Culhane: How DADT repeal will help gay marriage
Depending on whom you read and rely on, the DADT ban is or is not about to be history. Many stories have been written on the proposed law, but not much has been said about this point: If the repeal does go through, the case for marriage equality becomes rhetorically stronger. Why?
First, unlike many of the laws that seek equality for the LGBT community, DADT and the ban on same-sex marriages are instances where the government itself is doing the discriminating.
Thus, the rhetoric that’s used in one case applies to the other: Government should treat all of its citizens equally. Even an unreconstructed libertarian like Rand Paul – currently in boiling water because of his statements that the government shouldn’t tell private businesses whom they can and can’t deal with (including, say, African-Americans) – should support a principle of basic fairness and equality for all citizens. (He doesn’t, of course, so his libertarianism is born of convenience, not principle.)
Second, the most-often heard argument against allowing gay and lesbian soldiers into the military is that they will disrupt “unit cohesion.” But if this argument is ultimately rejected in the one area in which it at least sounds plausible (if only because of a homophobic atmosphere that has too often come from higher-ranking military), that rejection weakens a similar argument that’s advanced by many of those who oppose marriage equality: Allowing gays, lesbians, and transgendered people to marry will weaken heterosexual marriages – disrupt their “unit cohesion,” if you will.
But if folks in the military can somehow learn to deal with gay and lesbian troops who live and fight alongside them every day, then surely straight couples can absorb the blow inflicted by living in the same society as same-sex couples.
Sometimes the argument is pitched at a slightly more sophisticated level: While marriage equality won’t immediately affect heterosexual couples, in the long run it will change the message of marriage by suggesting that the biological connection between parents and children isn’t important.
Maggie Gallagher is perhaps the anti-equality spokesperson most associated with this argument, but I’ve also heard it made during litigation. For example, during oral argument before the Iowa Supreme Court, the state’s dramatically unsuccessful effort (7-zip) to block equality leaned almost exclusively on a version of that argument.
Courts, though, are rarely impressed by such abstract arguments – especially when they carry more than a whiff of desperation. You’ll notice that the anti-equality forces haven’t been especially vocal about opposing adoption, surrogacy, or no-fault divorce laws, all of which of course sever the biological connections between parents and their children.
Nor do they acknowledge that marriage sends a bunch of other messages, too – including that one about commitment and the raising of children, together.
Against these arguments stand the obvious and debilitating discrimination against all of us – those who’d marry if we could, and those who wouldn’t but who are constantly reminded of our second-class citizenship. Faced with the balancing of that ledger, any self-respecting court should require sounder arguments for the continued exclusion of LGBT couples from the institution of marriage.
And recently, they have: Supreme Courts in California (pre-Prop 8), Massachusetts, Iowa and Connecticut have all read their state constitutional guarantees of equality to require the issuance of marriage licenses to same-sex couples.
Are there other arguments against marriage equality?
Not good ones.
Even Justice Scalia admitted, in his dissent in Lawrence v. Texas, that the marriage-procreation link isn’t a reason (we don’t require proof of reproductive capacity), and the related arguments that opposite-sex couples “need” marriage because only they can procreate “accidentally” (Oops! I Procreated Again!) is just plain dumb (even though it was accepted by the highest courts in both Washington and New York).
Religious arguments, of course, have no place in a public debate (for one thing: whose religion controls?)
So we’re left with this kind of discomfort with marriage equality – that somehow it will affect straight marriages, however indirectly and over time. Once this “unit cohesion” argument falls in the military setting, its demise in civilian life should be briskly achieved. Let’s begin to press this argument.
John Culhane is Professor of Law and Director of the Health Law Institute at Widener University School of Law in Wilmington, Delaware. He blogs about the role of law in everyday life, and about a bunch of other things (LGBT rights, public health, science, certain sports, pop culture, music, philosophy and lots of personal stuff) at: http://wordinedgewise.org. A fuller bio can be found here. He can be reached via email at: johnculhane@comcast.net.
