I had so many things to write about before I listened to the Presidentâ€™s inaugural speech. But then, Obama stole my lead with his reference to â€śStonewall,â€ť and â€śour gay and lesbian brothers and sisters.â€ť Oh, itâ€™s not just the symbolism of a President using the word â€śgayâ€ť in such a context for the first time. Itâ€™s not just his support for marriage equality, which was already a given. It is something that we saw during the Democratic national convention, to wit: the mainstreaming of gay equality as the default posture of Middle America.
But for Obama to take this phenomenon a step further, for him to wrench it out of partisan politics where it has emerged as a signature divide, and to infuse it into a speech about Americaâ€™s most sacred valuesâ€”- thatâ€™s different. If you are John Roberts or Anthony Kennedy, standing close to each side of the GLBT fence and wondering whether to hop over, stay put, or perhaps jump up and balance precariously on its posts, how does this speech inform your decision? Answer: It cannot help but propel you toward justice.
We know that Justice Kennedy leans toward us. Indeed he has authored the two most significant gay rights decisions of the last 20 years, Romer and Lawrence. But does that mean he will hang his legacy on the hook of furthering GLBT equality? Or does that mean he has given himself cover for a step backwards to some sort of middle ground, perhaps in the name of statesâ€™ rights?
We know that Roberts is a conservative. But he is also a pragmatist and a relatively young man who once worked as a consultant for the gay side of the Romer case. He has surprised us in the past, and he seems something of a cypher. But where is he headed in his mind as we approach the critical High Court showdowns on the federal Defense of Marriage Act and on state laws like Prop 8? Will he keep future historians in mind as â€śThe Roberts Courtâ€ť takes up these weighty issues? Or will he envision himself as the last champion of tradition and the status quo, a biased plate umpire with a subconscious preference for a veteran pitcher who can no longer throw a strike?
Obama has changed the equation here. He could have limited his reference to gays with the beautiful inclusion of â€śStonewallâ€ť into the trio of civil rights landmarks. That one line alone put gays and lesbians on the continuum of our countryâ€™s most revered freedom fighters. But he went further, asking almost incredulously how anyone could deny the love of two people of the same gender. A few years ago, his comments would have triggered howls of outrage, yet of all the complaints coming from the right wing a day after this speech, I have not heard any gay bashing, only objections to a â€śprogressive agendaâ€ť and bleats about deficits.
The march of history, the drumbeat of historyâ€”we are on a sprint to the sound of rolling tympani.
Make no mistake about it, Justices Thomas, Alito and Scalia are beyond any argument. But we donâ€™t need any of them. We need either Kennedy, Roberts, or both men, to vote us into full equality as American citizens. Without directly inserting himself into pending High Court litigation, Barack Obama has thrown the weight of the Presidency and, by extension, the American public, onto our side. And given his background as a constitutional law professor I canâ€™t believe he was not aware of exactly what he was doing.
Standing on Principle
Moving on to the actual cases, you are likely aware that the High Court will soon be evaluating several questions of â€śstandingâ€ť in addition to the merits of the marriage laws under challenge. Since questions of standing ask whether or not the participants in the case have a right to be there in the first place, itâ€™s always possible that a ruling against standing will end the matter without further deliberation on the main cause.
It gets complicated, but itâ€™s worth the analysis, simply because the Court would not have insisted on raising these threshold inquiries if the justices did not have some qualms of a technical nature. And although they may seem like technicalities to us, the rules of standing have vast implications for other cases and there are reasons to suspect that the Court may be using our litigation to get to the bottom of some important questions of federal procedure. Go find Linda Greenhouseâ€™s article on standing for a real discussion if youâ€™re interested, as well as a four-part article on standing at SCOTUS blog.
Youâ€™ll be relieved to know that Iâ€™m not getting into it here. But I will tell you this. The High Court has asked two standing questions in the DOMA challenge by New York widow Edith Windsor. Does the Justice Department have the right to appeal, given that they agreed with the lower court that DOMA is unconstitutional? And does the House â€śbipartisanâ€ť committee that is defending DOMA have the right to participate to begin with? The Court has named an independent advocate, Harvard Law Professor Vicki Jackson, to brief the idea that neither side has standing in written arguments due this week.
That will be interesting to legal nerds, as will be the replies to these questions from the Justice Department and the House Republicans. Some legal analysts believe the Justice Department has standing to appeal. Even though they â€śwonâ€ť and therefore should not be allowed to appeal a victory, the U.S. Government is still obliged to uphold DOMA, and collect (arguably unconstitutional) estate taxes from Edith Windsor. Ergo, the Justice Department has the type of concrete stake in the litigation that fulfills the requirement for standing under Article III of the Constitution.
Meanwhile, over on the Prop 8 case, the justices have asked whether or not the Prop 8 organizers should have been allowed to appeal their defeat in lower court. Thatâ€™s an even thornier standing issue, and itâ€™s quite possible that the Court agreed to hear Prop 8 solely to address this question. In order to qualify under Article III, a litigant has to have a real stake in the case, not simply a strong opinion. So you tell me how the Prop 8 proponents suffered actual harm when their antigay marriage amendment was struck down. Oh, they were mad and sad? Sorry, that doesnâ€™t count. Or, that shouldnâ€™t count.
