Tuesday, December 11, 2012

Proposition 8, DoMA and the Supreme Court

“The End of the Beginning” of the Struggle for Marriage Equality


Copyright © 2012 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved

First, the good news: the United States Supreme Court has agreed to hear the constitutional challenge to Proposition 8, the voter-approved initiative that abruptly stopped California’s four and one-half month experience of marriage equality in November 2008.
Now, the bad news: the U.S. Supreme Court has agreed to hear the constitutional challenge to Proposition 8.
It’s good news in the sense that we’re finally going to get an answer as to whether a state has the constitutional right to define marriage either to include or exclude same-sex couples. It’s bad news in the sense that the answer we’re going to get is hardly likely to be the one we want — especially those of us who, like my husband Charles and I, took advantage of the 4 ½-month “window” between the effective date of the California Supreme Court’s decision allowing same-sex marriage and the passage of Proposition 8 to get married. Since then we, and the estimated 18,000 other same-sex couples who got married in California when it was blessedly legal, have been in the truly weird position of actually having the “special rights” opponents of Queer equality always accuse us of seeking, since we can be married but other couples — including ones who’ve been together longer than we have — can’t.
The U.S. Supreme Court’s decision to hear the Proposition 8 case is bad news in another way besides the eventual outcome of their decision. If they hadn’t — if they’d ducked the issue and allowed the most recent ruling in the Perry v. Brown case by the Ninth Circuit Court of Appeals to stand — Queer couples would be able to marry in California now. Even if the Supreme Court ultimately upholds the right of same-sex couples in California to marry, their decision to take the case means up to a year of additional delay in a case that has already dragged on for over two years — and where the judges throughout the process have “stayed” the decision so Queer couples still can’t get married in California even though both courts that have ruled in the case have said they should.
And the case is coming before the most reactionary Supreme Court since the 1930’s. Justice Anthony Kennedy, whom Queer legal strategists are depending on to be the “swing vote,” isn’t the moderate “man in the middle” he’s been portrayed as in a lot of the media coverage. He’s a thoroughgoing Right-winger who wrote the infamous Citizens United decision in 2010, which basically said that corporations and rich people didn’t have enough influence on American politics and the Constitution said they must be allowed even more. He also wrote the dissent in the case on the Affordable Care Act — so-called “Obamacare” — which basically eviscerated the Constitution’s interstate commerce clause and drastically cut back the ability of Congress to regulate private business. Kennedy meant this to be a majority opinion, and it would have been had he not been double-crossed by Chief Justice John Roberts, who signed on to Kennedy’s attack on the commerce clause but found Obamacare’s individual mandate to purchase health insurance constitutional under Congress’s power to tax.
There are only two major issues on which Kennedy has deviated from the strict Right-wing line. One is capital punishment, particularly executing teenagers and using the death penalty for crimes other than murder. The other is Queer rights. The main reason both the Queer community and the odd couple of lawyers who brought the Perry case to court, Ted Olson and David Boies, counted on Kennedy as the “swing vote” is that he wrote the Court’s two most powerful and luminous opinions upholding Queer equality in its history: Romer v. Evans (1996), which threw out a voter-approved “No Promo Homo” initiative in Colorado that invalidated anti-discrimination laws based on sexual orientation; and Lawrence v. Texas (2003), which struck down all laws prohibiting sex between same-gender partners.
