hunter of justice

CLS files opening brief in Supreme Court

Lawyers for the Christian Legal Society, led by Stanford Law Professor and former Court of Appeals Judge Michael McConnell, filed the Brief for Petitioner today in the Supreme Court. Commentary to follow.

Kentucky Supreme Court recognizes nonbio mom in stunning opinion

By Nancy Polikoff

In one of the best and most straightforward court opinions I have ever read on the subject, the Kentucky Supreme Court last week ruled, in a 4-3 decision, that a nonbiological mom was entitled to joint custody of the son she planned for and raised with her former partner. The opinion, Mullins v. Picklesimer, reads as a beacon of light shining through the obfuscation courts all too often bring to the actual lives of lesbian couples and their children.

Arminta Mullins and Phyllis Picklesimer had a baby. They selected a semen donor who resembled Mullins, and Picklesimer was inseminated and bore the child. Mullins and her mother were present at the child's birth. The child was premature and spent two months in neo-natal intensive care. Both moms attended him. They named him Zachary Alexander Picklesimer-Mullins. Once Zachary came home, both moms took leave to care for him, and when they both returned to work, Mullins' mother cared for him while the moms were at work. Both women provided care and financial support. The child called Mullins "momma." He considered both women his parents, even according to Picklesimer's testimony.

When the child was less than a year old, the couple filed custody papers granting a judgment of custody to Mullins on the basis that she was the child's de facto custodian. The couple split up a few months later, and they continued to co-parent for several more months, until Picklesimer refused to allow Mullins to see the child. Mullins filed a petition for joint custody.

So. It turned out that Mullins did not meet the statutory criteria for a de facto custodian because Kentucky does not recognize that status if the parent and de facto parent are actually parenting together. Therefore, the court order the couple had obtained was invalid. Nonetheless, the Kentucky Supreme Court found that Mullins was entitled to joint custody.

First, she had standing to file because the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), adopted in Kentucky and almost all states, allows "a person acting as a parent" to file, and it defines that to mean a person who "has [or within the last six months has had] physical custody of the child and .... claims a right to legal custody under the law of this state." The court interpreted this to permit standing in a shared custody situation; Mullins did not have to have physical custody to the exclusion of Picklesimer. Because so many states have the UCCJEA, this portion of the case has the potential for impact beyond Kentucky. The court was clear that the specific facts in this type of family situation differed from circumstances involving nonparents such as a grandparent, babysitter, or boyfriend or girlfriend of the parent.

Turning to the statutory standard for awarding custody to Mullins, the court said that a parent has a superior right unless the parent is unfit (not relevant here) or "has waived [her] superior right to custody by clear and convincing evidence." And, in the most significant part of the opinion, the court ruled that the law of waiver of superior custody rights includes partial waiver that gives a child "another parent in addition to the natural parent." "In this case," the court wrote, "Picklesimer waived her superior right to sole custody of the child in favor of a joint custody arrangement with Mullins....What Picklesimer waived...was her right to be the sole decision-maker regarding her child and the right to sole physical possession of the child."

The court continued with what might be some of my favorite sentences ever in an opinion on this subject. It said the doctrine of partial waiver was both legally justified and "necessary 'in order to prevent the harm that inevitably results from the destruction of the bond that develops between the child and the nonparent who has raised the child as his or her own. The bond between a child and a co-parenting partner who is looked upon as another parent by the child cannot be said to be any less than the bond that develops between the child and a nonparent to whom the parent has relinquished full custody." The focus, according to the court, should be on "whether the legal parent has voluntarily chosen to create a family unit and to cede to the third party a sufficiently significant amount of parental responsibility and decision-making authority to create a parent-like relationship with his or her child."

The Kentucky trial court had awarded Mullins joint custody. The intermediate appeals court had reversed. The effect of the Kentucky Supreme Court's decision reversing the appeals court is that the trial court order goes into effect. Zachary has his two moms back.

This opinion is stunning. The first obvious reason is that it is from Kentucky, a state not known for being gay-friendly. Beyond that, however, it seems to me that the majority totally understood the family this couple created, and it understood it without the friend-of-the-court briefs customarily filed in such cases by LGBT legal groups and mainstrean mental health organizations like the American Psychological Association. The biological mother created a two-parent family; she did cede part of the right she gets from her biological connection to the child to her partner. She did it every bit as much as a married woman who has a child with a husband using donor sperm. The court specifically said that Mullins cared for Zachary "in the capacity of a parent." The child, although only 18 months old when the trial took place, knew he had two parents. And so did the majority of the Kentucky Supreme Court.

