hunter of justice

Debate on Christian Legal Society case continues

An editorial in the LA Times:

The U.S. Supreme Court agreed last week to referee a dispute between a University of California law school and a Christian student group that claims it's being discriminated against -- in the name of antidiscrimination. The Christian Legal Society, which requires its members to forswear sex outside heterosexual marriage, is contesting the refusal of UC Hastings College of the Law in San Francisco to afford it the privileges enjoyed by other student groups.

It's tempting for believers in equality for gays and lesbians (ourselves included) to side with the law school. But more is involved in this controversy than the school's opposition to discrimination on the basis of sexual orientation. The issue for the court is whether Hastings is denying the Christian group access to university facilities because of its beliefs, not its conduct. On this point, the Christian Legal Society has a strong case.

Hastings accords a broad range of groups the status of "recognized student organization," which gives them permission to use the college logo as well as access to college newsletters, bulletin boards and some activity fees. ...

When the Hastings chapter of the Christian Legal Society applied for recognition, it was refused on the grounds that it violated the college's policy against unlawful discrimination "on the basis of race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation." The school argued that although the society opens its meetings to all, it limits voting membership and leadership positions to students who subscribe to its interpretation of Christian doctrine, including a prohibition on homosexual conduct. That, according to Hastings, constituted discrimination against both non-Christians and gays.

The first of those charges is easy to dispense with. A 1995 Supreme Court decision involving the University of Virginia made it clear that state schools may not deny student religious groups access to activity fees available to other student groups. But what about the college's ban on discrimination based on sexual orientation? The Christian Legal Society argues that students with a homosexual orientation may join, and even lead, the group if they embrace its opposition to homosexual conduct.

We realize, of course, that very few, if any, gay and lesbian students would fall into that category. But that's not the point. The point is that the Christian Legal Society determines eligibility for membership not on who an applicant is but on whether he or she holds -- and lives by -- certain beliefs. In that sense it is no different from other groups united by a political or economic philosophy. Granted, some students find the society's beliefs offensive, and not all Christians share its views about homosexuality. But once the law school decided to recognize a variety of student organizations, it was required by the 1st Amendment to not pick and choose on the basis of beliefs, religious or otherwise.

A  reply by NCLR attorneys Shannon Minter and Chris Stoll:

...The Times asserts that CLS has a strong argument that it is being targeted for its beliefs rather than its conduct. That is not the case. The Hastings policy does not restrict in any way the beliefs that an official student organization may espouse. All that the policy requires is that any officially recognized student group must be open and accessible to all students. The Women's Law Assn., for example, must admit men, which it does. Likewise, the Black Law Students Assn. admits white students, and Outlaw is open to heterosexual students.

The fact that Hastings' nondiscrimination policy applies equally to all clubs without regard to viewpoint or subject matter of the club also distinguishes it from the 1995 Supreme Court decision to which The Times' editorial refers. In that case, a public university declined to provide official recognition and resources to a student newspaper because the paper was written from a religious viewpoint. Hastings' policy does not prevent official student organizations from holding or expressing any view, religious or otherwise. A variety of religious groups have existed at Hastings for many years. All of them comply with the nondiscrimination policy -- except CLS.

Nothing about CLS' 1st Amendment freedom-of-association argument would limit which clubs could be exempt from Hastings' nondiscrimination policies. The 1st Amendment right CLS seeks would apply equally to a club that wished to discriminate for political or philosophical reasons, or simply out of animosity. To accept CLS' argument would mean, for example, that a white supremacist student organization would possess a constitutional right to obtain official recognition and eligibility for university funding while maintaining a membership policy that excludes African Americans, Jews and Roman Catholics. A ruling in CLS' favor could force universities to choose between being unable to enforce any sort of anti-discrimination rule against any student club or (more likely) ending all university support for any type of club. Is that what The Times wants?...

Merry Christmas 2009

I guess times were tough all around this year ...       

Hope your Christmas day and winter holiday are better than his are going to be!

NY State employees gain gender identity protection

Governor David Paterson of New York signed Executive Order 33 on Wednesday declaring that state government employees shall not be subjected to discrimination based on gender identity. The state already prohibits sexual orientation discrimination for all employees, public and private. It's an important step; Governor Paterson deserves credit for taking it. 

The problem with executive orders is that they create no remedies for the employee who may nonetheless suffer discrimination. In some states, an employee can file a personnel complaint based on an executive order, but in many states, an executive order is largely an aspirational statement.  A future governor can also rescind an executive order, which has happened quite a few times with protections for sexual orientation. I doubt that any future New York governor will rescind this one, however.

