Gay rights backers get some good news

Court actions over the past week have given gay rights advocates a few glimmers of hope, though no one is staging victory rallies yet. The long slog toward full rights for gays and lesbians in the military, at the altar and in the pulpit each saw small steps taken. But President Obama, who vowed to promote equality for all, remains caught in such Through the Looking Glass dilemmas as the Justice Department’s mandate to defend the indefensible Defense of Marriage Act, which Obama would like to see repealed. Same thing with “don’t ask, don’t tell.” Alice would certainly find a trapdoor for falling down the rabbit hole on almost any stage where gay rights battles are being fought today.

San Francisco Chronicle writer Bob Egelko summed up the latest on one stage:

The federal judge overseeing a challenge to the “don’t ask, don’t tell” law, scheduled for trial in Southern California next week, has ruled in favor of a gay rights group on a crucial issue – how much evidence the government needs to justify the ban on openly homosexual members of the armed forces.

Obama administration lawyers have argued that courts must let “don’t ask, don’t tell” stand if they find that Congress could have reasonably concluded that excluding gays and lesbians would make the military more effective – the standard most favorable to supporters of the 1993 law.

But U.S. District Judge Virginia Phillips of Riverside, in her final pretrial ruling, said Wednesday that higher court rulings in recent years have raised the bar for the government to justify laws that single out gays and lesbians for harsher treatment. Because “don’t ask, don’t tell” intrudes on “personal and private lives” and “implicates fundamental rights,” Phillips wrote, the Justice Department must show that the ban serves an important public purpose that the military could not achieve some other way.

That principle comes from the 2003 Supreme Court ruling overturning state laws against private homosexual conduct, and from a 2008 ruling by the Ninth U.S. Circuit Court of Appeals in San Francisco allowing a lesbian officer to challenge her discharge from the Air Force, Phillips said.

Her ruling opens the door for plaintiffs in the case to put gay and lesbian former service members on the witness stand to testify about how being thrown out of the military because of “don’t ask, don’t tell” damaged them. The federal law requires that gays and lesbians who acknowledge their sexual orientation be discharged from the military. Superior officers are barred from asking service members about their orientation.

The plaintiffs, the Log Cabin Republicans gay organization, plan to present researchers who contend the policy harms the military by promoting concealment and divisiveness while excluding qualified personnel. (It is, of course, the Republicans who are threatening a Senate filibuster of a military appropriations bill that includes a repeal measure…)

The Obama administration tried to bar the testimony, arguing that it was irrelevant, and urged Phillips to postpone the trial while Congress considers the president’s proposal to repeal “don’t ask, don’t tell.” President Obama has called the law discriminatory but says he must defend it as long as it is on the books.

On the marriage front, which currently has seen some states legalizing same-sex unions, some banning them and in California a suit to overturn the voter-approved ban, more state/federal convolutions are underway. Associated Press legal affairs writer Denise Lavoie Friday summarized what’s been going on in Massachusetts:

A key part of a law denying married gay couples federal benefits has been thrown out the window in Massachusetts, the first state to legalize gay marriage. The ball now lies in the White House’s court, which must carefully calculate the next move by an administration that has faced accusations it has not vigorously defended the law of the land.

President Barack Obama has said repeatedly that he would like to see the federal Defense of Marriage Act, known as DOMA, repealed. But the Justice Department has defended the constitutionality of the law, which it is required to do.

The administration was silent Friday on whether it would appeal rulings by U.S. District Judge Joseph Tauro. Spokespeople for the White House and the Justice Department said officials are still reviewing the rulings.

DOMA defines marriage as between a man and a woman, prevents the federal government from recognizing gay marriages and allows states to deny recognition of same-sex unions performed elsewhere. Since the law passed in 1996, many states have instituted their own bans on gay marriage, and a handful have allowed the practice.

And over at the annual General Assembly of the Presbyterian Church USA, meeting in Minneapolis

…delegates again approved ordaining openly gay or lesbian clergy. The measure now goes to the presbyteries, or local jurisdictions, where previous General Assembly resolutions to ordain gays and lesbians have been rejected. The General Assembly also debated but did not pass a resolution that would have changed the definition of marriage from a union between a man and a woman to a union of two people.