In other cases, even when the non-bio mom has been successful, the courts often hedge. They come up with a list of factors the non-bio mom must meet. They act squeamish, ever guarding against the possibility of opening the door too wide to actual non-parents. Sometimes they qualify the victory by allowing only visitation rights, not custody. This court saw exactly how this family was created and functioned and was not at all concerned about its ruling going beyond a family so obviously created in this fashion. One of the dissenting judges expressed the fear that step-parents, even after short marriages, would be able to contest custody of their step-children. I don't see that at all. The majority describes this family first by the couple's decision to bring a child into the world through donor insemination and to parent that child together. The majority makes its ruling seem like simple common sense. Which it is.

cross-posted from Beyond (Straight and Gay) Marriage

 

Britain's Equality Bill broadens scope of religious exemption

Beginning last summer, the proposed Equality Bill began making its way through the British Parliament.   It passed the House of Commons and is now about to have its final reading before the House of Lords. As I described earlier, overall the legislation is progressive and comprehensive.

Earlier this week a debate arose in the House of Lords, however, concerning the scope of the exemption from anti-discrimination rules for religious employers. The government supported a provision that would limit the exemption to jobs in which promoting, teaching, etc religious doctrine was a core element.  Clergymembers wanted a blanket exemption so long as the employer was a religious organization. The clergy won.  In the U.S., this latter position has been the standard under Title VII ever since a Supreme Court case in 1987 (Corp. of Presiding Bishop v. Amos, 483 U.S. 327) So on this issue, the Brits are just now moving back enough to catch up with us Americans.

Here's the BBC report:

...The current law allows religious organisations to rule out some applicants on conscientious grounds. The government tried to amend the bill so that exemptions to equality provisions applied only to those whose jobs "wholly or mainly" involved taking part in services or rituals, or explaining the doctrines of religion.

But the churches argued that many clergy spend only some of their time in these roles and carry out administrative and other duties.

During debates, both sides claimed they were defending the status quo, which allows religious organisations to reject candidates for particular roles on grounds such as gender, marital status and sexual orientation. ... Baroness Royall said the clarification would ensure that the church could turn down some candidates when explaining or promoting the religion was not "intrinsic to the role".

New Orleans police use "crime against nature" law to harass sex workers

Two web sources - Colorlines and Change.org - are reporting that New Orleans police are using the old Louisiana state sodomy law to increase the penalties imposed on (mostly) women convicted of prostitution from a misdemeanor to a felony, creating absurdly harsh punishments, based on the type of sexual activity involved. Wait, you may say, what about Lawrence v. Texas, the Supreme Court decision that ruled such "crime against nature" laws unconstitutional? Lawrence, however, specifically excluded commercial sexual encounters from the ambit of constitutional protection that it recognized for consensual sexual acts between adults. And the Louisiana statute specifically criminalizes solicitation for sodomy for payment. As a result, the state can argue that this portion of the law is not affected by Lawrence. (Like several other states, Louisiana did not repeal its sodomy law after the Supreme Court ruling.) Or, you might have thought that sodomy laws applied only to same-sex activity. Wrong again - sodomy at common law was defined the way that Louisiana defines it: as oral or anal sex between any two persons. 

The result: sex workers in New Orleans who are arrested for soliciting johns for oral (or anal) sex are charged with felonies; those who don't mention or can't be tricked into mentioning blow jobs are charged only with misdemeanors. Ridiculous -- except if you're sent to prison for five years and then have to register as a sex offender when you are released.

This ought to be challenged as an outrageous equal protection violation - essentially imposing radically different penalties for the same behavior, for no rational reason. It's also a dramatic illustration of how local power structures can exclude the least powerful strata within a minority group from protections, such as the impact of the Lawrence decision, that protect others within the same group.

From the report in Change:

Normally, a first-time prostitution conviction is a misdemeanor leading to less than six months jail time. But Jordan Flaherty reports in Colorlines that many New Orleans sex workers are being charged for selling oral or anal sex under the crimes against nature law, which carries a first-time felony penalty of up to five years prison time and requires them to register as sex offenders.

When used against sex workers, these controversial registries, created to keep communities aware of child molesters, become a severe rights violation that endangers an already vulnerable population, and wastes resources that could be directed toward dangerous offenders. The New Orleans Police Department's own website on sex offender awareness states that only 4% of sexual assaults are perpetrated by women -- yet in New Orleans, women make up the vast majority of crimes against nature convictions, which account for a whopping 264 out of the city's 861 actively registered sex offenders, according to registry statistics provided by LA state police spokesperson Doug Cain.

