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20 posts from July 2010

July 30, 2010

Benefits decision establishes pretext basis for Equal Protection claim

In Collins v. Brewer, [2010 WL 2926131] a U.S. District Court Judge in Arizona ruled that a law rescinding partner benefits for state employees was unconstitutional as applied to same-sex partners because it, together with the ban on same-sex marriage, amounted to a pretext for discrimination based on sexual orientation.  The law would have limited employee benefits to spouses.

The judge noted that because different-sex partners can marry, the effect of dropping partner benefit coverage was to legislate invidious treatment for gay employees. The pretext ruling is an important precedent for other courts to consider when facially neutral restrictions based on marriage are being challenged.

Having reached that conclusion, Judge John Sedwick granted a preliminary injunction against the new law taking effect. One imagines that the state will appeal and seek to lift the injunction while the appeal is pending, but I think chances are good that the Ninth Circuit will leave it in place.

Another significant aspect of Collins is that the court explicitly adopted the heightened rational basis standard of review from Justice O'Connor's concurring opinion in Lawrence v. Texas, noting that it applies when "a classification harms a politically unpopular group or personal relationships." The judge stated that "some form of heightened scrutiny might apply..., but it is unnecessary to decide whether or which type of heightened scrutiny might apply" because plaintiffs had demonstrated a likelihood of success (the standard for a preliminary injunction) based on the rational basis test.

Judge Sedwick considered each of the state's proffered rationales for the change in benefits and found a rational relationship lacking. The state's strongest argument was cost savings, but the court noted that the amount saved from cutting off same-sex partners would be minuscule because they are so few in number.

One downside to the opinion is dicta to the effect that the state's interest in promoting marriage furnished a reasonable basis for dropping different-sex partners. "It is only by denying benefits to heterosexual domestic partners that marriage might be promoted." (The court noted that the cost savings argument did not work as a rationale, because different-sex couples could marry and immediately claim the benefits.)

Congrats to the Lambda Legal team, led by Jenny Pizer, who is representing the plaintiffs.


Press on for DADT vote in the Senate by September

With lgbt groups ramping up pressure for a Senate floor vote before Congress adjourns for fall campaigning, Majority Leader Reid's spokesman told The Advocate that “We expect to have a vote [on the defense authorization bill, including DADT repeal] in September.”

In all, three votes are still necessary to send the bill to the president’s desk — the Senate version must be passed by the full chamber, and then after the bills go to conference to reconcile the differences between the House and Senate versions, each chamber will have to pass the final conference report.

From Wonk Room:

Human Rights Campaign (HRC) and the The Servicemembers Legal Defense Network (SLDN) are urging supporters in 10 states to contact their representatives and “tell them to repeal ‘Don’t Ask, Don’t Tell’ and follow the lead of Chairman Carl Levin who will be managing the defense bill on the floor.” Levin had previously told supporters that he had hoped to vote on the defense authorization bill before the August break and later predicted that it would go to the floor last week.

The groups’ campaign, called Countdown 2010, hopes to “mobilize grassroots supporters of equality across the country through in-district meetings as well as a call-in and email campaign.”

HRC and SLDN’s efforts will be specifically focused on 10 states with key lawmakers whose votes on DADT repeal are critical: Arkansas, Indiana, Montana, Nebraska, Nevada, New Hampshire, North Dakota, Ohio, South Dakota, and Virginia.

Advocates fear that pushing the vote past September, closer to “when the Pentagon’s working group study on implementation is due to be released,” would “provide an opening for detractors of repeal to scuttle support for the measure, whether through an overt effort to strip it from the bill or through a secondary amendment to broaden the certification requirement beyond the president, Defense secretary, and chairman of the Joint chiefs.”

Indeed, it’s still unclear if Democrats have enough votes to defeat a measure that would expand the certification process to chiefs who have publicly expressed support for the ban on open service. Yesterday, the Washington Blade’s Chris Johnson reported that Sen. Blanche Lincoln (D-AR), widely considered a swing vote on the issue, said that she would support the existing DADT repeal amendment, but “wouldn’t commit to a position on a possible floor amendment that would strip the language from the bill.” Lincoln actually has a surprisingly positive record on LGBT issues. She did not register a vote on the Defense of Marriage Act in 1996, supported DADT in 1993, but voted for the hate crimes bill 2009, and against cloture on a measure that would have prohibited individual states from recognizing marital status and/or legal benefits from any other unions other than that of a man and woman.

