Today's Warm and Fuzzy Video

Presented without preamble:

I think the reason I found this so affecting is that it's very simple: unvarnished, straightforward, and very real.

On a somewhat broader scale, to those who have accused Obama of being lukewarm on gay civil rights, particularly marriage, note how quickly and how thoroughly the administration has swung into action after the decision in Windsor, not only in the military, where implementation of new regs has been at light speed, but across the board.

I Think Congresscritters Should Have To Take a Test on the Constitution

This story's around over the past couple of days, but Aksarbent has the most complete summary. (I love it when other bloggers do all the work for me.) Some highlights (or low points) from various sources:

From Zack Ford at ThinkProgress:

According to... HR 3133, there would be no consequences for any organization or individual that chooses not to recognize a same-sex marriage:

The Federal Government shall not take an adverse action against a person, on the basis that such person acts in accordance with a religious belief that marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage.

In other words, the bill would create special religious protections only for people who oppose same-sex marriage or premarital sex. Under the guise of “religious freedom,” this bill specifically endorses one particular set of religious beliefs without concern for any others, a pretty clear violation of the Establishment Clause of the First Amendment.

Apparently, it's a case of "First Amendment for me, but not for thee." I made the same point in comments at one blog or another quite possibly at a post on another attempt at the same "protections" for "religious freedom" -- they're really nothing more than naked attempts to subvert First Amendment protections for freedom of conscience, and gut the Establishment Clause -- not to mention the Fourteenth Amendment.

And from Dale Carpenter at Volokh Conspiracy:

“Adverse actions” include action by the IRS to strip a group of favorable tax treatment, like tax-exempt status. But it also includes actions related to employment, accreditation, grants, contracts, or benefits otherwise available under federal law. And it broadly prohibits “discrimination” against those who oppose same-sex marriage and non-marital sex. “Person” includes nonprofit and for-profit corporations, companies, associations, firms, partnerships, societies, and joint stock companies.

Ah, yes -- "Corporations are people, my friend." So saith the Supreme Court, LLC. (Although that decision, as it relates to the right to disciminate against same-sex couples, is getting mixed reviews from the circuit courts.)

Carpenter goes on to note, in his very polite, lawyerly way, that the bill as drafted is a mess.

My own feeling is that, if it gets through the House, it will never get a vote in the Senate. I suspect Raul Labrador, the chief sponsor, knows that, and he's just grandstanding for the rubes.

Avalanche

I'm still recovering from the onslaught on my lungs, and maybe having some side effects from meds -- spacy as all hell lately, even more than usual. But I wanted to bring you an update on what seems to be the beginning of the end for NOM and its allies.

Everybody's getting sued.

In Illinois, Lambda Legal and the ACLU have filed a motion for summary judgment in Darby vs. Orr and Lazaro vs. Orr. They're not waiting for the legislature to get off its collective butt. And those cases are not being defended by the state.

They are also planning to sue Virginia and North Carolina and Pennsylvania, and once again, the attorney general, Kathleen Kane, will not defend the law.

I cannot ethically defend the constitutionality of Pennsylvania's (law banning same-sex marriage), where I believe it to be wholly unconstitutional," Kathleen Kane announced to reporters at the National Constitution Center in Philadelphia on Thursday.

And under the heading of "Whistling Past the Graveyard," we have this from NOM's official spokesperson:

He's wrong, of course, but with NOM and its affiliates, you're never sure if it's ignorance or deliberate obfuscation. The fact is that Prop 8 is no longer the law in California -- it's been nullified by the Supreme Court, a motion for reconsideration has been turned down, the Ninth Circuit has lifted its stay, and marriages are taking place.

Something tells me this is just the beginning.

Happy Fourth!

I've just had my ritual 4th of July hot dog, with cole slaw, and am determined to take it easy for the rest of the day, after my second visit to the emergency room in ten days.

I thought it might be a good time to ruminate on just what the holiday means, because it obviously means different things to different people. Take this little rant from Brian Brown, of the hysterically mis-named National Organization for Marriage, via Joe.My.God. I'm going to do a little parsing on this one.