Though the registry doesn't keep track of how many of these crimes against nature were for solicitation of sex, it's safe to assume that we're looking at convictions for sex workers...

Josh Perry, a former New Orleans public defender, estimates that about half of prostitution arrests get tried as crimes against nature. This is up to the discretion of the police and district attorney, and sex workers and their advocates allege the harsher law is disproportionately utilized against black and transgender women.

Flaherty reports an array of problems, such as that women registered as sex offenders are excluded from regular storm shelters... The sex offender shelters lack separate safe spaces for women... Furthermore, since a crimes against nature conviction is a felony right of the bat, unlike a normal prostitution conviction, these women -- who in many cases turned to sex work due to poverty and a lack of other options -- are unable to get public assistance such as food stamps. Many of these women are homeless, and if sympathetic non-profits did not allow them to use their locations for a permanent address, they would end up violating the terms of their sex registry.

Gay rights and Republican lawyers: l'affaire continues

The Prop 8 trial is expected to end this week, possibly as early as Wednesday. What has been treated in the media as Ted Olson Presents will go on hiatus until final arguments, which Judge Walker has said he wants to hear after he has had a chance to review the evidence. Meanwhile, Olson had a pretty good week back at the Supreme Court, where he was the winning lawyer in Citizens United v. Federal Election Commission, the case that decimated what passed for a campaign finance reform law.

But long before Olson will be before the Supreme Court as a gay rights lawyer, the Justices will hear from the two other high quality and highly paid stars in the conservative lawyer firmament. Hastings Law School has hired Gregory Garre and Maureen Mahoney to defend its anti-discrimination policy against the challenge against it by the Christian Legal Society. CLS asserts that it has an expressive association right to exclude gay students, and Hastings argues that it has a right to deny official recognition if a group is not open to all students. 

Both Garre and Mahoney are, like Olson, superb advocates. But their role in the CLS case, like Olson's in Perry, illustrates the ways in which public interest litigation is becoming less and less distinct from ordinary corporate practice. Big firms (sometimes acting pro bono, although not in Perry or CLS) are being brought in to litigate important and high visibility cases on behalf of the public interest law groups that function as co-counsel or sponsors of the litigation. What's wrong with this picture?  Not anything, necessarily, but it surely marks a radical change from a professional landscape in which the outsider lawyer carried the case all the way through appellate stages, including to the Supreme Court.

Part of the reason is the increasing specialization of legal work, manifest in the growth of a small elite group of Supreme Court practitioners. Part of it is the sharp, almost even split among the Justices along ideological grounds in almost every area of constitutional law. And part of the reason is surely that conservative Justices currently hold the upper hand in that split, thereby creating a special appeal for having a lawyer well known for her or his conservative credentials argue your case. 

In the CLS case, it is easy to see why Hastings chose Garre and Mahoney (both partners at Latham Watkins). Both Garre, who was Solicitor General at the very end of the Bush 43 presidency, and  Mahoney, who successfully represented the University of Michigan Law School in defending its affirmative action policy in Grutter v. Bollinger, are regarded as excellent Supreme Court advocates. Their biographies bear a stunning resemblance to that of Chief Justice Roberts: all were former Rehnquist clerks and appointees in Republican Justice Departments. Mahoney was also a Bush 43 nominee for a federal judgeship, but was not confirmed.

I suppose the irony here is that "hired gun" no longer just means that a lawyer who once sought to do good will represent tobacco companies, investment banks, or big pharma. Apparently, it also means that Republican true believers will represent queers and the people who love them. At least if the price is right.

 

8th Circuit reverses summary judgment for employer who fired woman for her "Ellen DeGeneres" look

In Lewis v. Heartland Inns, 2010 WL 184087, the Eighth Circuit reversed defendant's summary judgment in a Title VII suit brought by a woman who was fired from her job as a front desk clerk after a (female) management officer said that Lewis presented as "slightly more masculine" and had "an Ellen DeGeneres kind of look."  Subtle, huh?

The plaintiff was the kind lawyers die for - her direct supervisor (who was also fired for not firing her) described Lewis' work as "phenomenal," her previous supervisors marked her for quick promotions to the prime-time day shift, and a customer had written in to praise her.  Despite this, the uber-manager said that anyone filling that customer-intense service role should have a "Midwestern girl look."  Lewis, alas, was "tomboyish."