But even on Queer rights, Kennedy’s mostly positive record comes with some serious asterisks. In 2000 he provided the “swing vote” for a 5-4 decision upholding the Boy Scouts of America’s ability to discriminate against Queers and atheists, on the ground that the Boy Scouts is a religious organization and therefore has a First Amendment right to let its religious beliefs determine its membership policies. In 2009 he temporarily halted the release of the names of people in Washington state who’d signed a petition to repeal a domestic partnership law, and a year later he refused to allow the Perry trial to be televised. His reasoning in both cases was the same: whereas the Kennedy who wrote Romer had seen the Queer community as a persecuted minority that needed to be protected from efforts by the majority to legislate away their rights, the Kennedy of 2009-2010 saw evangelical Christians and other opponents of Queer equality as the embattled minority whose rights needed to be protected from a Queer-friendly majority.
Nonetheless, both judges who’ve written pro-Queer opinions in Perry to date clearly aimed them at Justice Kennedy, freely quoting from both Romer and Lawrence and citing them as controlling precedents. Indeed, Appeals Court Judge Stephen Reinhardt’s majority opinion in Perry, which is what the Supreme Court will be reviewing, narrowed the case considerably to make it seem more like Romer. Reinhardt ruled that once a state had allowed same-sex couples to marry, it would be unconstitutional to take away that right — but he left open whether it would be constitutional to ban same-sex marriage in a state that never had allowed it.
The other source for optimism about the Supreme Court’s decision is that after nearly 20 years of steady defeats for marriage equality at the ballot box, the tide finally turned in 2012. Voters in Maryland and Washington state defeated referenda that would have reversed their state legislatures’ bills allowing same-sex couples to marry. Voters in Maine reversed their 2009 vote for a Proposition 8-like initiative and became the first state specifically to allow same-sex marriage via direct democracy instead of legislation or a court case. And voters in Minnesota refused to enshrine their state’s legislative ban on marriage equality into the state constitution — making November 6 a welcome four-for-four win for our side on an issue that until then had been rejected by virtually every U.S. electorate that had had the chance to weigh in on it.
But it would be foolhardy to assume that this year’s election victories on marriage equality will make the Supreme Court more likely to rule in our favor and issue a sweeping decision declaring that barring same-sex couples from legal marriage is an unconstitutional violation of the equal protection clause. It’s just as likely that the justices will see it the other way — as evidence that the political process is working as it should. The Court could read victories for marriage equality at the ballot box as confirmation that rather than make a hard-and-fast ruling that would apply nationwide, they should let politics take its course and allow individual states to decide to allow same-sex couples to marry or not, as they choose — which, in California, would mean a long, hard slog to persuade voters to repeal Proposition 8 and a very expensive and problematic political campaign to counter the Right-wing lies that got them to pass it in the first place.
The current U.S. Supreme Court is dominated by a hard-core radical-Right majority that is generally loath to issue sweeping rulings expanding the civil rights of historically disadvantaged communities. This Court is not, no way, no how going to decide that over 200 years of American experience with marriage defined exclusively as the union of one man and one woman has been a violation of the Constitution. There is a scant possibility that there might be five justices on board for a compromise along the lines suggested by Judge Reinhardt in his Ninth Circuit opinion: that there isn’t necessarily an intrinsic constitutional right to marriage for same-sex couples, but once a state grants such a right they can’t take it away again. But even that seems unlikely. If the case had come before the Supreme Court from, say, Rhode Island, they might have ducked it altogether and allowed marriage equality to come to one relatively insignificant state essentially by default. But not in California, the nation’s most populous state —especially now that the nation’s second most populous state, New York, has legislated marriage equality through the political process rather than by the courts.
