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Saturday, July 4, 2015

What Should You Know About Gay History?

Anyone might be interested in this topic, but gay people in particular should have some basic knowledge of how we got where we are today.

Most people in the LGBT community assume that gay history really begins with the Stonewall riots in New York City in 1969, and it is certainly true that the modern dramatic progress for homosexual civil rights springs from that moment.  But as to that: “B.S.” (as the character Harry Hay says in “The Temperamentals” which I am directing for Evolution Theatre Company here in Columbus, opening July 8th)—“Before Stonewall” there were millennia of gay people struggling to cope with the same urges that in the 21st century are finally allowing millions to troop to the altar.  There is a rich and exciting history out there and in this post I’d like to summarize the basics for you.

Josephine Baker
If you’re a gay man or woman you should be familiar with these tales and able to see how they relate to the current problems of the movement.  Of course, with rare exceptions, our homosexual ancestors couldn’t be “out” and up front about their orientation, so many famous people are only now revealed to have been homosexuals (or at least bisexual).  Here’s an astounding partial list: Alexander the Great, Josephine Baker, Leonard Bernstein, Marlon Brando, Lord Byron, Caligula, Casanova, Hart Crane, Greta Garbo, John Maynard Keynes, Alfred Kinsey, Maurice Sendak, Tiberius, and T. H. White.  Yup—and that list could have gone on for pages.

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What’s important to appreciate in considering the sexuality of famous people, some long dead, is that the presumption of heterosexuality [which I’ve written about before; see “The Presumption of Heterosexuality and the Invisible Homosexual” at] is so strong that obvious evidence of homosexuality will nonetheless remain unseen, ignored, hidden, or outright destroyed by the historians and biographers writing supposedly definitive works.  In spite of that, like it or not, ten percent of the people on this globe have always been homosexual [see Related Posts below], even in cultures and periods when the records appear to show no signs homosexuality.  Two examples:

Walt Whitman
Walt Whitman, one of the greatest poets of them all, barely put a fig leaf on his homosexuality either in his life or his poems, particularly the “Calamus” poems (part of “Leaves of Grass” in some editions), and while most biographers accept his sexuality, there are still those who bend every homoerotic line to a “safe” meaning and ignore the many episodes in Whitman’s life that are obviously, patently gay.  Helping them out is the fact that the poet himself constantly deflected charges of homosexuality during most of his life (he went silent at the end when asked these questions), replying to an 1890 plea from the English poet John Addington Symonds to come out by saying: "[T]hat the calamus part has even allow’d the possibility of such construction as mention’d is terrible—I am fain to hope the pages themselves are not to be even mention’d for such gratuitous and quite at this time entirely undream’d & unreck’d possibility of morbid inferences—wh’ are disavow’d by me and seem damnable."  Whitman knew his livelihood depended on public perception, and he was not about to be the gay poster child for nineteenth century America.

The famous actor Lawrence Olivier wrote an autobiography in which he was very frank about his homosexuality, only to have it much censored prior to publication by his wife, Vivien Leigh.  Among the parts omitted was a description of his ten year affair with actor Danny Kaye (!), which affair was widely-known at the time, but has since been hushed up.  See Lawrence Olivier: A Biography by Donald Spoto and Olivier by Terry Coleman (who questions the Kaye story but details other gay adventures in Olivier’s life).  Recent biographies of Kaye (two of them, one by his daughter) pooh-pooh the whole idea that Kaye was anything other than 100% straight, even though to watch his actions in any of his movies is to give the horselaugh to that claim.  
Danny Kaye, Vivien Leigh, and Lawrence
Olivier perform the song "The Triplets"
A strong case can be made that other very famous people had a homosexual side.  For Abraham Lincoln (gasp!) see The Intimate World of Abraham Lincoln by C.A. Tripp, and for Adolph Hitler (what?) see The Hidden Hitler by Lothat Machtan.  When I picked up these books my first thought was “There’s no way,” and when I put them down that had changed to “Well, I’ll be damned!”