The Eighth Circuit ruled that the district court was wrong to insist that Lewis demonstrate that she was treated differently than male employees, stating that she needed to prove that she was discriminated against because of her sex, and the male comparator was only one way to do that. The court held that the evidence of gender stereotyping in the case placed it squarely within the scope of Price-Waterhouse v. Hopkins.

In discussing similar cases in other jurisdictions, the circuit court cited both Smith v. City of Salem, a Sixth Circuit case involving a transgender firefighter, and First and Second Circuit cases involving women denied promotions because they had young children. So dissimilar on the surface, yet exactly right as a coherent group of citations -- these three cases, as well as the new decision, illustrate what sex discrimination looks like circa 2010.

Justice Thomas promotes idea that anti-gay donors need special protection

In today's Supreme Court decision invalidating restrictions on corporate funding of political campaigns, Justice Thomas (writing only for himself) published an opinion that, in part, argued that the law does not go far enough in protecting anonymous political speech. Why?  Because of the risk of intimidation, the prime example of which, in his mind, is "Proposition 8-related retaliation."  Excerpts from his concurring opinion in Citizens United v. Federal Election Commission, 2010 WL 183856:

Congress may not abridge the “right to anonymous speech” based on the “simple interest in providing voters with additional relevant information." In continuing to hold otherwise, the Court misapprehends the import of “recent events” that some amici describe “in which donors to certain causes were blacklisted, threatened, or otherwise targeted for retaliation.” Ante, at 54. The Court properly recognizes these events as “cause for concern,” ibid., but fails to acknowledge their constitutional significance. ...

Amici 's examples relate principally to Proposition 8, a state ballot proposition that California voters narrowly passed in the 2008 general election. Proposition 8 amended California's constitution to provide that “[o]nly marriage between a man and a woman is valid or recognized in California.” Any donor who gave more than $100 to any committee supporting or opposing Proposition 8 was required to disclose his full name, street address, occupation, employer's name (or business name, if self-employed), and the total amount of his contributions. The California Secretary of State was then required to post this information on the Internet.

Some opponents of Proposition 8 compiled this information and created Web sites with maps showing the locations of homes or businesses of Proposition 8 supporters. Many supporters (or their customers) suffered property damage, or threats of physical violence or death, as a result. They cited these incidents in a complaint they filed after the 2008 election, seeking to invalidate California's mandatory disclosure laws. Supporters recounted being told: “Consider yourself lucky. If I had a gun I would have gunned you down along with each and every other supporter,” or, “we have plans for you and your friends.” Complaint in ProtectMarriage.com-Yes on 8 v. Bowen, Case No. 2:09-cv-00058-MCE-DAD (ED Cal.), ¶ 31. Proposition 8 opponents also allegedly harassed the measure's supporters by defacing or damaging their property. Id., ¶ 32. Two religious organizations supporting Proposition 8 reportedly received through the mail envelopes containing a white powdery substance. Id., ¶ 33.

Those accounts are consistent with media reports describing Proposition 8-related retaliation. The director of the nonprofit California Musical Theater gave $1,000 to support the initiative; he was forced to resign after artists complained to his employer. Lott & Smith, Donor Disclosure Has Its Downsides, Wall Street Journal, Dec. 26, 2008, p. A13. The director of the Los Angeles Film Festival was forced to resign after giving $1,500 because opponents threatened to boycott and picket the next festival. Ibid. And a woman who had managed her popular, family-owned restaurant for 26 years was forced to resign after she gave $100, because “throngs of [angry] protesters” repeatedly arrived at the restaurant and “shout[ed] ‘shame on you’ at customers.” Lopez, Prop. 8 Stance Upends Her Life, Los Angeles Times, Dec. 14, 2008, p. B1. The police even had to “arriv[e] in riot gear one night to quell the angry mob” at the restaurant. Ibid. Some supporters of Proposition 8 engaged in similar tactics; one real estate businessman in San Diego who had donated to a group opposing Proposition 8 “received a letter from the Prop. 8 Executive Committee threatening to publish his company's name if he didn't also donate to the ‘Yes on 8’ campaign.” Donor Disclosure, supra, at A13.

The success of such intimidation tactics has apparently spawned a cottage industry that uses forcibly disclosed donor information to pre-empt citizens' exercise of their First Amendment rights....

 

Daily transcripts of Perry trial available online

The organization sponsoring the case challenging Prop 8 has begun to post transcripts of each day's trial proceedings online.  The first six days have been posted, together with transcripts of some of the hearings. This is an enormous public service - transcript production, especially on a daily basis, is a major expense with obvious benefits to the trial lawyers who use them as a kind of instant replay for spotting omitted arguments, gaps in the evidence, etc. The Prop 8 legal team deserves thanks for sharing this product with the public.