What’s most likely is that the Supreme Court will uphold the constitutionality of Proposition 8 and state that whether to allow same-sex couples access to legally recognized marriage is a matter for individual states to decide. There’s a possibility that either or both of the Court’s most crazily Right-wing justices, Antonin Scalia and Clarence Thomas, will issue a concurring opinion based on an “original intent” argument that since marriage was assumed to be between one man and one woman when both the original Constitution and the 14th Amendment were written, all laws allowing same-sex marriage are de facto unconstitutional. But it’s likely most of the justices will shy away from a sweeping constitutional pronouncement on either side of the marriage equality question. It’s even possible one or more of the Democratic appointees on the Court might join an opinion upholding Proposition 8 on the ground that even if their personal preference would be for allowing same-sex couples to marry, whether they can or not is a decision for the political process and not for the courts.
This result would leave marriage between same-sex couples about where marriage between first cousins is today: some states would allow it, some states wouldn’t. But there’d be one important difference: Congress never passed a law defining marriage at the federal level as between one man and one woman who aren’t closer blood relatives than second cousins. Congress did pass the disgusting “Defense of Marriage Act” (DoMA) in 1996, which had two major provisions: it barred legally married same-sex couples from enjoying any of the benefits of marriage granted by federal law, and it said that no state had to recognize any marriage of a same-sex couple from another U.S. state or foreign country where it was legal. And unfortunately, while the Supreme Court is reviewing the federal definition of marriage under DoMA, they’re not — at least not yet — making a decision on the constitutionality of the provision that allows states not to recognize same-sex marriages from other states. Until that part of DoMA falls, whether by Congressional action or a later Supreme Court case invalidating it, every married same-sex couple in the U.S. lives with a footnote on their marriage license: “*This marriage valid only in the state where it took place and any other state that chooses to recognize it.”
The DoMA case the Supreme Court did choose to review involves Edith Windsor, an 83-year-old Lesbian who married her partner in Canada in 2007 when they had already been together 42 years. Two years later, Windsor’s wife died — and the U.S. Internal Revenue Service (IRS) billed Windsor for $363,000 in estate taxes, which she wouldn’t have had to pay if the federal government had legally recognized her marriage. It’s a narrow enough case that it seems likely the Supreme Court will craft some sort of legal dipsy-doodle that will let Windsor off the hook for the $363,000 tax bill but won’t offer a definitive yea or nay on the constitutionality of DoMA. In the last 10 years before the landmark Brown v. Board of Education ruling in 1954, the Supreme Court routinely did this sort of thing in cases involving African-American victims of racial discrimination, especially in education and housing: they issued carefully crafted decisions that gave justice to the individual plaintiffs before them without disturbing the so-called “separate but equal” doctrine from 1896 that had allowed racial segregation. And it’s known that Anthony Kennedy is familiar with these cases because he cited two of them, Shelley v. Kraemer and Sweatt v. Painter, in his majority opinion in Romer v. Evans.
The Perry case was always a longshot before the current Right-wing Supreme Court, which has been so hostile to civil rights cases that the first law Barack Obama signed as President was a bill reversing a Supreme Court ruling that had made it virtually impossible for women to sue their employers for discriminating against them. It’s highly unlikely that a Court majority so hostile to claims by women, minorities and the 99 percent in general is going to issue a ground-breaking decision establishing the right of same-sex couples to marry, either throughout the country or in its most populous state. It’s more likely that the Court will leave it up to the governments of each U.S. state to decide whether or not to offer civil marriage to Queer couples — and the Queer rights movement will have to spend decades of struggle to win marriage equality state by state. The Court’s likely rulings on Proposition 8 and DoMA won’t be the end of the marriage equality fight; they will at best be what Winston Churchill called “the end of the beginning.”

