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04/19/2007


What To Watch For in Today's Tenth Circuit Court Marriage Hearing on the Utah Gay Marriage Ban

By ARI EZRA WALDMAN

TenthcircuitThe Denver-based Tenth Circuit Court of Appeals (pictured) is hearing arguments today in Kitchen v. Herbert, the federal case challenging Utah's ban on gays marrying. It is the first in a line of nearly 65 marriage lawsuits speeding their way through the federal and state judiciaries and, therefore, may be the one case to reach the Supreme Court and be the vehicle to determine whether we have a nationwide right to marry.

In December of last year, Judge Richard Shelby issued a broad ruling, holding that marriage discrimination violated both the Equal Protection and Due Process Clauses of the Fourteenth Amendment. It was the first same-sex marriage ruling after the Supreme Court's decision in Windsor and Judge Shelby relied heavily on that pivotal case. In fact, he seems to have set the tone for how the lower federal courts are interpreting and using Windsor. Shelby himself found that Windsor required some level of scrutiny higher than simple rational basis; other courts have found that it demanded heightened review. All courts have essentially found that Windsor made marriage discrimination pretty much untenable. 

It was, then, the second domino after Windsor.

There are a few things to watch for in this closed-door hearing.

1. Will the court issue a ruling as broad as Judge Shelby's or limit it in some way?

2. What, if anything, does the court say about the required level of scrutiny in antigay discrimination cases?

3. Will the political backgrounds of the judges play a role in their decision making?

Let's turn to each of this questions briefly AFTER THE JUMP.

Continue reading "What To Watch For in Today's Tenth Circuit Court Marriage Hearing on the Utah Gay Marriage Ban" »


The Fall of Brendan Eich Happened Without Us

By ARI EZRA WALDMAN

Brendan-eich-mozilla-firefox-squareBrendan Eich is no longer the CEO of Mozilla. His tenure was short. But if you believe the media swarm surrounding his quick departure, you would think he left in a blaze of burned bridges and violent protests. I must have missed all that. Mr. Eich was asked to step down because the members of his board of directors made the decision that he could no longer govern their company. That's how boards are supposed to work.

There was no mainstream gay rights organization calling for his head. No one "bullied" Mr. Eich out of Mozilla's headquarters. To say so is an insult to those of us who have been bullied in real life. And no cabal of intolerant gays proclaimed that disagreement with us merits unemployment. That seems to be a bogeyman conjured up in the prolific brain of Andrew Sullivan.

Although this was a legitimate board decision, Mr. Eich did do two things wrong: He took actions that were specifically intended to harm others and he made it worse by refusing to discuss those actions. Those who turned to demonize a straw man of intolerant "gay activists" miss these two facts.

Their argument is essentially about tolerance for evolving opinions and it goes as follows: We cannot punish people for simply disagreeing with us. If we do, we become no better than intolerant conservatives who hate us simply because of who we love. It would have been better to teach Mr. Eich, to sit down with him like mature adults and make our case, thereby showing him that he, like millions of other people, were wrong about us.

Let me say that I agree. I am a proponent of guiding our former opponents on a path toward acceptance with calm, cool rhetoric and a mature approach. I wrote about it here, with respect to Senator Rob Portman's evolution on gay marriage. But it is not clear to me how we can discuss something with someone who refuses to come to the table. Plus, this is not a matter of having differing opinions. Mr. Eich made a jump from having an opinion to taking actions to hurt another group of people. To assert the equivalence of belief and action is not only plain wrong, it is inconsistent with how free speech norms have developed in this country.

This story, then, boils down to three simple facts:

1. Mozilla's Board of Directors did exactly what boards are supposed to do;

2. Mr. Eich took actions that made him unfit to lead a unique community like Mozilla; and

3. Actions have consequences.

CONTINUED, AFTER THE JUMP...

Continue reading "The Fall of Brendan Eich Happened Without Us" »


Obamacare, Religious Exemptions, and Gay Rights: Hobby Lobby at the Supreme Court Today

By ARI EZRA WALDMAN

SupremesToday, the Supreme Court is hearing arguments in a case about Obamacare. The last time that happened, the Court determined by a bare 5-4 majority that the so-called individual mandate, the requirement that everyone has to buy health insurance or pay a tax, was constitutional. Now, the Court is considering whether corporations can refuse to provide insurance plans that include contraception if doing so would violate the religious beliefs of those corporations' owners.

This matters, not just to those of us in need of health care and not just to those of us who work for companies run by religious people. It matters to all LGBT Americans because the scope of this particular religious exemption could affect the scopes of other religious exemptions.

The cases -- Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius -- will determine the breadth of the religious exemption from Obamacare. Unfortunately, the pretext of religious freedom has gained much traction of late in justifying continued discrimination. And this Court's conservative majority has set itself up to strike a blow against equality.

AFTER THE JUMP, I will construct the argument I expect the Court's conservatives will use to expand the religious exemption. I will show how that argument is deeply flawed. And then I will show how dangerous it is for the LGBT community.

Continue reading "Obamacare, Religious Exemptions, and Gay Rights: Hobby Lobby at the Supreme Court Today" »


Michigan's Marriage Equality Ruling: A Summary and Analysis

BY ARI EZRA WALDMAN

On Friday, District Judge Bernard Friedman, a Reagan appointee to the bench, declared Michigan's ban on same-sex marriage unconstitutional (read the opinion here). As I have argued several times during this unprecedented string of marriage equality rulings in the lower federal courts, the decision seems almost routine: a state's ban on gays marrying violates equal protection because it treats similarly situated persons differently for no legitimate reason.