First, the headline with graphic:

Who said we have to? No one on our side of the fight. I can be gay and American at the same time, and there are millions like me, much as it might sour Brian Brown's stomach. Any guesses as to who is trying to cast whom as "The Other" (cue scary music, with storm clouds)?

We're a nation where citizen rights come from God, not from government, and where the people are sovereign, not politicians or judges.

And that happens to be whatever god you worship. The government merely recognizes those rights, which is what the two cases that have raised Brown's blood pressure lately were about. Oh, and the people do not have unlimited sovereignty and never have -- we have this little thing called "The Constitution of the United States of America," which among other things guarantees those rights, in spite of everything "the people" might do to circumvent them. See in that regard Romer v. Evans.

But those principles are under siege, by the culture, by our federal government and, increasingly, by the US Supreme Court. We need your help to fight to preserve America's founding principles such as religious liberty which is greatly at risk wherever marriage is redefined.

Let's see, "under siege" by "the culture" -- that would be "the people," if I remember correctly. The members of a society are, after all, the ones who determine the culture's direction.

As for religious liberty being "greatly at risk wherever marriage is redefined" -- what the Supreme Court did, in both Perry and Windsor, is to restore the religious liberty of those whose beliefs were being dismissed by the government, although the question was never couched in those terms. Think of it this way: if a sectarian idea of "morality" and/or "marriage" is imposed on society as a whole, particularly a society as diverse as ours, by definition the beliefs of those who do not hold that sectarian idea are being violated. That's a no-no. See Lawrence v. Texas.

Our opponents blithely claim that religious liberty and same-sex 'marriage' [sic] can peacefully coexist, but experience shows that is not the case. Anybody who doesn't abandon their faith principles and fully cooperate with the new gay marriage regime is likely to face consequences.

Of course religious liberty and same-sex marriage can co-exist. The ones who are having problems with it are the ones who want to impose their personal religious beliefs on everyone. No one is stopping them from believing what they wish, nor from worshipping as they wish. No clergy is being forced to solemnize a same-sex wedding against the doctrines of their religions. What Brown is attempting to do is conflate same-sex marriage with existing non-discrimination laws governing public accommodations. That's the new mantra from the right, and it applies equally to pharmacists who don't want to dispense birth control to business owners who don't want to pay for insurance coverage for family planning, to bakers and florists who do not want to "participate" in same-sex weddings. (Which frankly I think is laughable -- you're being asked to provide goods, not be part of the wedding night.)

As for the "consequences" -- yeah. People are going to think you're a small-minded bigot. Know what? You are.

I think one reason my blogging has fallen off as marriage has risen to the front of the civil rights debate is simply that the likes of Brown and Perkins and their ilk have gotten terrifically repetitive. The didn't have very good "arguments" (see, I can use sarcasm quotes too) to begin with, and they haven't come up with anything new. It gets pretty boring refuting the same bullshit over and over again.

At any rate, I think Brown gets a Tony Perkins Award for this one. It's pretty much a lie from the beginning to the end.

M.I.A.

I know -- one of the biggest news weeks in gay history, and I missed it. I was in the hospital, and am still recovering. There is so much to catch up on that I'll probably never manage it, although I may hit a story or two that points up something egregious.

In general, though, the reaction is about as expected: the Obama administration is moving very fast to bring regs into line with the Windsor decision -- the first green card for the non-US spouse of an American citizen has been approved, the Defense Department is doing everything possible to bring benefits in line with the new requirements, couples are getting married in post-Prop 8 California, and the heads of the professional gay-bashers are making very satisfying Splats! all over the place while they keep lying about everything.

I thought this was funny:

When asked his opinion on the Supreme Court’s decision to strike down the Defense of Marriage Act, the Governor of Iowa declined to give a personal opinion, and instead just said that his state would “live with” the decision.

Republican Governor Terry Brandstad said on Monday, that individuals would have to make up their own mind on the issue, and declined to offer a personal opinion.

“I guess it depends upon your perspective and your point of view on those things,” Branstad said during a weekly news conference at the Iowa Capitol. “I guess people can make your their own judgement on that. We’re going to live with the law and make whatever adjustments are necessary.”

Same-sex marriage has been legal in Iowa for four years now (and there seems to be diminishing enthusiasm for changing that), the Windsor decision doesn't affect state law at all, so what's he going to do about it? I can't understand why anyone even asked him the question.

