A Stitch in Haste

This is not the first time something judicially monumental has happened whilst I was on vacation. I hope you can find enough commentary on the decision to tide you over for a few days.

I won't lie to you: There is no way I am reading 172 pages of California constitutional interpretation here in my undisclosed location. It will have to wait until I get back.

I can, however, offer two hasty stitches:

1. Tim Sandefur asks what's in a name:

The Court begins by making clear that the question is not whether the state can bar homosexual couples from having the same substantive rights as heterosexual couples, but rather whether the state can establish an identical (or nearly identical) set of substantive rights for each, but only confer the name "marriage" on one and not the other. The entire dispute is about the word "marriage.'
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The only difference is the word the state uses. Do you have a right to a word?

I think on this point, there is room for disagreement, but I would be skeptical. First, if the state were using a word for same-sex marriages that was derogatory or offensive, then there would be a stronger argument that the state was discriminating against them.
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California simply denominates gay marriages "civil unions." Is that really a violation of the rights of gay couples? If so, is it discrimination to refer to people on AFDC or WIC as "welfare recipients"? Is it discrimination to refer to people in wheelchairs as "handicapped"? I find this an implausible ground for a finding of discrimination.

Sandefur is as fine a libertarian legal mind as you'll find, and no enemy of gays. (Again, he is critiquing the decision, not the concept of gay marriage generally.) So my observation is probably best filed away as a lawyer's quibble, but I think his analysis is utterly untenable for a reason that can be summed up in two "just words" — New Jersey.

A New Jersey straight "married" (just a word) couple can have their marriage (just a word) recognized and legally enforced in New York.

A Massachusetts or Canada "married" (just a word) gay couple can, now, have their marriage (just a word) recognized and legally enforced in New York.

A New Jersey gay "civil-unioned" (just a not-quite-word) gay couple cannot have their civil union (just words) recognized and legally recognized in New York. This despite the fact that the New Jersey Supreme Court insisted and demanded that "civil unions" be afforded all (just a word?) the rights and privileges of marriage.

New Jersey tried, and failed, to make marriage "just a word" —

We will not presume that a difference in name alone is of constitutional magnitude.

It was a Sisyphean nightmare then; it is a Sisyphean nightmare now. Marriage, for better or for worse, is not "just a word" in American jurisprudence. That is axiomatic in the exteme.

Note also that Sandefur's suggested qualifier "derogatory or offensive" has nothing to do with it. Full and equal either obtains or it does not; asking, "Is this derogatory or offensive?" is simply not a robust distinction in this context.

Like I said, this is a just a late-night* nitpick; Sandefur's post is really quite good. Do read it.

(*"Late-night"? Did I just give an inadvertent hint as to my undisclosed location?)

2. So while the heroes of Lambda Legal (aided as they often are by the ACLU) were busy actually doing something for gay equality, what was the Human Rights Campaign doing?

They were busy conflating gay marriage with socialized medicine:

In our national debate on health care — we need to remember that in America, health care is a right, not a privilege. Too often that's not true for gay, lesbian, bisexual and transgender Americans. The absence of federal protections, inadequate state laws and inconsistent hospital policies often result in discrimination and inadequate health care for GLBT patients and their families.

The question of fair and equal (not to mention sane and humane) recognition of gay relationships in the context of medical care has nothing, absolutely nothing, to do with the gobbledygook of a "right to health care." To equate gay marriage with socialized medicine is to make gay marriage as evil as socialized medicine. It also marginalizes, as unimportant collateral damage, all those gays who dare not to be radical liberal malcontents. It's worse than "win the battle, lose the war" — it's "win the battle, bomb your allies."

I'm not being entirely fair, of course: HRC did find the time and money to "sign on" (their term) to somebody else's (whom they couldn't bother to identify in their press release) amicus brief. How bold of them. And how much, I wonder, are they asking for in donations for "their" (just a word) "victory" (not just a word)?

If your charitable money is up for grabs, then give it to Lambda, not to HRC. (If you want to be utterly apolitical, then opt for the Point Foundation.)

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The litigtion is In re Marriage Cases, No. S147999 (S. Ct. Cal., May 15, 2008) (PDF - 172 pages).

Good As You quotes a bigot on bigotry:

"Scratch a homosexual activist, find an anti-religious bigot."
To which I reply:

Denouncing someone, for what you say they are, is bigotry.

Denouncing someone, for what they say they are, is not.

