New Yorkers get married; the federal government admits to "significant and regrettable role" in discrimination against gays and lesbians; and the Pentagon braces for invasion.

Well, it is official! Gay and lesbian New Yorkers are equal citizens in their own state (not their country, mind you, but the state is a good place to start). The coverage of marriage equality in NY has been outstanding, so I will just share a few tear-provoking links for you to peruse at your leisure.

First, check out this video from the NYT.

Here is a great Times editorial on the significance of marriage equality for all of the kids (or adults) with two moms or two dads.
And, finally, more heart-warming images of the first day.

I think it’s fair to say that these hilariously effective signs will happily migrate next door to New Jersey, where the fight for marriage equality is gaining tremendous momentum courtesy of this Lambda Legal suit filed on behalf of several couples who can compellingly demonstrate the inadequacy of civil unions.

In other news, President Obama officially endorsed the Respect for Marriage Act, which would essentially repeal and replace the much-maligned Defense of Marriage Act (DOMA). We have a really long way to go before this bill gets passed, but Obama’s endorsement is certainly a nice symbolic gesture (and unsurprising, given the DOJ’s refusal to defend DOMA).

The MUCH more significant event of the last few weeks, however, occurred on July 1, when the Department of Justice filed a brief in support of a plaintiff in California who is suing the government for equal access to health benefits for her wife. Many legal scholars have asserted that the brief represents a watershed moment in the advancement of GLBT civil rights. Here is an explanation from Metro Weekly:

The brief, filed in the Northern District of California, is the single-most persuasive legal argument ever advanced by the United States government in support of equality for lesbian, gay and bisexual people. Moreover, although the case did not include transgender issues, the government's previously described position that the same legal standard should apply to gender identity classifications could prove helpful for court cases looking at gender identity-based discrimination.

Some sentences in the brief will become staples of every filing in every lawsuit attempting to advance sexual orientation nondiscrimination, most notably when the Justice Department acknowledged, "The federal government has played a significant and regrettable role in the history of discrimination against gay and lesbian individuals." The Justice Department goes on to spend two pages detailing the specifics of that discrimination, including efforts by the State Department, FBI and U.S. Postal Service to seek out or track those who were thought to be gay.

This admission is an essential part of lawyers' arguments before courts when they are arguing why ''heightened scrutiny'' should be applied under the 14th Amendment's Equal Protection Clause to laws that classify people based on sexual orientation. To have an admission from the Department of Justice that the government did so is significant because lawyers can now go into court and say, "Not only do we think this, but so does the federal government – and they admit that they have been part of the problem."

What's more, Justice took a hard line against state and local discrimination, citing more than 20 different instances of state or local discriminatory practices – from laws and judicial opinions making adoption and teaching more difficult or impossible for gay and lesbian people, to police raids of gay bars, including notations of raids over the past years in Atlanta and Fort Worth, Texas.

One last piece of news to report: Don’t Ask, Don’t Tell, which continues to linger despite congressional repeal and multiple judicial assertions to its unconstitutionality, will face another step in its demise on September 20th. President Obama certified the repeal last week after Pentagon officials announced that the military is braced for ... wait ... what are they bracing for again? Anyway, the implementation of the repeal will be, according to American Progress, torturously bureaucratic.

The faces of NY's triumph

As you probably know by now, NY’s bill more than doubles the number of gay couples in this country with access to marriage rights. The numbers are compelling, but as usual, numbers don’t tell the story. Here are a few links that do a better job of telling the story:

New York’s Marriage Law Sets Off Waves of Engagements
Huffington Post coverage (includes photos and video)

And an excerpt from the Bellingham Herald:

Among the New Yorkers who will now get [married] are Richard Dorr, 84, and John Mace, 91, who have been partners for 61 years while pursuing successful careers as voice teachers in Manhattan.

"We thought about getting married in Massachusetts, but it just didn't seem to jibe right," said Dorr. "It should be in the state where you live." They plan to seek a marriage license as swiftly as possible but don't envision a lavish ceremony.

"Just a couple of witnesses and a justice of the peace," Dorr said.

When they fell in love, back in 1950, "marriage never crossed our mind," he added. "It was just that we had to be together. We could not stay away."

So what does NY mean for the rest of us?

