Thursday, December 12, 2013

The Collapse of DOMA and the Spread of Gay Marriage

Since I last published an entry on this blog, many changes have occurred in the USA relative to the recognition of gay marriage and the ongoing struggle for full social and legal acceptance and treatment of gay persons by heterosexual Americans.  The obscene military policy (and underlying federal legislation) known as "Don't Ask, Don't Tell" (DADT) has been repealed, and gay Americans may now join the armed forces without having to hide their sexual orientation for fear of being "separated" (kicked out).  Gay marriage has spread from the recognition of six states (and the District of Columbia) when I last posted an entry to this blog in 2010 to 16 states (and the District of Columbia).at the present time.  The percentage of Americans who approve of gay marriage has soared to an extent which most gay activists did not think would or could ever occur.  While much work remains to be done, particularly with regards to the passage of the Employment Non-Discrimination Act (ENDA), so much has happened legislatively and socially since 2010 that it is sometimes difficult for me to comprehend the nature of the American psyche.  A brief recapitulation follows:

In December of 2010, a Congressional bill to repeal DADT was enacted.  This bill stipulated that DADT would end when the President, the Chairman of the Joint Chiefs of Staff, and the Secretary of Defense certified that repeal of this measure would not harm military readiness.  A 60 day waiting period would then follow before the DADT policy and underlying legislation in the United States Code (U.S.C.) would be repealed.  On July 6, 2011, a federal appeals court prohibited further enforcement of DADT, and on July 22, 2011, President Barack Obama, Defense Secretary Leon Panetta, and Chairman of the Joint Chiefs Admiral Mike Mullen sent the certification to Congress.  This certification set the end of DADT for September 20, 2011.

This marked a massive shift in the attitudes of both public opinion and senior legislators since DADT first went into effect on February 28, 1994.  I clearly remember coverage of Congressional passage of DADT on C-SPAN, during the course of which the degree of rancor, bitterness, homophobia, and outright hatred of gay persons was on display.  Gay men in particular were demonized as disease-ridden and totally lacking in moral restraint.  Legislator after legislator testified that permitting gay persons to serve in the armed forces would result in the collapse of unit cohesion, the degradation of morale, and polarization of attitudes within combat units.  Much of the testimony focused on the notion that gay men and lesbians would stare at the naked bodies of heterosexual men and women in the showers and under other closely confined quarters where privacy is almost totally lacking (such as on submarines).

The irony here was blatant.  Under DADT, heterosexual service members would have no idea whether or which gay service members were lusting after them (in their imaginations).  Consequently, everybody would become suspect in the eyes of the more paranoid heterosexual service members.  Many eligible heterosexual men and women who would otherwise have chosen to enlist in the armed forces changed their minds in the knowledge that gay service members would also be serving (sub rosa).  The DADT "compromise" satisfied nobody -- following its passage, the number of service members separated from the armed forces actually increased substantially.  One single statement to the effect that a service member was gay was sufficient to trigger separation proceedings; furthermore, this ban on such statements extended to persons who were not in the military at all.  Theoretically, parents could have been subpoenaed to testify as to whether or not their sons or daughters had ever stated that they were gay.

The premises on which DADT rested also blamed bad behavior on the part of heterosexual service members on the presence of gay service members -- the inability of heterosexual service members to behave themselves in the presence of gay service members was implicitly blamed on the gay service members.

Federal District Judge Eugene Nickerson of the Eastern District of New York issued two  thorough and lengthy opinions striking down DADT, on First Amendment and Equal Protection grounds.  Unfortunately, his opinions were reversed by a panel of judges on the US Court of Appeals for the Second Circuit, who held that deference to the military was more compelling than the meritorious holdings of judge Nickerson.

The demise of DADT was on the cards long before the 2011 decision.  As attitudes towards gay Americans changed throughout the population (both civilian and military), DADT became to be seen as anachronistic and detrimental to recruitment, retention, and the reputation of the armed forces.

The other area in which the right of gay Americans to be treated as equals was far more contentious.  This struggle, of course, pertained to gay marriage.  In 2010, only six states permitted gay marriage.  California permitted gay marriage for a brief period of time following a landmark ruling by the California Supreme Court (in re Marriage Cases, 43 Cal.4th 757 (2008)).  Unfortunately, the people of the state voted at the ballot box six months later to amend the California constitution to prohibit gay marriage; by then, roughly 18,000 gay couples had tied the marry.knot.  This constitutional amendment was commonly referred to as Proposition 8.  A subsequent decision (Strauss v. Horton 46 Cal.4th 364, 93 Cal.Rptr.3d 591, 207 P.3d 48)) upheld these 18,000 marriages but declared Proposition 8 to be constitutional.  Following the enactment of Proposition 8, gay couples living in California could still enter into civil unions, which provided all of the state benefits of marriage following Proposition 8, but they could no longer marry; civil unions provide all of the incidents of marriage, but not the designation of marriage.  

At this point, a lawsuit was filed in federal district court by attorneys David Boies and Ted Olson, who had previously opposed each other in the notorious Bush v. Gore, 531 U.S. 98 (2000) decision pertaining to the Presidential election of 2000.  Governor Arnold Schwarzenegger and Attorney General Jerry Brown both refused to defend the case, stating that they believed that Proposition 8 violated the Equal Protection Clause of the Fourteenth Amendment.  Chief Federal District Judge for the Northern District of California Vaughn Walker was assigned to the case and granted intervenor status to two groups -- and a rival group, the Campaign for California Families.

Judge Walker, in an exhaustive opinion running into 136 pages, held that Proposition 8 violated the right of gay persons to marry on both Due Process and Equal Protection grounds.  This decision was appealed to the US Court of Appeals for the Ninth Circuit, which upheld the district court decision, but on narrower grounds.  The Ninth Circuit also stayed its decision until the US Supreme Court decided the case after granting certiorari.

The US Supreme Court held, in Hollingsworth v. Perry, 370 U.S. ___ (2013) (as the case was now known) that the defendant-intervenors lacked standing to appeal the decision to the Ninth Circuit.  Chief Judge Roberts delivered the majority opinion, with Associate Justice Anthony Kennedy writing for the dissent.  This was a narrow decision, with a five to four vote in favor of denying intervenor status to the two groups involved.  Since the defendant-intervenors lacked standing to appeal Judge Walker's decision, the Ninth Circuit lifted its stay on its decision to uphold Judge Walker's decision, leaving only the federal district court judge's decision to the effect that Proposition 8 was unconstitutional.  This permitted gay couples to start marrying once again, and this started happening again shortly after Hollingsworth was handed down by the US Supreme Court on June 26, 2013.

Another gay rights case was heard and decided in the same term as 
Hollingsworth.  The case in question was US v. Windsor, 370 U.S. ___ (2013), and it had ramifications much more serious than Hollingsworth.  This case had nationwide implications, because it invalidated a Congressional act which forbade the recognition of gay marriages by the federal government, even  if those marriages were solemnized in states where gay marriage was permitted. 

On September 21, 1996, Congress passed a bill known as the Defense of Marriage Act (DOMA).  This was in response to rulings by the Hawaii Supreme Court that gay persons living in that state should be permitted to marry in the absence of a compelling state interest to the contrary (see Baehr v. Lewin74 Haw. 645, 852 P.2d 44. May 5, 1993).  Congress reasoned that if Hawaii legalized gay marriage, the other 49 states would also have to recognize gay marriages solemnized in Hawaii.  This was due to a provision in the US Constitution referred to as the Full Faith and Credit Clause (see Article IV, Section 1 of the Constitution for the text of this Clause).

Section 2 of DOMA guarantees that no state shall be forced to recognize gay marriages performed in states where such marriages are legal.  This is intended to head off the possibility of gay couples marrying in Hawaii (or any other state which legalized gay marriages) and then moving to states where gay marriages are not recognized, and demanding to be treated as married in those states.  Section 2 of DOMA remains in effect (for the time being), but Section 3 of DOMA has been gutted.

Section 3 of DOMA stated that the federal government would not recognize gay marriages performed in states which solemnized or recognized gay marriage.  This was perhaps the cruelest provision of DOMA, because although married gay couples in states which recognize gay marriages received all the incidents of marriage at the state level, they were denied more than 1,100 federal benefits, privileges, responsibilities, and grants at the federal level.  For example, the bereaved spouse in a marriage which has terminated due to the death of the other spouse is entitled to Social Security Survivor benefits.  Married heterosexual couples may file joint or single tax returns.  Veterans’ benefits are paid to surviving spouses.  But none of these advantages and privileges were available to gay married couples, despite the fact that their marriage were solemnized in accordance with the requisite procedures in their home states.

This state of affairs soon ended due to the courage and determination of a feisty and determined elderly woman named Edith Windsor.  Windsor and her spouse, Thea Spyer, were married in Ontario, Canada, in 2007 (gay marriage is recognized in Canada); they had been in a romantic relationship for more than 40 years.  They moved to New York in 2009; at that time, New York recognized gay marriages performed in jurisdictions where such marriages were legal (New York itself legalized gay marriage shortly thereafter).  Windsor filed an application for exemption from estate taxes, which are not taxed under federal law when an estate is granted to a surviving spouse (Spyer had left everything to Windsor).  Windsor paid the Internal Revenue Service $363,053 in estate taxes, and then sought a refund from the IRS as a surviving spouse.  The IRS refused to grant her this refund, citing Section 3 of DOMA, which forbade the US government from recognizing the validity of gay marriages performed in jurisdictions where such marriages are recognized or legalized.

