Itâ€™s likely that Illinois will have a civil union law by the time you read my next column. (You are going to read my next column, right? Oh, thank God.) On Tuesday, the state house passed the union bill with a vote to spare, and the senate is expected to follow suit today, Wednesday. Governor Pat Quinn has pledged to sign on the dotted line, bringing rough equality to gay couples in the Midwest for the first time.
Not only are civil unions a pragmatic solution to many dilemmas faced by same-sex couples, but they are indeed a slippery slope to marriage equality. When gay unions are offered all the rights of marriage save the word itself, the word eventually follows. Unfortunately, the slope is not slippery enough for my taste, and the second-class status invariably falls short of the real thing, not just in semantic terms, but in tangible rights, social respect, and legal standing. Nonetheless, civil unions are not to be sniffed at.
Hereâ€™s something Iâ€™ve noticed in the last five years or so. The people on the fence in the debate on gay equality are increasingly tipping over to our side. But their reasoning has less to do with conviction, and more to do with their sense that the die is cast and that history will look back over its shoulder in 50 years or so and cast a squinty eye on those who hedged and hesitated. With the exception of those on the far right, no one wants to be caught in that ugly glare, any more than theyâ€™d want their grandparents on record against integration.
Actually, it occurs to me that this could inspire a good campaign slogan for our next ballot battle. â€śWhat will your grandchildren think?â€ť
By the way, on a completely different subject, it annoys me when deficit hawks complain about the massive debt weâ€™re leaving to our grandchildren. For heavenâ€™s sake, why canâ€™t our grandchildren just finance the damn debt and then let their grandchildren worry about it! Iâ€™m not really joking since the only thing that counts is the ratio between our debt and our economic output, and if one assumes that we will also bequeath a growing economy to the little buggers, theyâ€™ll be fine.
Here Come the Judges
So hereâ€™s the big news on the Prop 8 appeal, which as you know will be argued before the U.S. Court of Appeals for the Ninth Circuit on Monday morning Pacific time and covered live on C-Span.
The three-judge panel that has been assigned to the case includes Judge Stephen Reinhardt, the â€śliberal lionâ€ť of the Ninth Circuit, and a man who is considered a reliable ally of the gay legal community. Joining him is Judge Michael Hawkins, a Clinton moderate who has sided with gay civil rights in numerous cases. Finally, George W. Bush appointee and Brigham Young graduate N. Randy Smith can be expected to lean conservative.
Obviously, you canâ€™t pre-judge the judges that easily. But then again, it would be astonishing if Reinhardt ruled for Prop 8, surprising if Hawkins did so, and pleasantly bizarre if Smith did anything nice on our behalf. Barring such astonishing, surprising or bizarre results, we would find ourselves with a 2-1 majority victory on the merits of the case.
As you know, the panel will also rule on whether anyone has standing to appeal the merits of the case to begin with, given that the state of California has (courageously) declined to defend itself in this matter. The Prop 8 initiators, who were allowed to argue their case at trial, do not necessarily have the legal right to appeal. Nor do the conservatives in charge of Imperial County, who are trying to horn in on the case in order to defeat the problem of standing.
In a 1995 case, Judge Reinhardt gave the green light to a group called Arizonans for Official English, who were allowed to intervene in a Ninth Circuit appeal to defend a constitutional ballot initiative that made English the official state language. At the time, Reinhardt reasoned that the organization was similar to a group of state legislators defending a state law in court.
However, unlike Arizona, California does not allow state legislators to defend their laws in appellate court. Further, the Arizona group was not the only appellant in the case. And finally, the High Court rejected Reinhardtâ€™s standing rationale, although the justices dismissed the underlying case as moot.
In a footnote on the question, Justice Ginsburg expressed â€śgrave doubtsâ€ť about the standing of Arizonans for Official English.
â€śPetitionersâ€™ primary argument - that, as initiative proponents, they have a quasi legislative interest in defending the measure they successfully sponsored - is dubious because they are not elected state legislators, authorized by state law to represent the Stateâ€™s interests,â€ť she wrote. â€śFurthermore, this Court has never identified initiative proponents as Article III qualified defenders.â€ť
So what does this tell us about the issue of standing? That last line suggests that whatever happens at the Ninth Circuit, the High Court is unlikely to recognize the Prop 8 proponents as legitimate appellants.
Iâ€™m assuming, given the magnitude of this case, that the eventual rulings from this panel will be appealed and accepted by the entire Ninth Circuit before they go to the Supreme Court. While it seems clear that the three-judge panel is prepared to rule on both the issues of standing and the constitutional merits of Prop 8, the next chapters of the saga are hard to predict.
Will the full Ninth Circuit ignore the merits and simply dismiss the case for lack of standing? If so, the High Court is likely to agree, and we could end up with a limited district court ruling that overturns Prop 8 but casts no shadow on marriage law outside of California.
No need to get ahead of ourselves, however. Letâ€™s just enjoy the moment.
Tired of News on Military Ban? Sorry.
The Senate Armed Services Committee is set for yet another round of testimony on Donâ€™t Ask Donâ€™t Tell on Thursday and Friday of this week, much of it focused on the famous Pentagon study suggesting that it will be fairly simple to repeal the ban on openly gay military service.
