Towleroad Talking Points: The Final Countdown

PHOTO OF THE DAY: New Yorkers light the way for gay rights.  

BY SAM GREISMAN

A look back at today's top stories

MARRIAGE EQUALITY

There is only one day left until the Supreme Court hears arguments in the Prop 8 and DOMA cases and ahead of that monumental day here is a whole bunch of links, quotes, previews and anything else you might need relating to the marriage equality trial. On that note, our legal expert Ari Ezra Waldman continues his preview of the hearings with a discussion of whether DOMA and Prop 8 are unconstitutional under the definition of equal protection. Ari also gives us a look at what we might be able to expect on Tuesday and Wednesday. 

Chief Supreme Court Justice John Roberts will have family scrutinizing him from inside the courtroom this week as his lesbian cousin will be attending the hearings. And Edie Windsor, the plaintiff in the DOMA case at the Supreme Court, will be one of the Grand Marshals at this summer's LGBT Pride March in New York City. 

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GAY NEWS

The DOMA and Prop 8 cases won't be the only gay-related cases in court this week. Lt. Dan Choi, who was arrested after a peaceful protest against "Don't Ask Don't Tell", will be returning to a federal court. A CBS Sports report indicates that we may be closing in on our first openly gay active player in a major sports league as there are rumors that an NFL player is weighing coming out. 

The California Department of Education has added some LGBT-inclusive reading to their "Recommended Literature List" and one right-wing nutjob is likening it to child rape? And if you are a sodomite who is looking for Ann Coulter to foot the bill for your trip to a bathhouse then you are out of luck. 

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ENTERTAINMENT

We all know how cuddly crocodiles in the Nile are, so Anderson Cooper got in the river to play with them. Also check out some clips from Daft Punk's forthcoming new album. 

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VIDEOS OF THE DAY

According to the most recent Census reports there are no gays in Franklin County, Mississippi; so CNN went to find out if that was really true. 

Life is so much better now that I know that "fizzle" originally meant to fart quietly. And this video will make you grossed out by your own skin. 

Poll: 54 Percent of Ohioans Support Marriage Equality

Shifting numbers in the Buckeye state on marriage equality, the Columbus Dispatch reports:

..just days before the U.S. Supreme Court considers a pair of landmark gay-marriage cases, a new Saperstein Poll for The Dispatch shows that 54 percent back a proposed new amendment to repeal the 2004 measure and “allow two consenting adults to marry, regardless of their gender.”

Just 40 percent oppose the proposal, which also would allow religious institutions to determine who they will or won’t marry, and protect such institutions that refuse to perform a marriage.

The latter provisions are key because “they ameliorate the concerns that some people may have, like is this going to be forced on me, or forced on my church,” said Martin D. Saperstein, head of the Columbus firm that conducted the poll.

He said Ohio’s electorate has transformed in the past nine years as younger people who favor gay marriage attain voting age.

Anti-gay activists just think the pollsters are being tricky:

Chris Long, president of the Ohio Christian Alliance, acknowledged the political savvy of addressing religious institutions in the same-sex marriage proposal.

“If they would ask the question alone to reverse the 2004 question to allow same-sex marriage, I think it would be different,” he said. “But when people understand clearly what is presented to them, I think Ohioans will again affirm their position on traditional marriage.”

Long said support for gay marriage has grown because “homosexual activists have been successful in a form of indoctrination in the public schools over the past 20 years, pushing that homosexuality is an acceptable lifestyle.”

What say, Congressman Boehner (R-OH)?

Azealia Banks Doesn't Care About the Word 'Faggot': VIDEO

Azealia Banks doesn't care about the C-word, the F-word, or the N-word she tells Channel [V] host Billy Russell. She also talks about how old people don't get the idea of what a "Twitter personality" is, and she'll gladly take the label of icon but it isn't enough:

"I am kind of like an icon so early in my career but I havent' reached that level of superstardom yet where it's like I'm so visible to everyone. That's the moment I'm waiting for where it's like supreme visibility."

Watch, AFTER THE JUMP...