It is for this uncomplicated reason that the term "anti-religious bigot" is of course an insolent oxymoron.

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Just a pass-along:

The American Civil Liberties Union launched a new version of its Get Busy, Get Equal online activist toolkit, www.aclu.org/getequal . Get Busy, Get Equal now incorporates new technology to make it easier for LGBT people to work for change in their communities. The website offers tools for ending gay and transgender discrimination, making schools safe, and winning recognition for LGBT relationships.

Check it out.

Few topics instigate as lively a discussion here as my contempt for Jim Bob and Michelle Duggar of — obviously — Arkansas.

To review: They have, as of yesterday, 17 children (with another on the way and an overtly expressed amenability to having more). Which, somehow, is considered a "warm, happy pre-Mothers-Day story on a morning show" rather than grounds for a child neglect investigation.

For whatever reason (ka-ching!), the Duggars felt a need to whore their kids out on national television yet again. So I felt a need — obviously — to comment on them yet again:

I find it fascinating that the same people who screech from the rooftops that "kids do best with a mother and a father" have no problem with kids being raised with 1/18 of a mother and a father. They'd get more personalized attention at the DMV.

I also wonder how much is in each kid's college fund. Oh wait, they're Evangelical-homeschooled, so college will not be an option. Never mind.

Note also that the older children are conscripted into "chores" that essentially make them full-time surrogate parents. Mowing the lawn and setting the table is one thing; having to serve as a dawn-til-dusk au pair for 10 or more of your younger siblings is child abuse, pure and simple.

The fluff piece shows toddlers packing away groceries and notes that the children must, literally, make appointments in advance to have one-on-one time with Mom. Charming.

There is a point at which "delightful parental love" metastasizes into "decrepit parental narcissism." I certainly don't want to be the one trying to identify that point. I'm reluctant in the extreme to let anyone in the government determine that point as a matter of policy to be imposed on all families in all circumstances.

But I'll be damned if I'm going to pretend that such a point doesn't exist. "I know it when I see it" may be the worst kind of hopelessly sloppy jurisprudence. But it's better than wearing a blindfold.

And did I mention that the Duggars, qua Evangelical Christians, are — obviously — associated with and supportive of rabidly anti-gay bigots?

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For Discussion: The next Stitch in Haste Podcast will be on "The Fourth Amendment in the Non-Criminal Context." I intend to cover two topics: (1) laptop searches at the border, and (2) the FLDS incident in Texas. I would love to know people's thoughts on the latter. Comment away...

A busy week on the gay rights front --

ITEM: New York's highest court declined, though strictly on procedural grounds, to review lower court rulings holding that same-sex marriages validly entered into in other jurisdictions (e.g., Massachusetts, Canada) must be recognized even though the gay couples could not have married in New York itself. The high court may hear the case after further litigation of the case in the lower courts. Despite the seeming contradiction, this "valid there means valid here" practice is actually a long-standing policy in New York (and other states) that has been applied to first-cousin marriages, underage marriages, common law marriages and other circumstances. Nevertheless, it does give further incentive to both advocates and opponents of same-sex marriage, who share an eagerness to ask, "How can this be?" Most recent post here.

ITEM: A California appellate court, meanwhile

has ruled unanimously that a gay Orange County man who mistakenly thought his ex-partner had registered their domestic partnership is entitled to the same protections covering heterosexual spouses who discover that, for whatever reason, their marriage is not valid.

This was not a particularly inspirational case: one partner tried to exploit the other by claiming that the failure to mail in the domestic partnership form nullified the estate planning documents they had drafted at the beginning of their formalized relationship. Still, fair and equal treatment is fair and equal treatment, in dissolution of relationships as well as in their formation. (A reminder, meanwhile, that California faces both an imminent state supreme court ruling on same-sex marriage and a likely bigot amendment.)

ITEM: Every silver lining must have a cloud --

An amendment to the state constitution approved by voters in 2004 to define marriage as the union of one man and one woman also prohibits public employers from providing health care and other benefits to the same sex partners of employees, a divided Michigan Supreme Court ruled today.
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Jessie Olson, an attorney involved in filing the challenge that was rejected by the court Wednesday, said the ruling leaves Michigan "at the bottom of the barrel. We are the worst of the worst of the worst when it comes to civil rights for same sex couples."

When bigots insist that their "no nothing never" amendments are "only" about "defending traditional marriage," they lie. Most recent post here.