Gay history starts with the Greeks and the Romans, who dealt with homosexuality typically by allowing relationships between an older man and a younger one, while Sappho (630 circa 630-570 b.c.e.), a poet born on the island of Lesbos, created verse that made her name synonymous with woman-to-woman sexual love.  (Pity the poor people who still live on Lesbos—like it or not they are all lesbians.)

The first serious attempts to define homosexuals as a distinct class worthy of protection and not scorn occurred in the nineteenth century.  In 1860s Karl Heinrich Ulrichs, a German, wrote a series of pamphlets about “uranians,” a “third sex” with a “female psyche in a male body,” and this made the term “uranian” the buzz word of the day.  It led Victorian reformers like Edward Carpenter  and Symonds (Whitman’s correspondent) to champion the idea that uranians were “enlightened” people who would reform democracy, a conclusion that delighted England’s bad boy, Oscar Wilde.  But Wilde’s private life with lower class rent boys brought an abrupt end to his literary and social career in 1895 when his homosexuality was revealed.  This promptly led to three famous trials (Wilde was the plaintiff in the first one and the defendant in the latter two), his comic masterpiece “The Importance of Being Ernest” posting closing notices after a short run, and Wilde himself being sentenced to two years hard labor for “gross indecency.”  This harsh punishment killed him at age 45, depriving the world of a tremendous talent just beginning to flower.  I cannot tell you how much this angers me.

Oscar Wilde

Magnus Hirschfield
The next wave advancing the proposition that homosexuals should be treated with dignity was launched in the early 1900s by Magnus Hirschfield, the “Einstein of Sex,” who led a major movement to repeal Paragraph 175 of the German Penal Code (making sodomy a crime), and then created a series of organizations to advance and study homosexuality, most prominently the Institute for Sexual Research (1919).  Hirschfield exploded on the international stage, lecturing all over the world and gaining thousands of followers, but—(deep sigh)—things collapsed when the Nazis came to power.  We all know that the Nazis burned books, but what you may not know is that the first books they burned (1933) were those Hirschfield had carefully collected to study homosexuality and had so proudly housed at his Institute for Sexual Research.  Great treasures went up in flames to the cheers of the crowd.  Hirschfield’s promising movement to create civil rights for homosexuals died with that book-burning.  He himself, on a trip abroad when it happened, never returned to Germany.  Paragraph 175 wasn’t repealed until 1994.

Harry Hay
Gay rights languished until the 1950s when the redoubtable Harry Hay, a communist, became furious that he lived in a world where men living in L.A. could be arrested for merely holding hands in public.  He created a manifesto declaring that “temperamentals” (the euphemism for gays at that time) should be given civil rights and not classified as criminals, a daring idea.  Initially he had much trouble convincing gays themselves to join, but with the help of Rudi Gernreich (a refugee from Vienna, who later became a famous fashion designer) and three other men the Mattachine Society came into being.  It was named after a medieval group that could tell the truth to kings as long as they did so in costumes and jest. 

Mattachine Xmas Party (Hay at upper left)
In 1990 The Trouble With Harry Hay by Stuart Timmons was published and I bought a copy (it was updated in 2012, and I’ve also read the electronic version of that edition).  It’s the biography of the incredible Harry Hay (1912-2002), and his story and the story of the Mattachine Society (the subject of the play I’m directing: “The Temperamentals” by Jon Marans).  In both the play and real life Hay and his brave compatriots risk everything to form the organization that went from meetings in a diner and then spreading from L.A. to other cities, finally holding a convention that Hay later described like this:

Now, mind you, this was 1953, and five hundred people showed up in one place, as representatives of Gay organizations each delegate presumably representing up to ten people.  Can you imagine what that was like?  This is the first time it’s ever happened in the history of the United States.  There we were, and you looked up and all of a sudden the room became vast—well, you know, was there anybody in Los Angeles who wasn’t Gay?  We’d never seen so many people.  And in each other’s presence you can’t shut ‘em up.  This isn’t the period when you hugged much yet—but nevertheless there was an awful lot of hugging going on during those two days.