Religious groups in India have warned they will…
Religious groups in India have warned they will oppose any move to legalize homosexuality as the federal government prepares to hold talks on a law that classifies same-sex acts as crimes.
India’s Hindu nationalist main opposition has in the meantime called for a national debate on the legislation that law minister M. Veerappa Moily last week said would come up for a discussion within the government.
“This is a sensitive issue and warrants a debate within the Indian society at large before arriving at any decision,” said Sidharth Nath Singh, spokesman for the opposition Bharatiya Janata Party.
An Indian court is due to give its judgment on a petition filed by a nonprofit group that has challenged the anti-gay provision of the penal code.
In a news conference last week, Moily refused to spell out his government’s stand on it because it awaits judicial determination. But his comments that the federal home minister was “contemplating” a meeting with his Cabinet colleagues on the law drew widespread coverage in the largely conservative country.
“Hope floats at rainbow parades,” read a caption on a front-page picture from a gay parade in New Delhi in Monday’s Times of India newspaper.
Participants in that march demanded repeal of Section 377 of the penal code, which criminalizes private consensual sex between adults of the same gender in the country. 
Watch a New Delhi march in support of gay rights »
Religious leaders, however, oppose any suggestion to scrap 377, describing homosexuality as “unnatural.”
“We are against calling homosexuality a criminal activity, but we are certainly in principle against legalizing it, because that would mean the state endorsing same-sex relationships,” said Babu Joseph, spokesman for the Catholic Bishops’ Conference of India.
Homosexuality “violates fundamental norms of a family,” he said.
See India faith leaders: Anti-gay law must stay CNN International
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Rep. Sally Kern says ‘debauched’ gay marriage caused bad economy
Rep. Sally Kern of Oklahoma, who has called being gay a “deadly lifestyle”, has released what she calls a “Proclamation for Morality”, which reads more like a manifesto against homosexuality. Kern, who apparently is unfamiliar with the fact that the United States was founded on the principle of separation of church and State, consistently uses religion as a basis for her arguments.
The New Civil Rights Movement published Kern’s “proclamation”, in which she says gay marriage is a form of “debauchery” like “abortion, pornography, sex trafficking, divorce, illegitimate births, and child abuse.” She blames the bad state of the economy on this so-called “debauchery”:
“WHEREAS, we believe our economic woes are consequences of our greater national
moral crisis; and
WHEREAS, this nation has become a world leader in promoting abortion,
pornography, same sex marriage, sex trafficking, divorce, illegitimate births, child abuse, and
many other forms of debauchery; and
WHEREAS, alarmed that the Government of the United States of America is forsaking
the rich Christian heritage upon which this nation was built; and
WHEREAS, grieved that the Office of the president of these United States has refused
to uphold the long held tradition of past presidents in giving recognition to our National Day of
Prayer; and
WHEREAS, deeply disturbed that the Office of the president of these United States
disregards the biblical admonitions to live clean and pure lives by proclaiming an entire month to
an immoral behavior”
Tulsa World called the reading and signing of Kern’s proclamation “circus-like”. About 200 supporters stood with her inside the State Capitol gathering signatures, while Kern was repeatedly interrupted by protesters.
See Rep. Sally Kern says ‘debauched’ gay marriage caused bad economy …
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An Exorcism of Hate
A recently posted YouTube video shows church members in southern Connecticut performing an exorcism on a 16-year-old boy in order to remove the “homosexual demons” from his body. The video is horrifying to watch — the church audience screams at the supposed evil spirits as the boy convulses on the ground.
The logic and belief set behind this act are so far beyond my comprehension that it defies comment. What I do find compelling, however, is the church’s response to the uproar that the video created. “We have nothing against homosexuals,” protested the Reverend Patricia McKinney. “I just don’t agree with their lifestyle.” I frequently hear comments such as this from those who oppose equality for homosexuals. These people say they love gay people — they even have gay friends and family! — but it’s unfortunately “against their beliefs” to treat homosexuals equally. This video, however, is a perfect example of how this explanation is a blatant lie.