Windsor filed suit against the US government in federal district court in New York City.  While this lawsuit was pending, the Attorney General of the United States notified the Speaker of the House of Representatives that the Department of Justice would no longer defend the constitutionality of Section 3.  The President and the Attorney General had both reached the conclusion that Section 3 violated the Fifth Amendment’s equal protection component (see Bolling v. Sharpe, 347 U.S. 497 (1954);  Fisher v. University of Texas at Austin, 11-345 (2013) (slip op.)), and refused to defend Section 3 from constitutional attack.  In response to this move, the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives voted to intervene in the litigation to defend the constitutionality of Section 3.

On June 6, 2012, the trial judge ruled in favor of Windsor, holding that Section 3 violated the equal protection component of the Fifth Amendment’s Due Process Clause; the court ordered the IRS to pay the refund.  BLAG took an appeal to the US Court of Appeals for the Second Circuit, which affirmed the district court’s judgment on October 18, 2012.

BLAG and the US Department of Justice appealed to the US Supreme Court, which granted certiorari and heard oral arguments on March 27, 2013.  On June 26, 2013, the US Supreme Court struck down Section 3 as “a deprivation of the liberty of the person protected by the Fifth Amendment.”  The decision was five to four, with Associate Justice Anthony Kennedy delivering the majority opinion.  His opinion contained sweeping elements of equal protection, due process, and federalism, and he wrote about the manner in which Section 3 deprived gay married couples of the dignity afforded heterosexual married couples.

The Court wrote:

“DOMA's principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency... By this dynamic DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects ... and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.
Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways. By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound. It prevents same-sex married couples from obtaining government healthcare benefits they would otherwise receive.... It deprives them of the Bankruptcy Code's special protections for domestic-support obligations.... It forces them to follow a complicated procedure to file their state and federal taxes jointly... It prohibits them from being buried together in veterans' cemeteries.
For certain married couples, DOMA's unequal effects are even more serious. The federal penal code makes it a crime to "assaul[t], kidna[p], or murde[r] ... a member of the immediate family" of "a United States official, a United States judge, [or] a Federal law enforcement officer,"... with the intent to influence or retaliate against that official.... Although a "spouse" qualifies as a member of the officer's "immediate family,"... DOMA makes this protection inapplicable to same-sex spouses.
The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.”
Antonin Scalia wrote a dissenting opinion in which he claimed that the US Supreme Court had no jurisdiction to hear the case because Windsor’s injury had been redressed by the district court and the US Court of Appeals for the Second Circuit.  He wrote an embittered and rancorous opinion in which he declared that the majority Justices had, through their opinion, resorted to calling opponents of same-sex marriage "enemies of the human race."  He went further, stating that “[a]s far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe.

By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms will every challenger to a state law restricting marriage to its traditional definition."
This type of hyperbole and resort to grotesque misstatements about the majority opinion are typical of Scalia’s jurisprudence.  Nowhere did the majority refer to opponents of gay marriage as “enemies of the human race.”  Nowhere did the majority refer to opponents of gay marriage as "enem[ies] of human decency."  When defeated, Scalia has a habit of attempting to use the English language as though it is an alchemist's stone, capable of transmuting a losing argument into a victory.
As a result of Windsor’s victory, married gay couples now enjoy more than 1,100 rights, benefits, privileges, and responsibilities previously unavailable to them under federal law.  A flurry of legal activity has occurred since Windsor was decided, with several other states being ordered by state court judges to legalize gay marriage (e.g. New Jersey) and other states legalizing gay marriage through actions of the state legislatures concerned (e.g. Illinois).

Gay couples who marry in states which recognize gay marriage now enjoy all of the incidents of marriage, as well as the designation of marriage.  Gay couples who live in states which do not recognize or solemnize gay marriage now enjoy all of the federal benefits of marriage, but not the state benefits of marriage.

In 2010, only six states and the District of Columbia had legalized gay marriage.  As of the time of writing, 16 states and the District of Columbia have legalized gay marriage, with several states appearing poised to do the same.  As an example, the New Mexico Supreme Court is poised to rule on this issue in the near future.

Opponents of gay marriage are still pressing for a US Constitutional amendment to define marriage as a legal relationship between one man and one woman.  However, three quarters of the states are required to ratify a proposed US Constitutional amendment, meaning that opponents of gay marriage would have to secure the disapproval of 37 states for such an amendment to be ratified.  Only 13 states would have to approve of gay marriage in order to defeat the passage of such an amendment.  Given that 16 states (and the District of Columbia) have already legalized gay marriage, and given that a flurry of litigation and the passage of additional gay marriage statutes is likely to result in the legalization of gay marriage in even more states, this is a dead issue.

Organizations such as the misnamed National Organization for Marriage, which is rabidly anti-gay, are dedicated to trying to sweep back the tide with bucket and broom.  They have lost.  They just don't know it yet.

Scalia was right – and for that, we should all be thankful!


Sunday, May 9, 2010

The More They Condemn It, The More They Want It


Professor George Rekers is a professor of Neuropsychiatry and Behavioural Science Emeritus at the University of South Carolina School of Medicine. He holds a Ph.D. in human developmental psychology from the University of California Los Angeles, a Th.D. from the University of South Africa (a correspondence-only university), and an MBA from Southern Wesleyan University. He is a prominent social and cultural conservative who has gone to great lengths to agitate in favour of the abrogation of the civil rights of gay and lesbian Americans, and he has made it clear on numerous occasions that he considers homosexuality to be a “sin”. Rekers has testified in court that he considers the Bible to be the infallible word of God. Nevertheless, he holds himself out to be a scientist and an expert in the field of homosexuality; he is on the board of the “National Association for Research and Therapy of Homosexuality” (NARTH), which touts itself as a source of legitimate scientific information about homosexuality, and which promotes “reparative therapy” – a form of psychological intervention intended to “convert” gay men and lesbians into heterosexuals. In fact, NARTH has been widely condemned by the scientific community, and the American Psychological Association has warned that so-called "reparative therapy" can be extremely dangerous (several gay persons have committed suicide whilst undergoing such "therapy").

Rekers is also a co-founder (with James Dobson) of the “Family Research Council” (FRC), which is a virulently homophobic propaganda-spewing organization which called for the criminalization of homosexuality in the early months of 2010. The FRC issues numerous position papers in which it condemns homosexuality as a diseased “lifestyle” which is intentionally chosen by gay men and lesbians. In making this pronouncement, the FRC and the NARTH stand in isolation; almost every reputable scientific and medical organization which has studied homosexuality considers this to be a normal variant of human sexuality, in much the same way that left-handedness is considered to be a normal variant of laterality.

Rekers has appeared in court on several occasions, to promote legislation intended to prevent gay men and lesbians from adopting or fostering children. He appeared as an expert witness in a 2004 case involving the trial of the constitutionality of an n Arkansas state statute which forbad gay men and lesbians from adopting children (this legislation went into force in 1999). Pulaski County Circuit Court judge Timothy Fox held the Arkansas statute to be unconstitutional, referring to Rekers’ testimony as “extremely suspect” and commenting that Rekers appeared to be testifying purely for the purpose of promoting “his own personal agenda” (Howard v. Child Welfare Agency, Case No. CV 1999-9881 (2004)). The Arkansas Supreme Court subsequently affirmed this ruling in Howard v. Arkansas, 348 Ark. 471, 79 S. W. 3d 273 (2006).

Rekers was also called as an expert witness in a Florida case defending that state’s ban on gay adoption (Fla. Stat. §63.042(3)), which had been in place since 1977. In this case (in re Gill (2008)), Miami-Dade Circuit Court Judge Cindy Lederman wrote that "Dr. Rekers’ testimony was far from a neutral and unbiased recitation of the relevant scientific evidence. Dr. Rekers’ beliefs are motivated by his strong ideological and theological convictions that are not consistent with the science. Based on his testimony and demeanor at trial, the court can not consider his testimony to be credible nor worthy of forming the basis of public policy."

Equality Florida, an organization dedicated to advancing equal rights for gay persons, reported on May 7 that Attorney General Bill McCollum wasted $120,000.00 of taxpayer money securing Rekers' testimony (double the amount originally reported), and also lavished an additional $36,000.00 on Rekers' cohort Walter Schumm. McCollum is scrambling to put distance between himself and his "star" witness, but records clearly show that this money was paid to Rekers by the "Office of Attorney General -- Finance and Accounting" (see, the link to view payments made to Florida vendors).

In short, Rekers is an extreme cultural conservative who has allowed his religious beliefs to adulterate the relevant science. He is virulently homophobic, and recently published an article calling on the American Psychiatric Association (APA) to revisit its 1973 decision to remove homosexuality from the “Diagnostic and Statistical Manual of Mental Disorders” (now in its Fourth Edition (DSM-IV)). Wayne Besen, the Executive Director of the New York based organization “Truth Wins Out”, which investigates and documents the anti-gay movement, states that “While he keeps a low public profile, his fingerprints are on almost every anti-gay effort to demean and dehumanize LGBT people. His work is ubiquitously cited by lobby groups that work to deny equality to LGBT Americans. Rekers has caused a great deal of harm to gay and lesbian individuals."