FriedmanThe state tried to argue the standard, yet hopeless case--namely, that the ban promotes the "optimal child-rearing environment," allows the state to "proceed with caution" in an area of great social change, and expresses the collective "tradition and morality" of the citizens of the state.

In response, the court said two things in response: First, that some of these reasons are not even legitimate state goals, and, second, even if they all are, banning gays from marrying is so unrelated to these ostensible goals that the ban makes no sense.

We've heard these arguments before. And we've seen then struck down before, in states as different as Massachusetts (back in 2004) and in Utah ten years later.

What was unique about this decision is that, like Judge Vaughn Walker's decision in August 2010 striking down California's ban on same-sex marriage, it followed a trial, with witness testimony and cross examination. That hasn't happened all that often since we began this fight. And despite the benefits to our cause, i.e., putting truth on the record, it may happen even less often going forward because the Supreme Court's decision in Windsor made trials unnecessary.

Below, I briefly summarize the Michigan case and flesh out the argument that full trials, though a boon for our side, are being made superfluous by Windsor.

CONTINUED, AFTER THE JUMP...

Continue reading "Michigan's Marriage Equality Ruling: A Summary and Analysis" »


The Real Reason Arizona's Anti-Gay Discrimination Bill Was So Bad

Press_brewer

BY ARI EZRA WALDMAN

When Arizona Governor Jan Brewer vetoed an odious discrimination bill that would have allowed private individuals and companies to deny service to and otherwise discriminate against gay persons, most people breathed a collective sigh of relief. Many Republicans were happy to erase this stain from their brand, though conservatives in several states have other plans. Most Americans were just happy Jim Crow was not coming back.

Not everyone was so pleased. The right wing was, of course, up in arms. But few of us spend much time worrying about what Michelle Bachmann or Rush Limbaugh think. Then there was George Will, a conservative commentator without the Hellfire that rises from much of today's extreme right. Mr. Will coats his comments with his particular brand of amiability and an aw-shucks attitude in a bow tie. But his words were the most malicious.

WillHere's what he said in reaction to the veto:

It's a funny kind of sore winner in the gay rights movement that would say, 'A photographer doesn't want to photograph my wedding -- I've got lots of other photographers I could go to, but I'm going to use the hammer of government to force them to do this.'... It's not neighborly and it's not nice. The gay rights movement is winning. They should be, as I say, not sore winners.

He characterizes us as winners, which is both a half-truth and red meat for his conservative audience. We have not won anything. Sure, we are racking up notable victories, but you can still be fired in 29 states simply for being gay and I cannot marry the man I love in 33 states. Yet arguing that the fight is already over heightens the feverish paranoia of his readers and listeners; that is, he is warning conservatives that the gays already took marriage away from you and now they're coming for something more.

He also characterizes gays as childish, as ungrateful "sore winners" who do not know how to be neighborly, mature, and adult about things. This may sound peevish and petty, but it also fits within a long standing conservative narrative about gay people as unserious, untrustworthy, small, and entirely hedonistic, just like children.

Mr. Will's greatest sin, however, is in his offensive misconstrual of the substantitive fight. To him, we have a choice between this or that photographer -- "I've got lots of other photographers I could go to" -- suggesting that mere choice is the paradigm for equality. This is the grave error libertarians commit, as well. Equality is barely half a loaf if its pinnacle is the ability to choose. True equality is also about equal dignity, about not being treated like a second-class citizens simply because of who you are. Avoiding state sanctioned discrimination because you may have another choice does not change the underlying fact of discrimination.

CONTINUED, AFTER THE JUMP...

Continue reading "The Real Reason Arizona's Anti-Gay Discrimination Bill Was So Bad" »


A Win for Marriage Equality in Texas: Summary and Analysis

By ARI EZRA WALDMAN

A federal judge in Texas issued an opinion today declaring that the state's refusal to allow gays to marry violates the federal constitution. At its core, this case -- De Leon v. Perry -- looks a lot like some of our other recent federal marriage equality cases. Some have been broader than others, but most, like De Leon, make two conclusions: First, that denying gays the right to marry violates the Due Process Clause because marriage is an important right that cannot be taken away light and, second, marriage discrimination violates the Equal Protection Clause because a state cannot treat opposite-sex and same-sex couples differently for no good reason.

3_texasJudge Garcia's decision is notable for several reasons. I will highlight two here at the outset. First, he does not dive into the heart of the level of scrutiny debate. He is content to say that marriage discrimination cannot even pass a low rational basis test. Second, he gives us a law nerd moment that students of gay rights will read for years to come to show how one case leads to the next which leads to the next and so on. Without Windsor, this case would look very different; without Lawrence, we wouldn't have gotten Windsor. And without Romer, we wouldn't have gotten Lawrence. As Judge Garcia writes:

Without a rational relation to a legitimate governmental purpose, state-imposed inequality can find no refuge in our United States Constitution.

And how does he know that and that it applies to the notoriously marginalized LGBT community? Judge Garcia continues:

Supreme Court precedent prohibits states from passing legislation born out of animosity against homosexuals (Romer), has extended constitutional protection to the moral and sexual choices of homosexuals (Lawrence), and prohibits the federal government from treating state-sanctioned opposite-sex marriages and same-sex marriages differently (Windsor).

Given that, the unconstitutionality of Texas's discriminatory statute seems pretty clear.

CONTINUED, AFTER THE JUMP...

Continue reading "A Win for Marriage Equality in Texas: Summary and Analysis" »


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