A Different Inauguration for San Diego’s New Mayor

Bob Filner Takes Oath of Office in Balboa Park, Tours Neighborhoods


Copyright © 2012 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved

Bob Filner speaking at the LGBT Center, Dec. 3, 2012

Bob Filner and his fiancée, Bronwyn Ingram

Bob Filner and Ingrid Croce (Jim Croce’s widow)

Bronwyn Ingram, Bob Filner, Jess Durfee and Christine Kehoe

Bob Filner “works the crowd”

Audience listens to Bob Filner speak

Newly elected City Council President Todd Gloria

Jess Durfee, Christine Kehoe, Todd Gloria

Christine Kehoe and her wife, Julie Warren

Elaine Graybill

Linda Perine and Ingrid Croce

Maureen Steiner and Mike Growe

Sister Ida Know of the Sisters of Perpetual Indulgence

Where’s the big hair? Sue Palmer plays boogie piano


When Bob Filner, long-time Democratic Congressmember and one of the most progressive voices in the House of Representatives, took the oath of office as Mayor of San Diego December 3, he did it with a difference. Instead of the formal stage of the Civic Theatre in the City Hall complex downtown, he booked the Balboa Park Club off Presidents’ Way and held his formal inauguration ceremony in its more proletarian environs. Then he got back in touch with his political roots — his first elective office was as a member of the board of the San Diego Unified School District — and did a tour of five schools across the city. After that his inaugural co-chairs, Nancy Chase and Bob Nelson, and “co-chair for neighborhood participation” Linda Perine took Filner on a whirlwind tour of five community events in La Jolla, Mira Mesa, Hillcrest, Euclid Avenue and San Ysidro, dramatizing Filner’s campaign promise to be a mayor for all San Diego’s neighborhoods, not just downtown and the affluent communities north of Interstate 8.
Filner began his speech after the swearing-in ceremony by introducing his fiancée, Bronwyn Ingram, and promising that they would be a team in the office. He also thanked his three major opponents in the mayor’s race, including City Councilmember Carl DeMaio, who placed first in the mayoral primary in June and narrowly lost the November runoff, “for your reform efforts and being so gracious as we have a change in administrations.” But he also made it clear that he rejected DeMaio’s confrontational attitude towards city workers and their unions. After thanking the city’s chief operations officer, Jay Goldstone, he told her, “The day of vilification of your employees is over.”
Calling his inauguration “the beginning of a new day for our city,” Filner thanked the City Council and the Mayor he’s replacing, former police chief Jerry Sanders, for helping San Diego overcome its years-long budget crunch. “After a decade of crises and cutbacks, we have a chance to look towards the future,” Filner said. “I can start with a balanced budget and a bond rating. We can talk about moving forward, but I couldn’t do that without the stability you have given us.” Filner acknowledged the city may still face financial challenges, including the end of the state’s redevelopment program and a bill passed in the state legislature denying construction aid money to cities that outlaw project-labor agreements (PLA’s) that protect local jobs, wages and union representation in the city’s construction projects.
San Diego voters passed a ban on PLA’s last June and also approved Proposition B, which ends guaranteed pensions for new city employees and replaces them with a 401(k)-type system. Filner’s main opponent, DeMaio, pushed Proposition B, former mayor Sanders signed on to it and all the major mayoral candidates except Filner (DeMaio, former Assemblymember Nathan Fletcher and San Diego County District Attorney Bonnie Dumanis) supported it. Filner pledged to implement Proposition B but “to do it in an environment that respects and honors the hard work of our city employees, who are on the front lines. They keep us safe, they pick up our trash, they maintain our parks, they answer our 911 calls, they keep our libraries open. Thank you, city employees.”
Pledging “transparency” in city government, Filner said, “The real heart and soul of our city is its neighborhoods. They define our residents’ character and quality of life. As I traveled across the city during the long mayoral campaign, residents expressed near-unanimous frustration with the city’s neglect of the facilities and services that they depend on. To me it’s unacceptable, in what we call ‘America’s Finest City,’ that some neighborhoods still lack some basics like paved streets and streetlights. It’s unacceptable that some neighborhoods devastated by the wildfires in 2003 and 2007 still lack adequate fire facilities and equipment, and a lot of times we can’t even meet federal standards for emergency response times. It’s unacceptable that a police department that already has one of the state’s lowest ratios of officers to residents is still over 200 officers short of our budgeted staffing level, and we lack the resources right now to restore community-oriented policing.”
Filner mentioned other areas in which the city falls short of what it should be doing, including the closing of neighborhood libraries evenings and weekends; the closing of lifeguard towers and community restrooms during off-hours; and the city’s failure to equip first responders with the vehicles they need. “We’re going to complete the updates of our community plans, protect urban open spaces, reduce storm water pollution and make sure our neighborhoods are pedestrian- and bike-friendly,” he said. “We’re going to work with labor unions, working people and businesses to streamline our regulatory processes. We’re going to encourage partnerships between businesses and school districts. … We’re going to build on the innovations of companies like Qualcomm, push the initiative to install solar panels on city buildings and push for more maritime uses for the port.”
Other pledges Filner made in his opening speech were more problematic for the progressives in the audience, including campaign volunteers who helped to elect him. He pledged his support for expanding the San Diego Convention Center and “keeping the Chargers in San Diego” — even though that may not be possible unless the cash-strapped city gives a major public subsidy to a stadium project. He also committed to “a great celebration of Balboa Park’s 100th anniversary,” but said, “I want my tenure as Mayor to be remembered by how it makes its decisions. I want an administration where everyone is at the table, and the only prerequisite for participation is your love for the city and your interest in improving it. I understand the difference between being a legislator and being Mayor, but I still have things I feel passionately about.”
Filner closed his inaugural speech by quoting Robert F. Kennedy’s famous lines about how some people see things as they are and ask why, while others see things as they might be and ask why not. “Why not get serious about eliminating homelessness?” he said. “Why not make the combined San Diego-Tijuana region an incubator for an innovative new economy? Why not protect our beaches and ensure that every neighborhood is a safe place to work and play in?”