Chinese government ambivalence on gay visibility

Last week the Chinese government abruptly canceled a "Mr. Gay China" pageant. David Bartram, writing in The Guardian, reflects on what the action says about official policy:

... Homosexuality was only removed from the state-approved list of mental illnesses in 2001, and since the government has broadly taken a laissez-faire approach to the issue. While Beijing is home to a handful of gay clubs, it would be extremely unusual to see a gay couple openly affectionate in any other public place. It appeared the government was happy for a gay community to exist, as long as it broadly stayed out of the public eye.

Yet last year, something seemed to change. In April, the state-run China Daily, the country's largest English-language newspaper, splashed a picture of a gay couple marrying close to Tiananmen Square on its front page. Although the marriage was primarily ceremonial and not legally binding, it was state-approved. The paper ran a similar front page story last week, days before the cancellation of the gay pageant.

And there were more signs that senior officials were keen to, if not promote, at least educate Chinese people about gay rights. I was asked by an editor at one of China's most popular state-run youth newspapers to write an article last year detailing how "being gay is OK now". It seemed a strange request at the time, but was just one of a series of articles featured in the newspaper that made an effort to talk more openly about sexuality.

So why the sudden change? One reason could be to address China's youth, which is often woefully uninformed on sexual issues. Rising numbers of HIV cases (estimates suggest around 700,000 Chinese are HIV-positive), and an increased exposure to more sexually liberal western television and film may have forced the government's hand on discussing not just gay issues, but sex in general. The government would rather maintain some control over sex education than allow shows such as Desperate Housewives – immensely popular among Chinese students keen to improve their English – to do the job for them...

When the owner of a bar announced to me a few months ago that he was rebranding his establishment as a gay club, it was not a political but a financial statement. But it was also a sign that going gay can bring financial incentives in the city's hyper-competitive bar and club scene. As ever in China, it could be economic growth that precedes social change.

Yet still, as events on Friday showed, there is a strong enough reactionary presence within the party to clamp down on what it sees as politically sensitive. The cancellation will serve as a warning that while homosexuality is now tolerated, the government continues to have the final say on what is and what isn't allowed to be publicly promoted.

Former nude centerfold model wins Senate seat

No, I'm not being snarky about Scott Brown's victory in Massachusetts. (Clinically depressed maybe, but not snarky) I don't think it should matter at all that he posed nude for a Cosmo centerfold almost three decades ago, when he was a law student. And I think that the fact that virtually no media paid any attention to this during the campaign was exactly correct.

But if Scott Brown were Sarah Brown, and Sarah had picked up some extra money during law school posing for the same kind of photo, do you think it even remotely possible that this would not have haunted her during the campaign?

Supreme Court decision stopping webcast of Perry trial draws cross-fire

Sometimes a Supreme Court opinion gets blistered from day one, and that appears to be the majority - although far from the only - reaction to the Court's reversal of District Judge Vaughn Walker's decision to allow the trial proceedings in Perry v. Schwarzenegger to be webcast. I don't usually do round-ups of other voices (my own reaction here), but this opinion - on an obscure procedural point - obviously touched a lot of nerves, ranging from bias/equality concerns to how courts should be run in a media intense culture. Consider:

University of Minnesota Law Professor Dale Carpenter gave voice to what many lgbt rights advocates fear:

While the Supreme Court’s per curiam opinion today deals with legal matters apart from SSM, it is a potentially ominous development for the pro-SSM litigants. The majority here — split along familiar ideological lines, with Justice Kennedy joining (and Orin [Kerr] suggests, writing for) the majority — paints a picture of a district judge and to some extent an appellate court acting hastily and lawlessly to make special rules to favor one side in a single case.  That may or may not be what the district court did, but that’s what five Justices have concluded.  As an advocate, you’d rather not have the ultimate reviewing court call into question your judge’s objectivity on the third day of trial. The Court also takes seriously the claims of irreparable harm to anti-SSM witnesses based on criticisms and retaliatory action some claim to have faced after Prop 8 passed. As an advocate, you’d rather not have the ultimate reviewing court see the opposition as David needing protection from your Goliath.

All in all, it’s a bad start for the judicial challenge to Prop 8.

Emily Bazelon, at Slate, agrees:

None of this bodes well for the main show. The power lawyers for the Perry plaintiffs, Ted Olson and David Boies, argued in filing this high-stakes, risky suit that they can count five votes for same-sex marriage on the Supreme Court because of past decisions by Justice Kennedy, whom they read as sympathetic. But if Kennedy is ready to block cameras from recording the stories of gay couples, at the behest of their opponents, how sympathetic is he? Would he really take the enormous step of striking down 40 state laws across the country that bar same-sex couples from the altar? This, like the Perry trial, it is hard to see.