This Presbyterian writer can tell you that getting individual presbyteries — that’s the regional groups — to approve what the General Assembly delegates just approved is no simple matter. There are plenty of Christians, not to mention less than tolerant folks of every creed and color, down the rabbit hole.

‘Don’t ask, don’t tell’ foes win legal victory.

Marriage = procreation, Prop 8 backers say

It’s all about procreation, the Proposition 8 lawyers said; marriage between a man and a woman who produce babies to be raised by their biological parents, and thus insure the survival of the human race. Those arguments were the closing of an historic case that went to a federal judge in San Francisco yesterday.

During more than two hours of intense and sometimes skeptical questioning by Chief U.S. District Judge Vaughn Walker, attorney Charles Cooper maintained that society is entitled to reserve its approval of marriage for those who can naturally conceive children.”The marital relationship is fundamental to the existence and survival of the race,” Cooper said in closing arguments before a packed San Francisco courtroom. The reason the state regulates marriage, he said, is to steer “procreative sexual relationships” into a stable family environment so that children can be raised by their biological parents.

It’s an argument that has worked before, but supporters of same-sex marriage hope this time might be different.

Walker, who presided over the nation’s first federal trial on the issue, sounded dubious. He noted that the state allows couples unable or unwilling to have children to marry, suggesting that the institution has a broader purpose that same-sex partners might equally fulfill.

“Marriage is a right which extends fundamentally to all persons, whether they’re capable of producing children, incarcerated or behind in their child-support payments,” Walker said, citing Supreme Court rulings that allow people in all those situations to marry.

People marry not to benefit the state, but because they believe that “I’m going to get a life partner, who I’m going to share my life with and maybe have children,” the judge said. “Why don’t those same values apply to gay couples and lesbian couples loving one another?”

Cooper replied that same-sex couples are incapable of “irresponsible procreation,” which he said marriage laws are designed to discourage.

He also said California has provided equal treatment for all couples in its domestic-partner laws. But even a discriminatory marriage law would be valid, Cooper said, because the U.S. Constitution offers no special protection to gays and lesbians and “we don’t have to submit evidence” to justify treating them differently.Theodore Olson, lawyer for two same-sex couples who sued for the right to marry, responded indignantly. Prop. 8, he said, “takes a group of people who have been victims of discrimination” historically and prevents them from “participating in the most fundamental relationship in life.”

Gays and lesbians, Olson said, seek to wed for the same reasons as everyone else, to be in a committed, socially accepted family relationship with the one they love. “Tell me how it helps the rest of the citizens of California to keep them out of the club,” he said.

Walker’s decision, in whichever direction, is certain to be appealed.

Prop. 8 backers: Marriage promotes procreation.

Judge to rule on same-sex marriage

Can gay marriage be a fundamental right, when all legal protection has been denied until recently? In a state that treats domestic partners the same as spouses, “what purpose is served by differentiating – in name only – between same-sex and opposite-sex unions?”

These are two of the questions sent to opposing lawyers by U.S. District Judge Vaughn Walker, who will hear their closing arguments next Wednesday in the San Francisco case being watched for broader implications. Supporters of gay rights are seeking to overturn Proposition 8, California’s voter-approved ban on gay marriage.

The closing arguments won’t be watched by just anybody. Judge Walker ruled late this week that arguments may not be televised beyond the closed circuit of the courthouse. So you’ll have to be on site to follow the proceedings up close and personal. Media organizations had sought to have the session, which is expected to last all day, televised; proponents of Prop 8 argued against the idea.

The denial means “the public will again only hear about this case second-hand,” said Thomas Burke, the media groups’ lawyer.

Andrew Pugno, a lawyer for sponsors of the ballot measure that banned same-sex marriage, countered that “the purpose of the court is not to entertain or educate the public, but to protect the right to a fair and impartial trial.” The sponsors had opposed televising any trial proceedings.

Two same-sex couples and the city of San Francisco have sued to overturn Proposition 8, the November 2008 initiative that amended the California Constitution to define marriage as the union of a man and a woman.

Walker presided over the non-jury trial in January. He had proposed to televise the trial live to several federal courthouses around the nation and record the proceedings for a delayed Internet posting on YouTube.

The telecast, which would have been the first for a federal court in California, was blocked by the U.S. Supreme Court just before the trial started.