EO 33 ought to help reassure some of the jittery Dems in Congress, especially those from New York and neighbor states, who are worrying about voting for a trans-inclusive ENDA.

Text of the operative portions (minus the "whereas" clauses) of the executive order after the jump -->

British appeals court: No religious exemption for employees registering civil partnerships

An England and Wales Court of Appeal decision this week held that public employees working as registrars can be required to provide services to same-sex couples regardless of the employee's religious beliefs. In Ladele v. London Borough of Islington, the court upheld the decision by the Islington registrar's office to require Lillian Ladele to register same-sex partners despite what Ladele described as her "orthodox Christian view" that marriage should be limited to male-female couples and that enabling same-sex unions was "contrary to God's instructions." The court also rejected Ladele's claim that she had been subjected to discrimination based on religion.

Moreover, the court found that the British anti-discrimination law prohibiting different treatment in public services based on sexual orientation required the Borough to act as it did:

[H]owever much sympathy one may have with someone such as Ms. Ladele..., the legislature has decided that the requirements of a modern liberal democracy ...include outlawing discrimination in the provision of goods, facilities and services on ground of sexual orientation, subject only to very limited exceptions. 

The court noted that the anti-discrimination law exempts "organizations the purpose of which is the practice or advancement or the like of religion or belief."

At the end of its decision, the court states that borough governments can elect not to designate persons who have religious objections as "civil partnership registrars." I am not familiar with how such offices function in the UK, but this appears to reflect the principle that employers may accommodate religious objections to performance of certain aspects of a job if it is feasible to do so. 

I am in basic agreement with this decision. In my view, public employees have a duty to serve the public, not merely a portion of the public. However, if offices can be organized so that religious objectors can be transferred or otherwise assigned to jobs that do not involve issuing licenses to the public, that seems a pragmatic and reasonable result.

The case is subject to one more level of appeal.

Perry: Trial may be televised - UPDATED

At the pre-trial conference today in Perry v. Schwarzenegger, Judge Walker told the parties that there is a chance that the trial will be televised.  According to a news report, Judge Walker will wait to decide whether to allow cameras until the Ninth Circuit Judicial Conference issues a pending rule on whether or under what terms civil nonjury trials may be telecast.

The judge also announced that the major issue outstanding before trial - a dispute over release of campaign documents, sought by plaintiffs in discovery - will be decided by the Ninth Circuit en banc. A three-judge panel ruled last week that the documents were protected by the First Amendment's shield for political speech. The appeal is on an expedited schedule.

The trial date is holding: Judge Walker announced that "It will be my plan to proceed beginning at 9 a.m. on Jan. 11."

UPDATE 12/18/09 - The Ninth Circuit Judicial Conference approved a system that will allow televising of nonjury civil trials that are selected by district court judges. This clears the way for Judge Walker to designate the Perry case for being telecast and/or webcast. This one move would magnify many times the impact of the trial, and might turn out to be one of the most important contributions this case will make to the effort to legalize same-sex marriage.

Uganda analysis: American religious conservatives and the global trade in culture wars

Pressure is building on Uganda's government to abandon or revise extremist anti-gay legislation that would imprison or, in some situations, execute persons for homosexuality. American political and religious leaders have condemned the bill, joined by other governments and the Vatican. (Photo below is from protest in London.) In the process, the role of conservative American churches in promoting anti-gay policies through various Christian churches in Africa has come to light. The same issue, in less extreme form, is being debated in Rwanda and may surface in Egypt.

 The best analysis that I have read is by Rev. Kapya Kaoma, an Anglican priest from Zambia. Rev. Kaoma's article (based on a recently published study) goes beyond dissing Rick Warren or describing how a March 2009 Family Life Network conference in Kampala, featuring right-wing evangelist Scott Lively, provided the trigger for the new bill. The story is more complex than the image of bigoted white guys yahooing it up in Africa. The heart of it is a mutually beneficial reciprocity of dollars from First World churches going to economically desperate populations and Third World moral authority being exported as a weapon to use against First World religious progressives.

Following are excerpts from his article in Public Eye:

...If they had faced strong opposition, U.S. conservatives might not have been so successful in promoting their homophobic politics. Traditionally, evangelical African churches have been biblically and doctrinally orthodox but socially progressive on such issues as national liberation and poverty, making them natural partners of the politically liberal western churches. But their religious orthodoxy also provides the U.S. Right with an opportunity. Africans resonate with the denunciation of homosexuality as a postcolonial plot; their homophobia is as much an expression of resistance to the West as it is a statement about human sexuality. Similarly campaigns for "family values" in Africa rest on rich indigenous notions of the importance of family and procreation. In Africa, "family" expresses the idea that to be human is to be embedded in community, a concept called "ubuntu." African traditional values also value procreation, making those hindering this virtue an enemy of life.