Another striking aspect of the response was the quick comparison to Bush v. Gore, and the fact that both those who agreed and disagreed drew the link. UC-Irvine Law Dean Erwin Chemerinsky, quoted in the LA Times:

The ideological split was stunning. It made me think of Bush vs. Gore.

GW Law Professor Orin Kerr drew the same comparison, but supported the Court's action as an intervention to stop a lower (or state) court from "manipulating the rules." His colleague Jon Siegel also agreed with the decision.

FIU Law Professor Howard Wasserman supported the ruling on what he called "formalistic" grounds, but not without criticism:

...[T]he majority ... insist[ed] that, procedural rules aside, this case is not a good one for the Ninth Circuit's camera pilot program, because it is a high-profile case involving "issues subject to intense debate in our society." The majority has been (rightly) lambasted for this assertion. After all, the suggestion seems to be that publicizing trial might be a good idea for informing the public about legal proceedings, except when the public actually cares about those proceedings. By all means, televise the diversity property-damage traffic accident, but not the case (and the legal, factual, and social-scientific evidence and arguments) that may edcuate the public and help decide fundamental political-social issues. That substantive view undergirds the procedural decision.

NYU Law Professor Barry Friedman called the Prop 8 trial "a morality play aimed at all of us,... and we should get to see it."

Adam Liptak in the NY Times was understated but critical:

On Wednesday, [the Supreme Court] shut down plans to broadcast the same-sex marriage trial in San Francisco partly for fear that witnesses in the case would be harassed if their public testimony were made more public. That conclusion is known in the trade as speculation.

Dalia Lithwick at Slate was more pointed:

...[B]eneath all of the social-science testimony and constitutional nitpicking lies a deep institutional anxiety about whether California's voters or unelected federal judges should be the arbiters of what marriage means. Opponents of liberal jurisprudence, and their pushy push to legalize gay marriage, have long argued against allowing unelected, sherry-sipping judges to substitute their values for those of the American people. As an argument, this has legs. It's populist. It's catchy. But it's hard to take it seriously when the same people making it also come out strongly against letting the people watch trials.

Orin Kerr was not persuaded by Lithwick's column that the hypocrisy cut only one way, arguing that progressives had to be equally ready to support the televising (and all the ensuing free PR for the plaintiffs) of a reverse discrimination case, for example.

I saw only one major journalist who was supportive of the Court. From the Washington Post:

...Walker performed legal pirouettes worthy of "Dancing with the Stars" to ensure cameras in his courtroom for the same-sex marriage trial. ... In many ways, the case is indeed a perfect candidate. It’s a bench trial, meaning the judge presides and decides -- there’s no jury that could be swayed by cameras or coverage. Lawyers on both sides of the case are among the best in the country and veterans of multiple high-profile cases. So they should be able to perform professionally without turning the proceedings into a circus. And there is unquestionably high public interest in viewing the proceedings and understanding the outcome.

But rather than accept that the legal framework for trial broadcasts was not yet in place, Walker cut corners and rushed through proposed changes in the proverbial dead of night -- on New Year's Eve, no less. He also went way beyond the limited and controlled broadcasts approved by the chief judge of the federal circuit. And he gave short shrift to opponents of gay marriage, who argued that broadcasting the proceedings would subject them to increased harassment by gay marriage supporters. ... I also don't think that the kinds of concerns raised by the opponents of gay marriage generally should derail broadcasts; they're not, after all, in the witness protection program testifying against Mafia bosses. But Judge Walker didn’t allow sufficient time for those and other concerns to be raised and considered....

At a minimum, the opinion's stinging rebuke of Judge Walker will fuel conservative attacks on his fitness to hear the case. Attacking this judge has already become a recurring theme in the PR strategy of Prop 8 defenders. Judge Walker is in the media cross-hairs.

Production underway for Prop 8 TV

An independent Hollywood production company has announced that it will webcast here dramatic re-enactments of each day of testimony in Perry v. Schwarzenegger. Along with all the other firsts associated with this case (first federal court trial of the right to marry, first time Ted Olson has been called an honorary lesbian, etc), an almost real-time web-based re-enactment of any trial must surely be another first.

Expected debut is tomorrow.

When I first visited the site a few days ago, the producers were still casting, but apparently the availability of actors in southern California has solved that problem.