First and foremost, a big thank you to the senators in Albany, and especially the conservatives who were ready to acknowledge that standing on the right side of history is just as much a political prerogative as appeasing the religious right.

Wonder how the deal finally got done? Read here.

In her Sunday NYT column, Maureen Dowd argues that President Obama could learn a lesson or two from Gov. Cuomo. Dowd remarks: [Isn’t it] odd that the first black president is letting Andrew Cuomo … go down in history as the leader on the front lines of the civil rights issue of our time[?]” She also notes: “[Obama] should draw inspiration from the gay community: one thing gays have to do, after all, is declare who they are at all costs. On some of the most important issues facing this nation, it is time for the president to come out of the closet.”

So what does it all mean outside of New York? You can find as many perspectives as there are possibilities, which is to say that nobody really knows. Here are two opinions on opposite ends of the spectrum, one expressing a dearth of hope for my home city of Atlanta, and the other pointing to the pending Prop 8 case as a feasible watershed for national marriage rights, surmising that the Supreme Court will apply heightened scrutiny, a monumental step that would all but assure our happily-ever-after. I think the current Supreme Court is too focused on states’ rights to write such a sweeping opinion, but maybe the tidal wave of public opinion that made such a big difference in the minds of N.Y. senators will make its way to the heart of D.C.

Good news: Judges can be gay and still be judges.

 
The bush league tactics of prop 8 proponents failed yet again. The motion to vacate on grounds that the judge who wrote the opinion is gay (and therefore should have recused himself) was denied yesterday. This would be like saying that a black judge can't fairly try a black defendant, or that a female judge can't decide an issue that might impact women in some way, or that a human judge shouldn't preside over cases that involve ... humans.

In other words, no big surprise that the motion failed.  If you would like to read more, Prop 8 Tracker is a good place to start.

In other marriage news, NY is on the brink yet again. The measure that failed in 2009 is back on the table, and this time, it looks like Gov. Cuomo might make it happen. Last I checked, he needs only 1 more vote and the pundits are saying it will happen sometime before next Monday.  Very exciting.  Read more here.  And check out this quote from Republican Senator Roy MacDonald, who announced yesterday that he would vote in favor of the bill:

You get to the point where you evolve in your life where everything isn't black and white, good and bad, and you try to do the right thing. You realize that people and circumstances aren't always what you think they're going to be... develop a little more sensitivity... As a father, as a grandfather you try to do the right thing, you care about people. You might not like that. You might be very cynical about that. Well, f--- it, I don't care what you think. I'm trying to do the right thing ... I'm tired of Republican-Democrat politics. I'm tired of blowhard radio people, blowhard television people, blowhard newspapers. They can take the job and shove it. I come from a blue-collar background. I'm trying to do the right thing and that's where I'm going with this. 

President Obama and DOJ refuse to defend DOMA

I've been waiting for an article that does a decent job of capturing the moment, but I want to post this before the strike of midnight on the day it happened (this blog, especially as law school eats more and more of my time, is becoming more like my personal journal of milestone victories). Anyway, here's a link to the big news of the day: http://www.nytimes.com/2011/02/24/us/24marriage.html?pagewanted=2&_r=1&hp. If you are at all interested in the progress of gay rights, click on the link. But just in case you fail to do so, here's the best excerpt:

"The development floored Edith S. Windsor, an 81-year-old widow who filed one of the two new lawsuits in New York [against the Defense of Marriage Act]. Ms. Windsor is seeking the return of about $360,000 in estate taxes she had to pay because the federal government did not recognize their marriage when her wife died two years ago. The couple married in Toronto. “It’s almost overwhelming,” Ms. Windsor said in an interview. “I don’t know what it means in terms of what follows. But the very fact that the president and the Department of Justice are making such a statement is mind-blowing to anybody gay or anybody who is related to anybody gay. I think it removes a great deal of the stigma. It’s just great.”