July 27, 2010

American Bar Assn to vote on marriage equality

When the annual convention of the American Bar Association convenes next week in San Francisco, one item on the agenda for the House of Delegates will be a vote on Resolution 111, which would put the powerful and prestigious organization on record as supporting equal marriage rights for gay couples. The resolution reads:

RESOLVED, That the American Bar Association urges state, territorial, and tribal governments to eliminate all of their legal barriers to civil marriage between two persons of the same sex who are otherwise eligible to marry.

The resolution is sponsored by the Section on Individual Rights and Responsibilities, together with a number of state and local bar associations and commissions within the ABA. The IRR report with a recommendation for adoption is here.

July 22, 2010

Defense Department surveyed troops on de-segregation in the 1940's

From the research done by my casebook co-author Bill Eskridge, I knew that the Pentagon had conducted surveys of troops in the 1940's seeking their opinions about de-segregation, but I didn't have the documents. Now Igor Volsky at Wonk Room has taken the trouble to unearth survey documents from the National Archives, and has published them. The documentation proves that lgbt rights advocates are wrong in saying that the opinion survey on ending DADT now being circulated is unprecedented, although it is unclear why DoD would want to follow this particular precedent.(Amazingly, the Pentagon also asked troops how they felt about Jews.)

My bet is that the Pentagon's DADT surveys will show lower rates of anti-gay prejudice than the racism uncovered in the 1940's. There are big differences in the servicemember population, though, that could cut in multiple directions: the race surveys were done during a war, with a massive number of draftees in the service, presumably more representative of the U.S. population as a whole than today's volunteer military; and the older surveys were only of men, and enlisted men at that. Another big difference: as far as I know, the surveys in the 1940's did not trigger a war of spin, which surely will follow the survey being circulated now, regardless of the results.

Following is the Wonk Room post:

Earlier this month, as part of the year-long Defense Department review of the Don’t Ask, Don’t Tell policy, the Pentagon distributed surveys to some 400,000 servicemembers to gauge their reaction to repealing the policy. While LGBT groups have characterized the questionnaire — which asks the troops to speculate on the sexuality of fellow servicemembers — as “derogatory and insulting,” the Pentagon continues to insist that they need to know what the troops are thinking in order to properly repeal the ban. “How do we identify beforehand the problems, the issues, and the challenges that we’re going to face? The kind of training requirements we’re going to need, the kinds of changes in regulations, the impact on benefits — all of these things need to be addressed in advance…. That’s where we want to hear from you all,” Defense Secretary Robert Gates told troops stationed in South Korea.

Yesterday, the Advocate’s Kerry Eleveld reported that this is not the first time the military had surveyed the troops. “Prior to President Truman’s 1948 executive order integrating the armed forces…our preliminary research shows that branches of the armed forces undertook a number of modestly sized surveys of the attitudes of enlisted and nonenlisted troops concerning racial issues, integration, and morale,” Eleveld quoted a Defense Department spokesperson as saying.

Today, I traveled to the National Archives and recovered some of the surveys the military conducted about the troops’ attitudes towards black people between 1942 and 1946. At the time, the military — along with the overwhelming majority of the country — opposed integrating black servicemembers into the forces and preferred a ’separate but equal’ approach that would have required the military to construct separate recreation spaces and facilities. One month before Truman’s order, a Gallup poll showed that 63% of American adults endorsed the separation of Blacks and Whites in the military; only 26% supported integration.

These surveys show that the same attitude pervaded the military: 3/4 Air Force men favored separate training schools, combat, and ground crews and 85% of white soldiers thought it was a good idea to have separate service clubs in army camps:

Final Race Wonk Room

While smaller, these racial polls share some common questions with the DADT survey. In fact, in some instances one can even replace “negro” for “gay” and end up with today’s questionnaire. Both polls ask servicemembers if they objected to working alongside minorities, how they felt serving with minorities, how effective minorities are in combat and if their feelings have changed about the minority after serving with them. (Interestingly, 77% of respondents said they had more favorable opinion).