The organization tried new tactics to protect homosexuals.  One of these, shown to great dramatic effect in the play, occurs when a member is falsely accused of public indecency in a men’s room where he’s entrapped by a police officer.  Hay convinced this man, Dale Jennings, not to do the usual thing—plead guilty—but instead to bravely go to trial and tell the world he was innocent of immoral activity even though he was a homosexual!  This was an amazing thing to state in public then, but it worked and Jennings was set free when the jury could not reach a verdict after 40 hours of deliberation (eleven wanted to vote innocent but one man said he’d hold out for guilty till hell froze over).  Jennings, who went on to write a column for ONE Magazine (a premier gay publication started about this same time) later explained that the trial nonetheless ruined his life because public identification as a homosexual was a stain that could not be washed off.

In the 1950s Senator Joe McCarthy began “red-baiting” and finding communists in the State Department and elsewhere in government, and he conflated communism with homosexuality.  Blacklisting of suspected communists began, and the House UnAmerican Activities Committee [HUAC] destroyed many reputations at its vicious hearings.  Harry Hay was called to testify, and he was publically exposed as a former communist (he had left the party when he formed the Mattachine Society because the party discriminated against homosexuals).  Many of the original founders were also communists, which caused an uproar at that 1953 convention.  “Do you actually think a radical organization is born from moderate people?” one of the founders asks those attending the convention in the play.  As a consequence Hay and the other original founders all resigned their posts at the convention, and the Mattachine Society was safe from further attack from HUAC. 

But the loss of these pivotal people meant that the political fire that drove the Mattachine Society died out, and it became merely a social organization, fading into insignificance.  When we began rehearsals I asked my cast if the Mattachine Society therefore meant nothing because it only lasted a short time and has now largely been forgotten.  The answer we reached was that the society had, for the first time, made gays aware of a new idea: that they were a minority with civil rights.  This was revolutionary, and once it was said on a national level it could not be unsaid.  It was still in the air as a concept, awaiting a new opportunity to be reasserted.

Del Martin and Phyllis Lyon
There were lesbian organizations founded shortly after the Mattachine Society (which itself had many lesbian members), and inspired by it.  One of these, The Daughters of Bilitis was formed by Del Martin and Phyllis Lyon in 1955 and lasted for fourteen years, helping gay women all over the world and advancing the cause of feminism.  It had chapters in many states and some other countries, and, most successfully, it published the first lesbian magazine in the world, “The Ladder.”  The Daughters of Bilitis eventually folded due to internal dissent and lack of funding, but as that was happening a big gay historical moment occurred in Greenwich Village in 1969.

This came in the form of famous riots at the Stonewall Inn, a gay bar in New York City.  Judy Garland had just died and the drag queens were in no mood for the usual police raid that occurred at the bar on the night of June 28, 1969.  It’s unclear whether a drag queen or a lesbian threw the first punch at an arresting officer, but for the first time in history gays didn’t passively submit.  Police cars were set on fire, and at one point the police were themselves trapped in the bar, which was burning.  Crowds gathered, and the riots continued for three days, sparking excitement for the idea that gays were no longer beanbags.  The sixties had seen the rise of a youth movement to grant civil rights to all, with hippies leading the way, and it was time for gay men and lesbians to have their turn at being treated with respect.  Almost overnight many gay groups sprang up all over the country and the LGBT surge that just last month produced gay marriage uniformly in the USA had begun.  There are two fascinating re-creations of the events of the 1969 riots, both called Stonewall, one by Martin Duberman and the other by David Carter, and I recommend them both to you.