Although Rick Warren's involvement in Africa is the most celebrated, and Lively's perhaps the most notorious, they are not the first U.S. conservative evangelicals to influence African policies. Pat Robertson's television show The 700 Club is watched across sub-Saharan Africa. Yet most Africans are not aware that Robertson supported the civil war in Angola and the oppressive White governments of Rhodesia (now Zimbabwe) and South Africa. He was one of many U.S. conservative evangelicals, some of whom came to Africa as missionaries in the 1980s, who sided with those White minority governments in their effort to stop the spread of liberation theology. Allied with them was – and is – the Institute on Religion and Democracy (IRD), a U.S. neoconservative group that also supported the White regimes and challenged the National Council of Churches as a group of dangerous Marxists supporting subversion. The group formed in 1981 with the goal of weakening and splitting U.S. mainline denominations in order to block their powerful progressive social witness promoting social and economic justice....

The torrential flow of conservative Christian resources to Africa helps wash away the memory of their alliances with White regimes. Through their extensive communication networks in Africa, social welfare projects, Bible schools, and educational materials, U.S. religious conservatives warn of the dangers of homosexuals and present themselves as the true representatives of U.S. evangelicalism, effectively marginalizing mainline U.S. churches that once had strong relationships on the continent. Right-wing groups have enticed African religious leaders to reject funding from mainline denominations – which require documentation of how the money is spent – and instead to accept funds from conservatives, further empowering the U.S. evangelical viewpoint while giving local bishops the opportunity to line their pockets.

To reach Africans, U.S. evangelicals now broadcast their Christian Broadcasting Network (CBN) and Trinity Broadcasting Network (TBN) throughout sub-Saharan Africa. Although generally disinterested in helping poor Blacks in their own backyard, in Africa U.S. White conservatives driven to convert the continent dominate social services, run orphanages, schools and universities, and provide loans. These conservatives and evangelical charities like World Vision, Solar Light for Africa, and the IRD-founded Five Talents use their presence in Africa to address the question of homosexuality from a conservative albeit misleading position. In this way, almost all U.S. conservative Christians working in Africa are responsible for exporting homophobia to Africa.

Indeed, Africans do not distinguish between moderate evangelicals in World Vision and Hard Right figures like Scott Lively. For them, the term "evangelical" conveys the notion of Protestant Christianity as a whole, without the substantive distinctions made by U.S. religious groups. And U.S. conservative evangelicals support diverse Anglican, Presbyterian and Pentecostal church leadership in Africa with which they share no denominational tie. For instance, the Providence Christian Reformed Church in Holland, Michigan is not an Episcopal congregation yet it provides funding to the Anglican Church of Uganda. Some U.S. support goes directly to salaries, and has since 1998 ....

While U.S. evangelicals are actively disseminating their antigay views through their mission work, American mainline renewal movements reach out to African churches for support in fights against gay ordination and marriage, helping to further crystallize this as an African issue. At their behest, Anglican churches in Uganda, Kenya, and Nigeria rejected funding from The Episcopal Church USA in 2004 over disagreements about gay ordination and other culture war issues. While these attacks have resulted in schisms within the Episcopal Church USA and the Presbyterian Church USA and continue to threaten the unity of the United Methodist Church, they offer African churches financial and ideological benefits, including a voice in international circles. As Kenya's Rosemary Mbongo told me, "Africans, Asians, and Latin American evangelical Christians have the voice today; they owe it to American conservatives."

Continues after the jump -->

Who's intolerant? McConnell weighs in for CLS

Following are comments by Stanford Professor Michael McConnell in response to Mike Dorf (posted yesterday) regarding the Christian Legal Society case. McConnell, who wrote the Supreme Court brief for the Boy Scouts in the Dale case, will also represent the Christian Legal Society in the Supreme Court.

I strongly disagree with my friend Michael Dorf that Christian Legal Society v. Martinez raises the question of whether we should “tolerate the intolerant.”  The question presented is whether a public university may deny a small religious student group equal access to a forum for speech on the ground that it limits its leaders and voting members to those who adhere to its statement of religious belief.