Truman integrated the forces despite the objections of the troops and it remains to be seen if Gates, Chairman of the Joint Chiefs of Staff Mike Mullen and President Obama (who have to sign off on the DOD study) are willing to do the same for Don’t Ask, Don’ Tell. So far, the Pentagon insists that it will. “It is abundantly clear to this working group that their marching orders from the Secretary of Defense are to determine how to implement a repeal of DADT,” Geoff Morrell, the Pentagon’s spokesperson insists. “Their job is not to determine whether or not the force wishes a repeal to take place or not to take place. Their job is to prepare for that inevitability.” (While the results of the DADT survey are obviously pending, past surveys of military veterans have found that an overwhelming majority say it’s “personally acceptable to them if gay and lesbian people were allowed to serve openly in the military.”)

July 21, 2010

The new globalization of "gay" "pride"

  QUAIA

Gay pride events went global a long time ago. For years, Stonewall-timed marches and festivals have been taken up in other countries, in what was a clear importation of norms and concepts from the U.S. This year I've noticed a real shift in the balance: ideas and debates are moving in the other direction. Partly that is because of breakthroughs, especially in Latin America. In addition, concerns from beyond Euro-American borders are reshaping the contours of "gay" issues and implicitly questioning what it is, exactly, we are proud of.

The organizers of Toronto Pride, for example, made the boneheaded decision to exclude the Queers Against Israeli Apartheid group, triggering such an outcry that they had to back down. Protests against Israeli occupation policies also reached San Francisco and Madrid. As world opinion condemning those policies mounts, lgbt pride events will probably continue to be venues for expressing solidarity with Palestinians, and/or contesting whether this is a "gay issue."

Tel Aviv University Law Professor Aeyal Gross provides one concrete reason why it is. Gross, who marched in Tel Aviv Pride behind a banner saying "There is no pride in the occupation,"  describes how the Israeli government attempts to use its degree of support for lgbt rights as a distraction from its policy toward the Palestinians. "Victories for civil rights ... are quickly co-opted by the government in its efforts to present Israel’s liberal credentials. Gay rights have essentially become a public-relations tool."

Scott Long, head of the lgbt rights program at Human Rights Watch, makes a different point, arguing that the most significant form of legal oppression for lgbt people worldwide comes from criminal laws, themselves a legacy of both the old and the new colonialism:


As Americans, we can easily become accustomed to thinking that globalization means never having to go anywhere where you can't buy a coca-cola product. The language of "gay rights", also, has seemed like a U.S. export, even though there are queer-marked or -identified people in every culture. A truly global discourse of rights will, however, inevitably change the conversation.

July 20, 2010

Judges enjoin two state anti-abortion laws

Judges in Nebraska and Oklahoma have stopped enforcement of two of the most restrictive TRAP (targeted restrictions on abortion providers) laws enacted this year. In  Planned Parenthood of the Heartland v. Heineman [2010 WL 2773437], the U.S. District Court in Nebraska last week enjoined a law that would have taken effect July 15, requiring extraordinary screening of women seeking abortions and imposing a number of other procedural roadblocks. The court found that plaintiffs were likely to succeed on the merits on a number of theories, including the unduly burdensome interference test established by the Supreme Court in Casey. Judge Camp ruled that the law would impose "substantial, likely insurmountable obstacles."

Yesterday a state court judge in Oklahoma issued a preliminary injunction in Nova Health Systems v. Edmundson, blocking enforcement of a law that would have required women seeking abortion to be shown an ultrasound image of the fetus. The preliminary injunction, which will remain in place until a trial scheduled for 2011, replaced a temporary restraining order earlier granted by the same judge.

Iowa judges fear anti-gay attacks in upcoming retention elections

According to this article in the Des Moines Register, judges in Iowa who will have retention votes in November are apprehensive about anti-gay groups targeting them in the campaign. Three of the justices on the Iowa Supreme Court (which unanimously invalidated the exclusion of gay couples from marriage) will be on the ballot, as will the trial court judge who also ruled that the exclusion violated the state's constitution.

Jeffrey Neary, [a] northwest Iowa judge, didn't know how to respond to the newspaper ads, radio spots or "Vote No" pamphlets calling for his removal after he divorced a lesbian couple in 2003. Judicial ethics rules banned campaigning, except to respond to an attack. Direct fundraising was not an option.