One thing that's notable -- the bigotry is out in full colors now, no holds barred. Man, are people ever going to be turned off. It's delicious.

Not Today, But Very Soon. . . .

Marriage News Watch for today, June 24, 2013:

Antonin Scalia, Then And Now

The opinion in Lawrence v. Texas was handed down on this date in 2003. Justice Antonin Scalia, in his dissent, said:

If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct…what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “the liberty protected by the Constitution”? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.

Funny how times change. Now that same-sex marriage is before the Court in two cases, Scalia is singing a different tune:

With a potentially ground-breaking decision on gay marriage expected next week, Supreme Court Justice Antonin Scalia said Friday morning that he and other judges should stop setting moral standards concerning homosexuality and other issues.

Why?

We aren’t qualified, Scalia said.

In a speech titled “Mullahs of the West: Judges as Moral Arbiters,” the outspoken and conservative jurist told the N.C. Bar Association that constitutional law is threatened by a growing belief in the “judge moralist.” In that role, judges are bestowed with special expertise to determine right and wrong in such matters as abortion, doctor-assisted suicide, the death penalty and same-sex marriage.

I'm not aware that anyone has asked the Supreme Court, or any other court, to determine questions of morality, since the particulars of moral behavior vary so widely. It seems to me that what the Court is being asked to determine, as it has in the past, is whether the state has the right to enforce a particular sectarian standard of morality -- because it's a sectarian standard that's at issue in these cases -- on the people as a whole.

Granted, there are certain moral standards that are not only appropriately enforced, they're necessary if a society is to hold together. It's instructive, though, that of the Ten Commandments so beloved of "Christians" in this country, two and a half are actually enshrined in the law: You don't kill the neighbors, you don't take their stuff, and in some circumstances, bearing false witness will land you in really hot water.

Scalia doesn't seem to know the difference between law and morality. Somehow, that doesn't surprise me.

(There's been some speculation that Scalia is unhappy with the way the decisions are going in Windsor and Perry, hence his fulmination on the courts and morality. I hope so.)

DOMA, Prop 8 -- Heads Up

Best, most thorough summary and analysis of the two trials I've seen, by Russ Manley at Blue Truck, Red State, Part I and Part II

DOMA, Prop 8, and All That Jazz (Updated)

No, I haven't been posting breathlessly on the latest developments in the Supreme Court marriage cases. Everyone else has, so I haven't needed to. Besides, I'm caught in a vast sea of inertia right now -- cabin fever, mostly. At any rate, my guesses on outcomes:

Prop 8: The Court will punt on standing. If the Proponents have no Article III standing, and that seems to be the direction the Court is headed, the district court decision stands. Marriages begin in California in June. Limited, but Judge Walker's opinion, if not precedential, is still good support for future cases. It's also broader than the 9th Circuit's opinion, which is better.

DOMA: DOMA is dead. It looks as though there are at least five votes against it right now, and I wouldn't be surprised for at least one more to appear. DOMA is vulnerable both on Equal Protection grounds (the four liberal justices seem to be coming down on this one) and states' rights (which seems to be Kennedy's obsession). I was sort of surprised at the emphasis the justices placed on the administration's failure to defend it in court while still enforcing it. That's just weird: as I've always understood it, the executive is required to enforce the law. That's what it does. It is not, however, required to defend a law it believes is unconstitutional, and doing so does not mark a departure from practice for the Obama administration. Presidents have been declining to defend laws since Reagan, at least, and it's never caused a ripple. (Update: Here's a short post from the Volokh Conspiracy with some history on that. It goes back much farther than I thought.)

One interesting thing: the reactions from the right have been, as you might expect, full of doom and gloom, up to and including the end of civilization as we know it. (Seriously -- that one's from Tony Perkins, as quoted at Joe.My.God.) And we've got "social engineering," courtesy of Mat Staver, also via JMG. (As though every major civil rights decision did not involve "social engineering" -- no to mention integration of the armed forces.) Polygamy and incest, from none other than Bill Donohue of the seemingly one-man Catholic League. Interestingly enough, they're all preaching to the choir -- all those quotes are from publications directed to the "faithful." I've not seen anything from these people in the major news outlets, which leads me to believe that no one's asking them for an opinion. That in itself is interesting.