Senator Mark Warner (D-VA) Comes Out for Marriage Equality

Senator Mark Warner (D-VA) came out for marriage equality late this afternoon in a post on Facebook:

I support marriage equality because it is the fair and right thing to do. Like many Virginians and Americans, my views on gay marriage have evolved, and this is the inevitable extension of my efforts to promote equality and opportunity for everyone. I was proud to be the first Virginia governor to extend anti-discrimination protections to LGBT state workers. In 2010, I supported an end to the military’s ‘don’t ask, don’t tell’ policy, and earlier this month I signed an amicus brief urging the repeal of DOMA. I believe we should continue working to expand equal rights and opportunities for all Americans.

Warner is the second Democratic senator in two days to suddenly evolve on marriage equality on the eve of two Supreme Court cases considering the issue.

Last night, Missouri senator Claire McCaskill said she, too, had evolved.

Supreme Court Preview: Roberts, Kennedy, and their Court - Some Final Thoughts on Impacts and Outcomes

BY ARI EZRA WALDMAN

On Tuesday and Wednesday, March 26 and 27, the Supreme Court will hear more than 3 hours of arguments in the challenges to the constitutionality of California's Proposition 8 (Hollingsworth v. Perry) and the Defense of Marriage Act (Windsor v. United States). In a series of short posts, I will preview and summarize the legal issues that will be raised. In this post, some general questions to consider.

The expectations are high and the anticipation is palpable. Eager citizens have been camping out at the Supreme Court for days. Rallies are planned, the lawyers are ready, and Chief Justice Roberts is hours away from leaning forward in his center chair and say

"We'll hear argument first this morning in Case 12-144, Hollingsworth v. Perry. Mr. Olson..."

at which point Ted Olson, President George W. Bush's solicitor-general, will begin his argument that California's Prop 8 violates the U.S. Constitution. It a law nerd's March Madness, just with shorter men and longer sleeves.

Having covered questions of standing (in Prop 8 and DOMA), scrutiny, and equal protection, we are now well prepared to understand what will happen at the Court tomorrow and in June, when decisions will be handed down. For now, I'd like to take a step back from the legal details and offer some perspective and highlight a few questions to keep in mind. From these questions, one thing seems clear: this show has many stars -- Olson, David Boies, Ted Boutrous, Edie Windsor, Kris Perry, Sandy Stier, Paul Katami, Jeff Zarrillo, to name just a few -- but the show will end with three stars shining above the rest: Chief Justice Roberts, Justice Kennedy, and the American people.

Some final thoughts about what to expect tomorrow and Wednesday, AFTER THE JUMP...

1. Will it matter that 58% of Americans now support the freedom to marry?

Technically, the law is supposed to be insulated from the ebbs and flows of public opinion, but we all know that's not the case. Plus, there is no ebb and flow when it comes to the freedom to marry. The remarkable story of social progress over the last 10 years has shown a steady increase in the number of Americans supporting our right to marry. For Americans under 30, this is an 80-20 issue. Young Republicans even show broad support for marriage. If the last chapter of the story has yet to be written, the writing is certainly on the wall.

This evidence shows that there is an "emerging consensus" in favor of the freedom to marry. Throughout the history of the Supreme Court, as former Justice Sandra Day O'Connor stated several times, that "emerging consensus" is often reflected in Court decisions and is usually a prerequisite for important, socially-relevant cases.

Public opinion may also play a role in swaying some of the justices that sit on the fence. Let's see how the 58% may impact two important players: Justice Kennedy and Chief Justice Roberts.

2. What will Justice Kennedy do and are we completely reliant upon his opinion?

Justice Kennedy has been an ally, effectuating nothing less than a revolution of gay rights in this country with his decisions in Romer v. Evans and Lawrence v. Texas. He likes states' rights and gay rights, as NYU Law Professor Kenji Yoshino likes to say. So, the Reagan appointee should be a natural ally on DOMA, which impinges both, and on Prop 8, which could be decided narrowly so as not to upend marriage bans across the country.

Justice Kennedy has also shown a willingness to listen to public opinion in a neutral way, even citing it in several decisions during his tenure. By contrast, Justice Scalia is a partisan opportunist when it comes to public opinion: choosing to listen to it when the public supports his conservatism and decrying or minimizing it, as he did with the reauthorization of the Civil Rights Act, when he disagrees with it. 

But, although I think Justice Kennedy will be on our side, I don't think he will be the only one.