The phrase “I just don’t agree with,” connotes a mild dislike. I don’t agree with mustard, but I can still enjoy my dinner to the fullest when it’s present at the table. What people such as Reverend McKinney feel toward homosexuals is nothing short of loathing. It is impossible for her to argue she respects gays when she believes that demonic spirits live inside their bodies. She could preach tolerance to her parish every Sunday, but her actions unambiguously declare that being gay is a sinful, satanic state that must be cured. McKinney clearly has something very big against homosexuals, and it’s insulting for her to suggest otherwise.
Politicians are guilty of similar dishonesty, but they tend to be more subtle. A senator who opposes gay marriage shouldn’t be able to say that he’s protecting “family values.” He should say that he believes that gay couples are incapable of raising the kinds of families that our society accepts. A congresswoman who disqualifies a lesbian couple from adopting children should proclaim that two women will irreparably damage a child should their adoption request succeed. It’s the typical political non-speak, but it’s even more damaging when those who say it can claim that they aren’t prejudiced.
Outright homophobia has become socially unacceptable in most circumstances. This is momentous progress from a hatred that had until now been painfully public. But, ironically, this political correctness is now hurting the gay rights movement.
Homophobic people, such as Reverend McKinney, should have to state their beliefs openly, without duplicitous assertions that they “have nothing against homosexuals.” What they should really be saying is that homosexuality is disgusting and perverted — that any person practicing it is a sinner who needs to be saved now before suffering an eternity in Hell. Judging from their comments and actions, that’s what they believe, and they should own up to those principles.
Polls have shown that young people as a whole have a more liberal view regarding homosexuality than their parents. It stands to reason that, as a society, we’re marching on a path towards equality and tolerance for gay people. But I hope this liberalization permeates far deeper than the blatant dishonesty of people such as Reverend McKinney and her congregation. Those of us who actually have nothing against homosexuals — who feel no need to cast the ‘homosexual demons’ from their body— should reject such flagrant duplicity.
See An Exorcism of Hate The Dartmouth
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DOJ Will Not Appeal Veteran’s VictoryIn Transgender Discrimination Case
Signals Commitment By Obama Administration To Protect Transgender Workers From Discrimination
WASHINGTON, DC – The U.S. Department of Justice decided not to appeal a federal court ruling awarding transgender veteran Diane Schroer the maximum compensation for the discrimination she suffered after being refused a job with the Library of Congress. The deadline for seeking an appeal was June 30. The American Civil Liberties Union has represented Schroer in her case.
The Obama administration’s decision whether to appeal the final ruling in the case has been closely watched in part because the Bush administration defended the case so vigorously, arguing that transgender Americans are not protected by any existing federal laws. The decision not to appeal the verdict is consistent with the Obama administration’s campaign promises to protect transgender workers against discrimination and his administration’s recent order taking steps to bar gender identity discrimination in federal employment.
“I am grateful that the court took the time to examine the case in detail and come to a fair and unbiased decision. In that same light, I am gratified that the current administration saw this for what it was, a case of sex discrimination focused against transgender people, and recognized that it must end in this country,” said Schroer, an Army Special Forces veteran with 25 years service. “The important signal that the administration’s decision sends to all LGBT individuals gives me renewed hope and restores some of my shaken faith in what our country stands for.”
On April 29, 2009, a federal court awarded Schroer maximum damages of $491,190 for back pay, other financial losses and emotional pain and suffering after finding the Library illegally discriminated against Schroer because of her sex. At trial, Schroer testified that she had applied for a position with the Library of Congress as the senior terrorism research analyst and was offered the job. Prior to starting work, she took her future boss to lunch to explain that she was in the process of transitioning and wished to start work presenting as female. The following day, Schroer received a call from her future boss rescinding the offer, telling her that she wasn’t a “good fit” for the Library of Congress.
“We are pleased and relieved that the Obama administration has decided to bring an end not only to years of hard-fought litigation but also to a painful chapter of Ms. Schroer’s extraordinary life,” said Sharon McGowan, a staff attorney with the ACLU LGBT Project. “The administration’s decision not to challenge this important civil rights ruling is a welcome sign that it intends to live up to its commitment to help end transgender discrimination in the workplace.”