Another facet of this: have you noticed the spate of politicians coming out in favor of same-sex marriage over the past week or so? Starting with Rob Portman, which is significant enough (conservative Republican from Ohio), but a whole new group of Democratic senators are now on board, and a few others as well. (Delicious: NY State Sen. "Reverend" Ruben Diaz' son has issued a public statement supporting SSM. He's the borough president of the Bronx.)

Lots of coverage and good analysis at SCOTUSblog, including transcripts and audio of the arguments. And Ari Ezra Waldman has done his usual clear, concise analysis at Towleroad, both on Prop 8 (here and here) and on DOMA (here and here).

And that's all I'm going to say about it for now.

There's apparently no "Marriage Watch" video from AFER this week, but there's lots of commentary on the Prop 8 case at their YouTube channel.

Did I Say "Hit Job"? (Update, Update II)

It turns out the much-touted Regnerus study was intended as a political tool from the very beginning. From American Independent:

The conservative funders who bankrolled a flawed and widely cited academic study that's critical of gay marriage choreographed its release in time to influence “major decisions of the Supreme Court,” documents show.

The documents, recently obtained through public-records requests by The American Independent and published in collaboration with The Huffington Post, show that the Witherspoon Institute recruited a professor from a major university to carry out a study that was designed to manipulate public policy. In communicating with donors about the research project, Witherspoon’s president clearly expected results unfavorable to the gay-marriage movement.

It gets worse. Read the whole article.

Based on the timing, the fact that it was fast-tracked for publication (James Wright's claim that he had no idea of the political angle is disingenuous, at best), the active involvement of a member of Witherspoon's staff in the data analysis (and that Regnerus lied about that), it was obviously meant as a political move. It's nice to have the evidence.

It's also worth noting that an amicus brief filed by the American Psychological Association, among others, thoroughly debunks the study.

Via Joe.My.God.

Update: Here's the report, with thanks to StraightGrandmother via J.M.G.

Update II: Here's a discussion of the history of the project, as revealed by the documents, by Philip Cohen. (With thanks to StraightGrandmother yet again.)

The "Eight State Solution"

Everyone seems to be focusing on that, from the Administration's Prop 8 brief. What they're missing, I think, is two-fold: the Fourteenth Amendment argument lays a strong foundation for finding all those 30-odd marriage amendments and state DOMAs unconstitutional, even if the Administration isn't calling for that specifically. (And it can't really -- given its position on states' rights in its DOMA brief, and Obama's stated position that he'd rather leave it to the states, that would be ludicrous.) If the Court accepts that argument, it leaves all those laws and amendments even more vulnerable to challenge than they already are.

What's really important is the call for heightened scrutiny of anti-gay laws in general, which is what the scrutiny argument boils down to. If the Court decides that gays as a class fall under the criteria for heightened scrutiny -- and not only the Administration's brief, but AFER's as well, make a very strong argument for that, as do the filings in U.S. v. Windsor -- those state anti-marriage amendments are toast.

Remember, this is Obama we're dealing with. He's a strategic thinker, not a tactician, and doesn't lay all his cards out. He's setting up a game-plan while maintaining his states' rights stance on marriage. I really wish he wouldn't do that, but he does.

You've Probably Noticed

that weighing in before the Supreme Court on DOMA and Prop 8 has become very fashionable. Here's a nice summary from Bloomberg.

The administration has filed a brief opposing DOMA. Now everyone's waiting to see if they will jump in on Prop 8.

On a side note, the Executive Committee of the Illinois House has passed the marriage bill, although by a closer margin than I like -- 6-5. But then, this is after some really hateful testimony from all the usual suspects. Now on to the full House. Jeremy Hooper has a clip of some of that testimony.

SCOTUS Speaks

Finally -- I was almost convinced they were going to keep punting the marriage cases down the line as long as they could. From NYT:

The Supreme Court announced on Friday that it would enter the national debate over same-sex marriage, agreeing to hear a pair of cases challenging state and federal laws that define marriage to include only unions of a man and a woman.