It was reported earlier this week that Rekers returned from a 10 day European vacation last month with a “travelling companion” who has been identified as a gay “rent boy” (prostitute). Rekers has been engaged in frantic and desperate attempts at damage control. He first stridently insisted that he had been unaware of the fact that his companion was a gay prostitute until half way through the vacation. However, his story has changed several times since it first broke and was picked up by the mainstream media.

Let’s examine the facts. This Bible-thumper hired a gay male prostitute – a person who at least earns an honest living, which is more than can be said of people such as Rekers, who specialize in stirring up hatred of gay Americans – who advertised on the web site named, to accompany him on a 10-day vacation in Europe!

First, Rekers claimed that he had hired the rent boy unwittingly, to help carry his luggage due to the fact that he suffered from a painful back condition which made it difficult for him to travel without assistance.

Yes, I can see that – were I a heterosexual man dedicated to stirring up hatred of gay persons, harming the gay community, seeking to ban gay persons from adopting or fostering children, and doing everything in my power to prevent the enactment of gay marriage and civil unions, and were I in need of somebody to carry my luggage for me due to medical reasons, the very first place I would look to for a porter would be a web site named, advertising the services of gay male prostitutes (excuse me, “escorts”!). This web site is unambiguous in its advertizing, and the advertizement for this particular rent boy even included the size of his endowment!

Upon returning to Miami from his 10-day romp with the rent boy, Rekers was photographed carrying his own luggage while the rent boy stood in the background, carrying nothing. Rekers then changed his story – he then claimed that he had hired the (barely legal) rent boy so as to be able to preach to this young man about the error of his “lifestyle”, and to “save” his soul from eternal damnation! (Come to Jesus, my son!)

Hypocrisy is an expensive and unforgiving teacher. “Lucien”, the Puerto Rican rent boy hired by Rekers, gave an in-depth interview to the New Times Miami confirming the sexual nature of the relationship between the blond “escort” and the professional homophobe. Rekers particularly enjoyed what he referred to as the “long stroke” – a special nude massage which Lucien administered “down there” once a day. Following this interview, the FRC dropped Rekers from its web site. Rekers placed the following “explanation” on his Facebook page for his fans:

  • Like John the Baptist and Jesus, I have a loving Christian ministry to homosexuals and prostitutes in which I share the Good News of Jesus Christ with them (see I Corinthians 6:8-11). Contrary to false gossip, innuendo, and slander about me, I do not in any way “hate” homosexuals, but I seek to lovingly share two types of messages to them, as I did with the young man called “Lucien” in the news story: [1] It is possible to cease homosexual practices to avoid the unacceptable health risks associated with that behavior, and [2] the most important decision one can make is to establish a relationship with God for all eternity by trusting in Jesus Christ’s sacrifice on the cross for the forgiveness of your sins, including homosexual sins. If you talk with my travel assistant that the story called “Lucien,” you will find I spent a great deal of time sharing scientific information on the desirability of abandoning homosexual intercourse, and I shared the Gospel of Jesus Christ with him in great detail.

(The naked self-aggrandizement reflected in this man's comparison of himself to Jesus Christ and to John the Baptist disinvites comment, other than to shed light on the psychology of this man's massively overinflated ego and grandiose self-image.)

Now isn’t that special? Rekers wasonly interested in trying to “witness” to the rent boy!

This is horribly reminiscent of the fate of the erstwhile poster boy for the “ex-gay” movement, John Paulk, who worked for the FRC opposing homosexuality until he was photographed by a gay rights activist desperately trying to leave a gay pickup bar (Pete’s) on DuPont Circle without being identified. Paulk had been there for more than an hour, chatting up another gay male patron and asking for sex before the activist arrived with his camera. When questioned by his FRC handlers about his dalliance at this watering hole, Paulk first claimed that he had needed to use the men’s room. When it was pointed out to him that there were any number of rest rooms he could have used at other establishments much more conveniently located, Paulk changed his story and claimed that he was merely “curious” about the “lifestyle” which he had supposedly left, years ago.

This was too much even for an organization as bigoted and as despicable as the FRC to stomach, and Paulk was thrown out in disgrace, neck and crop, losing his job with the FRC and fading into ignominious obscurity.

When all is said and done, what emerges from this sorry imbroglio is a portrait of a self-hating closet case who is prepared to go to any lengths, regardless of the extent to which he insults the intelligence of his handlers at the NARTH and the FRC, to lie, obfuscate, and disguise the fact that he hired this young man (whose endowment was prominently advertised on the web site in question) for the purposes of having, and enjoying, gay sex – period.

The only speculation still worth addressing is whether this man, who is utterly bereft of any redeeming social value, engaged in any other sexual activities with "Lucien" (who, for legal reasons, may be holding back on the specifics), and if so, whether he was the "top" or the "bottom" in this pathetic relationship. And the only sympathy worth bestowing on anybody in this matter should be reserved for this young man, who had to shut up and pleasure this disgusting piece of slime for 10 whole days and nights.


Monday, April 20, 2009

Gay Marriage and Religious Freedom -- Why the emphasis on male homosexuality?

An excellent article published in the New York Post on 20 April 2009 correctly observes that the vast majority of homophobes are obsessed not with lesbian sex, but with sex between men. In fact, many of the hardest-core homophobes secretly fantasize about lesbian sex; this is something that is all too well known to purveyors of heterosexual pornography, who take full advantage of the male preoccupation with the sexual activity of lesbians, and who crank out countless heterosexual porno movies depicting two or more women “getting it on” with each other.

As a group, heterosexual women tend to be much more accepting of both male and female homosexuality than are men. Some women actually enjoy watching gay men kiss and cuddle.

It is the image of two men having sex that turns so many otherwise reasonable men (in particular) into irrational bigots, who parlay their hatred of this image into political capital and who then seek to hide their hatred of such imagery behind laws prohibiting gay persons from marrying. Not long ago, such laws also prohibited gay persons from having sex, even in the privacy of their own bedrooms. No less an entity than the US Supreme Court fell victim to this mode of regressive analysis when it handed down the obscene decision of Bowers v. Hardwick, 478 U.S. 186 (1986). The Court veered into flat-out nastiness when it ignored the due process challenge to the Georgia “sodomy” statute filed by a heterosexual couple, and concentrated only on the due process challenge filed by Michael Hardwick – the gay man who was arrested (but ultimately not prosecuted) when the police, admitted into his home in error by a houseguest, entered his bedroom and found him having consensual oral sex with another man. The Court went so far as to state that it expressed no opinion as to the constitutionality of the Georgia sodomy statute as applied to married couples, and then focused, obsessively, on this statute as applied to gay men. (The majority opinion crudely declared that “The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy, and hence invalidates the laws of the many States that still make such conduct illegal, and have done so for a very long time.”) The Court repeatedly referred to “homosexual sodomy” (not gay sex, as later opinions have framed this issue).

In 2003, the US Supreme Court, realizing that it had perpetrated a gross and continuing injustice against gay persons, expressly and bluntly overruled Bowers, in Lawrence v. Texas, 539 U.S. 558 (2003). The US Supreme Court almost never directly overrules itself, usually preferring to ignore cases with which it no longer agrees, and opening up new lines of constitutional analysis that undermine the analysis undergirding the old decision, sub silentio. Back in 1996, the Court handed down Romer v. Evans, 517 U.S. 620 (1996), in which decision the court invoked an equal protection analysis to strike down an amendment to the Colorado state constitution (known as “Amendment 2”) that effectively robbed gay persons in that state of the right to petition their legislature, at all levels of state government, for protection from discrimination, in both the public and private sectors. Many constitutional scholars believed that the Romer Court had intentionally and carefully undermined Bowers by 1) invoking the Equal Protection Clause of the Fourteenth Amendment to strike down Amendment 2, thereby completely ignoring the due process analysis it had used in Bowers to mock and belittle Michael Hardwick's assertion of a right to sexual privacy, and by 2) failing to so much as even mention Bowers, despite the fact that Bowers was the most prominent case dealing with the rights of gay Americans.

The lower courts noted that the US Supreme Court had effectively crippled Bowers – the US Court of Appeals for the Seventh Circuit, in Nabozny v. Podlesny, 92 F.3d 446 (1996), noted that “Of course Bowers will soon be eclipsed in the area of equal protection by the Supreme Court’s holding in Romer v. Evans... Romer, which was decided following the oral argument in this case, struck down on equal protection grounds a Colorado constitutional amendment that discriminated against homosexuals. Although Romer bolsters our analysis in this case to some extent, we do not rely on it.”

When the Court handed down Lawrence, it employed entirely different language and an entirely different tone, noting at the outset that “[this] statement [about “homosexual sodomy”], we now conclude, discloses the Court’s own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.”

The Lawrence Court then went on to overrule Bowers, bluntly declaring that “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.”

