Word is Out

In about six weeks, I'm going to be giving a talk about the state of gay rights to the Sacramento County Bar Association's Labor and Employment section. I'm very much looking forward to it. I've been musing on how to approach the topic in a way that will provide some new information to attorneys who probably think they know the legal standards for protected classes.

Then it hit me; even younger gay attorneys are not likely to know much about the history of the gay rights movement. And in light of Justice Scalia's unrepentant desire to stamp out nearly 50 years of civil rights progress (he calls homosexuality an "invented minority"), the history of our movement should be

Antinonus. Image credit LGBT History Project.

taught in every school. So, the issue is: making sure people know why supporting gay rights is so important.

Last night I re-watched the documentary Word is Out. Its a montage of stories about gay and lesbian people who came out of the closet in the United States as early as the 1950s and as late as the recording of the movie in 1978. One of our good friends, Rob Epstein, worked on this film as his very first project. I definitely recommend getting a copy and watching it. Its a time-capsule about life in our recent past.

But the story also demonstrates that sexual orientation is innate. A quality of our lives which is as mutable as our skin color or parentage. Each person describes the challenges he or she faced on coming out: rejection by loved ones, self loathing, and medieval "treatments" applied without advice or consent.

With each generation of gay and lesbian persons with the bravery and fortitude to come out of the closet, each successive generation can help the world see us for what we are: normal people who happen to love persons of the same sex.

Some day, there may not need to be a gay rights movement. That day is far from the present day. Only if we step up will our march toward real equality be achieved. We should not mistake this for what it is: a war. We've won so many battles over the years and have so many heroes; it can be easy to grow complacent. Alfred Kinsey, Stonewall, Harvey Milk, Bowers v. Hardwick (upholding sodomy laws), Lawrence v. Texas (recognizing that sodomy laws are unconstitutional), DOMA and its repeal, and the rising tide of gay marriage.

The fight is far from over. We need all the allies we can get!

Your,
Bear

After Marriage Equality in California

On August 4, 2010, Judge Vaughn Walker ruled on California's Proposition 8 — making an

Ancients had fewer problems with gay love.
Image credit Counterlight.

amendment to California's Constitution defining marriage as between opposite-sex couples only. The Court reasoned that:

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.  Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

Read Judge Walker's decision at Scribd (emphasis added).

Judge Walker applied the lowest standard to the problem: the rational basis standard. In governmental discrimination cases, the courts apply a range of such standards. The lowest standard asks whether the government has a "rational basis" for its actions. If it can be shown that the Government's actions are merely rational, then the law may be considered constitutional — a very low bar for the proponents of Proposition 8. What Judge Walker is saying here is that Proposition 8 isn't even rational, and doesn't deserve scrutiny under the more strident standards.

So, we all know that this decision was appealed in a complicated process throughout the federal court system (with some recourse to the state Supreme Court), and drove its way all the way up to the Supreme Court who, essentially, refused to rule on the constitutionality of Proposition 8.

You can find tons of analysis on the issue. For a jumping off point, see Equality on Trial's website and Proposition 8 timeline. But the questions are: by clearing the way for Judge Walker's decision to rule the case, did the Supreme Court essentially adopt its reasoning? Can Judge Walker's decision be used in subsequent case?

The answers to both questions are qualified "no" and "no." The Court's decision emphatically ruled that neither it nor the Court of Appeal had the authority to rule on Judge Walker's decision:

We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here. 

Because petitioners have not satisfied their burden to demonstrate standing to appeal the judgment of the District Court, the Ninth Circuit was without jurisdiction to consider the appeal. The judgment of the Ninth Circuit is vacated, and the case is remanded with instructions to dismiss the appeal for lack of jurisdiction.

Read the full opinion at the Supreme Court's website.

So the basic answer is no, the Supreme Court did not adopt Judge Walker's reasoning. Yet, Judge Walker's opinion stands as the rule of the case. So the qualification is that, in federal court, at least, Judge Walker's decision (with limitations) and certainly his reasoning may be used in both future marriage cases in other jurisdictions and may be applied in California gay-rights cases.

So, while the Supreme Court did not have our back with this decision, it did leave a gaping hole in the arguments of the bigots who seek to undermine our position in society. Its a war. We're winning. Reason and fairness will prevail.

Your Bear