In a 5-4 ruling, the court said Walker hadn’t given the public enough time to comment on the proposed change in court rules. The court also cited claims by Prop. 8’s sponsors that showing the proceedings outside the courthouse might intimidate witnesses.

Media organizations asked Walker last month to approve televising the closing arguments. They said that airing a hearing that included only lawyers and the judge couldn’t affect witnesses or the fairness of the trial.

Prop 8 supporters argued, though, that cameras in the courtroom could prompt “grandstanding and avoidance of unpopular decisions or positions.” Whatever the judge’s decision, it is guaranteed to be widely unpopular.

No TV for closing arguments in Prop. 8 trial.

Pope denounces abortion, gay marriage

With all due respect to the Catholic faith, and to the legions of good people, clergy and laity alike,who are among its believers, this space takes serious issue with the Vatican.

Pope Benedict XVI used a famous Portuguese shrine to the Virgin Mary on Thursday as a stage to denounce abortion and gay marriage, just days before Portugal is expected to join five European countries that have legalized same-sex weddings.

In a speech (in Fatima, Portugal) to Catholic social service groups, Benedict called for initiatives aimed at protecting “the family based on the indissoluble marriage between a man and a woman, help to respond to some of today’s most insidious and dangerous threats to the common good.”

He also said he expressed his “deep appreciation for all those social and pastoral initiatives aimed at combating the socioeconomic and cultural mechanisms which lead to abortion, and are openly concerned to defend life and to promote the reconciliation and healing of those harmed by the tragedy of abortion.”

The common good, according to the pope, would suffer from individuals being allowed to marry those whom they love. And tragedy? What he and his allies are invoking — in this drive to dictate what women may or may not do with their own bodies — is a return to the brutal reality of back-alley abortion. That will be the tragedy beyond healing.

The pope’s remarks came on the third day of a four-day visit (to Portugal) aimed at shoring up Christian belief in increasingly secular Europe, although it has been somewhat eclipsed by the sexual-abuse scandal confronting the Vatican in recent weeks. Benedict also has used the visit to signal a more forceful tone in confronting the abuse, which he has called a “sin inside the church.”

Although it is 90 percent Catholic, Portugal has seen a notable shift away from Catholic teaching in recent years. The country legalized abortion in 2008 and its Parliament recently approved a bill permitting same-sex marriage. President Aníbal Cavaco Silva is expected to sign the bill into law in the coming days.

The church has opposed the measure, but Portuguese society appears to be largely supportive.

Portugal would be the sixth country in Europe to legalize same-sex marriage, after the Netherlands, Belgium, Spain, Norway and Sweden. France and Denmark recognize same-sex unions, which convey many but not all of the rights enjoyed by married couples.

Individual rights, women’s rights and gay rights are slowly going forward in a few places around the globe.  Pope Benedict XVI would like us all to go backward.

Pope Decries Gay Marriage in Portugal Visit – NYTimes.com.

Gay judge for Prop 8 trial: open secret, non-issue

The biggest open secret in the same-sex marriage trial underway in San Francisco has been the general knowledge that presiding Judge Vaughn Walker is himself gay. It became less secret and more open today, thanks to a piece in the Sunday San Francisco Chronicle by columnists Phil Matier and Andrew Ross.

Many gay politicians in San Francisco and lawyers who have had dealings with Walker say the 65-year-old jurist, appointed to the bench by President George H.W. Bush in 1989, has never taken pains to disguise – or advertise – his orientation.

They also don’t believe it will influence how he rules on the case he’s now hearing – whether Proposition 8, the 2008 ballot measure approved by state voters to ban same-sex marriage, unconstitutionally discriminates against gays and lesbians.

Gay rights supporters, as well as many on the other side of this case, say they would not expect the sexual orientation of the unpredictable jurist to become an issue. Walker was, in fact, loudly condemned by the LGBT community for representing the U.S. Olympic Committee in their successful suit to keep the San Francisco Gay Games from using the ‘Olympics’ name when he was a private attorney.

“There is nothing about Walker as a judge to indicate that his sexual orientation, other than being an interesting factor, will in any way bias his view,” said Kate Kendell, head of the National Center for Lesbian Rights, which is supporting the lawsuit to overturn Prop. 8.