The ACLU filed the lawsuit against the Library of Congress on June 2, 2005, charging that the library unlawfully refused to hire Schroer in violation of Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in the workplace. In an earlier ruling in this case, the court issued a groundbreaking opinion that discriminating against someone who transitions from living as one gender to another is sex discrimination under federal law. In reaching this decision, the court compared the discrimination faced by Schroer to religious-based discrimination, saying, “Imagine that an employee is fired because she converts from Christianity to Judaism. Imagine too that her employer testified that he harbors no bias toward either Christians or Jews but only ‘converts.’ That would be a clear case of discrimination ‘because of religion.’ No court would take seriously the notion that ‘converts’ are not covered by the statute.” The court also ruled that the library was guilty of sex stereotyping against Schroer because of its view that she failed to live up to traditional notions of what is male or female.
“This case put employers on notice that discrimination against transgender individuals is like any other form of discrimination – counterproductive and against our principles as a nation,” added Schroer. “But this case alone won’t end the rampant discrimination that transgender people face throughout the country. That’s why we need Congress to pass the Employment Non-Discrimination Act that was introduced last week.”
In addition to McGowan, the legal team consisted of Ken Choe, Senior Staff Attorney for the ACLU LGBT Project, James Esseks, Litigation Director for the ACLU LGBT Project and Arthur Spitzer, Legal Director of the ACLU of the Nation’s Capital.
A copy of the decision, the complaint, a video, a bio and photographs of Diane Schroer are available at: http://www.aclu.org/lgbt/transgender/24969res20050602.html
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Study: Gays not ‘godless Christian bashers’
This breaking news in from The Barna Group — a chronicler of religious life and habits, particularly of the Christian variety: Gay folks’ attitudes about spirituality aren’t much different from straight folks. These and other “surprising insights” were in Barna’s spiritual profile of gays released Monday. In it was a bit of a political heeding for gay-bashers:
“People who portray gay adults as godless, hedonistic, Christian bashers are not working with the facts,” wrote George Barna Monday. “A substantial majority of gays cite their faith as a central facet of their life, consider themselves to be Christian, and claim to have some type of meaningful personal commitment to Jesus Christ active in their life today.”
“It is interesting to see that most homosexuals, who have some history within the Christian Church, have rejected orthodox biblical teachings and principles — but, in many cases, to nearly the same degree that the heterosexual Christian population has rejected those same teachings and principles,” Barna said. “Although there are clearly some substantial differences in the religious beliefs and practices of the straight and gay populations, there may be less of a spiritual gap between straights and gays than many Americans would assume.”
Now there will be some quibbling with a couple of Barna’s assumptions. Like how Barna pegs the LGBT population at about 3 percent of the adult population. No, he doesn’t believe in the 1-in-10 stat, but then again, LGBT population scholar Gary Gates says it’s more like 5 percent, depending how you count.
That aside, the Barnanians found that “out of the 20 faith-oriented attributes examined in the Barna study, there were just a few in which there were no significant differences between the heterosexual and homosexual populations.”
Hmm. “No significant differences between the heterosexual and homosexual”(s)? Does Donald Wildmon know about this?
One big diff, according to the study: “While seven out of every ten heterosexuals (71 percent) have an orthodox, biblical perception of God, just 43 percent of homosexuals do. In fact, an equal percentage possesses a pantheistic view about deity — i.e., that ‘God’ refers to any of a variety of perspectives, such as personally achieving a state of higher consciousness or maximized personal potential, or that there are multiple gods that exist, or even that everyone is god.”
Another diff: “Heterosexuals were twice as likely as homosexuals to strongly agree that the Bible is totally accurate in all of the principles it teaches.”