I wonâ€™t rehash the report, which has earned a lot of press over the last couple of days. Suffice to say, most servicemembers think openly gay soldiers will have a positive or neutral impact on the military, and about 90 percent of those who have served with a person they know to be gay have said the experience was just fine.
Amazingly, Harry Reid will still have to do some dealing in order to find a handful of Republicans to break a filibuster on the vote. But the good news is that he is under great pressure to do so from the administration who fears the fallout of a) keeping this law on the books for years to come, b) fighting an unbecoming and protracted court battle in defense of Donâ€™t Ask and c) turning the gay community into a hive of angry bees with nothing to do but buzz and sting throughout the entire 2012 campaign. (Not that we wonâ€™t be buzzing and stinging in any event.)
Obviously, Donâ€™t Ask must be repealed before Christmas by the lame duck Senate. If they fail, the current session will end and the incoming Congress will bury the issue for the duration.
Iâ€™m kind of hopeful now. But then again, I have been hopeful before and my hopes have been violently dashed.
Witt and Wisdom
In other military news, the Obama administration performed a little high wire act last week, filing an appeal challenging the reinstatement of lesbian Air Force nurse Margaret Witt but declining to ask for a stay of the ruling that restored Wittâ€™s military career.
In other words, the Justice Department will keep fighting on behalf of Donâ€™t Ask, the Defense of Marriage Act and any other antigay laws (that Obama claims to oppose) with the excuse that the executive branch is obliged to defend acts of Congress against constitutional attack. At the same time, the administration waved a hand at Major Witt and allowed her to resume her station.
Witt is in the process of completing some training course and will go back to work in January. Of course, if the Obama appeal succeeds, and if Congress does not repeal Donâ€™t Ask, Major Witt could be kicked out once again. But it is highly unlikely that Obama and company will succeed on appeal. Witt was reinstated in a case that has already gone up to the Ninth Circuit and back to the district court. Without going over the details (that surely you remember weâ€™ve already covered in several earlier columns!) itâ€™s enough to point out that the district court followed the Ninth Circuitâ€™s instructions in ruling for Witt a month or so ago. Ergo, itâ€™s unlikely that the Ninth Circuit will find fault with that ruling.
Itâ€™s interesting, however, that the administration did not try to block Wittâ€™s reentry. And it was even more interesting that Obama did not appeal the Ninth Circuitâ€™s original pro-gay ruling in Wittâ€™s case, a 2008 opinion that led directly to the recent determination by Judge Virginia Phillips that found Donâ€™t Ask unconstitutional.
I would love to know, by the way, just who made that admirable, but curious, decision in the early months of the Obama administration. The Ninth Circuitâ€™s Witt ruling created a new legal standard in evaluating Donâ€™t Ask Donâ€™ Tell, instructing the government to prove that the discharge of a specific gay or lesbian servicemember was necessary to morale or good order. Issued at the end of the Bush administration, the deadline to appeal came and went in June 2009, and the new administration let it pass without action.
The decision not to appeal changed the legal playing field for Donâ€™t Ask throughout the western states under the Ninth Circuitâ€™s jurisdiction, and arguably undermined the legal status of Donâ€™t Ask in other circuits. It was a major blow against the law, which makes you wonder whether it was a deliberate strategy or an oversight or what? Did a heroic justice department attorney make the call? Did Obama?
Well, whoever did so set the stage for the Phillips ruling, which is now being appealed along with the underlying case in Witt. After the Witt ruling, the Ninth Circuit sent the case back to the lower court for a decision on whether indeed the Air Force had a good reason to dismiss their officer. Turns out they couldnâ€™t come up with a decent rationale, and thatâ€™s the decision that Obama has decided to contest.
Does this make sense to you? They donâ€™t appeal the big giant important 2008 ruling in Witt. Witt gets reinstated and they appeal the specific lower court ruling that will be impossible to overturn. And at the same time, they allow Witt to resume serving in the Air Force?
Whatever. Iâ€™ll just wait and read the book on gay legal cases that someone will no doubt publish in about ten years.
Lights, Camera, Christmas!
Did you have a nice Thanksgiving? Me too, but I somehow forgot that Christmas doesnâ€™t just start up after Thanksgiving, it explodes in our faces. The holiday lights, the commercials, the decorations, the catalogues, the â€śseason of sharing.â€ť Not that Iâ€™m against sharing, but itâ€™s depressing to know that we have to survive nearly four weeks of this onslaught.
Have you noticed that the jewelry companies recycle their Christmas TV ads from year to year? And although Iâ€™m not a politically correct feminist, Iâ€™m still dismayed by the whole dynamic of the mindless female going into a tizzy because her man buys her a tennis bracelet or a necklace (Note to Mel: my irritation does not extend to same-sex jewelry gifts.)
I particularly hate the one where the couple is watching a storm, the timorous woman cries out at a clap of thunder and the strong man wraps her in an embrace and reassures her, â€śIâ€™m right here.â€ť Theyâ€™re inside, for Godâ€™s sake! Itâ€™s a thunderstorm, not a home invasion.
I forget the rest of the dialogue, but I think it involves a gift of jewelry and a pledge that heâ€™ll never ever ever leave her. God forbid Bambi would have to sit alone in the living room during a light freeze or a wind gust without her guy to keep her secure. (Note to Mel: This does not mean I donâ€™t expect you to be available at all times during inclement weather for my personal safety, preferably bearing shiny reassuring trinkets in robinâ€™s egg blue boxes.)