Neary survived that campaign against him six years ago, but judges who face retention votes this year are braced for similar political attacks, in response to the Iowa Supreme Court decision that made same-sex marriage legal.

At least one group that tried to impeach a Polk County judge in 2007 over a same-sex marriage ruling is considering an effort this fall to boot judges off the bench. Others who opposed that decision say they will encourage supporters to vote "no" on all judges who appear on the November ballot....

Legal observers predict the Varnum vs. Brien same-sex marriage case will inspire last-minute calls to unseat judges, potentially politicizing the retention votes of jurists who are supposed to remain impartial. The ruling's opponents say that the justices have already injected politics into the court and exceeded their constitutional power.

"I'm not at all hesitant to say I expect attacks," said Rachel Paine Caufield, a Drake University assistant professor who studies judicial selection and retention. "We've seen it in other states, and we've seen that they often come late in the game."

Among those on the ballot this November: Iowa Supreme Court Chief Justice Marsha Ternus, and Associate Justices Michael Streit and David Baker — all part of the seven-member court that last year unanimously overturned the state's decade-old gay marriage ban. Each declined to be interviewed for this article.

Neary, appointed by Gov. Tom Vilsack in 2002, was challenged after he divorced a Sioux City lesbian couple that had formed a civil union in Vermont. Neary later said he did not realize the couple was same-sex, and amended his ruling to say he had only ended a civil union.

The 2003 decision — before gay marriage was legal in Iowa — triggered an outcry from social conservatives and calls by Rep. Steve King, a Republican, to vote Neary off the bench. Neary held his seat with 59 percent support, but that was the narrowest margin of any Iowa judge retained in the past decade, a Des Moines Register review of voting data shows. Judges in that 2004 election were retained with an average of 77 percent support, a figure that has changed little in recent years.

But Neary didn't forget the campaign against him. "I will tell you, honestly, that for two years after my retention election, I thought carefully about how I was going to rule on things," said Neary, who stands for retention again this year. "I don't want to say that I changed rulings, because I don't think I ever did. But you ask yourself: Who's going to care about this decision?"

Judge Robert Hanson said in an interview that he anticipates some effort before the November election to remove him....The Polk County district judge made the initial ruling in the landmark Varnum vs. Brien case, deciding that same-sex couples could not be denied licenses to marry. Iowa's Supreme Court unanimously upheld his decision.

Hanson was appointed by Gov. Tom Vilsack in 2003 and was retained the next year with 79 percent support. But, he said, after the ruling he was contacted by individuals who appeared to believe that the judge himself had initiated the lawsuit.

Political attacks on judges are rare in Iowa, said Dwight James, a Des Moines lawyer who heads an Iowa State Bar Association panel on judicial independence. But, James said, he anticipates attacks this year on the three Supreme Court justices who face retention, and possibly on judges who have performed same-sex marriages. Judges who marry heterosexual couples must also perform marriage ceremonies for gay couples, the Iowa attorney general's office has said....


July 19, 2010

Sexuality and gender law symposium issue published

UCLA Law Review has published the ipapers presented at its symposium last February on Sexuality and Gender Law: Assessing the Field, Envisioning the Future. The event was co-sponsored by the Williams Institute. You can download pdf's of the articles here. Authors include Kathy Abrams, Kim Buchanan, Mary Anne Case, Scott Cummings and Doug Nejaime, Bill Eskridge, Suzanne Goldberg, Sonia Katyal, Teemu Ruskola, Kenji Yoshino, and yours truly.

The complexities of gay marriage politics in Argentina

With lgbt rights increasingly a marker for modernization (or often just westernization) and sophistication in global politics, changes in marriage (or other) laws take on multiple meanings. NPR reports that opinion polls show 70% support for the legalization of gay marriage in Argentina, which seems amazing to Americans. Following is a fascinating post from 538 by Thomas Dollar on the back story there, which gives a sense of the mix of social meanings that can explain that level of popular support:

The most obvious implication of Argentina’s law is that gays and lesbians will marry and adopt children. But as with everything in Argentina, there are also baser political implications. President Fernández was a strong backer of the marriage bill, but had come late to the issue. Her critics pointed out that she showed little interest in same-sex marriage when her party still controlled the Congress, and may have had ulterior motives for pushing it now.

