Judge likely won’t grant Prop. 8 injunctionA…
Judge likely won’t grant Prop. 8 injunction
A federal judge in San Francisco said Tuesday that he is disinclined to suspend California’s voter-approved ban on same-sex marriage while a lawsuit challenging it as a violation of the U.S. Constitution proceeds in his court.
In a tentative order, U.S. District Court Chief Judge Vaughn Walker said he’d rather move directly to a speedy trial on the case’s merits than grant a preliminary injunction that would temporarily allow gay nuptials. see http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2009/06/30/state/n150147D61.DTL
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Judge favors trial soon on Calif. gay marriage ban
A federal judge wants a trial on California’s same-sex marriage ban to proceed quickly but says he likely won’t suspend the voter-approved ban in the meantime.
U.S. District Court Chief Judge Vaughn Walker said holding a speedy trial on the merits of a lawsuit challenging Proposition 8 would avoid novel issues that might be raised if he issued a temporary injunction.
See Judge favors trial soon on Calif. gay marriage ban
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LA Times Editorial: A court battle California doesn’t need
The Supreme Court’s ruling last week in the case of a grandiosely unethical West Virginia justice opened a new field of constitutional review — the high court may now consider when an elected state court jurist has been so tainted by politics that due process requires him to recuse himself from a case.
In West Virginia, a coal executive spent more than $3 million to unseat a sitting state Supreme Court justice; it was money well spent, as the justice was defeated by voters and replaced by Brent Benjamin. Benjamin then did what was expected of him and cast a deciding vote in overturning a $50-million jury award against the executive’s coal company.
Indeed, California has wrestled with this problem before — and quite possibly could again.
California’s system for selecting Supreme Court justices is much better than West Virginia’s. Candidates for the court here are nominated by the governor, confirmed by a state commission and then placed on the bench. They must periodically stand for retention, but they are not, as they are in West Virginia, subject to direct challenge by rival candidates. A retention election can cost a justice his or her seat, but it does not let voters kick out one justice and install their own replacement.
California’s rules have helped balance the judiciary’s independence with the public’s fair insistence on accountability, but even this state’s reasonable retention process has been subject to tilt. Most notable was the 1986 retention election that removed Chief Justice Rose Bird and two associate justices, Cruz Reynoso and Joseph Grodin. Much reflection has gone into that race in the decades since, and opinions differ on its merits. Two truths, however, stand the test of deep inquiry: The forces arrayed against Bird were not motivated solely by her opposition to the death penalty — that was cover for a second complaint, which was her defense of consumer rights against corporate power — and Reynoso and Grodin were victims of a special-interest crusade against a vulnerable chief.
Would that we could relegate that episode to California’s history. In fact, the state rumbles with discontent over its high court and chief, and those stirrings contain alarming echoes of the battle of 1986.
At issue are the court’s rulings on same-sex marriage and Proposition 8, and its chief justice, Ronald M. George. In May 2008, the court overturned the state’s ban on gay marriage, striking a victory for civil rights in the grandest tradition of constitutional protection of minorities. A few months later, after voters approved Proposition 8 and amended the state Constitution to ban the same institution that the court had upheld, George and his colleagues upheld the amendment. Both times, George wrote for the majority. He thus angered opponents of gay marriage in 2008 and supporters of it in 2009.
By California’s rules, George faces a retention election in 2010, and some predict that he could face challenges from either side — or even both — in this polarizing debate.
That would be a shame for the state’s judiciary, an unfortunate attack on judicial independence and an unfair castigation of one of this state’s most principled and admirable public officials. In the gay-marriage cases, George’s votes demonstrated conscience, professionalismand restraint. He voted to uphold same-sex unions out of the strong conviction — which this page shares — that the Constitution does not allow society to deny the protection of marriage to gay couples any more than it once denied it to those united across race. The ruling was right on the law, and will certainly be validated over the long march of history.