There is nothing remotely “intolerant” about a religious group confining its leadership or spokesmen to adherents to its faith.  Must synagogues hire non-Jewish rabbis?  Must a Baptist Bible study group have a Catholic chair?  The reason the religious group confines its leadership positions to adherents is not some distaste or intolerance for others, but the desire to meet and worship with students sharing a common belief, and to communicate those views to a wider audience.  Others are free to attend the  CLS meetings and activities, but not to seize control of their podium. Even nonreligious groups at Hastings – the Democrats, the pro-life group, the trial lawyers group, and ironically even the respondent student gay rights group in Martinez, limit their leadership to students who agree with their core beliefs.  There is nothing wrong or “intolerant” about this.  It makes sense, especially for small or unpopular groups who might otherwise be taken over by students who do not like their message.  But only when it is the religious group has the Hastings administration cried foul.

And it is not “intolerant” for a Christian group to espouse a sexual morality based on marriage between a man and a woman.  Everyone this side of the Marquis de Sade draws the line somewhere and there is no need for everyone in this diverse and pluralistic land to draw our lines in the same place.  These students disapprove of “unrepentant” sex outside of marriage (whether gay or heterosexual).  Others do not.  But it is not accurate, or helpful, to brand those with whom we disagree as “intolerant.” 

It might be intolerant if the religious students sought to deny those who disagree with them the benefits of civil society – if they tried to shut them up or shut them out.  But it is not intolerant for people with a particular moral standard to form a group where they can provide mutual support and encouragement among themselves, or to communicate their opinions to a wider audience, along with everyone else.       

Which side in this case is being “intolerant”?  Those who want to meet and speak just like every other student organization, or those who have kicked them out?

After the jump, Dorf replies to McConnell -->

Seeking asylum from the U.S. military

A young lesbian who enlisted to serve in the U.S. Army and then fled after prolonged physical and verbal abuse has won reinstatement of her application for asylum in Canada. A Canadian appellate court ruled that the Canadian Refugee Board had failed to give sufficient weight to the arguments made by Private Bethany Smith that, because of her lesbianism, she could not receive a fair trial within the American military.  The court noted that 10 years ago, another gay soldier - Barry Winchell - was murdered at the same base where Private Smith had been stationed (Fort Campbell, KY), in what apparently was a hate crime.

From Women's e/news, with a HT to Marcy Karin:

For months, Pvt. Bethany Smith silently endured taunts and physical abuse from her fellow soldiers at Fort Campbell, Ky., for being a lesbian. But when she received an anonymous note one day with a threat against her life, Smith decided she had to get out of the Army.

"It said that they were going to break into the supply room and get the keys to my room and beat me to death in my bed," Smith said, adding that the letter came only a couple months after she learned the Army was deploying her to Afghanistan. "It was at that point that I knew I was more afraid of the people who were supposed to be on my side than people we were supposed to be fighting overseas."

More than 12,000 service members have lost their jobs because of the U.S. military's so-called "don't ask, don't tell" policy. A disproportionate number of those discharges are women, according to 2008 statistics gathered by the Washington-based Servicemembers Legal Defense Network from the government under the Freedom of Information Act.

With the help of an acquaintance, Smith abandoned Fort Campbell and drove for two straight days to Canada, where she hoped to seek asylum. She crossed the border on Sept. 11, 2007. More than two years later, Smith, now 21, is fighting to stay in Ottawa, where she works for a call center.

Her efforts to obtain refugee status were boosted in November when a Canadian federal court judge decided her case should be reconsidered by the country's refugee board, which had earlier rejected her claim....

Smith assumes she would face a court martial for desertion in the United States and possibly further charges for having same-sex relations. She also believes that a court martial would consist of her peers, who would likely share the same views about her sexual orientation as her tormentors.

Jamie Liew, her lawyer, says Smith's father has received a visit from police with an arrest warrant related to her flight from the Army. Court documents also state Smith received a text message from a soldier from her base threatening that she deserved to be killed for deserting the unit.

Smith's case, believed to be a first, is based on anti-homosexual persecution within the U.S. military, says Liew, rather than on a reluctance to serve overseas, as has been the case for a multitude of other U.S. soldiers who have fled to Canada to avoid serving in Iraq and Afghanistan.

"The idea that she would be deployed with people who were giving her death threats is a problem," Liew said. "If people in your unit are not there to have your back, you would be killed in a war and you wouldn't even know if it was because of friendly fire, of enemy fire or because of someone deliberately firing at you . . . Her situation is unique in that way."...

Debates begin on Christian Legal Society case

Now that the Supreme Court has granted cert in Christian Legal Society v. Martinez (background here), the conflict of rights at the heart of the case is beginning to draw commentators.  First out of the box is Mike Dorf (Cornell Law). He began blogging about the case with this summary:

The Supreme Court just granted cert in Christian Legal Society v. Martinez.  At the broadest level, the case presents a recurring and fundamentally unsolvable dilemma of liberalism: Must liberals tolerate even the intolerant?  In more mundane terms, the case poses the question of whether a public institution--here UC Hastings Law School--can apply its non-discrimination policy to deny official recognition (and thus eligibility for funding) to the Christian Legal Society (CLS) on the ground that the latter interprets its charter to forbid membership by any person who advocates or "unrepentantly engages in" "a sexually immoral lifestyle," an exclusion that would bar openly (and "urepentantly") gay law students from membership in the CLS.

