if it so chooses. But baring any last minute stumbling blocks, the city of Washington should start marrying its gay citizens on March 3, along with a bunch of folks from Bethesda and Chevy Chase, no doubt.
Ganslerâ€™s opinion will serve as a legal guide for courts and others who may soon confront the vicissitudes of gay married life. It does not mean that you and your spouse will automatically get legal rights if you move to Baltimore. It does, however, mean that you and your spouse will be able to make a strong case if denied marriage rights, and you can even wave Ganslerâ€™s 40-page brief in the judgeâ€™s face.
Maryland is one of those states with a regular old law that limits marriage ceremonies to heterosexuals, but it does not have a constitutional amendment defining gays out of the institution, and it has no particular history of rejecting marriages that could not be contracted within the state. Indeed, most states routinely honor the unique weddings of first cousins from West Virginia or 13-year-olds from Mississippi or what have you, which makes it difficult to condemn gay marriages without violating equality principles unless thereâ€™s some draconian anti-gay language on the books somewhere. Unfortunately, at least 30 states have amended their constitutions with exactly such language, but as I said, Maryland is not among themâ€¦ yet.
Iâ€™m trying to decide whether or not to call into a phone briefing on the subject in about 30 minutes. On the one hand, just think of the additional inside information I could pass along! On the other hand, Iâ€™d be writing this column well into the early evening, and quite possibly delaying the cocktail hour. Decisions, decisions.
High Court Nomination Fight Ahead
I recommend a great analysis of the coming Supreme Court shake up by Tom Goldstein at SCOTUS Blog. Indeed, Iâ€™ve spent a large chunk of the morning reading lengthy articles and opinions rather than writing. Iâ€™ve also spent at least a half hour on Youtube watching cats thanks to newshound Rex Wockner, who sent everyone on his list a link to a cat video this morning. Once you watch one of the damned things, itâ€™s impossible to resist the other ones. Hey, itâ€™s just two minutes. But like potato chips, they pile up, one empty slice at a time until youâ€™re greasy and sick, or in this case, behind in your work with nothing to show for it except idle dinner chatter.
â€śWhat did you do today, honey?â€ť
â€śOh, I watched these kittens online! Oh, and there was this cat riding a vacuum cleaner, too. It was the cutest thing youâ€™ve ever seen! Oh, there was one where this cat was on a leash and a person was pulling it along the ground and it wouldnâ€™t stand up. It just lay there and let itself be dragged around. It was really, really cute. What did you do?â€ť
I canâ€™t forget, as well, that I filled out a ten-question quiz titled: â€śWhich Star Are You?â€ť and sent that around to several friends. I was Katherine Hepburn, but just barely. I was almost Grace Kelly.
So back to the Supreme Court, where I think at this point everyone agrees that Justice Stevens will retire at the end of this term. As weâ€™ve mentioned, Stevens only hired one law clerk for the coming year, which is the normal appointment for a retired justice. He has also reportedly said some things to some people. And the great man is about to turn 90.
Goldstein makes a strong case that Obama will turn to Solicitor General Elena Kagan as his next pick for several reasons. She has a thin paper trail, since sheâ€™s never been a judge. And sheâ€™s highly respected, so she would be unlikely to trigger a debilitating Senate showdown. After all, she was confirmed for her current post just a year ago, so much of the vetting has already been done. And while anyone Obama names will face a barrage of conservative condemnation, Kagan would limit the distraction at a time when the administration will remain bogged down by the economy and health care.
The former dean of the Harvard Law School, the fifty-something Kagan has always had gay rumors swirling above her head, but there seems to be little hard facts on the record. Hell, I was suspicious about Sotomayor, too. And I would be suspicious of any single woman in a position to be named to the U.S. Supreme Court. Presumably, these are women who have had an eye on high positions from a relatively early age, and have lived through a period when the closet was the rule, not the exception, for high profile professionals, particularly for women.
And look, Kagan is attractive, brilliant, admired, powerful and does not seem to have any weird personality characteristics. If sheâ€™s not gay, why is she single?
Fifth Circuit Whacks Louisiana
I blew off the Maryland press conference, by the way. But hereâ€™s a question that seems to be circulating. Whatâ€™s the impact of an opinion by a state attorney general? Is it law? Is it just a suggestion?
Actually, itâ€™s somewhere in between. You recall that Eliot Spitzer issued an opinion back in the day when he was the attorney general of New York, arguing that the Empire State should recognize same-sex marriages from out of state. Spitzerâ€™s opinion didnâ€™t change life for New Yorkers right away, but it led some state and county officials to recognize same-sex marriages and eventually helped Governor Paterson issue an executive order to that effect. These actions have all been challenged in court by enemies of all things fair and good, but the stateâ€™s highest court has upheld marriage recognition in at least two instances. For some reason, the New York Court of Appeals has stopped short of actually mandating marriage recognition, but for all practical purposes, your Massachusetts marriage is valid in Manhattan.