This is bigger than any of us can probably conceptualize at the moment, because it impacts far more than marriage - it has the potential to initiate a new era where laws that discriminate on the basis of sexual orientation are subject to higher level of scrutiny, perhaps that level afforded to a "suspect class." A higher level of scrutiny is just what is sounds like - a higher barrier that must be cleared in order for a law to be held constitutional by the courts. Right now, a law that discriminates against a white heterosexual Christian male, is not, for obvious reasons, subject to strict scrutiny (apologies to my white hetero Christian male friends). A law that discriminates against racial, ethnic, or religious minorities IS subject to strict scrutiny.  As of now, sexual orientation is not protected by a strict scrutiny standard, but Obama and the DOJ just made their case that perhaps it should be, and such a disinction would effectively alter the entire legal landscape for the GLBT community.  Laws that discriminate based on sexual orientation would come crashing down around us.

There will be a lot of backlash against Obama. You are going to hear two things from the GOP about our President: 1) he is destroying "family values" and 2) he shunned his duty to defend the laws of the United States.  In other words, he should have defended the law even if he didn't agree with it, and allowed the Supreme Court to make the final decision about whether or not it is constitutional.  I have to say that the second argument is not a bad one - if this was a law that I really liked (can't fathom that I would ever like a law that blatantly violates individual rights and Equal Protection, but for argument's sake ...), I would be angry. 

So this will certainly buffer the vitriolic rhetoric against the Obama Administration and against the gay community, and it will have some political consequences for the left - consequences that Obama clearly weighed and decided to accept. The reward for him?  He takes a huge left leap towards the right side of history. He did not want this law on his resume, and who can blame it? The only enduring legacy of DOMA will be as a sad reminder of just how slow this country was to come around on yet another issue of basic civil rights. Sometime soon, it will join DADT in the annals of really bad law, really bad public policy, really bad for America, and really damaging to so many individuals who will never, ever be justly compensated.

DADT finally dead.

Excerpts from President Obama's speech prior to signing the new law that says gays don't have to lie for the privilege of serving in our armed forces and protecting the "American ideals" of freedom and equality.

"You know, I am just overwhelmed. This is a very good day. And I want to thank all of you, especially the people on this stage, but each and every one of you who have been working so hard on this, members of my staff who worked so hard on this. I couldn’t be prouder.

 Sixty-six years ago, in the dense, snow-covered forests of Western Europe, Allied Forces were beating back a massive assault in what would become known as the Battle of the Bulge. And in the final days of fighting, a regiment in the 80th Division of Patton’s Third Army came under fire. The men were traveling along a narrow trail. They were exposed and they were vulnerable. Hundreds of soldiers were cut down by the enemy.

 And during the firefight, a private named Lloyd Corwin tumbled 40 feet down the deep side of a ravine. And dazed and trapped, he was as good as dead. But one soldier, a friend, turned back. And with shells landing around him, amid smoke and chaos and the screams of wounded men, this soldier, this friend, scaled down the icy slope, risking his own life to bring Private Corwin to safer ground.

 For the rest of his years, Lloyd credited this soldier, this friend, named Andy Lee, with saving his life, knowing he would never have made it out alone. It was a full four decades after the war, when the two friends reunited in their golden years, that Lloyd learned that the man who saved his life, his friend Andy, was gay. He had no idea. And he didn’t much care. Lloyd knew what mattered. He knew what had kept him alive; what made it possible for him to come home and start a family and live the rest of his life. It was his friend.

 And Lloyd’s son is with us today. And he knew that valor and sacrifice are no more limited by sexual orientation than they are by race or by gender or by religion or by creed; that what made it possible for him to survive the battlefields of Europe is the reason that we are here today.  That's the reason we are here today.

 So this morning, I am proud to sign a law that will bring an end to “Don’t Ask, Don’t Tell.” It is a law -- this law I’m about to sign will strengthen our national security and uphold the ideals that our fighting men and women risk their lives to defend.

 No longer will our country be denied the service of thousands of patriotic Americans who were forced to leave the military -– regardless of their skills, no matter their bravery or their zeal, no matter their years of exemplary performance -– because they happen to be gay. No longer will tens of thousands of Americans in uniform be asked to live a lie, or look over their shoulder, in order to serve the country that they love. (Applause.)

 As Admiral Mike Mullen has said, “Our people sacrifice a lot for their country, including their lives. None of them should have to sacrifice their integrity as well.” (Applause.)

 That’s why I believe this is the right thing to do for our military. That’s why I believe it is the right thing to do, period ...