Then in an essay posted at Writ, Mike analyzes two lines of precedent and argues that the best outcome would be a compromise.  Excerpted from Writ:

...[I]n two ... recent cases, Hurley v. Irish-American Gay Group of Boston and Boy Scouts of America v. Dale, the Court invalidated efforts by Massachusetts and New Jersey, respectively, to bar discrimination on the basis of sexual orientation by parade organizers and the Boy Scouts, again respectively....

...[T]he key to these rulings is that, in both Hurley and Dale, the Supreme Court thought that the private group's message would be undermined by the forced inclusion of persons whose very presence was inconsistent with that message. Significantly, Hurley was a unanimous decision:The liberals, no less than the conservatives, thought that the organizers of a private parade, who were engaging in an inherently expressive activity, should be able to decide whether the inclusion of openly gay marchers would undermine the message of the parade.

Dale, to be sure, was not unanimous. But the key point of the dissent simply underscores the distinction at issue: The dissenters thought that the Boy Scouts of America did not have a clearly-articulated message that would be undermined by having an openly gay troop leader. ...

In other words, it seems that the Court, at the time of these decisions, generally agreed that if inclusion would directly undermine a clear, specific message sent by an expressive organization, then forcing inclusion would presumptively violate the First Amendment right of association.

CLS argues that it is ... like the Boy Scouts and the parade organizers in the Hurley case ... [But} there is one very important difference between Dale and the CLS case: In Dale..., the state imposed a blanket rule: The Boy Scouts were told by the State of New Jersey that they simply had to admit gay members and troop leaders. By contrast, Hastings is not exercising that kind of regulatory authority over CLS. Hastings does nothing to stop individual law students enrolled at Hastings from getting together for meetings. All that Hastings does is deny official recognition to such groups of law students, if they are not open to all would-be members.

Accordingly, Hastings argues that this case is nothing like Hurley and Dale. The law school is not telling private organizations to admit anyone; it is only telling private organizations that want official recognition--and the eligibility for funding that comes with it--that they need to accept all interested students as members. It is well-established constitutional law that the government cannot suppress the speech of groups devoted to non-violent advocacy of racism, sexism or homophobia. But, Hastings says, it does not have to subsidize the activities of organizations that, in their admissions policies, discriminate on the basis of race, sex, or sexual orientation. It will tolerate such discriminatory speech, Hastings says, but it is not obligated to pay the bill for it.

In response, however, CLS can point to another line of cases involving so-called "public fora." These cases say that where the government opens up public property for speech, it cannot discriminate among speakers.

The Supreme Court case most closely on point is the 1995 decision in Rosenberger v. University of Virginia. There, the Court struck down a University of Virginia ("UVA") policy under which the university funded most student publications but not those that were religious in nature. Having created a forum for speech (as the Court called it, "more in a metaphysical than a spatial or geographic sense"), UVA was not permitted to discriminate among the viewpoints of those entitled to speak in that forum....

CLS argues that its case is just like Rosenberger, in that it is being denied access to the benefits of official recognition, including funding, based on the religious viewpoint it espouses. But there is at least one important distinction: Unlike the restrictions in Rosenberger ..., the trigger for the Hastings policy has nothing to do with the expression of a religious viewpoint, or with expression at all. Hastings would recognize CLS--even with a message that can reasonably be said to be homophobic--if only CLS would accept all students as members.

Who has the better of that argument? As I read the precedents, Hastings should prevail. However, there is enough wiggle room in the doctrine for the Justices to rule for CLS. For example, the Court could say that regulation of the membership of an expressive association is inherently a regulation of the association's expression, and that where the regulation takes the form of a requirement of inclusion, it is inherently hostile to a message that says certain forms of behavior are sufficiently immoral to warrant exclusion.

After the jump, the argument for a compromise outcome -->

Tomorrow: Michael McConnell - formerly a judge on the Tenth Circuit Court of Appeals, now a professor at Stanford and one of the nation's leading conservative legal scholars - responds to Dorf, who then replies.

Human rights, sexuality and gender in the Middle East

I'm a big fan of Scott Long, the lgbt rights division director at Human Rights Watch. Following is an excerpt of an interview he did with Rex Wockner. This portion focuses on the Middle East; the full interview is here.