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MEANWHILE: Although not quite rising to "Larry Craig" status, one of the most rabidly anti-gay bigots in Congress, New York Republican Vito Fossella, has acknowledged that he had an extra-marital affair* that produced a daughter, now 3 years old.

Fossella, now widely expected not to seek re-election,** voted for the Federal Marriage Amendment in 2004, the (identical) Marriage Protection Amendment in 2006, the jurisdiction-stripping Marriage Protection Act of 2004, and a D.C. appropriations amendment that would have banned gays in the District from adopting.

He was certainly "defending traditional..." -- well, traditional something.

*The affair was, incidentally, with an air force lieutenant colonel. File that under "morale and unit cohesion."

**Not for the affair, mind you, but for a DUI arrest in Virginia that will likely result in jail time.

(Via Obsidian Wings.)

Thomas More would be pleased:

The Bishop of Nottingham Malcolm McMahon says his diocese will cut its ties with an adoption agency because it cannot accept the government's new laws on homosexual rights.

Bishop Malcolm McMahon said he and the trustees of the Catholic Children's Society adoption agency felt that they had been forced into the decision by the Sexual Orientation Regulations which bans discrimination against gays in the provision of goods and services. The law would compel the diocese in certain circumstances to place children in the care of same-sex couples.

"We have been coerced into this, I am not happy about it at all," Bishop McMahon said. "The regulations have coerced the children's society into going against the Church's teaching, and we don't wish to do that."

A Vatican directive issued in 2003 said it was morally wrong to place children in the care of same-sex couples.

As I have noted previously, the "Catholic" opposition to gay adoption is invariably imposed from on high -- from Church officials and not from the Catholic adoption professionals themselves. Vatican theocrats and their henchmen bishops in the dioceses not only turn a blind eye to the independent objective research that universally shows that gays as a group make as good parents as straights, but they even ignore their own employees working in and running the charities -- people whom, one would think, the Church has no basis to mistrust when it comes to the best interests of children (unlike, say, the Church's own child-rapist priests here in the U.S.).

Incidentally, this particular Catholic adoption agency -- one of 13 in the U.K. -- will not close but will simply merge with its Anglican counterpart. The Church has hinted that this will be the preferred approach rather than to shut the remaining agencies down. While this is obviously good news for the children, it suggests a touch of hypocrisy on the Church's part: Isn't gay adoption arranged by Anglicans just as abominable as gay adoption arranged by Catholics? Isn't the Church conspiring in the commission of an egregious sin by turning its facilities over to heretics and their sodomite clientele?

In reality, this merely confirms that the people actually running these agencies in fact have little or no problem with gay adoption -- Catholic, Anglican or otherwise. They're not the ones quitting over this, the Catholic priests are. That speaks volumes.

(Via Religion Clause.)

No other posting today.



More info here.

A quick addendum to my last post on Judge Posner's bizarre, sad -- and wrong -- opinion today in the "Be Happy, Not Gay" t-shirt case, Nuxoll v. Indian Prairie School District #204:

The plaintiff calls Justice Alito's concurrence the "controlling" opinion in Morse* because Justices Alito and Kennedy were part of a five-Justice majority, so that their votes were crucial to the decision. But they joined the majority opinion, not just the decision, and by doing so they made it a majority opinion and not merely, as the plaintiff believes (as does the Fifth Circuit), a plurality opinion.

Lawyers' quibbles. As I explained in the first Stitch in Haste Podcast, it doesn't really matter whether one calls Chief Justice Roberts' ruling in Morse v. Frederick (a/k/a the "Bong Hits 4 Jesus" case) a "majority opinion" or a "plurality opinion." What matters is that Justice Alito made it unambiguously clear in his concurrence that Morse was not to be extended to any fact pattern other than purely apolitical speech advocating illegal drug use. Any extension of Morse to such fact patterns -- including "Be Happy, Not Gay" t-shirts -- is plain error.

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*Morse v. Frederick, 127 S. Ct. 2618 (2007)

The latest round in the "Be Happy, Not Gay" t-shirt wars —

"Be Happy, Not Gay" is only tepidly negative; "derogatory" or "demeaning" seems too strong a characterization. As one would expect in a school the size of Neuqua Valley High School, there have been incidents of harassment of homosexual students. But it is highly speculative that allowing the plaintiff to wear a T-shirt that says "Be Happy, Not Gay" would have even a slight tendency to provoke such incidents, or for that matter to poison the educational atmosphere.