Filner Visits the Queer Community

Filner’s post-inaugural whirlwind tour of San Diego took him to five evening events, including one at the Lesbian, Gay, Bisexual, Transgender Center in Hillcrest. He was introduced by openly Queer City Councilmember Todd Gloria, who had an announcement of his own: that day the San Diego City Council elected him as its president, the first time an openly Queer member of the Council has filled that position. “Bob Filner made it clear that he was running to protect neighborhoods, and I intend to help him,” Gloria said.
Veteran Queer community activist and city commissioner Nicole Murray Ramirez also was prominently featured at the Center event. He thanked Filner for attending the Transgender Day of Remembrance, an annual commemoration in November of Transgender people who have been killed over their gender identity, and the lighting of the memorial tree on World AIDS Day December 1. Murray Ramirez announced that December 3 is his birthday and said Filner’s inauguration was the best birthday present he’d ever had.
Referencing his entry into activism 50 years ago, when he rode on one of the Freedom Rides protesting racial segregation on interstate bus lines and spent two months in a Mississippi jail, Filner said, “The previous Mayor [Sanders] was a police chief. I started my political career in jail. I think that’s an improvement.” He said that the way he’d scheduled his first day as Mayor — first visiting schools and then participating in events all around the city — showed that “we’re going to live in the neighborhoods” during his time as Mayor.
The celebration at the Center was full of ironies. Two of Filner’s election opponents, DeMaio and Dumanis, are openly Queer, but DeMaio was endorsed by Right-wing Republicans with strongly held anti-Queer positions, including hotel owner and publisher Doug Manchester, attorney and activist Charles LiMandri, and talk-show host and former Mayor Roger Hedgecock. DeMaio got the endorsement of the San Diego Republican Central Committee, largely by attacking opponent Nathan Fletcher for his vote for a bill to require public schools to teach the history and achievements of prominent Queers. He was raked over the coals about this at a forum for the primary candidates at the Center, and anti-DeMaio activists posted a clip of the event on YouTube.
Manchester’s U-T San Diego — formerly the Union-Tribune until Manchester ordered its name changed, possibly because Manchester, a ferocious opponent of organized labor, didn’t want anything he owned to have the name “union” in it — strongly endorsed DeMaio. So did Gay San Diego, owned by DeMaio’s partner Johnathan Hale, which refused an ad from the San Diego Democrats for Equality because it listed Filner as one of its endorsed candidates. Ironically, when DeMaio filled out the questionnaire from U-T San Diego, he listed his marital status as “single.” Later, after community activists launched a campaign to boo DeMaio as he and Hale appeared in the LGBT Pride Parade, Hale published an “open letter” to the community saying that the people in the Queer community targeting DeMaio “are putting their allegiance to labor union politics above what is right for the LGBT community and our efforts to achieve full equality.”
With a lot of people in the room being Queer activists who campaigned for him against an openly Queer opponent, Filner told the crowd at the Center, “You’ve helped us in the election and you’re going to see some new faces at City Hall. There might even be a Gay face or two to make sure this city is open to everybody” — an odd statement to make in a city which has had at least one openly Queer person on the City Council since 1993 and where two Queer long-time city commissioners, Murray Ramirez and Al Best (whom Gloria acknowledged as the very first openly Queer person to run for the City Council), were in the audience.
“It’s going to be harder to govern than it was to win an election,” Filner said, repeating a warning he’d given at the San Diego Democrats for Equality’s Freedom Awards November 17. “We’re going to blaze a new path. When people may need to be educated, we’ve got to go door-to-door, we’re going to have to campaign. All the things we had to do to get elected, we need to do now to build community support and make sure we’re doing what people want. We need your help and participation.”