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There is much more, of course, to the history of the LGBT movement before and after Stonewall, but this post is long enough.  For a wonderful summary of events up through the early 1990s see the classic Gay American History: Lesbians and Gay Men in the U.S.A. by Jonathan Ned Katz (revised edition 1992).  In it you will find the gay community creating new organizations such as ACT UP and political and social groups by the score, as well as the horror of the HIV/AIDS crisis that is still with us, and battles at all levels to tear down criminal statutes and massive forms of discrimination.  From the beginning the movement has achieved major successes both in the United States and internationally, and, while there are major hurdles yet to be leaped, what has already been accomplished should indeed fill us with pride, coupled with gratitude for those who started it all.

Revisiting historical LGBT events is exciting and empowering.  As we’ve been putting together the play “The Temperamentals” we’ve marveled at the bravery these men showed when they pitted themselves against a world in which doctors said they were sick, the church said they were sinners, and the law said they were criminals.  The play is both moving and very funny, and in my “Director’s Note” in the program I have this to say:

In 2015 it’s hard to appreciate how far we’ve come. As you watch Jon Marans’ terrific play ask yourself this question: if you were a gay man in 1952 (a time when men could be arrested for holding hands) and Harry Hay had approached you on a gay beach and asked you to come to a meeting exploring whether homosexuals should band together for protection, would you have risked all you had to attend?  Those who went formed the Mattachine Society and by doing so defined the meaning of the word “brave.”  This is their story.

How would you respond to that question?

Tickets can be purchased at the door, by calling 800 838-3006 or online at

Related Posts:

“How Many Homosexuals Are There in the World?” November 8, 2010;

“Are Gays Really Just 1.6% of the U.S. Population?” July 22, 2014’

“The History of Gay Rights in Columbus, Ohio,” June 4, 2012;

“A Guide to the Best of My Blog,” April 29, 2013;

Tuesday, June 30, 2015

Married At Last! A Gay Lawyer Looks at What the Supreme Court Actually Said About Same-Sex Marriage

It was a surprise last Friday when the United States Supreme Court handed down the decision in Obergefell v. Hodges, the gay marriage case on appeal from the Sixth Circuit here in Ohio.  No one really expected the decision until Monday, when the Court would be done for the year.  It is so controversial I’d predicted the Court would throw it from the airplane door as they left National Airport; see  Bravely, however, they handed it down while still in town.  

The oral arguments had scared me (as I mentioned in the above-cited blog post) when even the liberal judges questioned whether it was proper for unelected judges to be deciding such a big question of national importance, but in the end the predictable five-to-four majority (four liberals plus swing-vote Anthony Kennedy versus the four conservatives) came out in favor of striking down gay marriage bans in the four states (Ohio, Michigan, Kentucky, and Tennessee) that were involved in the case under consideration.  This post explores what each of the opinions said.

Justice Kennedy began like this:

The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity. The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex.

Justice Kennedy started with “liberty” because the Fourteenth Amendment to the United States Constitution provides in part:  "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” (emphasis added).  As we’ll see this word also was the subject of Justice Clarence Thomas’s dissent.

Obergefell (standing) and Arthur Marry on the Tarmac
Justice Kennedy then discussed some of the facts in the cases before the Court: James Obergefell and John Arthur’s battle to make the State of Ohio list the latter as a married man on his death certificate (they had been married in Maryland on the tarmac when Arthur was too sick to leave the area of the plane, dying shortly afterwards), the fight that April DeBoer and Jayne Rowse waged with the State of Michigan to have them both recognized as the parents of their children, and Army Reserve Sergeant First Class Ijpe DeKoe and his husband Thomas Kostura who had been married in New York but when Sergeant DeKoe returned from service in Afghanistan and the couple settled in Tennessee found that their lawful marriage was (to quote Kennedy) “stripped from them whenever they reside in Tennessee, returning and disappearing as they travel across state lines.”