In our next case, however, a state attorney general issued an opinion that was nothing more than political palaver, and the a trio of judges for the U.S. Court of Appeals for the Fifth Circuit took a look at it and rolled their collective eyes.
It takes place in Louisiana, where the state registrar refused to provide a corrected birth certificate for a child born in the Cajun State but adopted by two gay men in New York. Whether or not Louisiana liked the state of affairs, the men were the childâ€™s legal parents, and the state was obliged to deliver the appropriate paperwork. Without it, the infant couldnâ€™t get health insurance, couldnâ€™t fly on a plane, and couldnâ€™t be enrolled in school down the road. Well, I suppose the Dads could carry around adoption papers with the kidâ€™s original birth name, but please!
This is not the first time recalcitrant officials have tried to withhold birth certificates for gay adoptive parents. Happily, they have yet to succeed, and the Louisiana case did not spoil our perfect record. After the attorney general determined that Louisiana had no obligation to the New York family, the fathers sued with the help of Lambda Legal. A lower federal court ruled in their favor, and this week, the Fifth Circuit agreed, shredding Louisianaâ€™s absurd arguments into a confetti of rejected legal blather. Amazingly, I am now reading that the state plans to appeal the unanimous decision, either to the full court or to the Supreme Court.
Now hereâ€™s a case I believe everyone in Big Gay Law would love to see land in the lap of the High Court. The famed Full Faith and Credit Clause requires states to honor the public acts, records and judicial proceedings of sister states, and although the Clause has loopholes, all courts agree that there is no exclusion for judicial proceedings.
Adoption is a judicial proceeding, although marriage is not. (We all thought it might be back in the 1990s, but itâ€™s just a licensed thing of some sort. It doesnâ€™t have a big court stamp on it. Whatever.)
Anyway, since Louisiana is required to issue revised birth certificates for adopted children born in the state, the registrar is not allowed to pick and choose which adopted families she happens to prefer. Nor can Louisiana contest the validity of New Yorkâ€™s adoption policies, even though gay parents are not allowed to adopt in the Bayou.
The attorney general and the registrar felt this was unfair in some way because it allowed other states to circumvent Louisiana law and public policy. But you know what? Thatâ€™s tough. The gay dads werenâ€™t in Louisiana. They were in New York, where New York public policy rules. As for the birth certificate, itâ€™s a piece of paper, itâ€™s not an adoption. As the Supreme Court has said, thereâ€™s no â€śroving public policy exceptionâ€ť to the requirement that states respect each otherâ€™s judgments. So if Louisiana wants the High Court to review the matter, bring it on. The U.S. Court of Appeals for the Tenth Circuit has also ruled that a revised birth certificate is mandatory in these circumstances.
Bob McDonnell Cancels Protection for Gay Staff, and Other Stuff
Hereâ€™s a news tip! The leader of the Raelians has sent a message to Tiger Woods, urging him to â€śdivorce and enjoy polygamy.â€ť
â€śThe only person close to you who needs therapy is your wife, who enjoys the fact that you spend time talking, partying and dining with other people as long as there is no insertion of your penis. Those few inches of flesh make her feel betrayed. If she doesnâ€™t get therapy, you will be better off divorcing such a jealous partner to freely enjoy your sexual partners.â€ť
Rael went on to suggest that the golf star participate in his next seminar, a week-long workshop in Las Vegas called the â€śHappiness Academyâ€ť starting March 27. The experience, wrote the iconoclastic spiritual guide, â€świll bring you back to the person you really are, a happy man with a healthy sexuality, always ready to enjoy new partners.â€ť
You may or may not know that Rael is a staunch supporter of GLBT rights, which is why many of us GLBT news watchers are on his email list. Rael also believes that humanity was spawned by an extraterrestrial race called the Elohim, who are scheduled to return for a progress check in 2035. The former sportscar racer met one of the aliens on a volcano in central France back in the 1970s, where he was given the lowdown on the origins of life on Earth and his own messianic role. Presumably that included instructions for civil rights advocacy and organizing sex seminars in Vegas.
Other than that, I was going to tell you that Joe Lieberman has announced he will introduce a bill to repeal Donâ€™t Ask Donâ€™t Tell in the Senate. Thereâ€™s already a repeal ban in the House. It almost makes you want to forgive the pompous snake for scuttling the health care bill, but almost only counts in horseshoes.
And I just found out that the newly installed Republican governor of Virginia, Bob McDonnell, issued an executive order that deletes â€śsexual orientationâ€ť from the list of categories protected against discrimination in the state workforce. He did this on Feb. 5, rescinding an order by his predecessor Tim Kaine. Unbelievable. I had no particular impression of Bob McDonnell up until now. Now, I find him despicable, and I imagine I will react with hostility whenever I read or hear his name in the future. So will you, right?
Was it worth it, Bob?