Months later, voters tacked in the other direction, narrowly rejecting gay marriage and amending the Constitution to allow California to recognize only the unions of heterosexual couples. That was challenged, naturally, and the lawsuit offered the court the opportunity to extend its earlier ruling, though on shaky constitutional grounds — advocates for same-sex marriage argued that Proposition 8 was such an affront to the rights of Californians that it revised the Constitution rather than merely amending it. Scholars split on the merits of that argument, and although the strong consensus of legal opinion rejectedit, an opportunistic justice might have seized the chance to solidify his legacy.
Instead, George subordinated his politics — as evidenced by his writing — to the weight of constitutional opinion. He voted to uphold the proposition, even though it undid his own work. Permitted latitude within the strictures of the Constitution in the first case, George was able to vote his conscience; bound by the Constitution in the second case, he yielded.
Such is the lot of a principled judicial officer, but those concerned only with results already have signaled their unhappiness with George. The moneyed interests that supported Proposition 8 last fall are considering whether to finance a campaign against George next year. Supporters of gay marriage, who championed his heroism in 2008, were bitterly disappointed when the court upheld the hateful initiative.
This is not West Virginia. Corporate interests are not knocking off justices who disagree with them and seating more accommodating replacements. But intimidation has no place in our judicial life any more than it does in Appalachia. The 1986 campaign against Bird and her colleagues now stands for many as a reminder that well-intentioned systems of accountability may be hijacked by special interests, a lesson learned too often and at great cost in California. It was misguided in its first iteration; it would be regrettable in its second.
See A court battle California doesn’t need
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Obama Avoids Test on Gays in Military
WASHINGTON — The Obama administration has decided to accept an appeals-court ruling that could undermine the military’s ban on service members found to be gay.
A federal appeals court in San Francisco last year ruled that the government must justify the expulsion of a decorated officer solely because she is a lesbian. The court rejected government arguments that the law banning gays in the military should have a blanket application, and that officials shouldn’t be required to argue the merits in her individual case.
The administration let pass a May 3 deadline to appeal to the Supreme Court. That means the case will be returned to the district court, and administration officials said they will continue to defend the law there.
The move “takes the issue off the front burner,” as a trial and subsequent appeals could take years before the question returns to the Supreme Court, said an official familiar with the matter.
The decision comes as President Barack Obama attempts a balancing act on gay rights. He was elected with strong support from the gay community and promised action on a number of issues. But mindful of the complex politics, the White House has moved slowly.
See Obama Avoids Test on Gays in Military Wall Street Journal
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Souter proves a gay rights surprise
Deb PriceSouter proves a gay rights surprise
When David Souter was nominated to the Supreme Court in 1990, gay-rights groups quickly lined up to oppose him: Three years earlier, as a state judge he had signed onto an advisory opinion saying nothing prevented New Hampshire from banning gay adoption. But once on the court, Souter stepped into the shoes of civil rights giant William Brennan and quietly grew into them. What a joyful surprise Souter’s nearly two-decade run turned out to be. Using his intellectual gifts and good heart, Souter helped produce a warming trend, enabling the court to begin moving away from four decades of icy treatment of gay men and lesbians. Thanks to Souter, the court turned a major corner in 1995, when a unanimous opinion that he wrote for the court finally used the respectful term “gay.” Souter’s ruling also spoke respectfully of Massachusetts’ gay-rights law, igniting the hope that major breakthroughs would come soon. The first–Romer v. Evans–came the very next year. Souter voted with the majority in ruling gay Americans have a right to equal protection of the laws. He also voted with the majority in the landmark Lawrence v. Texas decision, which in 2003 declared gay Americans have a right to sexual privacy. In between, Souter wrote a gay-friendly dissent to the 2000 ruling allowing the Boy Scouts to ban gay scoutmasters. And, in a 1998 signal that the court was not undercutting Romer, Souter signed onto an unusual statement by Justice John Paul