Two state supreme courts issued rulings this week in favor of same-sex families. In one, the West Virginia justices gave custody of a five-year-old to the surviving partner of a lesbian mother. In another, the Iowa high court ruled that a collection of conservative lawmakers lacked standing to intervene in the dissolution of a civil union.
In West Virginia, Tina Burch had been fighting for several years with the parents of her dead partner, Christina Smarr. In a tragedy right out of a made-for-TV movie, Burch and Smarr were driving home from a party in the summer of 2002, when Burch went off the road and crashed the car. Smarr was killed, while Burch was hospitalized. While she was in the hospital, Smarrâ€™s family took their toddler son Zachary, and when she was released, the grandparents refused to give him back to his second mother.
Burch went to court at once, backed by the biological father who had donated his sperm to the couple and who wanted Tina Burch to retain her parental rights. After almost a year of litigation, a family court ruled that Burch was a psychological parent and deserved custody of her son. The grandparents appealed to a circuit court, where the ruling was reversed. According to the circuit court, Tina Burch had no legal relationship to her son, and could not even legally petition the court to intervene in the proceedings that would decide his fate.
Burch asked the stateâ€™s high court to let her keep Zachary until the questions of parental rights and custody were resolved, and happily the high court agreed. Thus for another 18 months, as Zacharyâ€™s custody was batted back and forth between the family court and the circuit court, the boy himself stayed put. Finally, last week, the stateâ€™s highest court ruled that Burch met the definition of a psychological parent, someone who cared for a child emotionally and financially, lived with him or her as a parent, and did so with the consent of the legal parent. Further, the divided court ruled, Burch was entitled to primary custody in view of the decisions of the family court years earlier.
The three justices in the majority then admonished Burch and the Smarrs to try to put their differences aside in the interest of Zacharyâ€™s well being. Another justice concurred and dissented, while the fifth justice dissented. Neither of these two have yet to write an opinion, so their exact misgivings are a matter of speculation for the time being.
Over in Iowa, some readers may recall the case of two Woodbury County women who asked a judge to dissolve their civil union, even though it was contracted in Vermont and even though, technically, only a Vermont court could put an end to it. At first, Judge Jeffrey Neary reflexively signed their divorce papers without even checking the names. When he learned that he had â€śdivorcedâ€ť a lesbian couple from their civil union vows, he revised the order to reflect that fact that his order referred only to the end of a civil union, and not to the dissolution of a â€śsame-sex marriage.â€ť
Nonetheless, Judge Nearyâ€™s actions were cause for alarm among the stateâ€™s conservatives, who worried that by severing a same-sex union, the judge had tacitly created a state policy of recognizing gay legal ties. A group of lawmakers, led by Republican Congressman Steve King, petitioned the state supreme court for the right to intervene in the case and challenge Judge Nearyâ€™s decision. At the same time, a group of citizens staged a recall vote last year in an unsuccessful attempt to drive Judge Neary from the bench. That effort failed when a 58 percent majority came voted in favor of the judge.
On Friday, the justices ruled that the lawmakers lacked the legal standing to intervene in the case, and that Judge Nearyâ€™s decision in the matter would stand. â€śIt would be strange indeed, and contrary to our notions of separation of powers,â€ť wrote the court, â€śif we were to recognize that legislators have standing to intervene in lawsuits just because they disagree with a courtâ€™s interpretation of a statute.â€ť The decision of the high court does not prevent some future Iowa judge who might find himself or herself in the same situation from ruling differently. It simply preserves the basic boundaries of the rule of law.
Far Right Takes Aim At Massachusetts Marriages
At ground zero in the fight for marriage equality, opponents have made a bold shift in strategy. Led by Governor Mitt Romney, Massachusetts conservatives appear to have abandoned the effort to put an anti-marriage constitutional amendment on the 2006 ballot, and will try instead to rally support for a much harsher amendment in 2008. The marriage foes risk losing at the ballot box, as the citizens of Massachusetts grow increasingly used to the idea of same-sex marriage. Already, a small majority of Bay State residents tell pollsters that they support gay and lesbian marriages. Common sense suggests that majority will expand as has been the case with Vermont attitudes towards civil unions.
But the plan should nonetheless send chills through the GLBT activist community. Election conditions three years from now are unpredictable. Unlike the language of the proposed 2006 amendment, the new version rolls back and eliminates marriage rights for same-sex couples, while also outlawing civil unions. The 2006 plan, by contrast, would have ended legal marriage, while mandating civil unions in their place.
In the end, it was the counter intuitive nature of the 2006 amendment that led to its (presumed) defeat. Gay activists and their allies flatly opposed any reversal of hard fought marriage rights, while extreme conservatives were tremendously unhappy with the creation of civil unions. Although the ill-drafted amendment scraped through a legislative vote last year, it must pass the legislature again this year in order to advance to the ballot. Now that conservatives have withdrawn their support for the compromise measure, its demise is more than likely.
As for the 2008 strategy, marriage opponents must petition their fellow-citizens in order to qualify their amendment for two more legislative votes. Because the amendment will have been initiated by citizens, however, the proposal only needs a 25 percent vote of support in two successive legislative sessions, rather than a majority. That low bar will be easily met if the petitioners reach this stage. As for whether Massachusetts voters would repeal marriage rights in 2008, letâ€™s hope the answer is no.
itt Romney is expected to run for the Republican presidential nomination in 2008.
Whoâ€™s Your Ram?