And in the timeliness is next to godliness (OK, and cleanliness) dept: On Monday a crew of organizations supporting same sex marriage are launching their Get Engaged Tour of California — a pump-priming tour of the state in advance of an expected 2010 ballot measure campaign expected later this year. We told you about it a while back. Faith leaders will be prominently featured on this tour, as opposed to last year’s anti-Proposition 8 campaign, when they were largely invisible.
“Our faith-based values require us to love our neighbor as ourselves,” said Pastor Samuel Chu, of California Faith for Equality. “Gay and lesbian people are our neighbors and they should be able to enjoy the dignity, respect and commitment that come with marriage.”
| June 22 2009 at 12:25 PM
See Study: Gays not ‘godless Christian bashers’ 5:12 PM
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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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LGBT Legal And Advocacy Groups Decry Obama Administration’s Defense of DOMA
We disagree with many of the administration’s arguments, for example, that DOMA is a valid exercise of Congress’s power, is consistent with Equal Protection or Due Process principles, and does not impinge upon rights that are recognized as fundamental.
We are also extremely disturbed by a new and nonsensical argument the administration has advanced suggesting that the federal government needs to be “neutral” with regard to its treatment of married same-sex couples in order to ensure that federal tax money collected from across the country not be used to assist same-sex couples duly married by their home states. There is nothing “neutral” about the federal government’s discriminatory denial of fair treatment to married same-sex couples: DOMA wrongly bars the federal government from providing any of the over one thousand federal protections to the many thousands of couples who marry in six states. This notion of “neutrality” ignores the fact that while married same-sex couples pay their full share of income and social security taxes, they are prevented by DOMA from receiving the corresponding same benefits that married heterosexual taxpayers receive. It is the married same-sex couples, not heterosexuals in other parts of the country, who are financially and personally damaged in significant ways by DOMA. For the Obama administration to suggest otherwise simply departs from both mathematical and legal reality.
When President Obama was courting lesbian, gay, bisexual and transgender voters, he said that he believed that DOMA should be repealed. We ask him to live up to his emphatic campaign promises, to stop making false and damaging legal arguments, and immediately to introduce a bill to repeal DOMA and ensure that every married couple in America has the same access to federal protections.
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Quotes from New Hampshire’s gay marriage debate
“Thank you!” — Gay marriage supporters to lawmakers as they left the Statehouse following Wednesday’s gay marriage vote.
“A lot of New Hampshire families have come to know people in their families who are gay — co-workers, former classmates — and that’s what really made this difference. We are no longer talking about an issue. We are talking about people.” — The Rt. Rev. Gene Robinson, Episcopal bishop of New Hampshire, the church’s only openly gay bishop.
“This legislation makes clear that we understand that certain faiths do not recognize same-sex marriage, and it protects them from having to participate in marriage-related activities that violate their fundamental religious principles.” — Gov. John Lynch, as he signed the gay marriage bill into law.
“We certainly would like to see new legislators and a governor who keeps his word on the issue. If he tells the voters he doesn’t support same sex marriage, that’s what he means. If that happens, who knows, we may be looking at repeal in the next legislative session.” — Kevin Smith, executive director of gay marriage opponent Cornerstone Policy Research. See Quotes from New Hampshire’s gay marriage debate Chicago Tribune
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MD State AG studies recognizing out of state gay nuptials
Attorney General Douglas F. Gansler is exploring whether same-sex marriages performed in other states can be recognized in Maryland, a move that could open an avenue for legal recognition of gay and lesbian couples who have been rebuffed by the courts and legislature here.
The exercise puts Gansler – a Democrat and vocal proponent of same-sex marriage – in a difficult position. Maryland law clearly defines marriage as between a man and a woman, but the state also adheres to a long-standing legal principle that generally acknowledges couples married elsewhere.
Gay-rights activists say the ability to marry would not only strengthen their relationships but confer hundreds of rights, benefits and responsibilities on them, including community property protections, control over funeral arrangements of a spouse and an obligation to pay child support.
For many married same-sex couples living in Maryland, the issue isn’t just a legal conundrum but deeply personal.
See State studies gay nuptials Baltimore Sun – * Tags = gay men gay news lesbian news transgender bisexual
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