Next Justice Kennedy switched to a historical exploration of marriage and how it has been defined by our civilization, and explained the many benefits the state of marriage confers on those who are able to have their union recognized.  Specifically he found four “principles” that made marriage important, and discussed each in turn, with citations to legal cases backing these ideals: (1) the right of personal choice to do with your life as you wish, (2) the fundamental nature of marriage in our society, (3) the role of marriage in supporting our families and our children, and (4) marriage as a keystone of social order.  This discussion was filled with memorable quotes such as “as a couple vows to support each other, so does society pledge to support the couple.”  

In his opinion Kennedy traced the history of gay rights and particularly its legal developments both in the state and federal courts, culminating in three big Supreme Court decisions (all of which he authored): Romer v. Evans, 1996 (holding that states could not deprive gays of existing protections without a rational reason), Lawrence v. Texas, 2003 (ruling sodomy laws unconstitutional), and the 2013 holding in Windsor v. United States that the federal statute barring legal protection to gay marriages (the “Defense of Marriage Act”—DOMA) was unconstitutional.  (The latter case caused Justice Antonin Scalia to declare in dissent that the Court’s finding similar state laws unconstitutional was merely a matter of “waiting for the next shoe to drop”).  

The majority opinion then explored the language and history of the Fourteenth Amendment’s guarantee of due process and equal protection and concluded that the Amendment was flexible enough to reach the rights of gays and lesbians to marry free of state interference.  Thus is declared the four state laws at issue unconstitutional and (key word) “invalid.”

The opinion then noted that the respondents in this case (the four states) and many of the briefs filed by “amici” (friends of the Court—various groups and organizations both pro and con) argued that the Court should go slow here, with Kennedy giving a favorable nod to Judge Sutton’s opinion in the 6th Circuit Court of Appeals: “In its ruling on the cases now before this Court, the majority opinion for the Court of Appeals made a cogent argument that it would be appropriate for the respondents’ States to await further public discussion and political measures before licensing same-sex marriages.”  But Kennedy then pointed out that this issue has been debated in many decisions, both federal and state, and in numerous articles, newspapers, online, major studies, and in over 100 amici briefs filed with the court, and at some point a decision must be made.  Yes, Kennedy agreed, it would be best if this issue could be settled by a democratic process quickly, but the issue was before the Court now, and “fundamental rights may not be submitted to a vote.”

Furthermore waiting would not solve the very cases before the Court at bar.  Kennedy:

The petitioners’ stories make clear the urgency of the issue they present to the Court. James Obergefell now asks whether Ohio can erase his marriage to John Arthur for all time. April DeBoer and Jayne Rowse now ask whether Michigan may continue to deny them the certainty and stability all mothers desire to protect their children, and for them and their children the childhood years will pass all too soon. Ijpe DeKoe and Thomas Kostura now ask whether Tennessee can deny to one who has served this Nation the basic dignity of recog­nizing his New York marriage. Properly presented with the petitioners’ cases, the Court has a duty to address these claims and answer these questions.

To ward off the idea that the Court’s decision would make religious objectors bend the knee, Kennedy was careful to point out that the First Amendment protects freedom of religion and freedom of speech and thus allows people, religious or not, to believe what they will about the same-sex marriage.  Only the states are bound by the Court’s ruling in this case.

The final paragraph in the majority opinion is worth reprinting in full:

No union is more profound than marriage, for it embod­ies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people be­come something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be con­demned to live in loneliness, excluded from one of civiliza­tion’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right. The judgment of the Court of Appeals for the Sixth Circuit is reversed.

The dissenters were having none of that, and all four dissenting Justices wrote separate opinions, while typically concurring with the opinions written by the other dissenters.  Much of what they said overlapped, but here are the highlights:

Chief Justice John Roberts
Chief Justice Roberts took the first shot, and his dissent is well argued.  His major point was that “this Court is not a legislature.”  This idea was the basic focus of all four dissents.  The Chief Justice elaborated:

Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise "neither force nor will but merely judgment." The Federalist No. 78, p. 465 (C. Rossiter ed. 1961) (A. Hamilton). . . . The majority’s decision is an act of will, not legal judg­ment. The right it announces has no basis in the Consti­tution or this Court’s precedent. The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own "new insight" into the "nature of injustice." As a result, the Court invali­dates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?