When this statement was read out by Associate Justice Kennedy (who delivered the majority opinion from the bench), many gay spectators, some of whom had slept outside the US Supreme Court building all night so as to improve their chances of being seated, silently but openly wept...

The Lawrence majority conceded that it could have decided Lawrence by relying entirely on an equal protection analysis, but concluded that this would not have gone far enough. They wanted to ensure that anti-gay sex statutes would not be redrafted in such a manner as to apply to both gay and heterosexual couples, which would have preserved them from facial equal protection challenges and which would have made it necessary for gay plaintiffs to advance a "disparate impact" argument. This is indeed startling, in that the doctrine of avoidance counsels all Article III courts to decide cases before them on the narrowest possible grounds, and not to reach constitutional issues that do not have to be reached in order to resolve the instant case. This is closely related to the concept of measured constitutional steps; courts of equity generally decide cases as narrowly as possible, and defer questions of constitutional interpretation only to those cases that absolutely require such adjudication.

Associate Justice Sandra Day O'Connor wrote a separate concurrence in Lawrence, arguing that an equal protection analysis would have been better suited to Lawrence; however, five of her colleagues insisted on striking the Texas sodomy statute (and, by extension, all other such statutes nationwide) by invoking the Due Process Clause of the Fourteenth Amendment. O'Connor noted that evenhanded enforcement of a facially neutral sodomy statute would not long be tolerated by a democratic society (heterosexual men and women would not take kindly to being arrested and convicted for engaging in oral sex), and also implied that uneven enforcement of a facially neutral sodomy statute would permit gay plaintiffs to advance a disparate impact analysis; however, her colleagues on the bench were determined to drive a stake through the heart of all such statutes.

Judges sitting on the lower courts took note not just of the fact that Bowers had been overruled, but also of the tone employed by the US Supreme Court in Lawrence. The US Court of Appeals for the Seventh Circuit – considered by legal observers to be a conservative and scholarly appellate court – upheld the incest convictions of a brother and sister who had married each other (see Muth v. Frank, 412 F.3d 808 (7th Cir. 2005)), declining to extend the reach of Lawrence to cover and protect consensual adult incest (thereby dismissing Associate Justice Antonin Scalia’s rabid and embittered dissent in Lawrence, in which dissent Scalia had predicted that laws against incest would be vulnerable to constitutional attack). Although he agreed with his two colleagues on the three-judge panel that handed down Muth, Judge Evans refused to sign their opinion, stating that:

“As I read the majority opinion, I sense a certain degree of unease, even disdain, for the majority opinion in Lawrence. The citations to Justice Scalia’s dissent in Lawrence, I submit, are unnecessary. I also don’t care for the repetitive (seven mentions in Part B) paraphrasings of the Texas law (which prohibited “engaging in consensual sexual activity with a person of the same sex”) as a law prohibiting “homosexual sodomy.” I realize that term is used twice in the majority opinion in Lawrence, but I think its use is ill-advised and outdated as well. As I see it, the term “homosexual sodomy” is pejorative. It should be scrubbed from court decisions in the future. For these reasons, I join the judgment of the court without embracing certain aspects of the majority opinion.”

Again and again, we see that objections to gay sex (and gay marriage) almost invariably focus on gay men, as opposed to lesbians (I do not trivialize the abuse and cruelty heaped on lesbians by making this observation; a lesbian woman named Sharon Bottoms lost custody of her son when a Virginia state court judge declared her to be an "unconvicted felon"). It is the thought of two men having sex that disturbs so many heterosexual men; more specifically, it is the thought of one man penetrating another that drives these people crazy.

The New York Post article touches upon this relatively one-sided hatred, but does not adequately explain it.

The bottom line is that we still live in a society in which gender roles and stereotypes are enforced, sometimes violently. In the eyes of homophobic heterosexual men, gay men are “sex traitors” who betray the masculine ideal by doing the one thing that men are never “supposed” to do – that is, letting other men penetrate them.

That is the rub. Sadly, this form of gender stereotyping exists even in the gay male community; I know several gay men who refuse to “bottom” on the grounds that this is “the woman’s position”. This is, in and of itself, a form of homophobia, internalized by those who express it. Such men also rob themselves of sexual experiences that are without question extremely pleasurable to the majority of gay men...

The New York Post article was eloquent and succinct when it declared that Christians will be required to surrender absolutely nothing once gay marriage becomes legal nationwide. Christians will remain free to teach their children that gay sex is evil, should they so desire. Churches will remain free to refuse to marry gay couples should such marriages fall afoul of their religious tenets. Other churches do recognize gay marriage, and will doubtless officiate at many millions of gay marriage ceremonies in years to come. Nobody will be prosecuted for preaching that gay people are evil and depraved. The US Supreme Court, in Brandenburg v. Ohio, 395 U.S. 444 (1969) made it very clear that even advocacy to break the law – even advocacy of terrorism – is protected by the First Amendment. Only when such advocacy “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action” does it no longer enjoy First Amendment protection.

But back to the article – I am truly amazed that the New York Post (which has a reputation for rabid homophobia) published this piece. Clearly, the message is getting through. Maggie Gallagher has not had it easy as of late – her disastrous Presidency of the “National Organization for Marriage” has collapsed in shambles amidst snickers and guffaws of laughter over the comical video “The Gathering Storm”. Instead of being taken seriously by those to whom this video was targeted, it has spawned countless parodies. It is, in and of itself, a parody of the fears of those who oppose gay marriage – although it certainly was not intended to be a parody! At the cost of about $1.5 million, this video ranks as one of the most amusing – and abject – failures of propaganda ever launched. Joseph Goebbels would have been better able to stir up fear and resentment than were the brain-dead actors who participated in this mockery.

Five or 10 years from now, when gay marriage is legal throughout the nation, I believe that these actors will look back on their “contribution” to the discourse, and literally hang their heads in shame.


The Gathering Storm...


On April 3, 2009, the Iowa Supreme Court handed down a unanimous decision (Varnum v. Brien, 07-1499) holding that the prohibition of gay marriage violated the equal protection guarantees of the Iowa State Constitution. This decision has been hailed as a model of clarity; the fact that it was also unanimous has gone a long way towards discrediting the notion that an “activist” court “found” a right to gay marriage that does not exist in the state constitution. In addition, the court held that gay persons comprise a “quasi-suspect” class for the purpose of state equal protection analysis, and that any law discriminating against gay persons much be subjected to “quasi-strict” scrutiny (or intermediate-level review). Quasi-strict scrutiny requires that any law impacting the group in question (in this case, gay persons) must be demonstrated, by the state, to be substantially related to an important government objective. This court followed the examples set by the state high courts of Massachusetts, California, and Connecticut in finding that the respective state constitutions prohibited the denial of marriage to gay couples (sadly, the California decision was reversed in November by a state constitutional amendment). Shortly after this decision was handed down, Vermont became the first state in the nation to legalize gay marriage as a result of legislative action (as opposed to prompting by a state high court); the state legislature of Vermont voted, overwhelmingly, to legalize gay marriage, overriding the Republican governor’s veto in the process.

The states of Maine and New Hampshire are currently debating this issue, and it is clear to thinking persons that it is now only a matter of time before activists for marriage equality succeed in extending equal marriage rights to gay persons in other states. Other states where gay marriage is expected to be recognized in the near future include New York and New Mexico; New York governor David Patterson has just introduced a bill that would legalize gay marriage in that state. In addition, the District Council in Washington, DC voted to recognize the validity of gay marriages entered into in those jurisdictions where gay marriage is legal; this means that a gay couple who marry in Connecticut will be recognized as married should they move to Washington, DC.

In response to this movement in the direction of marriage equality, those men and women who continue to argue that gay persons should not be permitted to marry have formed an organization named the “National Organization for Marriage” (a truly bizarre misnomer, given the fact that this organization’s remit is to prevent gay persons from marrying in those states where gay marriage is not yet recognized). Maggie Gallagher – a right-wing shill who has attacked gay marriage for many years now – sits as the President of this organization, which recently produced an advertisement named “The Gathering Storm”. This advertisement has been screened throughout New England (where gay rights activists are expending considerable energy in their campaign to legalize gay marriage), in the hope of swaying members of the public to pressure their elected representatives to vote against gay marriage.

What is remarkable about this advertisement is its comical, over-the-top, desperate atmosphere. Instead of presenting the viewers with a sober assessment of the state of gay marriage at the present time, this advertisement literally shows lightning strikes in the background and massive purple clouds brewing in the sky, as ham actors, pretending to be members of the public, talk about how “afraid” they are of gay marriage, and about how their personal and private lives have been ruined as a direct result of the legalization of gay marriage! This advertisement is actually funny – which it most certainly was not intended to be by those who produced it! Even more amusing is the fact that this advertisement cost about $1.5 million to produce! Those viewers who have seen this advertisement on YouTube (where it has been featured for several days now) overwhelmingly mock, belittle, and laugh at this production. A quick sampling of the comments posted on YouTube reveal that at least 80% of the comments ridicule and denigrate this advertisement – surely not something that Maggie Gallagher and her cohorts intended! As if this weren’t bad enough, numerous spoofs of this advertisement have been produced on YouTube – spoofs that have literally caused activists for marriage equality to roll around on the floor with laughter!

