Gay Rights After SCOTUS: Complexities of 'Federal Marriage Law'

By ARI EZRA WALDMAN

The upcoming Supreme Court decisions on DOMA and Prop 8 will not be the last word on marriage, in particular, or gay rights, in general. As we look forward to those words, however, let's take a look ahead and discuss how the legal landscape may be more complicated after the end of June. "Gay Rights After SCOTUS" is Towleroad's series on LGBT legal issues after Perry and Windsor. In today's column, state-to-state marriage recognition.

The Defense of Marriage Act (DOMA) makes things really easy: it mandates that no matter what this or that state says about marriage, gay marriages are never going to be recognized by the federal government. So-called "federal marriage law" -- to the extent that there is such a thing -- will be a lot more complicated when the Supreme Court tosses DOMA into the dust bin of history.

Complication is not always a bad thing. It just takes a little more work.

Normally, marriage law is pretty simple: For 99 percent of heterosexual couples, the hardest thing about marrying in one state and moving to another state is packing the fine china. Sure, there are some states (New York) that allow first cousins to marry and some states (West Virginia) that do not, but for the most part, when a man marries a woman, they are married in all legal respects whether they live on the 65th floor in an Upper West Side hi-rise or in a ranch house in Oklahoma. 

The end of DOMA doubles down the complexity faced by legally married same-sex couples. What is the governing law for marriages for federal law: the place of celebration or the place of domicile? What if the choice of law is different from different aspects of federal law? What happens when a legally married couple moves to a state that feels that their marriage violates public policy? What of gay couples that do not have the option of marrying and are in registered domestic partnerships or civil unions that provide all the benefits of marriage?

It's time to start imagining a world where we have to answer these questions. Join me AFTER THE JUMP as we look forward to a brave new world.

CONTINUED, AFTER THE JUMP...

The NSA, Data Privacy, and Gay Rights

By ARI EZRA WALDMAN

You don't have to be a libertarian to get angry at the jaw-dropping revelations that the American intelligence apparatus has been mining data from various U.S. Internet companies. Many of us are aware that private and public entities know quite a bit about us; data mining, after all, is how the Google banner, Amazon book recommendations, and Facebook sidebar ads work. But few -- outside those of us who study digital privacy -- realized the scope of the NSA's reach. 

The government's intelligence gathering program -- called PRISM -- is ostensibly trying to achieve the worthy goal of preventing terror attacks. But the Kafka-esque bureaucracy it's creating could turn dangerous in the wrong hands. We've seen it before, during red scares that targeted Jews, blacks, gays, intellectuals, and other liberals; so let's not fall into the abyss of complacency by passing off the NSA's behavior as just something that makes us feel safer.

These kinds of privacy invasions have a less direct relationship to the gay community than raids of gay bars or anti-gay employment discrimination or bans on the freedom to marry. But even if it is true that the government only targeted foreigners abroad and did not discriminate on whose data it was gathering, the sweeping nature of NSA data gathering and this troubling example of the lag between our technology and our privacy protections should especially worry traditionally victimized groups.

Privacy law and the gay community have a long history. The explicit elucidation of a constitutional right to sexual privacy in the 1960s helped give us important precedents like the right to access contraception, the right to choose to terminate a pregnancy, and the right to engage in private, consensual sex with someone of the same sex without being thrown in jail. Yet, over the years, our privacy has been invaded to stop the dissemination of gay-related political or cultural speech through the mail, to force us to disclose our memberships in community organizations that advanced gay rights, and to fire us from our jobs when our personal sexual orientation becomes known. 

Privacy is essential for the full realization of gay rights. Why? It's not because we need to hide who we are or hide our sexual conduct.

Let's discuss AFTER THE JUMP...

ExxonMobil on Trial for Anti-Gay Discrimination

By ARI EZRA WALDMAN

Two applicants apply for the same job -- Marketing Associate for EnormoCorp. The applicants, Alice and Barbara, are identical in some ways: same college, same gender, even the same hometown. But Alice is consistently superior in the relevant qualifications: Alice has a 3.8 GPA to Barbara's 3.2; Alice has been a Marketing Assistant for 5 years, Barbara for only 2; Alice's skills in Excel and other computer programs, all of which are listed in the job description as necessary for the job, is "excellent," but Barbara can only boast of "proficient" skills.

Alice's resume also notes that she is the treasurer of her local chapter of the Gay and Lesbian Victory Fund. Barbara does volunteer campaign work for Emily's List, the organization that helps elect women candidates.

If you ran human resources for EnormoCorp, you'd at least want to interview Alice first. She's the more qualified of the two applicants.

ExxonMobil does things a little differently. It discriminates against the LGBT applicant because it can.

In December of last year, the gay rights organization Freedom to Work and its founder, Tico Almeida, wanted to expose incident of Exxon's antigay discrimination. Mr. Almeida tested the company with two ghost applicants just like Alice and Barbara, and Exxon went for Barbara. In fact, Exxon didn't just opt for the non-gay candidate; when she never responded to their several calls to come in for an interview, Exxon never even contacted the gay applicant as a back up! Along with Peter Romer-Friedman, an attorney at Cohen Milstein Sellers and Toll PLLC, Mr. Almeida is suing Exxon for violating Illinois's nondiscrimination laws. And they're going to win.

The most remarkable thing about this case is not that it highlights the need for a federal LGBT nondiscrimination act. Nor is it that this kind of discrimination happens every day. Those facts are, in fact, quite unremarkable. Rather, what's amazing is that even though the technique of sending in "testers" like Alice and Barbara has been outrageously successful in identifying and stopping discrimination against African Americans, Hispanics, the disabled, and other protected groups, this is the first time it has been used to advance the cause of gay rights.