3. What about Chief Justice Roberts?

Chief Justice Roberts is a dyed in the wool conservative, a religious man who has shown a penchant for right-wing activism on the Court. And some progressives are nervous that the Chief Justice built up some political capital by upholding the Affordable Care act (though he did so while striking a win for conservative legal dogma), thus allowing him to buck the public an uphold DOMA and Prop 8.

But, he is also a young man who will most likely be sitting in his center chair for at least 20 years. As Richard Socarides asked on the New York blog and Emily Bazelon asked in Slate, is the Chief Justice willing to be remembered for a decision that will quite obviously be seen as backward, bigoted, and hateful in less than 20 years?

4. Will the ghost of Roe v. Wade impact the decision?

Roe is an important decision that enshrined a constitutionally protected right to choose, but even some progressive scholars -- including Justice Ginsburg -- believe that Roe was decided on an improper framework and may have been decided too soon. It caused a backlash; being anti-choice defined conservatism for decades (before the gays came around to scare traditionalists) and resulted in an effective counter-offensive. Just recently, for example, Arkansas passed the most restrictive anti-choice law in the nation, overriding the state's Democratic governor's veto.

Both progressive and conservative justices might be nervous about going too far, like mandating a national right to marry that erases all marriage bans with the snap of Justice Kennedy's fingers. We know that the freedom to marry is universal, but going too far too quickly could do political and legal damage to the ultimate cause. Look for several justices across the political spectrum to ask quesions about how they could narrow the scope of their pro-equality decisions.

5. Which outcome is most likely?

There are so many possible outcomes. Both cases could be thrown out on standing grounds, or one case could, or neither case could; Hollingsworth could be narrowed to just the plaintiffs or California or to 8 states or to the entire country; Windsor could apply to just Edie and to no one else; the appropriate level of scrutiny could be decided for either heightened scrutiny or rational basis, or not decided at all. And, DOMA and Prop 8 could still be upheld.

I am loathe to predict what the brilliant, but unpredictable Court will do. But, I cannot conceive of a world where either DOMA or Prop 8 still exist after the end of June 2013. 

Conclusions

Amid all the talk of marriage, exhortations of bigotry, remarkable progress toward a national pro-equality consensus, and smart predictions about who will decide what, we should not miss the forest for the trees. Just three years ago, few of us would have predicted that the freedom to marry would be at the Court so soon, and with such a good chance of winning. Some were worried that a California marriage case was premature; some were also worried that the country was not ready to have a debate about gays marrying. But, the expressive and persuasive effects of august federal courts declaring marriage bans and DOMA unconstitutional got us to where we are today. That, combined with the work of Freedom to Marry and the marriage coalitions, Obama's fierce advocacy, and a political and generational shift catalyzed by the President's reelection contributed to our victories in the hearts and minds of Americans.

MORE PREVIEWS OF THIS WEEK'S SCOTUS ARGUMENTS:
The question of 'standing' in the Prop 8 case [tlrd]
The question of 'standing' in the DOMA case [tlrd]
Supreme Court Preview: 'Scrutiny' in the DOMA and Prop 8 Cases [tlrd]
Supreme Court Preview: Equal Protection in the DOMA and Prop 8 Cases [tlrd]

Make sure not to miss a Towleroad headline by following @TLRD on Twitter.

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Ari Ezra Waldman teaches at Brooklyn Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. His research focuses on technology, privacy, speech, and gay rights. Ari will be writing weekly posts on law and various LGBT issues. You can follow him on Twitter at @ariezrawaldman.

CBS Sports: NFL Player Considering Coming Out of the Closet

Mike Freeman at CBS Sports wrote today that he believes a current NFL player is considering coming out of the closet:

While I've long believed I would not see an openly gay NFL player for decades, that might be wrong.

Based on interviews over the past several weeks with current and former players, I'm told that a current gay NFL player is strongly considering coming out publicly within the next few months -- and after doing so, the player would attempt to continue his career.

Freeman says that despite the recent homophobic Chris Culliver incident and the issues at this year's Combine, "I'm told this player feels the time is now for someone to take this step..."

This player's true concern, I'm told, is not the reaction inside an NFL locker room but outside of it. The player fears he will suffer serious harm from homophobic fans, and that is the only thing preventing him from coming out. My sources will not say who this alleged player is.