Frank Rich, writing in the New York Times, has pointed out that this advertisement represents the best and only effort of those who continue to oppose gay marriage; while Gallagher and her cronies try to attack gay couples with this inane joke, the mainstream media have pretty much ignored the developments in Iowa and Vermont, barely mentioning them in network newscasts. Those references to gay marriage that have been made by the mainstream media have largely been neutral, or even positive, in their description of these developments. A large number of actors have produced their own spoofs of “The Gathering Storm”, literally smothering this pathetic attempt at stoking the flames of bigotry and hatred with a blanket of cackling laughter.

What is truly amazing about this advertisement is the fact that the "National Organization for Marriage" paid such a massive sum of money to produce such a ludicrous and amusing spectacle.

Maggie, Maggie, what has become of you?

As Frank Rich pointed out, this is truly “The Bigots Last Hurrah”. Rich notes that support for gay marriage and opposition to gay marriage are both largely generational – and it is the older generation that opposes gay marriage. Population dynamics make it clear that the number of supporters will continue to rise, just as the number of opponents will continue to fall. Put bluntly, older people die, whereas younger people grow up and replace older people, carrying forward their more enlightened attitudes and convictions.

The movie “Searching for Bobby Fischer” contained a scene that is emblematic of the current state of gay marriage in the US. The protagonist, Joshua Waitzkin, plays against another child prodigy towards the end of the movie. Several moves deep into the game, Joshua’s opponent makes a fatal mistake, which is obvious only to those grandmasters who possess sufficient knowledge and insight into the game to appreciate the nature of this player’s mistake. Joshua spots the mistake, and offers his opponent a draw, telling him “You’ve already lost. You just don’t know it yet.”

And so it is for the "National Organization for Marriage".

The game is over. All that remains to be seen is whether those who continue to oppose gay marriage will insist on dragging their defeat and humiliation out for as long as possible, or whether they will acknowledge that they are beaten, and climb on board. All signs now are that the more intelligent and well-connected members of the right (including ex Presidential hopeful John McCain’s chief strategist) have already seen the end coming, and have decided to climb on board.

Let us behave with a degree of class that they have not shown, and sincerely welcome them.


Friday, March 6, 2009

Loving the "sinner" whilst hating the "sin"...

When I last posted on a religious "Christian" thread at, my messages were deleted almost as fast as I could post them. This speaks volumes as to the willingness of the owner of that particular Web site to entertain ideas that run contrary to his particular worldview. I maintain my own blog, and have never deleted a message posted by any reader, because I believe that the free flow of information and ideas is central to the concept of civilized debate and discussion. However, some people have no hesitation in employing the gag and the jackboot whenever anybody posts messages that challenge their viewpoints.

One of the arguments made most frequently by homophobic bigots – particularly those who adduce their religious beliefs as justification for their special brand of hatred and obtuse morality – is that these people “love the sinner” whilst “hating the sin”. Given the depressing frequency with which this tired, trite, and hackneyed justification for cruelty, abuse, and moral condemnation is invoked, it is appropriate to examine the logical and semantic underpinnings behind this fallacious line of thinking.

Sexual orientation is not a matter of conscious moral choice, and it takes a special brand of wilful blindness to reach conclusions to the contrary. The American Psychiatric Association (APA) dropped homosexuality from the “Diagnostic and Statistical Manual of Mental Disorders” (DSM) back in 1973. This official position was later endorsed by the American Psychological Association, the Canadian Psychological Association, the Canadian Psychiatric Association, the American Medical Association, the World Health Organization, the American Academy of Pediatrics, the American Counselling Association, the American Association of School Administrators, the American Federation of Teachers, the American School Health Association, the Interfaith Alliance Foundation, the National Association of School Psychologists, the National Association of Social Workers, the National Education Association, and numerous other professional bodies. In response to this inconvenient truth, the hard right now asserts that the American Psychiatric Association was “forced” to drop homosexuality from the list of mental disorders by “militant homosexual activists” (I am always amazed to discover the full extent of the unbridled power that I possess, as a gay man). The cold truth remains that homosexuality was never reinstated as a mental disorder, notwithstanding the fact that the DSM has been revised and augmented extensively since the decision to declassify homosexuality as a mental disorder was made 36 years ago, and notwithstanding the efforts of a small but rabid minority of psychiatrists, psychologists, and other mental health professionals to remedicalize and recriminalize homosexuality.

Although some theologians and right-wing commentators maintain a distinction between homosexual sexual orientation and the physical expression of that orientation (homosexual conduct), this is, in the last analysis, a distinction without a practical difference. The so-called “sin” and the so-called “sinner” are inextricably intertwined; the so-called “sin” is a reflection of an aspect of personhood of the so-called “sinner” – entirely different from consciously chosen preferences, such as a person’s taste in clothing, food, or automobiles. Although many black Americans decry and resent comparisons between race and sexual orientation, the fact that these people dislike the comparison in no way renders it logically unavailing. Blaming a gay person for that person’s expression of his or her identity is morally obtuse, and does violence to notions of substantive fairness. Prominent psychologists, psychiatrists, and mental health professionals have concluded, almost without exception, that most gay men and lesbians are as well-adjusted and as emotionally healthy as are most heterosexuals. To the extent that gay people suffer increased rates of depression (and other emotional disorders), these problems are in fact reflections of the appalling abuse, mistreatment, and hostility directed towards gay people by American society.

Telling a gay person that one “loves the sinner” whilst “hating the sin” is analogous to telling a black person that one loves that person but hates the fact that he or she is black. Another pertinent analogy that has been invoked by scientists in the field of psychological assessment involves laterality; just as about 10% of the male population is left-handed, about 10% of men are predominantly or exclusively homosexual. The data pertaining to lesbians are not as clear-cut; many researchers have concluded that female sexuality is less clearly differentiated than male sexuality, and that female human sexuality is more fluid and malleable than male human sexuality.

The term “sexual preference” is a misnomer, and should be avoided when discussing the rights of gay people; this term implies that gay people consciously and deliberately choose with whom to fall in love, and that gay people choose to have sexual and emotional relationships with members of the same sex.

What is particularly disgusting and depressing about the attitude of homophobes is their tendency to reduce the complexities of gay relationships to the sum of a number of sex acts. Gay people are no less capable than heterosexual people of feeling love and emotional attachment – yet homophobes utterly dismiss the expression of such emotions, emphasizing only the sexual aspect of gay relationships. The “Family Research Council” (FRC) is notorious for this tendency – some time ago, the FRC referred to Elizabeth Birch’s companion as her “sex partner” when commenting on the fact that Birch and her lover had adopted a child (Birch is a prominent gay rights attorney). This crude form of biological reductionism is both insulting and dehumanizing. The Nazis invoked precisely this technique in the early stages of the Holocaust, dismissing Jewish people (as well as gay people, Gypsies, and political prisoners) as “untermensche” (lower forms of human life). By invoking this paradigm, the Nazis found it easier to insult, abuse, and ultimately attempt to exterminate an entire class of persons.

While the writer does not accuse homophobes of genocide (at the present time), it bears noting that no less a figure than Associate Justice Antonin Scalia – known for the contempt that he displays towards gay Americans – went so far as to complain about the homosexual “problem” in the State of Colorado (his dissent in Romer v. Evans, 517 U.S. 620 (1996) invoked standard and all too well known stereotypes about gay people). Scalia launched into a particularly ugly and vitriolic diatribe, the first sentence of which, through the choice of words employed, had many people wondering what could possibly have possessed him to allude (consciously or unconsciously) to the autobiography of a well-known German national, written several decades ago, in which the author described his kampf ("The Court has mistaken a Kulturkampf for a fit of spite...."). (Although Scalia was ostensibly referring to the influence of the Roman Catholic Church and German policies in relation to secularity enacted from 1871 to 1878 by Otto von Bismarck (Chancellor of the German Empire), the word "Kulturkampf" (literally meaning "culture struggle") has other connotations, and it is impossible for the writer to conclude that Scalia (whose tool, as a federal judge sitting on the highest court in the land, is the written word) did not understand or anticipate these connotations, particularly in view of the stereotypes and naked generalizations in which he indulged in the text that immediately followed his invocation of this term.)

Scalia worked himself up into a state of frenzy, accusing the Court of placing the prestige of that institution behind the proposition that "opposition to homosexuality is as reprehensible as racial or religious bias." In passages eerily reminiscent of writings and speeches all too well known to this world, Scalia inveighed against the homosexual "problem" faced by the citizens of Colorado, noting that gay men and lesbians tended "to reside in disproportionate numbers in certain communities", where they possessed "political power much greater than their numbers, both locally and statewide". He expressed outrage at the "enormous influence in American media and politics" enjoyed by gay men and lesbians, and railed against the fact that gay men and lesbians "care about homosexual rights issues much more ardently than the public at large", claiming that the perceived tendency on the part of gay Coloradans to invoke the democratic process more readily and with more vigor than their heterosexual counterparts constituted a distortion of that process in and of itself. (Does any of this sound depressingly familiar?) One wonders how it could have escaped Scalia's attention that, in a country where people vote their policy preferences into law under a "one man, one vote" system, members of any particular group of citizens can never, by definition, possess "disproportionate" political power, unless members of other groups of citizens choose to abdicate their own power. One also wonders whether Scalia would ever care to apply a similar analysis to the behavior of fundamentalist Christians, who certainly care about their issues (e.g., forcing mandatory school prayer down the throats of the rest of us, outlawing reproductive freedom for women) "much more ardently than the public at large". Perhaps one can be forgiven for harboring some degree of cynicism towards this analysis, given the selectivity of its application and the transparency of its logic.