The president and her husband, former President Néstor Kirchner, are so polarizing that normal partisan divides in the Congress have given way to pro-Kirchner and anti-Kirchner blocs. The Front for Victory (FpV), the Kirchners’ wing of the Justicialist (Peronist) Party, lost control of both houses last year to a broad coalition of dissident Justicialists, the liberal (in the European sense) Radical Civic Union (UCR), social democrats and traditional conservatives.

Same-sex marriage was a wedge issue that split the opposition, and the Kirchners hope to exploit these fissures for future electoral gain. Fernández was assisted by some dissident Justicialists, including Senator (and former President) Carlos Menem, a social conservative, who abstained rather than vote no.

By portraying herself as the champion of progressive social values, President Fernández hopes to appeal to wealthier, socially liberal voters in metro Buenos Aires, who largely abandoned the FpV in the 2009 midterms. This self-portrayal got a tremendous boost from the Catholic Church, which was the most vocal opponent of the gay marriage. The archbishop of Buenos Aires, Cardinal Jorge Bergoglio, called the bill the devil's work, and organized a mass demonstration in opposition. Opponents argued that this was an example of Buenos Aires imposing its decadent, city values on the “real Argentina” of farms and villages. (Sound familiar?) The opposition also made an appeal to the children: Catholic schools in Buenos Aires dismissed pupils early the day before the vote, and encouraged them to rally at the Capitol in favor of “one mom and one dad” families.

This overt ecclesiastical pressure probably backfired. Argentina is a secular state, and past Church interference in civic affairs has bred a strong current of anti-clericalism. As in Spain, the Church hierarchy has been tainted by its complicity in the repression of dissidents under the former military regime. (Many individual priests and nuns, however, preached resistance through Liberation Theology.) Having Cardinal Bergoglio as the frontman for opposition to gay marriage conjured up these bad memories.

Thus, the vote in the Senate became not only a question of whether to allow same-sex marriage, but also of whether the civilian government could make decisions without Church interference. This rigged the deck in the Kirchners' favor. While the vast majority of Argentines self-identify as Catholic, only a quarter report attending any weekly religious services--a rate considerably lower than in some other countries that allow same-sex marriage.

Because Catholic identity in Argentina is so broad yet so shallow, it is generally counterproductive to make religious appeals for or against a particular political issue. This is in contrast to the US, where high religious diversity is matched by high religious observance, and each religious community is a political interest group. (Catholic bishops probably have more influence over the US Congress than Argentina’s.) The testimonies of actual gay and lesbian families won out over appeals to hypothetical family values.

In the end, the Kirchners' gambit paid off. While it remains to be seen whether they gain or lose anything from this legislation, they have recently enjoyed a resurgence in opinion polls. Thanks to their pushing, Argentina showed its socially liberal side, and [the] rainbow graph got another, 40-million-person bar.

Administration extends reach of Stupak Amendment beyond what is necessary

Jessica Arons has the following post up at RH Reality Check, in which she argues that the terms of the Stupak amendment to the new health reform law do not require that it be applied to the new high risk pools being established by the states.  Nonetheless, the Obama administration is applying Stupak, and thereby diminishing access to abortion -

Women entering these [high risk pool] plans are, by definition, those who have experienced serious medical conditions—so serious that insurers are unwilling to sell them insurance.  In other words, those who get pregnant are already at a heightened risk for needing an abortion for health reasons when compared to the general population.

Pennsylvania–apparently unintentionally–walked into the abortion debate by approving a program that potentially covered abortion.  The plan said no “elective” abortions would be covered, but referenced a statute that does not define the term “elective” and allows an abortion if it is deemed “necessary” by a physician based on “all factors (physical, emotional, psychological, familial and the woman's age) relevant to the well-being of the woman.”  The only situation deemed categorically unnecessary by the statute is sex selection.

Rep. John Beohner and the National Right to Life Committee raised a stink, and the very next day, HHS Spokeswoman Jenny Backus had this to say:

As is the case with FEHB [federal employee health insurance] plans currently, and with the Affordable Care Act and the President's related Executive Order more generally, in Pennsylvania and in all other states abortions will not be covered in the Pre-existing Condition Insurance Plan (PCIP) [high risk pool] except in the cases of rape or incest, or where the life of the woman would be endangered.