â€śIf science proves homosexuality is innate,â€ť asks Seattle Times science reporter, Sandi Doughton, â€śis there any basis to deny gays equal treatment â€“ including the right to marry?â€ť
In this particular article, Doughton has just finished reviewing the research underway on a flock of sheep in Corvallis, Oregon, where some of the boys just wanna have fun. As the old saying goes, rams will be rams. Hell, I think itâ€™s important to prove that sexual orientation has its roots in biology. But thereâ€™s no reason why civil rights should be tied to the outcome of this kind of science. What if violence is genetic? What if serial killers have a chemical imbalance? Should they be allowed to marry?
Oh, I forgot. They already are allowed to marry. Well, you get the point. Discrimination on the basis of religious belief is unconstitutional, even though we can all change our faith at the drop of a yarmulke. Sexual orientation discrimination is wrong, whether or not weâ€™re gay from birth or have to attend correspondence school to get a degree in deviance.
Vive La Difference
Thatâ€™s my rant for the week. But before we leave Sandi and our gay animal friends, you should know that about 8 percent of rams appear to be queer and that â€śrats, hamsters, ferrets and other lab animals flip-flop their sexual behavior when scientists manipulate the hormones theyâ€™re exposed to before birth. Such experiments,â€ť Sandi adds, â€śwould be unethical in people.â€ť Would they? Damn!
Of course, many of you know that lesbians are inclined to have longer ring fingers than index fingers, just like men, while heterosexual women are about even. We also are more similar to straight men when it comes to eye blink reflexes and something to do with the inner ear. â€śEvery time you find a body marker that gives an indication of prenatal testosterone exposure,â€ť says researcher Marc Breedlove, â€ślesbians on average are more masculine than straight women. This canâ€™t be a fluke.â€ť
Is it just me, or is there something about the idea of â€śbody markers of prenatal testosterone exposureâ€ť that takes some of the edge off the sexy bad girl allure that we lesbians like to put out there? Plus, Iâ€™m not that thrilled with the straight male connection. Some of my best friends are straight men, but please. Weâ€™re talking about a subsection of humanity that â€śon averageâ€ť canâ€™t tell the difference between beluga caviar and whitefish roe, wonâ€™t hang up a bath towel, and whose members â€śas a ruleâ€ť pick up their golf balls three feet from the hole and assume for scoring purposes that they would have made the putt. Lesbians call that â€ścheating.â€ť
Meddling Lawyers Continue To Roil GLBT Legal Strategy
Do you even want to hear about the maniacs that persist in challenging federal marriage law in Orange County? I donâ€™t know whatâ€™s going on in the minds of the two gay guys who have brought this lawsuit. But their attorney is an ambulance chaser named Richard C. Gilbert who lists â€śHarvard Law School (PIL)â€ť under â€śeducationâ€ť on his (now defunct) Web site. Know what PIL stands for? It stands for â€śProgram of Instruction for Lawyers,â€ť which is a series of summer lectures and workshops that are open to anyone. Gilbert actually graduated from Middle of Nowhere Law School, (Western State University in Fullerton, to be exact), and his yellow page ads herald his rates as â€śhalf the priceâ€ť of other lawyers.
The cheap creep has plowed into federal court in Southern California like a bull in a china shop, and as of last week, the dumbo managed to lose a challenge to the 1996 Defense of Marriage Act. Shall we put â€śallegedâ€ť dumbo? No, because we read his inept legal brief at some point last year and while weâ€™re not going to dig it out, we recall that Mr. Gilbert is not one of the legal professionâ€™s brightest lights.
Anyway, thank you Mr. G., for a 33-page published federal court ruling upholding DOMA, which if Iâ€™m not mistaken, is only the second such opinion on record. (The first was thanks to Ellis Rubin in Florida, another loose cannon who had gay and lesbian lawyers practically on their knees begging him to pull the plug on his various litigious projects in the Sunshine State. To his credit, he did not appeal his federal loss.)
In our latest gratuitous defeat, Judge Gary Taylor dismissed the idea that same-sex couples have a fundamental right to marriage like everyone else, and (after applying the lowest possible standard of review) determined that a public interest in the context of procreation was enough to justify the section of DOMA that defines marriage as a heterosexual status for all federal purposes. And how did Gilbert react? Why, he announced immediate plans to appeal to the U.S. Court of Appeals for the Ninth Circuit, where he risks turning a bad result into an all-out disaster!
Lucky for us, Judge Taylor agreed with the National Center for Lesbian Rights and the state of California, and declined to rule on the questions of state law that are the subject of a series of marriage lawsuits in state court. But thatâ€™s the only good thing we can say about the whole situation.
What else? Well, weâ€™re still waiting to see if the Canadian Parliament is going to vote on that marriage bill or put it off until fall. I think the Spanish senate is about to vote on marriage too, which prompted a big giant anti-gay demonstration in Madrid with maybe half a million people. And in Toronto, a controversial statue of 18th century land owner Alexander Wood includes a brass plaque that graphically depicts a scandalous incident that led the locals to run the naughty Scot out of town.
According to Reuters, after a rape victim announced that she had scratched her assailant in his intimate parts, Wood took it upon himself to conduct personal inspections of the townsmenâ€™s privates. The plaque shows a man with his pants around his ankles, the newswire says, and Wood with his hand outstretched â€śin mid-examination.â€ť According to a man who lives in the gay neighborhood, people have been touching certain areas of the plaque â€śfor luck.â€ť