Circuit Judge Stephen Reinhardt, sitting on the US Court of Appeals for the Ninth Circuit, eloquently exposed the false and discriminatory nature of the status versus conduct distinction as this distinction pertains to gay persons serving in the armed forces, in his dissent in Holmes v. California Army National Guard, 124 F.3d 1126 (1997). Reinhardt noted that:

“[…] the fact that conduct may be banned does not mean that speech may be also. Certainly, an admission of prohibited conduct, although speech, is an admission of an offense and may serve as the basis for discipline. However, admitting that one is homosexual is not admitting to an offense under the newly crafted and somewhat schizoid "Don't Ask, Don't Tell" policy. For, under that policy, homosexual status – being a homosexual – is not an offense. To the contrary, the military now purports to welcome into the service individuals who are homosexuals – but only so long as they don't engage in homosexual conduct. This might appropriately be analogized to welcoming Jews to be a part of society so long as they do not attend synagogue or pray publicly or privately to God. Nevertheless, it is the policy that the President and the Congress in their collective wisdom have agreed upon.

“The proponents of the status / conduct distinction seem to believe that classifications such as homosexual and heterosexual are based on something other than sexual conduct, perhaps one's taste in art, music, literature, dress, or the pursuit of a particular, if indefinable, "life-style." This argument confuses cause and effect. What makes a person a homosexual, or a heterosexual, is the abiding desire to engage in sexual conduct with persons of the same sex, or persons of the opposite sex. It is no secret, even to federal judges, that the sexual drive is a strong one. Sex is the elementary form of human activity and expression, and it provides the basis for the most important of human relationships, rivaled only by that of parent and child. It also provides the basis for distinguishing homosexuals from heterosexuals.

“The complications regarding sexual preferences involve questions such as whether one is born with a particular orientation or acquires it, and whether one may constitutionally be forced to lead a sexless life in order to serve one's country as a member of the military. Most persons are born with a particular sexual preference and in the vast majority of cases, it is heterosexual; a minority is born with homosexual preferences. In some cases, it may not be so clear what one's preferences are; in some cases there may be ambivalence; in some a preference for both sexes; and in some a complete lack of interest in sexual conduct. (The latter would appear to be the smallest group.) But the idea that persons should be compelled to surrender entirely the right to engage in sexual conduct if they wish to serve in the armed forces would seem to me clearly to conflict with the Constitution and in particular with substantive due process. Nevertheless, as I have acknowledged, that is not the current state of the law and I am bound to follow a view contrary to my own, pending a repudiation of Bowers by the Court or its issuance of an opinion construing Bowers to mean something other than what its authors intended.” [emphasis added]

(Fortunately, the obscene decision to which Reinhardt referred throughout his dissent (Bowers v. Hardwick, 478 U.S. 186 (1986)) was explicitly and bluntly overruled by the US Supreme Court in Lawrence v. Texas, 539 U.S. 558 (2003). This reflects a sea change in the manner in which the federal judiciary treats gay Americans; Bowers upheld anti-gay state “sodomy” statutes, which were challenged as being violative of the substantive component of the Fourteenth Amendment’s Due Process Clause. The Lawrence Court implicitly apologized to the gay community for the manner in which it had demeaned and insulted gay Americans in Bowers, acknowledging that it had framed the constitutional issue at stake in that case far too narrowly. In overturning Bowers, the Court acknowledged that gay persons have every right to sexual privacy, and that the government has no business interfering with that right. The US Courts of Appeals for the First and Ninth Circuits recently analyzed Lawrence and concluded that the right to intimate sexual conduct between members of the same sex is afforded substantial constitutional protection by Lawrence, of a much higher order than that associated with traditional rational basis review.)

The lies told about gay people are particularly ugly. There is no truth whatsoever to the old canard that gay men were abused in childhood, or that overly dominant mothers are “responsible” for the sexual orientation of gay sons. These old “blame the mother” lies were bandied about up until the 1970s, when mental health professionals acknowledged that such theories were, for want of a better description, fanciful inventions. If overly protective mothers are responsible for male homosexuality, the percentage of the male population that is exclusively or predominantly gay would be much higher than current estimates (which range from 2% to 10%, depending on the manner in which homosexual orientation is defined and measured).

Social and cultural conservatives make much of the fact that the origins of homosexual sexual orientation have not yet been proved to have their roots in biology or genetics. Because no definitive proof has yet been adduced to the effect that homosexuality is biologically or genetically “hard-wired”, it must be assumed (according to this line of reasoning) that homosexuality is chosen. The logical fallacy undergirding such thinking is so egregious as to disinvite comment. Many human characteristics that were once assumed to have no basis in biology or genetics (laterality is once again a good example) are now known to have a biological basis. The frontal lobes of the human brain mediate psychological and behavioural attributes such as creativity, impulse control, the exercise of moral judgment, the sequencing of appropriate behavior, and social interaction. The fact that this was neither known nor understood prior to the second half of the 20th century does not rob current understanding of brain organization of its legitimacy, just as the fact that penicillin was not known to have antibiotic properties prior to the second half of the 20th century does not rob current understanding of the antibiotic properties of this drug of its legitimacy. It is entirely possible, if not probable, that male homosexuality has a strong genetic component; the fact that this component has not yet been identified definitively does not foreclose the future identification of a genetic basis of this phenomenon.

Indeed, the research data that does exist strongly supports the hypothesis that male homosexuality has a genetic component. The most compelling evidence of this component exists in the form of twin studies; in such studies, the sexual orientations of identical twins are compared, and the concordance rates for homosexuality in cotwin pairs are contrasted with those in fraternal twins and non-twin siblings. Psychologists Bailey and Pillard (of Northwestern University, Illinois) conducted such a study in 1991, and concluded that the concordance rate for homosexuality in monozygotic cotwins was 52%, as opposed to 22% of dizygotic (fraternal) cotwins, and 11% in adoptive brothers (the concordance rate for nontwin siblings was only 9.2%). These highly respected researchers, known for their caution in interpreting such contentious data, concluded that “[h]eritabilities were substantial under a wide range of assumptions about the population base rate of homosexuality and ascertainment bias.” (In other words, they concluded that there is strong evidence that male homosexuality is at least in part genetically determined, regardless of cultural bias and difficulties in determining the relative size of the gay male population.) The results of this study were written up in the highly regarded, peer-reviewed journal “Archives of General Psychiatry” (March 1993). Bailey and Pillard then studied lesbian twins and siblings, and obtained strikingly similar results, further reinforcing their conclusions.

Even more dramatic results were obtained in a 1952 study by Franz Kallman, who reported that 100% of the identical twins in his study were concordant for homosexual sexual orientation (in other words, the identical twin of every gay subject in his study was also gay). Differences between the Kallman data and the Bailey and Pillard data may well have been artifacts relating to the manner in which homosexual sexual orientation was assessed across the two studies, or artifacts relating to the manner in which subjects were selected across these studies.

These two studies are by no means the only studies that have examined sexual orientation as a function of genetics. Bailey conducted a larger study involving 5,000 subjects selected from the Australian Twin Registry, and arrived at similar results. In short, strong evidence exists to support the theory that gay sexual orientation is at least partially genetic in its origins.

(Whether or not gay people should have to prove that homosexuality is not a matter of conscious moral choice is another issue. Certainly, it has been established that race and ethnicity are fimly rooted in genetics and biology – but this has in no way diminished the extent and depth of racism and ethnic stereotyping in American society. Should gay persons succeed in proving the existence of a genetic component to homosexuality, it is entirely possible – if not probable – that the hard right will announce that the "etiology" of homosexuality has been discovered, and that attempts will then be made to remedicalize and recriminalize homosexuality. Furthermore, religion is clearly a chosen behavior; yet religious belief is granted substantial constitutional protection by our political system, notwithstanding the fact that religious beliefs are chosen.)

Homophobes who adduce their religious beliefs as justification for their abusive, cruel, and discriminatory attempts to deprive gay Americans of the rights and privileges that they take for granted fly in the face of venerated constitutional principles such as the equal protection of the laws, and the wall of separation between church and state.

We do not live in a theocracy. We live in a constitutional democracy, in which the rights of minorities are protected by irrepealable constitutional law. Attempts to circumvent the law by making reference to religious dogma have no place in a society in which the liberty interests of all citizens are protected by such law. The US Supreme Court recognized this fundamental truth in Lawrence (supra), holding that “Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths 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”.

Long may those words stand for the proposition that religious bigotry cannot, and will not, undergird law and public policy in a free society.


Mormons Meddle and Destroy Marriage...