"As one would expect"? Why should anyone ever expect a single "incident of harassment of homosexual students"? And I suppose the killing of Lawrence King was also "highly speculative" and "only tepidly negative."

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The framework that Judge Posner lays out for analyzing this case is actually quite reasonable:

Taking the case law as a whole we don't think a school is required to prove that unless the speech at issue is forbidden serious consequences will in fact ensue. That could rarely be proved.
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But what is "substantial disruption"? Must it amount to "disorder or disturbance"? Must classwork be disrupted and if so how severely? We know from Morse* that the Supreme Court will let a school ban speech — even speech outside the school premises — that encourages the use of illegal drugs, without the school's having to prove a causal relation between the speech and drug use. We know too that avoiding violence, if that is what "disorder or disturbance" connotes, is not a school's only substantial concern. Violence was not the issue in Morse, or in Fraser**, the lewd-speech case. In fact one of the concerns expressed by the Supreme Court in Morse was with the psychological effects of drugs. Imagine the psychological effects if the plaintiff wore a T-shirt on which was written "blacks have lower IQs than whites" or "a woman's place is in the home."

The whole point of the Day of Silence is that anti-gay bigotry often, perhaps usually, results not in "disorder or disturbance" but in intimidation. Intimidation that disrupts the school environment for them. Gay students insulted, teased, taunted or harassed (or worse) often suffer in silence.

From Morse and Fraser we infer that if there is reason to think that a particular type of student speech will lead to a decline in students' test scores, an upsurge in truancy, or other symptoms of a sick school — symptoms therefore of substantial disruption — the school can forbid the speech. The rule challenged by the plaintiff appears to satisfy this test.

That should have been the end of the opinion and of the "Be Happy, Not Gay" t-shirt.

But alas, this is Richard Posner and these are gays who are being targeted, so of course there is going to be an "on the other hand" —

The expression "Be Happy, Not Gay" is a play on words, since "gay" used to be an approximate synonym for "happy" but now has been appropriated to designate homosexual orientation. One cannot even be certain that it is a "derogatory" comment; for "not gay" is a synonym for "straight," yet the school has told us that it would not object to a T-shirt that said "Be Happy, Be Straight." It wouldn't object because to advocate X is not necessarily to disparage Y. If you say "drink Pepsi" you may be showing your preference for Pepsi over Coke, but you are not necessarily deriding Coke. It would be odd to call "Be Happy, Drink Pepsi" a derogatory comment about Coke.

Bigoted antipathy toward gays is comparable to preferring Pepsi over Coke? Posner himself can't help but acknowledge the sheer idiocy of such an analogy and promptly abandons it. Still, two paragraphs later, we get the hopelessly-disconnected-from-reality "tepidly negative" passage at the top of this post.

The controlling case for this fact pattern is clearly Fraser, which — while crafted in the context of lewd and offensive speech — set a straightforward, robust test for curtailing student speech on school grounds:

In upholding the students' right to engage in a nondisruptive, passive expression of a political viewpoint in Tinker***, this Court was careful to note that the case did "not concern speech or action that intrudes upon the work of the schools or the rights of other students."

Posner, somehow, actually cites Fraser as a counterargument against the school banning the bigot-shirts: since "Be Happy, Not Gay" is not lewd speech, Fraser must not apply. How convenient.

The case is Nuxoll v. Indian Prairie School District #204, No. 08-1050 (7th Cir., April 23, 2008) (PDF - 20 pages). More thoughts at Decision of the Day, Good As You.

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The Day of Silence, incidentally, is tomorrow.

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*Morse v. Frederick, 127 S. Ct. 2618 (2007)
**Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675 (1986)
***Tinker v. Des Moines School Dist., 393 U.S. 503 (1969)

Question for the nullifiers: At least one state forbids the use of the so-called "gay panic defense." Should a nullifier be entitled to disregard that prohibition and vote to acquit a gay-basher in defiance of both the law and the jury instructions?

By the way, this is not entirely a hypothetical:

Students have said they witnessed confrontations between [Lawrence] King and [Brandon] McInerney in the weeks or days before the shooting, including King's teasing McInerney and telling him that he liked him.

McInerney perceived King's treatment as harassment, [Public Defender William] Quest said. ... Quest said he believes school administrators supported one student expressing himself and his sexuality — King — and ignored how it affected other kids, despite complaints. Cross-dressing isn't a normal thing in adult environments, he said, yet 12-, 13- and 14-year-olds were expected to just accept it and go on.