I have thought ever since I heard how this case was launched that the movie rights might be one of its major components, and certainly that the film version would follow final judgment pretty expeditiously. And while I don't know who will be portraying whom in the webcast, it's fun to speculate about who might play the leads in the big studio production.

My choice: Christopher Walken to play Ted Olson. It just seems right.

           

            

An historian's view of an historian's view of marriage

One of the more interesting takes on last week's testimony in Perry v. Schwarzenegger was this commentary by Wesleyan history professor Claire Potter on the testimony by Harvard professor Nancy Cott, probably the leading American historian of marriage:

...Yesterday, [George] Chauncey [a history professor at Yale] historicized the ways in which the law has persistently demonized queer people, while Cott gave the complex rendition of the history of marriage that one might expect and hope for from her. Perhaps because the right has finally ceded gay people's right to exist outside a prison cell but a smart woman is always annoying, several accounts of yesterday's proceedings suggest that Chauncey's testimony went relatively unchallenged and Cott bore the brunt of the defense's attack.

Fortunately Cott is one of the toughest cookies I know, and I know a lot of tough cookies forged in those early days of what we used to call women's history. Counsel for the defense pushed Cott on whether, if her analysis of marriage as primarily a political and economic institution were correct, there would be no reason not to legalize polygamy as well. She was also repeatedly asked to listen to long, boring passages from her own and other people's scholarship that were designed to introduce inconsistencies in her testimony; and to answer complex historical questions with the words "yes" or "no."

New York Times Bay area blogger Gerry Shih, reporting on yesterday's action, noted that "after Professor Cott had left the stand, defense lawyers lashed out at her performance, calling it a 'disaster' and part of a strategy that backfired on the plaintiffs." Yes, telling the historical truth can really backfire, particularly in the debate over gay marriage, where politics are far more important than the truth. Anti-gay marriage initiatives timed to coordinate with national elections were part of the dirty tricks package originally brought to the table by Bush strategist Lee Atwater in the rollicking 1980s. The point of such initiatives was, and still is, not to perfect society but to win elections by manipulating the electorate with lies such as: gay marriage will destroy your family; voting day has been changed to Wednesday; John McCain has a black love-child; Barack Obama wants you to vote for Prop 8/is a practicing Muslim/a terrorist/isn't a citizen; sex education curricula in Illinois instruct first graders on how to sodomize each other.

But back to the court room, where the truth (theoretically) prevails. What were Cott's errors, if indeed she made any? Shih writes that "Andrew Pugno, one member of the defense team, said the historian had made a series of tactical mistakes, including her statement that “the consequences of same sex marriage are impossible to know.” Interrupting the true-false choices momentarily, Thompson also asked Cott "if there exists 'a social institution as important to children as marriage.' She paused, then replied: 'I think families are important to children.'" In right-wing speak, this would be an error because families are the exact opposite of gay.

Continuing, "Mr. Thompson then asked: 'the biological connection is irrelevant?' Yes, Professor Cott answered." Wait! We know from the abortion debate that the most sacred and natural bonds are biological, right?

Well, except that biology's only relevance to adoption and marriage, two major ways in which the law constructs natural "family," is its explicit prohibition. You can't adopt someone who is already your biological child and you can't marry a person within two degrees of biological relation in most states: thus, the lack of a biological relation is foundational to the construction of "natural" families. So it is relevant, but not in the way Thompson means it. I understand that it is the job of each legal team to discredit witnesses everywhere they can, but this may be shaping up to be another Scopes v. Tennessee (1926), in which the incoherence of the anti-gay marriage position may become more obvious to a larger audience, particularly those people who think that the chief concern at stake in marriage is the happiness and security of children, not adults. It is, I am afraid, what most people do think, which is a sad commentary on the state of modern marriage.

The way Cott was treated on the witness stand also reminds one that, to paraphrase Dickens' Mr. Bumble, the law is an ass, which is why many of us are not particularly interested in having it sanction and regulate our partnerships. But to close with a final reflection on the practical uses of history: challenges to the nuances of our intellectual practice by attorneys cannot help but raise unpleasant memories of EEOC v. Sears (1986). People of my age will recall that expert, different, but not necessarily opposite, testimony by two feminist colleagues became divisive within the profession when Sears prevailed over women workers. In retrospect, Sears was also an early indicator of where the fault lines in feminism would be being exploited by conservatives, in the Reagan administration and subsequently.