On Tuesday, the Prop 8 proponents submitted their briefs in Perry, and the House committee turned in their written arguments in Windsor. Although the House will address standing in a subsequent filing (due February 22) the Prop 8 folks tackled their standing issue at the beginning of their brief. Do you want to discuss their assertions right this second? Good! Me neither. Weâ€™ll talk about the whole ball of wax after Professor Jackson files her briefs shortly.
I think weâ€™ve had almost enough of SCOTUS for one column. The oral arguments for Prop 8 and Windsor have been set for March 26 and March 27 respectively.
But before we move on, thereâ€™s one more deadline to keep in mind. February 28 is the due date for briefs from friends of the court in the Prop 8 case. Since the U.S. government is not a party to that suit, the Obama administration has not weighed on the overarching question of whether the Constitution allows states to exclude same-sex couples from the institution of marriage. Given the Presidentâ€™s recent comments, will he take the final step and endorse marriage equality for the nation, rather than call it an issue for the states to decide? Weâ€™ll see.
Pass the Brown Cow
What now, brown cow? I just checked that phrase. Itâ€™s actually â€śhow now brown cow,â€ť and was used as an elocution exercise back in the day. A â€śbrown cowâ€ť was a Scottish term for a beer barrel. Another fun fact to know and tell!
Letâ€™s start with Rhode Island, where the unanimous House Judiciary Committee passed marriage in just 20 minutes on Tuesday. The full house will likely pass a marriage bill on Thursday. If the bill does pass, Senate President Teresa Paiva Weed has agreed to let the measure come up for debate in the upper house, even though she dislikes the prospect.
And after failing to ram marriage through the lame duck Illinois legislature, activists are working on bringing equality through the new legislature starting early next month. Weâ€™re also working on a civil union bill in Colorado (again) and a marriage bill in New Mexico.
Outside our borders, the fight continues in France, in Great Britain, in New Zealand and probably in some other locales that have not leapt to my attention. Letâ€™s just say that the wheels of progress are turning as I write. Yay!
Come Out, Come Out, Wherever You Are
Did any of you follow Jodie Fosterâ€™s rambling speech at the Golden Globes? I recall much speculation about her sexual orientation back in the 20th Century when speaking out might have made a difference. Now, not so much. Plus, what is her deal with Mel Gibson? And what ever happened with her love life? Didnâ€™t she dump her long-time partner for a disk jockey or something a few years back? I could look it up for you, but on second thought, you can look it up yourselves.
And what do you make of Manti Teâ€™oâ€™s fake girlfriend? Iâ€™m talking to college football fans here, but for those of you who have never heard of the Heisman Trophy runner-up, Manti Teâ€™o is a phenomenal linebacker who should be an NFL star before long. This week, we learned that his girlfriend, who tragically â€śdiedâ€ť last season, never existed. Now the question is, did Manti invent his true love, or was he the victim of a complex internet hoax? Teâ€™o admits he never met the woman, even though they talked on the phone for hours and exchanged numerous tweets and emails. And he claims he was as surprised as anyone to learn that one of his good buddies invented the persona.
But really? And if Teâ€™o was in on the scam, what was the motivation?
There you have the hop, skip and jump that led some of us, including yours truly, to wonder whether Teâ€™o was gay and hiding his sexual orientation. Maybe, maybe not. But all Iâ€™ll say is this: If he was not hiding his sexual orientation, the actual story behind the story must be incredibly bizarre. Occamâ€™s razor suggests to me that Teâ€™o was riding a horse, not a zebra. But of course, zebras do exist and I suppose you can saddle them up if you try.
Finally, letâ€™s run down a couple of cases of rank discrimination, beginning with the lesbian diners at the Sting Ray CafĂ© in Bern, North Carolina, who finished their meal, paid their tab, and were then presented with a letter from the owner denouncing homosexuality. Nice of him to wait until their cash was in his pocket, donâ€™t you think? The manâ€™s restaurant has since been ripped to shreds on Yelp.
Over at Ft. Bragg meanwhile, a lesbian military spouse applied for membership with the local military spouse group (it has an official name) but was told that she needed a special ID card and could not join. After some hoopla, the group decided to award the woman a temporary pass of some sort, which she rejected, again demanding full membership. Ashley Broadway is married to (Army) Lt. Col. Heather Mack, and is the Director of Family Affairs for the American Military Partner Association, a group that advocates for, well, partners and spouses of gay service members.
To its credit, the Marine Corps promptly issued a directive that requires such clubs to recognize gay spouses on an equal basis with their straight counterparts. But the issue of spousal recognition goes far beyond membership in some club. Gay spouses are treated as legal strangers throughout the military infrastructure, a problem Chuck Hagel has pledged to rectify.