I will be following this case every step of the way, bringing you updates and progress reports, as well as insights into the employment discrimination litigation process.

I start with the basics: how this case came about and why it's so important,
AFTER THE JUMP...

The Real Danger of the IRS, DOJ 'Scandals'

By ARI EZRA WALDMAN

The IRS and DOJ scandals are already old news, but everyone seems to misunderstand their significance.

The machinations of the IRS went something like this: Sometime last year, several middle to low level workers at the Cleveland, Ohio office of the Internal Revenue Service started taking special interest in conservative political groups applying for tax exempt status. They looked for organizations with the words "Tea Party" or "Patriot" or "the Constitution" and, as the New York Times reported, sent them--and, it appears, them alone--detailed questionnaires to probe their political leanings, affiliations, and plans. 

At the same time, the DOJ was investigating national security leaks to reporters. As part of that investigation, it sent a subpoena (or subpoenas) to phone companies to seize the records of at least 20 phone lines used by the Associated Press and several others at FOX News. The AP called the actions "overzealous" and "unconstitutional;" others went further, calling the DOJ's behavior part of a "pattern of cover-ups."

Republicans and conservatives are positively giddy at the apparent opportunity to tie the President to these "scandals," hoping to claim some skin in the game, or at least a political victory. But there is no evidence that the President knew. In fact, there is every evidence that these decisions were made at lower administrative levels and were kept out of the President's world.

That means that these "scandals" -- not to mention the Benghazi tragedy -- don't have legs in the traditional sense, like Watergate or even the Monica Lewinsky affair. They are not about what the President knew and when. They don't involve the President, or anyone close to him, lying. Nor are they about some sinister Administration plot to target enemies.

But they may damage the Administration, the Democratic Party, and modern progressivism in a more subtle way.

To see how, continue AFTER THE JUMP...

Mourning Mark Carson and Responding to Anti-Gay Violence

By ARI EZRA WALDMAN

Progress sometimes breeds backlash, but that's not the whole story behind a hate-filled gunman shooting Mark Carson (right) in the head at West 8th and Sixth Avenue on Saturday. Mark's tragic, unnecessary, and violent execution followed quickly on the heels of two other anti-gay attacks near Madison Square Garden, where gay couples were brutalized simply for being gay. In response to these attacks, the community is gathering today at the LGBT Community Center, marching to where Mark was killed, and hearing from our leaders about what can be done.

But it's not entirely clear everyone understands what we're fighting for. A quick (admittedly unscientific) survey of the several press releases, Facebook posts, and other announcements about this evening's rally reveals a few telling clues: Out of 39 Facebook posts about the attacks, Mark's death, and the rally, 27 of them included some iteration of the phrase "Take back our ..." city, neighborhood, town, and so on. Nearly all of them referred to the progress we've made on winning the freedom to marry. Nine even referred to those talking heads that have said that the debate over marriage is over and we've won. Various press releases from our community leaders and elected officials expressed understandable outrage at these heinous attacks, but also talked about "not going back" to a time when New York City was a dangerous place for gays to live. 

That's not what this rally should be about. Any suggestion that we're taking back the city streets implies that they were, at some point, ours. Any defiant proclamation that we refuse to return to a time when the City was dangerous ignores the fact that the City is still pretty dangerous for openly gay members of many minority communities, including the African American, Dominican, and Puerto Rican communities, to name just a few.

Backlash may be playing a role. So too is the tacit endorsement of anti-gay violence offered by the rabid anti-gay hate spewing from our elected officials. Still, we cannot forget that despite the 55 % of the American population that supports the freedom to marry, there are thousands of towns, large and small, where walking-while-gay is an invitation to violence.

CONTINUED, AFTER THE JUMP...

The Military's Sexual Assault Problem Affects Men and Women, Gay and Straight

By ARI EZRA WALDMAN

The United States military has a rape problem, and it's nothing new.

Earlier this week, two women -- Rebekah Havrilla and BriGette McCoy -- appeared before a Senate subcommittee chaired by New York Senator Kirsten Gillibrand to recount their experiences of being raped and sexually harassed during their time in the military. They were joined by one man, Brian Lewis, who testified that he was raped by a senior officer in the Air Force while serving on the island of Guam. It was the first time a male victim appeared before Congress to discuss his sexual assault.

Their heartbreaking stories of abuse and command inaction are bad enough on their own; in the context of a military in which rape, sexual assault, and harassment are more common than morning coffee, they are downright enraging. According to the military's own report, the number of service members anonymously reporting a sexual assault jumped more than 30% in the past two years. In 2012, more than 26,000 troops reported experiencing "unwanted sexual contact," a significant jump from the 19,300 who reported such victimization in 2010. What's more, 10,700 of the 19,300 victims in 2010 were men. And that covers only those incidents reported to authorities; men are far less likely to report being victims of sexual assault, especially in a macho, testosterone-filled environment like the military. The real numbers are probably shockingly high.

P erhaps as high -- if not higher -- as they were in 1991, when 83 women and 7 men were assaulted during the Tailhook convention in Las Vegas in September 1991. Even that scandal, which was supposed to change the military forever, did not result in a single prosecution. The bankruptcy of the military justice system came back into the news recently when an Air Force general tossed out the conviction of an officer after the officer had been convicted of aggravated sexual assault of a woman. 

This unique and dangerous facet of the military criminal justice system -- the near boundless discretion given to the so-called "convening authority" to sign off on, reject, or modify the sentence of a general court-martial -- is complicit in the growing epidemic of sexual crimes in the military today. But it is not alone. 

Let's discuss the elements of military law that are contributing to this problem,
AFTER THE JUMP...