Our policy is the same for both state and federally run PCIP programs. We will reiterate this policy in guidance to those running the Pre-Existing Condition Insurance Plan at both the state and federal levels. The contracts to operate the Pre-existing Condition Insurance Plan include a requirement to follow all federal laws and guidance.

But here’s the catch, nothing in federal law actually restricts the use of federal or state money for abortion in PCIPs.

The language that was inserted by Sen. Ben Nelson into the Patient Protection and Affordable Care Act that prohibits federal money from being spent on abortion in circumstances beyond the Hyde Amendment exceptions of life, rape, and incest clearly applies only to plans operating in insurance exchanges.

Sec. 1303 of the PPACA says a state may elect to prohibit or allow “abortion coverage in qualified health plans offered through an Exchange” and that, subject to whether a state has made such an election, “the issuer of a qualified health plan shall determine whether or not the plan provides coverage of [abortion] services.”  If a qualified plan decides to offer coverage of abortion beyond the Hyde exceptions, it must collect separate premiums from each enrollee to pay for abortion coverage and all other coverage, and it may not pay for abortions with federal tax credits or cost-sharing reductions that were allocated under the PPACA for the purpose of subsidizing premiums for plans offered in the exchanges.  There are no other restrictions on abortion funding contained in the PPACA.

Continue reading "Administration extends reach of Stupak Amendment beyond what is necessary" »

July 18, 2010

Study of gay relationships finds pattern: long-term, stable and open

An ongoing study of gay male couples by researchers from UCSF is producing documentation of the ways in which gay couples structure their relationships. Roughly half of the 566 couples studied had open relationships. In an earlier article on "Sexual Agreements among Gay Male Couples," lead researchers Colleen Hoff and Sean Beougher describe the patterns they found. Friday's SF Chronicle describes a new study by Hoff and additional community-based research:

They call them "San Francisco relationships." A term coined by the local gay community, it's defined as two men in a long-term open relationship, with lovers on the side.

A new study released this week by the Center for Research on Gender & Sexuality at San Francisco State University put statistics around what gay men already know: Many Bay Area boyfriends negotiate open relationships that allow for sex with outsiders.

After studying the sexual patterns of 566 gay male couples from the Bay Area for three years, lead researcher Colleen Hoff found that gay men negotiate ground rules and open their relationships as a way to build trust and longevity in their partnerships.

"I think it's quite natural for men to want to continue to have an active and varied sex life," said 50-year-old technology consultant Dean Allemang from Oakland, who just ended a 13-year-open relationship and has begun another with a new boyfriend.

"I don't own my lover, and I don't own his body," he said. "I think it's weird to ask someone you love to give up that part of their life. I would never do it."

Hoff, who just received a $3.5 million grant from the National Institute of Mental Health to continue the study for five more years, initially started her research based on findings that HIV infection is on the rise among male couples. "So much of the HIV prevention effort is aimed at a different set - men in dance clubs or bathhouses having anonymous sex," she said. "HIV prevention might want to expand its message to address relationships; we have to look at risk in a greater context."

In her study of gay couples, 47 percent reported open relationships. Forty-five percent were monogamous, and the remaining 8 percent disagreed about what they were.

Hoff wanted to find out what motivated gay men to have open relationships and what motivated their negotiated sex agreements. She found that HIV prevention was not the No. 1 concern when deciding how and whom couples would allow into their relationship. Instead, men said open relationships were more honest to their nature, built trust among partners, and helped ensure a longer relationship. Only for couples in which both men were HIV-negative was HIV prevention listed as the driving force behind choosing whom to have sex with....

With additional research funding, Hoff is working with colleagues at Emory University in Atlanta to study the effect of counseling to encourage boyfriends to go together for HIV testing.

Lanz Lowen and Blake Spears of Oakland, who have maintained a non-monogamous relationship for 35 years, funded their own couples study ( www.thecouplesstudy.com) to learn how others navigated intimacy with outsiders. Over the past four years, they interviewed 86 couples with at least eight years together in open relationships.

"When we started this study, we felt we didn't know many people with open relationships, but now our friend set is much more diverse," said Lowen, 57. "People we didn't think were open turned out to be. It's just not talked about that much."