The stuff we saw in Iraq, the killing campaign this year, is a very extreme version of what we’ve seen in other places in the Middle East, which is, you suddenly get basically a moral panic around the issue of homosexuality where a lot of other social anxieties about, you know, westernization, social change, change in gender roles, masculinity, they all get wrapped up into one issue and somebody’s scapegoated, someone is targeted. The Queen Boat arrests in Egypt were very much like that, in that all of these fears about rock music and Satanism and heavy metal and effeminate men and long hair suddenly got transmuted into the issue of homosexuality. And we’ve seen kind of smaller eruptions like that in places from Morocco to Turkey over the last few years. It is very complex because it is connected to the reality of very swift social change that people find unsettling, in many cases terrifying. It’s connected to the reality of westernization and of very swift and unsettling economic changes as well. I mean, the anxieties behind it are real.

The scapegoat is fictional, but the people who suffer are also real, and I think, you know, what we need across the Middle East is not just LGBT movements who are capable of responding to this—that will take a long time—but we need a stronger commitment from mainstream human rights organizations to fight moral panics and to stand up for the human rights even of the most marginalized, stigmatized people in the community....

In both Iraq and Uganda, I think the fears and the violence of the response—the kind of legal violence that’s being proposed in Uganda and the really literal violence in Iraq—are certainly enabled by a long history of violence and social collapse. You know, Uganda has gone through 25 or 30 years of civil war. You can stand in Kampala and it looks like a beautiful, placid, just lovely place, and then you remember what’s happened to many of the people walking by you on the street in the last two decades, and you remember the civil war that’s still raging in the north, and you realize how much fear there is underneath the surface. And I think the Museveni government has been actually very clever at focusing all of people’s anxieties on homosexuality as kind of the universal target and the universal scapegoat.

In Iraq, it’s quite true that homosexuals were never particularly targeted under the Saddam regime. He had other enemies. But to the other enemies, he was absolutely brutal. ... The sanctions, and then the just-total U.S.-induced collapse of security after the invasion, have created an environment where everybody lives in anticipation of violence and where everybody feels that being ready to be violent yourself is the only safeguard. And the militias, the Mahdi Army, are the product of that—they’re a bunch of young men who see no future for themselves and whose only social role that they can imagine for themselves if they don’t have jobs, they don’t have stable family structures, they don’t have stable lives, the only role they can imagine for themselves is enforcing some imaginary version of morality. So I think the circumstances are somewhat special, but, you know, these very deep-rooted fears about sexuality, sexual difference, gender—I really think the issue of, you know, what it means to be a man and what it means to be a woman are at the core of much of this homophobic violence as much as people’s kind of fantasies about what other folks are doing in bed.

These fears are not just limited to Iraq and Uganda; you see them everywhere. I mean, the trans folks who get beaten up on the streets of New York are facing the same kinds of fears in a different version. It’s just that you have certain social situations which allow them complete sway....

What is the government's interest in preventing gay marriage? Here's your answer -

Many people who don't actually care a great deal one way or the other about gay marriage find it difficult to imagine why they should care. After all, how does allowing same-sex couples to marry affect your typical heterosexual married couple? This is the single hardest question for the opponents of marriage equality to answer and the one on which Jon Stewart etc can most reliably trigger laughter in ridiculing their priggishness.

Well, thank goodness for lawyers. In the pretrial brief filed in Perry v. Schwarzenegger, the defendants had to  identify what they believed to be the legitimate state interests behind Prop 8, the California constitutional amendment that prohibited same-sex marriage. And being the excellent lawyers that they are, they came up with not one, not two, but 47.  Yes, 47. Three more and the whole thing could join AARP.  But I digress.

The first five of the 47 are really the same thing - enforcing "traditional" marriage - although the idea is ingeniously morphed into five variations: "preserving the traditional institution..," "preserving the traditional meaning...," "preserving the traditional purposes..., "preserving the traditional meaning ...as it has been defined in English," [think how many more there could be: in Spanish, in Mandarin, in Farsi,...] and "expressing support for the traditional institution of marriage." Just when did "traditional" get to be a magic word, some kind of unassailable talisman? Oh right, Justice Scalia.

You have to assume that the first five represented their best shot. So who should get credit for using so many words to say the same thing? I see a litigation team meeting, in the conference room of Chuck Cooper's firm, with multiple associates around a table tweaking the language. I see billable hours.

And what of the other 42 justifications - where are the zingers to deploy against the Jon Stewarts of the world? Or even to just answer the "whatever dude" masses of potential turncoat heterosexuals?