Fortunately, although queer history and the history of sexuality are not well supported by many departments, and some colleagues are openly hostile to it, there does not seem to be a cadre of prestigious historians out there who can be called to dispute Cott and Chauncey. And that may also signal an important shift towards a more broadly accepted view of marriage itself as a secular institution that is best comprehended in through secular forms of thought. We'll see.

Supreme Court grants cert in Washington state referendum case

Yesterday the Supreme Court agreed to resolve the question of whether persons who signed a petition seeking a voter referendum to repeal a domestic partner benefits law could stop public release of their names. (The Court had earlier granted a stay to block release of the names pending further proceedings below.) Under review will be the Ninth Circuit decision in Doe v Reed, which upheld a Washington state law that permits the names to be made public. (The referendum measure that gave rise to the dispute over disclosure, R-71, was placed on the ballot and defeated in November.)

As I noted on Wednesday when the Court blocked the plan to webcast the trial in Perry v. Schwarzenegger, this new case is also highlighting claims by gay marriage opponents that they fear intimidation for speaking publicly. Unfortunately, the accident of the two cases arriving at the Court in such rapid fire succession may make the claims in each seem to reinforce each other. (A Heritage Foundation briefing paper spells out this argument; see "The Price of Prop 8.") For example, the Doe v. Reed cert petition cited knowthyneighbor.org, a searchable database with the names of persons who have signed petitions opposing gay marriage in several states, to illustrate organizations that "encourage harassment and intimidation." 

Watching how the Court responds to the factual context of the case will be the most interesting aspect of it from a lgbt rights perspective, since there will be nothing pro- or anti-gay about the outcome.  If, for example, the "pro gay" side wins and the names have to be disclosed, you can bet that anyone signing a petition in Alabama asking a city council to pass an anti-discrimination law or a school board to pass an anti-bullying law will see his/her name on the internet in a New York minute. So a "pro gay" result is likely to chill petition campaigns, but which movements will suffer most from that is anyone's guess. In other words, there is no "pro gay" position at issue, only a question about the tension between openness of political processes and protection of political expression.

I haven't yet decided exactly what my own position is.  I take some comfort in noting that legal scholars for whom I have much respect have also expressed wariness about forcing disclosure of the names of those advocating a given political position, not to mention the irony of that argument coming from the lgbt movement, which in the past has fought hard to maintain the secrecy of names of members of lgbt organizations. As Katherine Franke points out, attempts to protect names of political adherents have generally come from civil rights groups. Mike Dorf argues that precedent probably supports upholding the state law (and allowing name disclosure), but good public policy suggests altering that law to  protect the names (which would also be constitutionally permissible). I share Katherine's and Mike's ambivalence over what the best outcome would be, and I'll be chewing on these arguments in the weeks to come.

Barney Frank: House will vote on ENDA in March

According to an interview with the Advocate, Rep. Barney Frank is predicting that ENDA will go through mark-up in February and be on the House floor for a vote in March. Barney is close to the House leadership, so it's a safe bet that this means that House Speaker Nancy Pelosi's promise that during 2010 she would not force Dems to vote on any controversial bills until after the Senate had voted on them will not apply to ENDA.  Which is a good thing, since ENDA's fate in the Senate is a huge question mark.

What's holding up ENDA?  As I wrote last month, resistance to some aspects of trans inclusion is, not surprisingly, coming from conservative Dems.  According to Barney:
“There continue to be concerns on the part of many members about the transgender issue, particularly about the question of places where people are without their clothes — showers, bathrooms, locker rooms, etc. We still have this issue about what happens when people who present themselves as one sex but have the physical characteristics of the other sex, what rules govern what happens in locker rooms, showers, etc.” Well, that quote isn't up to Barney's usual standard of verbal acuity, but whatever. Developing language to secure these votes, plus revising sections to insure that ENDA is consistent with Title VII, is what advocates are working on now.

Meanwhile, conservatives are opening another attack on ENDA, arguing that it is a stepping stone to same-sex marriage.  A briefing paper from the Heritage Foundation concludes:

Even if courts redefining marriage do not, in a strict sense, construe nondiscrimination laws as creating, allowing, or authorizing same-sex marriage, one cannot deny the effect that nondiscrimination laws and other gay-rights policies might very well have on marriage cases. ... [S]ome courts might cite nondiscrimination laws and other gay-rights legislation as evidence that society has abandoned certain precepts undergirding a policy of defining marriage as the union of husband and wife or as evidence that society has embraced an evolving public policy of protecting homosexuality, either of which could make it more difficult for state officials to defend marriage...

"Certain precepts undergirding a policy of defining marriage as the union of husband and wife" - whatever could that mean?