Three out of 4 people described non-monogamy as a positive thing, and said it gave them a sexual outlet without having to lie. Participants reported it helped relationships survive by providing honest options and minimizing deceit, tension and resentment. Some "played" independently, others as a threesome, and about 80 percent agreed to tell all or some details of their encounters, the rest preferring a "don't ask, don't tell" policy.

Constant communication about negotiated sex agreements is the surest way to stay safe from AIDS and other diseases, Lowen and Spears said.

Having an open partnership is not incompatible with same-sex marriage, said Spears, 59. At least half those interviewed were married, having taken their vows during one of the two brief times when it was legally sanctioned in the city or the state. "It's a redefinition of marriage," Spears said. "The emotional commitment, the closeness, all of it is there."

July 16, 2010

Transcript of the trial in DADT challenge

The Log Cabin Republicans web page contains transcripts from the ongoing trial in Log Cabin Republicans v. United States. Such transcripts are expensive and typically not shared by the party who obtains them - thanks to LCR for posting these documents in the public domain.

July 15, 2010

Dramatic breakthrough for marriage equality in Argentina

Argentina, after a 16-hour debate last night in its Senate, has become the tenth nation in the world and the first in Latin America to legalize marriage for gay couples (joining Belgium, Canada, Iceland, the Netherlands, Norway, Portugal, South Africa, Spain and Sweden). Mad Professah Ron Buckmire has posted a description of some of the legislative strategy. The best background coverage I've seen so far is from Andres Duque at Blabbeando:  

  • President Cristina Férnandez de Kirchner had already said that she would not veto the bill if it reached her desk but, for the most part, she had been absolutely mum on whether she supported the bill.
  • Last week things changed when Senator Liliana Negre de Alonso, a member of the ultra-conservative Opus Dei, pulled out a homophobic card out her sleeve and introduced a brand new "civil union" bill which she hoped would draw away votes from the marriage bill once it reached the senate and kill it. Negre de Alonso, who had previously stated she opposed marriage equality because she wanted to "protect the children", was also the president of the senate committee studying which version of the bill would reach the senate vote.
  • Meanwhile, while the Catholic church was dormant in the early stages of the legislative process, they certainly became active in the last few weeks. Increasing their fundamentalist homophobic ire, they began a campaign to motivate followers to oppose the bill, wouldn't you know it, "for the sake of the children". For the purported sake of the children they called the marriage equality bill  the work of the Devil and called for a Holy War to defeat the bill.
  • That's whats set President Kirchner off. Having left on a diplomatic trip to China last week and still away from the country tonight, she held a press conference and said the following...


W00t! That might be the strongest statement ever by a Latin American president on behalf of marriage equality and folk are right to say that not even Obama has been this forthcoming when it comes to the issue BUT you also have to realize that Kirchner was mum all along, even as the bill survived the House of Deputies, and only spoke up a couple of days before the vote. Some say it was a strategy to not associate the bill too strongly with the party in charge.

Those were the facts you might now. Here are the facts you might not know...
  • Opponents of the marriage equality bill who sought to draw away votes last week by introducing a bogus "civil union" bill apparently didn't realize that their bill would not be debated on the floor tonight anyway due to parliamentary procedure which says that new bills cannot be debated before 14 days after being introduced (or at least I believe that is the limit I heard). In addition the bogus "civil union" bill was thrown out of debate yesterday by a procedural vote, which means that today in the senate the ONLY bill that would be debated was the marriage equality bill.
  • There was a question earlier yesterday as to whether quorum would be reached for a vote. Proponents of the marriage equality bill also promised they would not bring the bill up for debate unless they had secured enough votes for passage of the bill. Apparently they did secure the votes because this afternoon quorum was reached and the Senate has gone into marriage equality debate mode since then.
  • As for marriage equality activists in Argentina, the LGBT Federation of Argentina (FALGBT), led by amazing LGBT rights activist Maria Rachid, has launched two of the most amazing and effective marriage equality ads I have ever seen. [See the ads here.]  

July 11, 2010

Marriage by merit

It's sharing little winks together,
Drinks together,
Kinks together,
That make marriage a joy.