One of the cases, from California, could establish or reject a constitutional right to same-sex marriage. Another case, from New York, challenges a federal law that requires the federal government to deny benefits to gay and lesbian couples married in states that allow such unions.

The cases are Hollingsworth v. Perry (formerly Perry v. Brown, the Prop 8 case) and United States v. Windsor (DOMA).

Ari Ezra Waldman, as usual, has a good clear analysis of the decision to take these cases at Towleroad; you might also take a look at this report, which includes some fairly entertaining reactions.

Catching Up

It's been kind of sketchy this week, but I haven't been completely idle. Here's a couple of things I think are worth looking at.

First, David Link at IGF has done a very good take-down of Robert Gagnon's latest diatribe.

I am unqualified to criticize the theology in Robert Gagnon’s hefty essay on the biblical errors in Alan Chambers’ leadership of Exodus International.  But what’s at stake here is pretty considerable, and more than just theological.  Chambers is president of Exodus, the group that assists Evangelical Christians with “same-sex attraction.”  Exodus had famously supported the notion that gays could change their sexual orientation, but Chambers – a gay man who is satisfactorily married to a woman, though he does not deny he continues to be sexually attracted to men – says now that he doubts such change in orientation is possible.

His change about change is important, as the sheer length of Gagnon’s critique (35 pages, with appendices) suggests, because it lets us see what Maggie Gallagher and the NOM Choir try so furiously to obscure: all that is left of the debate over homosexuality is the vestigial tail of a religious question about sin.

I seldom agree with Link, so this is sort of important.

And at The Advocate, there's an interview with Barry Sandler, who wrote Making Love, which is a pretty important film in gay history. Remember what it was like in the early '80s?

On the DOMA Wars front, although BLAG (which is the acronym for the House's Bipartisan Legal Advisory Group, and somehow the acronym is just right) is defending DOMA in the courts, since no one else in the government wants to be humiliated, House Democrats are taking their own action -- 132 of them have signed on to an amicus brief in Golinski vs. Office of Personnel Management, which is being appealed to the Ninth Circuit after coming a cropper in the district proceedings:

Unlike most Acts of Congress, DOMA cannot be viewed as the rational result of impartial lawmaking and should be treated with judicial skepticism. The brief makes it clear that the House is not united on DOMA’s validity, that the BLAG lawyers do not speak for the entire institution, and that there is no legitimate federal interest in denying married same-sex couples the legal security, rights and responsibilities that federal law provides to couples who are married under state law. …This law affirmatively harms married gay and lesbian couples and their children.

And, sure as god made little fishes, 60 Democrats refused to sign on. There's a list at the link. If your rep is on it, write your Congressman.

So, let's finish off with a picture. I got a little point-and-shoot digital camera, just to try it out, and I hate it -- there's a time delay between when you point and when the image shows up on the display, and for better than thirty years I've been shooting really fast. But you can get some nice stuff. From a visit to Lincoln Park Conservatory.

DOMA on the run

If you've lost track of the various lawsuits against the government because of DOMA, Chris Geidner has an intelligible and useful summary: the government (which is to say, Congressional Republicans) is losing on all fronts.

Of course, given the make-up and record of the Supreme Court, it's anyone guess what will happen once one or more of these suits gets there -- and they will. Scalia, who specializes in answering the wrong questions, will find that nothing in the Constitution guarantees a right to "homosexual marriage." (This is no stretch -- he's already said so.) Of course, nothing in the Constitution guarantees a right to marriage at all, but that's not going to bother him. Thomas will not say anything and will vote with the Republican platform.

Given the level of corporate support for equality in the U.S., Alito and Thomas may very well vote in our favor.

I'm not really sure whether I'm willing to count on Kagan and Breyer to vote in our favor on this one. I'm more sure of Ginsberg and Sotomayor.

The general consensus, though, is that it will all come down to Kennedy. He's been supportive of Constitutional rights in the past, at least for gays and lesbians, but marriage may be a bit of a stretch. It's going to depend on the case.

Anyway, take a l ook at Geidner's post to bring yourself up to date.