Matier and Ross quoted a federal judge friend of Walker who said Walker had some concern that people might conclude he wants to conceal his sexuality, but that it is part of his private life and irrelevant to any decision-making. The friend, who asked not to be identified “because of the sensitive nature of the Prop. 8 trial” further commented,

As evidence, she cites the judge’s conservative – albeit libertarian – reputation, and says, “There wasn’t anyone who thought (overturning Prop.8) was a cakewalk given his sexual orientation.”

State Sen. Mark Leno, D-San Francisco, who has sponsored two bills to authorize same-sex marriage that were vetoed by Gov. Arnold Schwarzenegger, said that as far as he’s concerned, Walker’s background is a nonissue. “It seems curious to me,” he said, that when the state Supreme Court heard a challenge to Prop. 8, the justices’ sexual orientation “was never discussed.”

Leno added, “I have great respect for Judge Walker, professionally and personally.”

Matier and Ross quoted a federal judge friend of Walker who said Walker had some concern that people might conclude he wants to conceal his sexuality, but that it is part of his private life and irrelevant to any decision-making. The friend, who asked not to be identified “because of the sensitive nature of the Prop. 8 trial” further commented,

Is it newsworthy?” he said of Walker’s orientation, and laughed. “Yes.”He said it was hard to ignore the irony that “in the beginning, when (Walker) sought to be a judge, a major obstacle he had to overcome was the perception that he was anti-gay.”

In short, the friend said, Walker’s background is relevant in the same way people would want to know that a judge hearing a discrimination case involving Latinos was Latino or a Jewish judge was ruling in a case involving the Anti-Defamation League.

There has been some talk around town that if the judge rules Prop. 8 unconstitutional and the  case goes as expected to the Supreme Court, Prop. 8 supporters will indeed raise the issue of Walker’s sexual orientation; and this was noted by the columnists.

Not so, said Andy Pugno, general counsel for the group that sponsored the Prop. 8 campaign.”We are not going to say anything about that,” Pugno said.

He was quick to assert, however, that Prop. 8 backers haven’t gotten a fair shake from Walker in court. He cited both the judge’s order for the campaign to turn over thousands of pages of internal memos to the other side and Walker’s decision to allow the trial to be broadcast – both of which were overturned by higher courts.

“In many ways, the sponsors of Prop. 8 have been put at significant disadvantage throughout the case,” Pugno said. “Regardless of the reason for it.”

Who’s getting the breaks and advantages in the case, now being considered by the judge, is a matter of who’s doing the analysis.

Judge being gay a nonissue during Prop. 8 trial.

Gay rights: a strange week everywhere

President Obama seemed finally on the move toward ending don’t ask, don’t tell after 16 years. The California same-sex marriage case was inching toward its anticipated target, the U.S. Supreme Court. Gay rights supporters were beginning to see rays of hope. That was the beginning of this week.

Nearing week’s end, Defense Secretary Robert Gates, who had joined Adm. Mike Mullen in calling for an end to the policy, was saying we should not rush into anything. Former Secretary of State and Retired Army General Colin Powell had switched gears and said the onerous law should be changed. Judge Vaughn Walker had begun to sift through testimony in the Perry v Schwarzenegger — but you can watch it (well, a reenactment set up after cameras in the courtroom were barred) yourself if you’d like to second guess the unpredictable federal judge. It has been a strange week, and it’s not even Friday yet.

In the California capitol meanwhile, State Senator Mark Leno, an openly gay and widely influential state legislator, is pushing a bill to defuse religious opposition to same-sex marriage. The bill would alleviate clergy concern about their churches losing tax-exempt status by putting the word “civil” before “marriage,” thus clarifying the differences between civil and religious ceremonies. It would protect those unwilling to perform a marriage which conflicts with religious beliefs — an argument that featured prominently in the acrimonious debates leading to Proposition 8 ‘s ban of same-sex unions.

Leno’s bill has the support of LGBT organization Equality California, whose executive director Geoff Kors says it will eliminate confusion, and of the pro-Prop 8 California Southern Baptist Convention, whose spokesman Terry Barone calls it “good legislation.”

We may never see bipartisanship in Washington, but when Equality California and the Southern Baptist Convention come out in support of the same legislation, it has to be a sign of progress. Or Mark Leno’s political wisdom. Or something.