Besides the fact that King was in fact not cross-dressing at school, there are many aspects of this tragedy that make it a poor fact pattern for analyzing any one particular legal issue. Point conceded.

But having said that:

A.B. 1160 declares that it is against public policy for a defendant to play upon the bias of the jury, or for a jury to allow bias against the victim to enter into its decision-making.

The bill revises the current California jury instruction regarding bias, to make clear to jurors that their verdict cannot be based on bias against the victim, defendant or witnesses.
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A.B. 1160 was introduced in response to recent cases in California in which murder defendants have tried to lessen the charges against them by arguing that they acted in a panic after discovering that the victim was gay or transgender.

So I put it again to the nullifiers: Assume a juror, who acted in good faith and made no attempt to lie her way onto the jury, simply believes that "panic" is indeed an entirely proper reaction when "harassed" by a "pervert" and that, A.B. 1160 and jury instructions notwithstanding, it's just not right for someone to go to jail for killing an uppity queer who "panicked" him.

If the power of a juror is absolute and extends not just to reviewing the facts but also the law, then is it not also perfectly appropriate, even noble, for one homophobe to acquit another homophobe?

Or do your "higher principles" regarding nullification only apply to smoking pot?

(Via Box Turtle Bulletin. no third solution offers a reply.)

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Previous Lawrence King posts starting here. Another ongoing gay panic trial here.

"This bill basically says, 'You're here. Adopt American values. ... If you want a different culture, then fine, go back to that culture.'"
--Arizona State Representative John Kavanaugh

The backstory:

Arizona public schools would be barred from any teachings considered counter to democracy or Western civilization under a proposal endorsed Wednesday by a legislative panel.

Additionally, the measure would prohibit students of the state's universities and community colleges from forming groups based in whole or part on the race of their members, such as the Black Business Students Association at Arizona State University or Native Americans United at Northern Arizona University. Those groups would be forbidden from operating on campus.
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SB 1108 states, "A primary purpose of public education is to inculcate values of American citizenship. Public tax dollars used in public schools should not be used to denigrate American values and the teachings of Western civilization."

The next logical questions — assuming logic matters — are of course who exactly gets to determine which "American values and teachings of Western civilization" are to be inculcated, what standards are to be used in determining them and what constitutes "denigrating" them.

No doubt State Representative Kavanaugh, State Representative Russell Pearce (the bill's author) and their value-inculcated peers will be a limitless font of answers to such questions.

(Via Don't Tase Me Bro!)

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Elsewhere in the "Land of Goldwater and O'Connor" —

State lawmakers are going to get another chance to decide whether voters should have another chance to ban gay marriage.

On a 6-4 vote, the House Judiciary Committee voted Thursday to constitutionally define marriage in Arizona as being solely between one man and one woman. SCR 1042 now goes to the full House.
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If the House passes the measure it still needs Senate approval and, ultimately, ratification by voters in November.

Voters rejected a similar measure in 2006.

I guess that "heads I win, tails we flip again" now qualifies as a manifestation of "American values and the teachings of Western civilization." Right up there with "relegating an entire insular minority to permanent second-class citizenship" and "bigotry as public policy."

Another unfortunate case of confusing "Democratic" with "gay friendly" --

Phase 1:

Maryland's legislature is predominantly Democrat with a 33 to 14 advantage in the State Senate and 103 to 36 in the House. The leaders of both chambers are Democrats, as is the Governor.

Phase 2: ???

Phase 3:

In the end, Maryland legislators granted same-sex couples just a few new privileges, such as hospital visitation rights, before they adjourned last week.
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Vic Basile, a former Human Rights Campaign executive director who lives in Baltimore, said that "it was pretty clear right from the beginning that marriage had zero chance of passing" the legislature this year.

Might I proffer, as I did in a comment left at the first link, a possible Phase 2:

Maryland is 23% Catholic, and also 18% Baptist.

Mystery solved.

Gay Democrats remain the political equivalent of styrofoam packing peanuts: you use them to get your merchandise to its destination -- then you throw them out.

Our blogging colleague over at Good As You has compiled a highlights — okay, lowlights — video of Pope Benedict XVI:


My previous posts on the Pope, especially regarding his previous incarnation, qua Cardinal, as the modern version of the Grand Inquisitor, appear in the chain below.