Now, with any change, there’s some apprehension. That’s natural. But as Commander-in-Chief, I am certain that we can effect this transition in a way that only strengthens our military readiness; that people will look back on this moment and wonder why it was ever a source of controversy in the first place.

I have every confidence in the professionalism and patriotism of our service members. Just as they have adapted and grown stronger with each of the other changes, I know they will do so again. I know that Secretary Gates, Admiral Mullen, as well as the vast majority of service members themselves, share this view. And they share it based on their own experiences, including the experience of serving with dedicated, duty-bound service members who were also gay.

As one special operations warfighter said during the Pentagon’s review -- this was one of my favorites -- it echoes the experience of Lloyd Corwin decades earlier: “We have a gay guy in the unit. He’s big, he’s mean, he kills lots of bad guys.” (Laughter.) “No one cared that he was gay.” (Laughter.) And I think that sums up perfectly the situation. (Applause.)

Finally, I want to speak directly to the gay men and women currently serving in our military. For a long time your service has demanded a particular kind of sacrifice. You’ve been asked to carry the added burden of secrecy and isolation. And all the while, you’ve put your lives on the line for the freedoms and privileges of citizenship that are not fully granted to you.

You’re not the first to have carried this burden, for while today marks the end of a particular struggle that has lasted almost two decades, this is a moment more than two centuries in the making.

There will never be a full accounting of the heroism demonstrated by gay Americans in service to this country; their service has been obscured in history. It’s been lost to prejudices that have waned in our own lifetimes. But at every turn, every crossroads in our past, we know gay Americans fought just as hard, gave just as much to protect this nation and the ideals for which it stands.

There can be little doubt there were gay soldiers who fought for American independence, who consecrated the ground at Gettysburg, who manned the trenches along the Western Front, who stormed the beaches of Iwo Jima. Their names are etched into the walls of our memorials. Their headstones dot the grounds at Arlington.

And so, as the first generation to serve openly in our Armed Forces, you will stand for all those who came before you, and you will serve as role models to all who come after. And I know that you will fulfill this responsibility with integrity and honor, just as you have every other mission with which you’ve been charged.

And you need to look no further than the servicemen and women in this room -- distinguished officers like former Navy Commander Zoe Dunning. (Applause.) Marines like Eric Alva, one of the first Americans to be injured in Iraq. (Applause.) Leaders like Captain Jonathan Hopkins, who led a platoon into northern Iraq during the initial invasion, quelling an ethnic riot, earning a Bronze Star with valor. (Applause.) He was discharged, only to receive emails and letters from his soldiers saying they had known he was gay all along -- (laughter) -- and thought that he was the best commander they ever had. (Applause.)

There are a lot of stories like these -- stories that only underscore the importance of enlisting the service of all who are willing to fight for this country. That’s why I hope those soldiers, sailors, airmen, Marines and Coast Guardsmen who have been discharged under this discriminatory policy will seek to reenlist once the repeal is implemented.

That is why I say to all Americans, gay or straight, who want nothing more than to defend this country in uniform: Your country needs you, your country wants you, and we will be honored to welcome you into the ranks of the finest military the world has ever known. (Applause.)

Some of you remembered I visited Afghanistan just a few weeks ago. And while I was walking along the rope line -- it was a big crowd, about 3,000 -- a young woman in uniform was shaking my hand and other people were grabbing and taking pictures. And she pulled me into a hug and she whispered in my ear, “Get ‘Don't Ask, Don't Tell’ done.” And I said to her, “I promise you I will.”

For we are not a nation that says, “don’t ask, don’t tell.” We are a nation that says, “Out of many, we are one.” We are a nation that welcomes the service of every patriot. We are a nation that believes that all men and women are created equal. (Those are the ideals that generations have fought for. Those are the ideals that we uphold today. And now, it is my honor to sign this bill into law."

Prop 8 oral arguments heard yesterday; Appeals Court decision pending ...