Stephen Sondheim, Company

The folks who want to prevent gay couples from marrying often describe the institution in such glowing terms that it sounds like you have to qualify to get in. Actually, some straight couples do have to take marriage tests: those whom immigration authorities suspect of faking it to allow a non-citizen to remain in our more or less United States.  So since we already have an official U.S. government test for assessing the quality of marriage, perhaps we could resolve this whole silly debate by forcing everyone who wants to get married to take the test. What do you think: grades or pass/fail? Here are some of the questions:

• How many televisions do you have in your house/apartment?

• If you are standing at and facing your kitchen sink, where is the microwave oven?

• Is your microwave stationary or does it have a revolving plate?

• Are you paid weekly, every two weeks, twice a month or monthly? What about your spouse?

• How much money did you receive in your last paycheck/deposit? What about your spouse?

• Where did you and your spouse first meet? When was it?

• Who first spoke to whom?

• Why were you there? What about your spouse?

• Was your spouse with any other people there? Who?

• When did you move in together?

• If you are lying in bed, which side does your spouse sleep on?

• Do you have carpet in your bedroom? What color is it?

• How is your bedroom closet split up?

• Where do you keep your clean underwear? What about your spouse?

• What color is your toothbrush? What about your spouse’s?

• Do you have an answering machine at home? Whose voice is on the message?

• What is the name of your spouse’s manager at work?

• What day is trash picked up at your house?

[Source: NY Times}

July 09, 2010

Trial in DADT challenge to begin Tuesday

Chris Johnson of the Washington Blade reports that trial will begin next week in Log Cabin Republicans v. United States, a challenge to the constitutionality of the DADT policy. Judge Virginia Phillips of the Central District of California will hear the case, which will feature the first application of the standard set by the Ninth Circuit in Witt v. Air Force. Under the Witt standard, the government will have the burden to prove that each plaintiff's discharge is necessary to achieve an important governmental interest. (The Witt case itself is scheduled for trial in September in federal court in Washington state.)

On Tuesday, the U.S. District Court in the Central District of California will begin to hear testimony in what’s expected to be a two-week long trial in the case of Log Cabin v. United States. ...The case is reaching its trial at the same time legislation is advancing through Congress that could put an end to “Don’t Ask, Don’t Tell.”

[Judge] Phillips agreed last week to hold the trial. The lawsuit is proceeding despite multiple requests to stay the case from the Obama administration, which is defending “Don’t Ask, Don’t Tell” in court.

Representing Log Cabin during the trial is Dan Woods, an attorney for White & Case LLP. ...“It is evident from the evidence we’re going to put on that it is applied selectively, it is applied more in times of peace than in times of war,” Woods said. “It is quite clearly the case that most other countries with militaries comparable to ours allow homosexuals to serve and have no problems with lifting bans on homosexuals serving.”

Woods said seven expert witnesses at the trial will offer different perspectives on the harm that “Don’t Ask, Don’t Tell” has caused. Among those who are set to testify are Aaron Belkin, director of the Palm Center, a think-tank on gays in the military, and Nathaniel Frank, a former senior fellow at the Palm Center who’s now the senior strategist at the LGBT Movement Advancement Project. Both declined to comment for this article.

Woods also said five service members discharged under “Don’t Ask, Don’t Tell” will offer testimony during the trial. “The thrust of their testimony is not that they individually were unfairly discharged, but that their discharges had nothing to do with their performance or nothing to do with the so-called purposes of ‘Don’t Ask, Don’t Tell,’” he said....

Assistant U.S. Attorney Paul Freeborne will represent the Obama administration in court. Woods said he was told the administration won’t present any witnesses during the trial or any evidence other than the congressional testimony leading to the enactment of “Don’t Ask, Don’t Tell” in 1993.

A spokesperson from the Justice Department deferred to the administration’s earlier filings in the case in response to a Blade inquiry about how the administration will defend “Don’t Ask, Don’t Tell” in court....

Woods said the application of [the Witt] precedent will “have a major impact” on the case because the government would have to show it’s advancing an important interest with “Don’t Ask, Don’t Tell.” Additionally, he said the administration would have to prove the intrusion of “Don’t Ask, Don’t Tell” on LGBT people furthers that interest and is necessary for that interest.

“I don’t think the government can prove that and I think we can show that the government cannot meet that standard by the evidence we intend to put on,” he said....