Almost four of every five dollars contributed to the campaign to eliminate gay marriage in the State of California was sent into this campaign from Mormons based in Utah. In total, the Church of Jesus Christ of Latter-day Saints (LDS) contributed more than 19 million dollars to this campaign. A prominent blogger summed up the actions of the Mormons with the following observation: "They just took marriage away from 20,000 couples and made their children bastards.”

Now the LDS has the effrontery – the unmitigated gall – to call upon the gay community for "healing" and “respect” following passage of Proposition 8 in California. Hell will freeze over before this happens.

Consider the following:

On May 15, 2008, the California Supreme Court handed down its decision in in re Marriage Cases, S147999. The court refused to stay its decision until the November 2008 elections, and this decision took effect on June 16, 2008. In this decision, the state high court held that all classifications on the basis of sexual orientation are "suspect," and mandated that gay persons be able to marry their spouses on the same terms as applies to heterosexual persons. Tens of thousands of gay couples obtained marriage licenses and were married before the elections of November 4, 2008. Because California has no residency requirement for marriage, and does not require that marriages performed in California be valid in the home states of non-residents, many couples travelled to California to exchange and solemnize their vows. Proposition 8 was enacted by a narrow margin of about 52% to 48%, and has the effect of overriding the state high court’s decision, thus prohibiting the recognition of gay marriages in the State of California.

California continues to offer “domestic partnerships” to gay couples; these partnerships are similar to “civil unions” offered by states such as Vermont and New Jersey, and grant to same-sex couples all of the state-level rights and privileges of marriage, in areas such as inheritance, insurance, state income tax, hospital visitation rights, etc.

Neither gay marriages nor domestic partnerships offer to gay couples the roughly 1,138 rights and benefits afforded heterosexual married couples under federal law, due to the restrictions on gay marriage imposed by the so-called “Defense of Marriage Act” (DOMA) of 1996. This measure prohibits the treatment of gay relationships as marriages for any purpose by the US federal government, even if such relationships are concluded or recognized as marriages by one or more of the states.

Some explanation of legal concepts is required in order to understand the meaning of the state high court’s determination.

Ordinarily, a statute that creates a classification (e.g., a statute that creates different classes of people, such as a statute that defines and provides for the punishment of murderers) enjoys the presumption of constitutionality. This is so because we live in a constitutional democracy. The courts generally accept the proposition that even improvident decisions will eventually be rectified by the democratic process. However, some forms of discrimination are so invidious and so destructive that any statute that creates classifications of this type (so-called “suspect” classifications) is subjected to "strict scrutiny." Strict scrutiny turns the presumption of constitutionality on its head – under this standard of review, a statute is presumed to be unconstitutional until the state proves, beyond a reasonable doubt, that the statute is not unconstitutional. Statutes that create racial classifications are the most well known statutes that proceed along suspect lines. It is widely recognized and understood that race is a characteristic that bears no relationship to the ability of people to contribute to society. Furthermore, racial minorities have been subjected to a long history of purposeful discrimination, and racial minorities have suffered a history of relative political powerlessness. This discrimination is triggered by a characteristic that is “immutable” (a person’s race cannot be changed).

Not all suspect classes involve “immutable” characteristics. The US Supreme Court recognizes four classifications that are suspect – race, alienage, national origin, and religion. Clearly, religion is not immutable; people can and do convert from one religion to another. Alienage is also a characteristic that can be changed; a resident alien can become a US citizen, and under some circumstances, a US citizen may surrender his or her citizenship and become an alien. Any classification that proceeds along suspect lines is presumed to be unconstitutional; when the state defends a statute that proceeds along suspect lines or that infringes on a “fundamental” constitutional right, the burden falls on the state to prove that such statutes serve a "compelling state interest" and that such statutes are "narrowly tailored" so as to promote that interest in the “least restrictive” manner possible (in terms of infringing on the rights of the group in question). Stated differently, the statute must promote a compelling state interest, and must sweep no more broadly than is absolutely necessary to promote the interest in question. The California Supreme Court recognizes additional suspect classes – sex has long been considered by the California state courts to be a suspect classification, and in handing down in re Marriage Cases, supra, the state supreme court held that classifications on the basis of sexual orientation are also suspect. Furthermore, any statute that infringes a "fundamental right" is automatically subjected to strict scrutiny, regardless of whether the group impacted by the statute in question is considered to be a suspect class. For example, a statute that infringes on First Amendment rights is a statute that infringes on a fundamental right; it will be subjected to strict scrutiny regardless of whether or not the group impacted by the statute in question comprises a suspect class (see Chicago v. Morales, 527 U.S. 41 (1999), in which case the US Supreme Court invalidated Chicago’s “Gang Congregation Ordinance,” declaring this ordinance to be facially unconstitutional).

(A state supreme court, interpreting a state constitution, can grant to its citizens rights over and above the rights recognized in federal equal protection jurisprudence; this is a bedrock principle in our system of judicial federalism. Thus, although the US Supreme Court has been very reluctant to expand the number of classifications considered to be suspect, many state supreme courts have adduced additional suspect classes. The California Supreme Court, for example, considers sex to be a suspect classification, whereas the US Supreme Court still considers sex to be only a "quasi-suspect" classification. Under California case law, a statute will only survive strict scrutiny if the state proves that the statute promotes a compelling state interest and is necessary for the promotion of that state interest. A quasi-suspect classification is subjected to a slightly less demanding standard of review than strict scrutiny, referred to as "quasi-strict scrutiny." Under this standard of judicial review, the burden is again placed on the state, which must prove that the statute in question promotes an important state interest and is substantially related to the promotion of that interest. In Frontiero v. Richardson, 411 U.S. 677 (1973), the US Supreme Court articulated this standard of review as applied to statutes that classify on the basis of sex. The Court reformulated this standard of review in United States v. Virginia, 518 U.S. 515 (1996), holding that classifications on the basis of sex can only be sustained in the presence of an "exceedingly persuasive justification.”)

The California Supreme Court became the second state appellate court to conclude that classifications on the basis of sexual orientation are suspect (the Hawaii Supreme Court declared such classifications to be suspect in Baehr v. Miike, 87 Haw. 34, 950 P.2d 1234 (1997), noting that the framers of the state constitution in 1978 had expressly intended that a proscription against sexual orientation discrimination be subsumed under the textual proscription against discrimination on the basis of sex). The California Supreme Court is perhaps the most influential of the state high courts, and this court’s holding that sexual orientation is a suspect classification was not overturned by Proposition 8, and cannot be overturned by any act of the people or of the legislature.

In finding that the California state constitution grants to gay persons the same right to marry as that which is enjoyed by heterosexuals, the court held 1) that sexual orientation is a suspect classification, and 2) that marriage is a fundamental right. Sexual orientation bears no relationship to the ability of persons to contribute to society. Furthermore, gay persons have suffered a history of invidious discrimination based on their sexual orientation, and it is beyond doubt that sexual orientation is either immutable, or changeable only at unacceptable personal cost to members of the class in question. Notwithstanding the ugly and impassioned rant of US Supreme Court Justice Antonin Scalia in his dissent in Romer v. Evans, 517 U.S. 620 (1996) (in which dissent Scalia inveighed against the homosexual “problem” in the State of Colorado, asserting that gay persons possess “political power much greater than their numbers, both locally and statewide” and that gay persons possess “enormous influence in American media and politics”), gay persons are also relatively politically powerless. There are only two openly gay members of Congress; there has never been an openly gay person serving in a cabinet-level position; there has never been an openly gay person sitting on the US Supreme Court or on any of the US Courts of Appeals; and passage of Proposition 8 reveals, chillingly, that even with the support of Hollywood celebrities such as Brad Pitt, Angelina Jolie, and Steven Spielberg, gay persons cannot protect even a right so basic as their right to marry in what many analysts consider to be the most liberal state in the country.

Proposition 8 therefore serves to strip a suspect class of a fundamental right – something that is utterly impermissible under both due process jurisprudence and equal protection jurisprudence. It is bad enough that Proposition 8 strips an identifiable group of a fundamental right; here, the constitutional infirmity is compounded by the fact that the group so deprived also constitutes a suspect class. Regardless of the emotions involved, and regardless of whether or not jurists accept the morality of gay marriage, it is crucial to bear in mind at all times that, from a legal standpoint, Proposition 8 is no different from a measure that selectively withdraws the right to marry from black people only, or from Catholics only. Were any measures to be passed that strip the right to marry from either of these groups, there would quite understandably be widespread public outrage.