I'm in the midst of exams, but for those of you who are interested in following the Prop 8 legal fracas in California, here's your brief update:

The federal court of appeals heard oral arguments yesterday, beginning with arguments regarding the "standing" of the parties who support Prop 8 (the evil side) because the usual course is for an attorney general or governor to defend the laws of the state, but in this case, the attorney general and the governor have declined to do so (call it saving face or call it smart or call it a breach of professional duty or call it a refusal to sit on the wrong side of history - just call it something, because it is a significant thing to remember about this case - the people who have a professional obligation to defend Prop 8 have refused to do so).  So that leaves us with these "protect the family" type of organizations that I refuse to name here, defending Prop 8. And yesterday, those organizations were forced to acknowledge that they might not have standing in the case, which is legalese for "we don't really have a stake in any of us ... it has no impact on our lives, personally or professionally, and we can't come up with a single reason why we are here right now defending something that doesn't affect us or OUR families in any way, shape, or form." So we might see this next decision come down on a technicality, which would certainly be worth a good laugh, but would disappoint in a sense, because it would be a heck of a lot more fun to kick their asses (again) on the merits of the case.

The second half of oral arguments found Ted Olson and David DuBois reiterating all of the arguments that compelled Judge Walker to write such an overwhelming opinion in their favor at the conclusion of this summer's trial. Olson and DuBois' adversary, Charles Cooper, had a few months to revamp his side of the case, but didn't come up with much of anything - and "much of anything" is the most generous description that anyone has offered yet for Cooper's anemic legal efforts (he can thank me later). In other words, if this case comes down to the merits, we should get a SECOND strongly worded opinion in our favor. And the appeals will march on ... I'm sure you know where we would be headed next.

Here are a couple of sources if you want to read more:

General overview of yesterday's events on CNN: http://www.cnn.com/2010/US/12/06/california.proposition.8/index.html?hpt=Sbin
And, as always, the Prop 8 Trial Tracker (lots of good detail here): http://prop8trialtracker.com/

Arianna Huffington comments on the current state of gay civil rights

Worth the read.

http://www.huffingtonpost.com/arianna-huffington/the-splitscreen-struggle-_b_783971.html

What does the GOP want?

As hard as I try, I have a little bit of trouble understanding the GOP's "plan" for "fixing" America. So I decided to educate myself. And after a lot of internet cruising, I found this very clear explanation of the Republican agenda. Godspeed to our enlightened brothers and sisters. If all goes as planned, I'm not sure any of us will be able to "refudiate" the sound logic of President Sarah Palin in 2012.

http://www.ginandtacos.com/2010/11/09/the-mandate/

1. Social Security reform that guarantees my current level of benefits, alters someone else's, and cuts everyone's Social Security taxes to boot.

2. A world-class national infrastructure that can be built and maintained without tax dollars.

3. A balanced budget that doesn't sacrifice any of the government programs – especially the sacred military-industrial complex and the various old age benefits – that we like.

4. Clean air without pollution controls, clean water with a neutered and underfunded EPA, and businesses that do socially responsible things without any regulation whatsoever.

5. Consumer goods at Made in China prices that create high-paying jobs in America.

6. Giant trucks and SUVs that drive like Formula One race cars, look cool, fit into small parking spaces, cost under $18,000, and get the fuel economy of a Toyota Prius.

7. Complete freedom and complete security at the same time.

8. An America that acts like a swaggering, sociopathic asshole on the global stage yet is beloved by all the nations of the world.

9. Wars against every enemy, real or imagined, all of the time, with no U.S. casualties and no effect on the budget.

10. Incredibly rich and rewarding professional lives while supporting our employers' right to do whatever they want to us without recourse.

11. A vibrant, consumption-based U.S. economy with good jobs for anyone willing to look for one resulting from free trade policies that encourage money and capital flows to cheap labor markets.

12. A highly educated workforce produced by a school system that requires no tax dollars to achieve excellence, students who have no interest in learning, and a virulently anti-intellectual society.

13. Closed borders and an endless supply of cheap labor to keep prices low.

14. To buy whatever we want irrespective of what we can afford while maintaining the drumbeat of personal responsibility.

15. Health care that is cheap, superior, and readily available to me without the danger of the same being enjoyed by anyone I deem undeserving.

Looking for a good laugh?

The Daily Show meets Andrew Shirvell.   

http://www.thedailyshow.com/watch/mon-november-1-2010/look-who-s-stalking

Did he seriously think it was a good idea to give this interview? Where in the world is his attorney? Oh, that's right ...