Stevens stressing that the court’s refusal to hear a challenge to a sweeping anti-gay amendment in Cincinnati “is not a ruling on the merits.” Within his own chambers, as my co-author Joyce Murdoch and I documented in “Courting Justice: Gay Men and Lesbians v. the Supreme Court,” Souter reacted respectfully when one of his law clerks came out. Souter hired another clerk who was a gay-rights scholar. Souter, appointed by a Republican president, added a parting gift: By choosing to retire when a gay-supportive Democrat will pick his successor, he likely ensured the court will continue its trend toward reading gay rights into the Constitution’s promises of equality. Obama offered a hint at what Souter’s replacement may look like when he said two years ago that he’d appoint justices with the “empathy to recognize what it’s like to be a young, teenaged mom … to be poor or African-American or gay or disabled or old.” More recently, Obama vowed to “seek someone who understands that justice” affects whether people feel “welcome in their own nation.” That kind of Souter replacement would maintain what’s now believed to be a 5-4 split in favor of basic gay rights. She — or he — will join the court’s progressive wing amid a sea change in public attitudes and legal rights for those of us who are gay. Knowledge of that “real world” could prove helpful: Unless Congress finally addresses two pressing injustices, the court might hear challenges in the next few years to the bans on openly gay soldiers and on federal benefits for same-sex married couples, notes gay law scholar Arthur Leonard. Souter’s replacement hopefully will feel a special kinship to him, as he did to Brennan. Even when ruling against a specific gay group in 1995 — declaring that forcing organizers of Boston’s St. Patrick’s Day parade to let an Irish-American gay group participate would violate the First Amendment — Souter was careful not to suggest the court agreed with anti-gay prejudices. Thank you, Justice Souter, for making gay Americans feel more welcome in our own nation. dprice@detnews.com (202) 662-8736 |
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See Souter proves a gay rights surprise The Detroit News
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SENEGAL: Jailing of gay activists sets back AIDS fight
The men, who were involved in providing HIV prevention, care and treatment services to Senegal’s lesbian, gay, bisexual and transgender (LGBT) community, have been sentenced to eight years in prison.
Homosexuality is punishable by up to five years in prison, according to the Senegalese penal code. In this case, the judge added three years for criminal conspiracy.
In a statement released last week, the International AIDS Society, which promotes new HIV research and best practice and is the custodian of the International AIDS Conference, and the Society for AIDS in Africa (SAA), which works to slow the spread of HIV, said criminalising and discriminating against any group of individuals only served to fuel the HIV epidemic by denying services and relevant prevention messages.
“The arrest of these men, based purely on their sexual orientation represents a major setback for the Senegalese response to HIV, which is widely viewed as a model in Africa,” said Joanna Mangueira, President of the SAA.
Cheikh Niang, professor of anthropology at Cheikh Anta Diop University in Dakar, the Senegalese capital, and author of studies on AIDS and sexuality in the country, agreed that jailing the activists was “counterproductive”.
“The severity of the sentence has created an atmosphere of panic amongst the associations that are working on HIV prevention and treatment with men who have sex with men (MSM),” he told IRIN/PlusNews.
Michel Bourelly of AIDES, an international organisation working with men who have sex with men in Senegal, said gay activists had gone into hiding or fled the country since the judgement. “Everything has stopped. The associations that provide HIV/AIDS services for homosexuals and MSM are too scared to work.”
Contradictions
According to Bourelly, the men were arrested while attending a meeting on HIV prevention. Brochures, condoms and model penises were confiscated as pornographic material.
“The condoms that were considered pornographic material during the trial were provided by the Senegalese government,” he pointed out.
A young gay member of an HIV/AIDS organisation serving MSM in Senegal, who did not want to be named, confirmed that intolerance of homosexuality had risen.
“Physical violence is more common now. Before we had groups which helped us – they gave us the courage to meet. We would do work on prevention, but now it’s too dangerous,” he said.
The jailed men were detained just two weeks after Senegal hosted the International Conference on AIDS and STIs in Africa (ICASA), where speakers emphasised the importance of addressing the needs of sexual minorities in African AIDS programming. Over 50 gay activists attended.