Any attempt to enforce Proposition 8 must be, and will be, met with unwavering resistance by the gay and lesbian community, both in California and across the nation. This measure will not be permitted to become law without vigorous opposition. At the time of writing, the mayor of San Francisco continues to issue marriage licenses to gay couples who wish to marry. The state Attorney General, Jerry Brown, insists that existing gay marriages will remain legal, and is also seeking that the state high court find Proposition 8 to be unconstitutional. Three lawsuits have already been filed in California state court, seeking a writ of mandate to enjoin enforcement of Proposition 8 and to instruct the state to continue to issue marriage licenses to gay couples until a full trial on the merits can be held to determine whether or not Proposition 8 is constitutional. These lawsuits assert that Proposition 8 works a profound change to the state constitution, striking at the heart of the equal protection provisions mandated by that constitution; if such a change is to be countenanced at all, it must be undertaken pursuant to the more deliberative constitutional revision process articulated in Article VXIII of the state constitution, which requires more than a mere majority of votes and which requires ratification by the state legislature. The brief submitted by the petitioners seeking a writ of mandate from the California Supreme Court is analytically brilliant, and the writer is hopeful that this brief will succeed in convincing the California Supreme Court that Proposition 8 was enacted in violation of Article XVIII of the California state constitution. The chief argument raised by the petitioners is that Proposition 8 works a change to the California constitution so fundamental as to require the more deliberative approach specified by Article XVIII. Specifically, Proposition 8 deprives one, and only one, class of Californians of a right deemed by the courts to be "fundamental". Furthermore, Proposition 8 proceeds along facially suspect lines. In short, Proposition 8 attempts to deprive a suspect class of a fundamental right, in violation of the underlying principles of due process and equality enshrined in the California state constitution. If left to stand, the amendment of the state constitution by Proposition 8 could be followed by subsequent amendments to the state constitution withdrawing additional fundamental rights from a suspect class in piecemeal fashion – turning the principle of equal protection on its head. The petitioners cited Pastor Niemoller's famous quote: "In Germany, they first came for the Communists, and I didn’t speak up because I wasn’t a Communist. Then they came for the Jews, and I didn’t speak up because I wasn’t a Jew. Then they came for the trade unionists, and I didn’t speak up because I wasn’t a trade unionist. Then they came for the Catholics, and I didn’t speak up because I was a Protestant. Then they came for me – and by that time no one was left to speak up." If left to stand, Proposition 8 would make it possible for other fundamental rights to be withdrawn from gay persons, or from members of any other group identified along suspect lines. By eliminating the requirement of equal protection from such a minority, Proposition 8 would remove an essential structural check on the exercise of majoritarian power. Had Proposition 8 sought to ban all marriages in the State of California, principles of equal protection would not have been offended; however, the selective identification of a group along suspect lines, followed by the withdrawal from that group of a fundamental right, is inconsistent with the constitution's mandate of equal protection. The petitioners cited Romer v. Evans, supra (in which the US Supreme Court invalidated a Colorado state constitutional amendment singling out gay persons and depriving them of protection from discrimination at all levels, in both the public and the private sectors) as authority for their position. When Romer was handed down in 1996, gay persons had not been identified as a suspect class by any state or federal appellate court; now, gay persons are considered to be a suspect class as a matter of law in the States of California and Hawaii. (Gay persons are considered to be a quasi-suspect class by the Connecticut Supreme Court, which handed down a decision legalizing gay marriage in that state on October 28, 2008 (Kerrigan v. Commissioner of Public Health, SC17716)).

Constitutional amendments imply " addition or changes within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed." This cannot be said of Proposition 8, which strikes at the heart of equal protection and which, if allowed to stand, would strip the state courts of their crucial role in preserving the rights of disfavored minorities. Changing the bedrock foundations of the state constitution must be done through the revision process, not the amendment process. In previous cases where the California Supreme Court has affirmed the modification of the constitution through the amendment process at the ballot, the substance of these amendments has never targeted a suspect class, or attempted to withdraw from that class a fundamental right. There is a profound difference between a measure intended to deprive all Californians of the right to marriage, and a measure intended to deprive only Catholics or Moslems of the right to marriage. Sexual orientation has been placed on the same plane as race and religion for the purposes of state equal protection analysis, rendering the deprivation of the right to marry from this group analogous to the deprivation of the right to marry from only Catholics, or only Moslems. It is the responsibility of the judiciary to enforce such principles as equal protection of the laws. The importance of the courts, in terms of their role in enforcing such principles, cannot be overstated. Proposition 8 would strike at heart of the courts' ability to exercise their essential constitutional authority to protect minorities from overreaching by majorities. While the legislature may, under some circumstances, eliminate a right for all Californians, it may not deprive a particular disfavored group, and only that particular group, of a fundamental right. Furthermore, Proposition 8 would also strike at the separation of powers doctrine, which requires that the courts employ heightened scrutiny under such circumstances. The key analogy drawn by the plaintiffs demonstrates just how pernicious this measure would be were it to be allowed to operate. Substitute black persons for gay persons, and you would again have a measure that infringes a fundamental constitutional right and that proceeds along suspect lines. Such a measure would never be permitted to take effect following the constitutional amendment procedure; if allowed to take effect at all (which is highly improbable), it could only do so following the deliberative process involved in a constitutional revision. For the purposes of illustration, this analogy is flawless. Both sex and race are suspect classes in California state constitutional jurisprudence, and the withdrawal of marriage from black persons is analogous to the withdrawal of marriage from gay persons. Classifications premised on sexual orientation are suspect, just as classifications premised on race are suspect. There is no hierarchy of suspectness; a suspect class is a suspect class. No suspect class is "more suspect" than any other suspect class. Thus, Proposition 8 is as offensive as would be a similar measure that singled out black people and prevented them from marrying. To take effect, such a measure would have to flow from the deliberative process associated with constitutional revisions, not from the simple majoritarian vote required for constitutional amendments (even then, such a measure would almost certainly run afoul of equal protection considerations). If one such measure, eliminating a fundamental right as enjoyed by a suspect class, is permitted to stand, then additional measures that strip away fundamental rights from this class must necessarily be permitted to stand. This would lead the state down the road identified by Pastor Niemoller in his prescient and poetic observation. Granting the writ of mandate would not have a deleterious impact on the status quo; to the contrary, it would permit the continued enjoyment of the right to marry by both gay and heterosexual couples. The state would suffer no irreparable harm should the court grant the writ. Heterosexual couples would remain free to marry should the court grant the writ. Conversely, failure to issue the writ would work irreparable harm on gay couples seeking marriage licenses. It is unfortunate that this issue has been tossed back to the state supreme court. Should the court agree that the amendment violates the procedure established by Article XVIII for constitutional revisions, we can expect loud and indignant braying from religious and social conservatives, and we will doubtless have to suffer outraged, sputtering accusations alleging interference with "the will of the people". What these persons fail to grasp is the fact that it is the duty of the courts to protect suspect classes with special vigilance. Should the court grant the writ, we will almost certainly prevail should the hard right attempt to ram this change through by using the constitutional revision process (which requires approval by a supermajority of the state legislature before the matter can proceed). This is therefore a crucial legal battle.

The LDS pumped literally millions of dollars into the State of California in support of Proposition 8. Leaders of the LDS now call upon the gay community to begin the healing process. The audacity of this demand is beyond belief. This religious sect reached out and tampered with the fundamental right of gay persons to marry in another state – now, this religious sect calls upon the victims of this political meddling to make peace with those who worked this injustice on the gay community and inscribed naked discrimination into the highest law of the state.

Some members of the LDS refer to gay people as "sore losers". The irony here is that the Mormons have been the target of invidious discrimination on several fronts (including marriage) in their history. Now they stand front and center in their attack on a group of law-abiding citizens who have done absolutely nothing to harm them – and they call on members of this group to accept this result and to "begin the healing process". I do not speak for the entire gay community – but I know that I speak for a sizeable number of gay persons when I tell leaders of this religion that we will be back, just two years from now, with another ballot initiative to restore the right to marry to gay Californians. There is precious little room in my heart for healing or forgiveness of those who forced their religious views upon our community. I will not roll over and accept such shabby treatment from any religious sect that does not appreciate and abide by the concept of separation of church and state.

They can rot.

Already, gay rights groups are calling for a boycott of Utah. This state’s tourism industry, and the star-studded Sundance Film Festival, are being targeted for a boycott by bloggers, gay rights activists, and others seeking to punish the Mormon Church for its aggressive promotion of California's ban on gay marriage. Tourism brings in six billion dollars annually, with world-class skiing, a spectacular red rock country, and the film festival founded by Robert Redford, among other popular tourist venues. The LDS encouraged its members to press for the passage of Proposition 8 by volunteering both time and money for the campaign. Thousands of Mormons worked as grass-roots volunteers, bringing in a total of almost 20 million dollars. Polls show that Proposition 8 was failing until the Mormons stepped in with their money and political clout. Outspoken blogger and gay rights activist, John Aravosis, did not mince words with the following declaration: "The main focus is going to be going after the Utah brand. At this point, honestly, we're going to destroy the Utah brand. It is a hate state."

This may sound like an idle, or impotent, threat – but Aravosis is known for leading a successful and dramatic campaign against Dr. Laura Schlessinger’s TV show following her intemperate and ugly comments about gay Americans, and against Ford and Microsoft for their positions on gay rights. The Los Angeles Gay and Lesbian Center has mounted an effort to overturn Proposition 8, sending a postcard to the Mormon church president with each contribution made. Aravosis considers California to be the victim, and the Mormons to be the persecutors. Protests and rallies continue to take place in California, notwithstanding passage of the amendment; many gay activists insist that demonstrations will continue until Proposition 8 is overturned.

"We had won this until they swept in. ... We need to send a message to Utah that they need to stop trying to inflict their way of life on every other state,” Aravosis asserts.

To Aravosis – long life, and success!