Well, I can't do justice to all 42 of them.  So here are my 10 favorites, in Letterman order:

10. Preserving "the prerogative and responsibility of parents to provide for the ethical and moral development and education of their own children" (against those child-snatching gay couples);

9. To avoid "the further, and in some respects the full, de-institutionalization of marriage" (silly me, I thought people wanted to be de-institutionalized);

8. To avoid "publicly replacing the idea that parenting is largely gendered with the idea that parenting is largely unisex" (which is to say, cliches about mom- and dad-ism become harder in same-sex couples);

7. To avoid replacing "the norm of the natural parent with the norm of the legal parent" (have you ever heard of adoption?);

6. To avoid "enshrining the principle that sexual orientation, as opposed to sexual embodiment, is a valid determinant of marriage's structure and meaning" (what the hell is "sexual embodiment"?);

5. To avoid "ending or diluting the public socialization of heterosexual young people into a marriage culture" (sounds like a Moonie wedding);

4. To avoid requiring "that all relevant branches and agencies of government formally replace the idea that marriage centers on opposite-sex bonding and male-female procreation with the idea that marriage is a private relationship between consenting adults" (not that! not consenting adults!);

3. To avoid increasing "the likelihood that bisexual orientation could become a legitimate grounding for a legal entitlement to group marriage" (I knew there was a reason to be bisexual);

2. To avoid contributing to "the belief that marriage in our society is now politicized" (not like in the good old days when women were serfs, for example); and .....

1. To serve the interest of "using different names for different things." (Res ipsa loquitur baby)

Pretty impressive, huh?  As I said, lots of billable hours.

Happy Chanukah!

Whenda ENDA, continued

I want to elaborate on my earlier post about ENDA, which some persons have misread, no doubt because my language was not clear enough.

I did NOT mean to break any news or to cause any freak-outs about the work that lies ahead in securing an inclusive ENDA.  Some readers took my reference to "issues such as restrooms" as a message that nefarious negotiations are going on or that trans inclusion is at risk.  This reaction tells me that I probably stumbled into a hornet's nest that I did not anticipate. It is possible that none of the language of ENDA as introduced will change at all.  That, however, would make it a quite unusual bill.

And as I said in my original post, it should come as no surprise - given the ENDA mess two years ago - that there would be pushback from some members of Congress on trans inclusion.  Especially because lawyers have been wrestling with restroom cases for years, I know that restroom access for employees is definitely a context where wrangling over details should be expected.  Indeed, it would be surprising if arguments over this issue did not occur.

As I also tried to describe earlier, the phase of the legislative process that ENDA has now reached is much more important than it may appear. We are at the point when the bill's original language is reviewed with a fine tooth comb, not just for the next step - the committee vote - but for the vote in the full House as well. (And then, of course, the Senate will weigh in.) So every issue, from the technical to the central, can come up during this period.  There is nothing unique to ENDA in this - it happens with every bill that is moving forward to a committee vote.

All that said, I AM worried that the lgbt community is not worried enough about ENDA.  Because of excellent work by advocates, researchers and Congressional staff, the parts of the process that are in public view - like the hearings - have been sailing along. The first predictions about the timing of floor votes were overly optimistic.  Now a tougher reality has set in.

My goal in posting on this topic is to alert people that the fight for ENDA is far from over. Winning its passage should be, imho, the top priority for 2010.

Checking in on Ted and Dave's excellent adventure

A slew of pretrial memoranda have been filed in the last couple of days in Perry v. Schwarzenegger, the mega case challenging the constitutionality of Prop 8 in federal court in San Francisco.  A side issue involving whether the defendants will have to turn over to plaintiffs a series of e/mails and other communications related to the campaign strategy behind passing Prop 8 is pending on appeal before the Ninth Circuit. Judge Walker ordered that the materials be turned over, 2009 WL 3234131 and 2009 WL 3823174, but the panel of Ninth Circuit judges that heard the appeal indicated during oral argument that it was likely to rule that forcing disclosure would violate the First Amendment. Other than that, however, the case seems to be on track for its trial date of January 11. There is a pretrial hearing next Wednesday, the 16th, at which final decisions about the scope and length of the trial may be made.

And what a trial it is going to be -

In comparing the plaintiffs' witness list and the defendants' witness list, it is clear that defendants are sticking to their primary theory of the case, which is that plaintiffs' claim is invalid as a matter of law.  Defendants filed a summary judgment motion on those grounds, which Judge Walker denied.  But it appears from their list of proposed witnesses - which includes several of the same individuals expected to testify on behalf of plaintiffs - that the defendants will seek to score points by aggressive cross-examination of plaintiffs' witnesses (which is why the same witnesses are also on the defendants' list), and that they apparently plan to introduce few experts of their own.  Perhaps because few scholars support their position...