Marriage: made/un-made in California

In the marriage equality case now being heard in San Francisco, and presumably headed for the Supreme Court, it’s worth looking at the points being made and the people being heard. One person being heard this week was the pro-Proposition 8 (i.e. the defendants, who want to keep the ban on same-sex marriage) star witness David Blankenhorn.

Blankenhorn, touted as scholar and expert authority for reasons I don’t fully understand, is the founder and president of the Institute for American Values. His values aren’t exactly my values, but never mind. We are each American, and a case could be made for institutionalizing us both.

If you visit the IAV website, which seems initially designed to sell books (Blankenhorn and his fellows are industrious authors) because books get front-page billing, you are then invited to “Jump directly into the think tank!” — IAV being, as noted, a scholarly operation. This is what you will learn about IAV if you float to the top of the tank:

The Institute for American Values, founded in 1987, is a nonprofit, nonpartisan organization whose mission is to study and strengthen key American values. The Institute brings together leading scholars from across the human sciences and across the political spectrum for interdisciplinary deliberation, collaborative research, and to issue joint public statements.

We ask: What are the cultural values most closely associated, especially in the American context, with human flourishing? That is, what are those ideas and practices that tend to produce competence, character, citizenship, thriving families, and a vibrant civil society?

What are the main challenges to those values? And how can those values be encouraged and strengthened?

In operational terms, our mission can be stated concisely: Through groundbreaking research and analysis focusing on fundamental American values, and in forging strong and diverse partnerships, the Institute seeks to strengthen families and civil society globally.

Blankenhorn testified that extending marriage rights to those unable to conceive and bear children — this would have ruled out my final union, since we were 58 and 62 at the time — would change it from “a child-based public institution to an adult-centered private institution” and lead to all manner of horrors, polygamy, that sort of thing. As San Francisco Chronicle writer Bob Egelko reported, in what is ongoing, thorough coverage of the trial,

Blankenhorn, the trial’s last scheduled witness, said he believes “leading scholars” share his view that same-sex marriage would weaken heterosexuals’ respect for the institution and accelerate a half-century-old trend of increased cohabitation and rising divorce rates.

But under cross-examination by a lawyer for two same-sex couples, Blankenhorn was unable to cite any supporting statements or evidence for that conclusion from the scholars he relied on for his testimony, though he said he was sure some of them would agree with him.

Blankenhorn did get tangled up a bit in his testimony, leaving one to wonder how thoroughly the Prop 8 folks read his research. Or how solid is the thinking in the IAV tank.

Plaintiffs’ lawyer David Boies also pointed to a passage in Blankenhorn’s 2007 book, “The Future of Marriage,” that appeared to contradict his entire position.

“We would be more American on the day we permitted same-sex marriage than we were on the day before,” Blankenhorn wrote.

He said Tuesday he still holds that view, and also believes that allowing gays and lesbians to marry would probably be good for the couples and their children.

Go figure. Some of us watching this unfold are old enough to remember when my native state, the Commonwealth of Virginia, decided it would be all right for Mr. and Mrs. Loving to live there as husband and wife, even though they were of different racial backgrounds. Until that day, in 1967, the arguments had been that allowing people of different ethnicities to wed was bad for everyone. It may seem ridiculous now, but it was the law of the land in more than one state then.

The Bible is going to come in here somewhere before this is all over, since same-sex marriage opponents believe it is wrong because their Bible tells them so. Biblical invocation could be speculation on this writer’s part, but the Mormon Church and the U.S. Conference of Catholic Bishops pretty well got Prop 8 passed, so I think it unlikely they will stay out of any Supreme Court battle. Their Bible isn’t my Bible. Uh, oh; yes it is. Interestingly though, my Jesus taught love and compassion while their Jesus teaches that some of His children are less equal than others.

At the beginning of this trial (in which two same-sex couples are the plaintiffs) Chief U.S District Judge Vaughn Walker posed this question: How does a ban on same-sex weddings protect marriage, the stated goal of Proposition 8? I’m still trying to figure that out.

Whatever the verdict, it is expected that it will be appealed to the Supreme Court. So this may be about marriages made — or un-made — in California right now, but it will be a question of equal rights for all Americans tomorrow. Stay tuned.

Prop. 8 witness warns of societal upheaval.