Idiot du Jour

Of course, with Rick Santorum, it's hard to know if he's stupid or just completely out of contact with reality. This sort of jumped out at me this morning. It's one thing to question the president's power to institute a sort of mini-Dream Act (although at least one conservative Republican thinks he's on firm ground), but here Santorum goes off the deep end (and you know he had to get DOMA into the conversation -- it's what he does):

"You need to hammer the president on this now habitual abuse of power, saying that he's not going to defend the Defense of Marriage Act [DOMA]," the former candidate explained. "You know, 'I'm not even going to go to the Supreme Court and stand up for the law that, you know, I'm charged as the chief executive to do.' So you're seeing a pattern where the president says, 'I'm going to pick and choose what laws I'm going to enforce, what laws I'm going to stand up and fight for in court.' That is not the job of the president."

"There's a difference between saying, 'I don't like the law, I wish the law were different, but I'm the president. My job is to faithfully execute.' And he has not faithfully executed," Santorum added.

The president is not required to defend a law in court. He's required to enforce it, which he has been doing, which is why there are so many lawsuits now. The fact that the law is unconstitutional -- at least in the eyes of three or four federal courts at this point -- puts some foundation under Obama's position on DOMA, but that doesn't bother Santorum at all.

Actually, reading over Santorum's comments again, I'm going to vote for "liar."

This Is the Way to Do It

Al Franken dissects Tom Minnery of Focus on the Family at the Senate DOMA hearings:



Actually, that should read "flays him alive."

I wish he were my senator.

And watch Minnery squirm under questioning by Sen. Patrick Leahy:



Jim Burroway has transcripts at Box Turtle Bulletin.

Lessons From Albany Come Home to D.C.

Maybe Obama took the hint:



I've said it other places, but I'm going to repeat it here: Obama is all about process, not so much about results. As to whether he's going to strong-arm anyone on this, I doubt it. He's done the bare minimum, and I suspect he thinks that's enough. I'd be delighted to be proven wrong, but I don't see him facing off against the Republicans in the House about gay civil rights.

It's a good first step, though.

I can hardly wait for the wailing from the right.

This Is Important

A complete 180 from the DoJ's first DOMA brief after Obama took office:

Today, the Department of Justice filed a brief in federal court employee Karen Golinski's federal court challenge, supporting her lawsuit seeking access to equal health benefits for her wife and arguing strongly that the Defense of Marriage Act is unconstitutional in terms unparalleled in previous administration statements.

In a brief filed on behalf of the Office of Personnel Management and other federal defendants, DOJ acknowledged the U.S. government's "significant and regrettable role" in discrimination in America against gays and lesbians.

The summary of the DOJ argument that Golinski's case should not be dismissed begins simply: "Section 3 of the Defense of Marriage Act, 1 U.S.C. Section 7 ('DOMA'), unconstitutionally discriminates."

The filing signed by Christopher Hall, a trial attorney with DOJ, responds to the June 3 filing by the lawyers for the House Bipartisan Legal Advisory Group's Republican members asking the federal court in San Francisco to dismiss Golinski's lawsuit.

Maybe they've started reassigning the Bush political appointees.

Yeah, I Know

I've been slacking off again. I'm tired,and it's really becoming spring, so I have no attention span whatsoever, and the news is not new.

I do have some thoughts on the King & Spaulding/DOMA mess, but I think there are a couple of posts that summarize my thoughts pretty effectively, without me having to do the work of actually thinking about it. Try this one from David Link at Independent Gay Forum. I don't often agree with Link, but in this case I think he's hit it right on the nose. Link's post is a response to this bit of handwringing from Jonathan Rauch, which typifies the response of the "acceptable" left and the Very Serious People in the corporate media.

This post from Scott Wooledge at The New Civil Rights Movement takes, I think, exactly the right tone: unmitigated snark.

My own reaction to most of the tut-tutting has been to the effect that no matter what small victories we achieve, we can count on finding those both inside and outside the community who will take it as an opportunity to proclaim once again what bullies we are (always prefaced, in this case, with "I personally believe DOMA is abhorrent. But. . . .")

It's also gratifying to learn that most of my surmises in this post turned out to be pretty accurate.

The real lesson from all of this, which is the one the right doesn't want you to hear, is that anti-gay bigotry is bad for business.