Persons on both plaintiffs' and defendants' lists include Lee Badgett, economics professor at the University of Massachusetts and research director at the Williams Institute at UCLA Law School; George Chauncey, a professor at Yale and leading gay historian;  Nancy Cott, another Yale history professor who has written extensively on the relationship between marriage and citizenship; Greg Herek, a psychology professor at Cal-Davis who has been studying sexual orientation for many years; Michael Lamb,a psychology professor at Cambridge who is an expert on parenting; Ilan Meyer, a professor at the Columbia School of Public Health, who will testify about the psychological stress associated with minority status; Anne Peplau, a UCLA psychology professor who will testify about the effects on individuals of equal marital status; and Gregory Segura, a Stanford political science professor who will testify about the political power or lack thereof of the lgbt minority in the United States.  

I gave a talk today at the Department of Justice, and one of the attorneys there suggested that the Perry trial might rival the Scopes trial (on the theory of evolution) as a critical turning point in public understanding.  I hope he's right, with one caveat: the good guys lost the Scopes case, Clarence Darrow's efforts notwithstanding. Let's hope this one turns out differently.

Could Stupak-Pitts have a silver lining?

For years I never worried much about an outright reversal of Roe v. Wade, because I thought that the political instincts of conservative Justices would cause them to blink before they took that ultimate step, even if they had the five votes to do it.  If the right to choose were ever actually taken away from American women, the mostly dormant, somewhat ambivalent pro-choice majority would rise like a phoenix and exact revenge.  Goodbye to suburban mom Republican votes. And, although bad decisions have chipped away at it, Roe is still good law, at least formally.

More recently, I'm less certain about this underlying political calculation. If each state could decide whether to allow or prohibit abortion, many would opt for pro-choice laws much as they have today, and many women living in states where abortion was illegal would be able to travel to a location where they could obtain the procedure. 

Of course, it is also true that many would not be able to afford the time, the travel and the procedure. But those are only the poor women. My fear, to be blunt, is that if middle-class women basically retained the option to have an abortion, either formally through their state's law or informally through their own economic capacity, there would be no political price to pay for retracting the federal constitutional right entirely. And sooner or later, conservatives would figure that out.

Now Priscilla Smith, a savvy analyst of reproductive rights issues, has posted an intriguing essay at Balkinization in which she argues that the Stupak-Pitts amendment to the health reform bill might reverse this trend toward fragmentation along economic lines by putting the majority of women in the same sinking boat. Following are excerpts:

From a public relations viewpoint, it is possible that by extending the double standard that already exists for poor women’s health care to middle class women, the inequality and injustice of the restriction on funding for poor women will come into greater focus for the more fortunate. The sting of the public funding ban is much greater for poor women than it will likely prove for middle and certainly upper class women. Studies have shown that approximately one-fifth to one-third of Medicaid-eligible women who become pregnant and would have obtained an abortion are forced to carry their pregnancies to term because they cannot raise the necessary funds. Still, despite significant success in state courts which have repeatedly pointed to the harmful and discriminatory nature of the bans, the political will has not existed to change the policy on the federal level. If middle and upper class women feel the sting of discrimination that many poor women have already felt -- when the men in their lives get their Viagra prescriptions filled but they are forced to pay out of pocket for their abortions – perhaps a new understanding of inequality and what poor women have gone through will gain hold. ...

Perhaps more importantly, Stupak-Pitts could change the landscape against which an equal protection claim was heard, perhaps leading to a renewed challenge to the Hyde Amendment itself:

• First, it magnifies the equal protection violation caused by the Hyde Amendment and prevents health care coverage of one health care service, abortion, that is needed only by women, not only in the “exchange,” but by extension ..., in the private market itself, while allowing health care coverage of lots of stuff that men need, especially treatments for erectile dysfunction which anyone watching television or videos on the internet knows is a HUGE problem out there;

• Second, equal protection challenges to abortion restrictions have gained support over the last ten years or so...

• Third, remember that the U.S. Supreme Court in Harris v. McRae 448 U.S. 297 (1980) (upholding ban on federal funding for abortions in the Medicaid program), did not consider a sex discrimination claim so the field is open.

• Fourth, in Harris the Court decided was focused on a privacy claim and found that the Hyde Amendment didn’t infringe the right to obtain an abortion at all; it wasn’t the funding ban that made it harder for women to obtain abortions, it was their indigency that was too blame. As crazy as that argument might sound, it would be irrelevant in a sex discrimination claim...