In an interview with IRIN/PlusNews in November 2008, Souleymane Mboup, President of ICASA, said MSM were a reality in Africa that could not be ignored.
“This is a question that we cannot run away from if we want to advance [the fight against HIV],” he said. “Many countries, including Senegal, must open their eyes and learn. We must think about which strategies to adopt.”
In 2007 the Global Fund to Fight AIDS, Tuberculosis and Malaria granted Senegal US$32 million to strengthen its HIV/AIDS response. Part of the grant was earmarked for targeting “vulnerable groups”, including MSM, with prevention campaigns, condoms and MSM-friendly clinics over the next five years.
“Senegal has been given considerable sums of money to address the needs of MSM in its national AIDS programme,” said Bourelly. “But now they are jailing the people they are supposed to be targeting.”
No one from the National AIDS Committee, one of the two principal recipients of the Global Fund grant, was available for comment. Abdoulaye Wade, director of the AIDS division at the Ministry of Health, told IRIN/PlusNews that the government continued to provide HIV/AIDS prevention and treatment services for MSM, but did not elaborate on what those services were.
Regressive
Joel Nana, advocacy director at the South African office of the International Gay and Lesbian Human Rights Commission (IGLHRC), said Senegal had been praised for its progressive and inclusive HIV/AIDS programmes in the past.
“Senegal was the first country in Africa to address MSM in HIV programming, so this [judgment] is really a step backwards,” he told IRIN/PlusNews.
While Senegal has maintained a low HIV prevalence of about one percent in the general population, official data and studies conducted at Cheikh Anta Diop University suggest that about 21.5 percent of MSM were HIV positive in 2005. The studies also found that over 80 percent of MSM had female as well as male partners.
“It is a considerable error to think that this is just a homosexual problem,” said Bourelly. “Most MSM have had, or continue to have, sex with women, so the impact of effectively shutting down MSM programmes will be considerable on the general population.”
Human rights groups and AIDS organisations are calling for the immediate release of the nine imprisoned men, and for a change in Senegal’s penal code. Niang agreed that it was time to debate the merits of the law.
“There is no point in saying that men who have sex with men do not exist in our societies,” he said. “It exists and it is an ancient phenomenon. By ignoring its existence we will not respond appropriately [to the HIV epidemic].”
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Urban Outfitters Responds to Controversy From Yanking Same-Sex T-shirt
The Cut @ NY Magazine reports:
“Urban Outfitters landed in some hot water earlier this week when consumers started to question company standards after an “I Support Same-Sex Marriage” T-shirt mysteriously vanished off shelves in California. Yesterday, Urban Outfitters reached out to us to comment on the situation: “The T-shirt was pulled because it was not selling,” a spokesperson for the company told us. “This is a common practice because sales space is so valuable, especially in this challenging economic climate.” See, the trickle-down effect of the economy? T-shirt sales are suffering, people! “The move was in no way indicative of a political agenda or our personal beliefs. In retrospect we wish that we had held onto it as a show of support.” That said, don’t expect them to balance the situation by returning the shirt to shelves. “We wouldn’t bring back the same T-shirt because it didn’t sell well. But the head merchant is open to finding other products that support gay marriage and carry the same message but will be more popular with our customers.”
“Meanwhile, the spokesperson also confirmed what our commenters speculated: Glen Senk, the CEO of the parent company, Urban Outfitters, Inc., is an openly gay man who has been in a committed relationship for over 30 years. However, Richard Hayne is still the founder and current chairman and does indeed have a record for supporting right-wing Republicans who are against abortion and gay rights. Lest we get cynical and think Senk was appointed to divert attention from Hayne, let’s hope instead that he got the job based on his merits and that maybe, just maybe, Hayne has changed his views a little. We can hope, right?”
Photo: Courtesy of Support Shirts
See Urban Outfitters responds to gay T-shirt controversy
New York Magazine
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