Perhaps cruelly he quotes an article Justice Ginsberg (part of the majority) wrote long ago to support his case:

Closing debate tends to close minds. People denied a voice are less likely to accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide. As a thoughtful commentator observed about another issue, "The political process was moving . . . , not swiftly enough or advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict." Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N. C. L. Rev. 375, 385–386 (1985).

Roberts’ dissent is long and explores in depth the history of marriage, the legal cases the Court dealt with in the past concerning marriage, and the majority’s analysis of the Fourteenth Amendment, all leading him to conclude the majority is wrong as to its reading of all these matters.  He then turned to troubling questions raised by this new decision.  He starts with polygamy:

One immediate question invited by the majority’s posi­tion is whether States may retain the definition of mar­riage as a union of two people. Although the majority randomly inserts the adjective 'two' in various places, it offers no reason at all why the two-person element of the core definition of mar­riage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradi­tion, a leap from opposite-sex marriage to same-sex mar­riage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one.

He moved on to what this decision says to religious people who do not agree with it:

Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a reli­gious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowl­edged that the tax exemptions of some religious institu­tions would be in question if they opposed same-sex mar­riage. See Tr. of Oral Arg. on Question 1, at 36–38. There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.

The Chief Justice was also much bothered by the tone the majority opinion takes towards those who disagree with its view of same-sex relationships:

Perhaps the most discouraging aspect of today’s decision is the extent to which the majority feels compelled to sully those on the other side of the debate. The majority offers a cursory assurance that it does not intend to disparage people who, as a matter of conscience, cannot accept same-sex marriage. That disclaimer is hard to square with the very next sentence, in which the majority explains that "the necessary consequence" of laws codify­ing the traditional definition of marriage is to "demea[n] or stigmatiz[e]" same-sex couples. The major­ity reiterates such characterizations over and over. By the majority’s account, Americans who did nothing more than follow the understanding of marriage that has existed for our entire history—in particular, the tens of millions of people who voted to reaffirm their States’ enduring defini­tion of marriage—have acted to "lock . . . out," "disparage," "disrespect and subordinate," and inflict "[d]ignitary wounds" upon their gay and lesbian neighbors. These apparent assaults on the character of fair minded people will have an effect, in society and in court. Moreover, they are entirely gratuitous. It is one thing for the major­ity to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray every­one who does not share the majority’s 'better informed understanding' as bigoted.

Roberts cautioned supporters of gay marriage that this victory may not be as happy a one as it appears at first glance:

Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s ap­proach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex mar­riage, making a dramatic social change that much more difficult to accept.

Justice Scalia
Moving on to Justice Antonin Scalia’s dissent we find a much nastier tone.  In a footnote he belittles the majority opinions opening paragraph (quoted above) thusly:

"If, even as the price to be paid for a fifth vote, I ever joined an opin­ion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie."

His major point is the same as Roberts: the Supreme Court is at its worst when it legislates: “It is not of special importance to me what the law says about mar­riage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.”  When he gets to the Fourteenth Amendment he makes the trenchant point that its drafters would never have thought it could be used to let homosexuals walk down the aisle. 

Justice Thomas spends most of his dissent vigorously pushing a point he has often made in the past that “liberty” in the Fourteenth Amendment refers to taking away someone’s liberty (such as making behavior a crime), and should never be used to create substantive new civil rights.  He points out that the Supreme Court decision of Loving v. Virginia in1967, which declared unconstitutional  miscegenation statutes forbidding marriage between those of different races, invalidated a Virginia statute that mandated a criminal penalty for such marriages (thus depriving those marrying a members of a different race of their “liberty” in a way that same sex marriages do not).  [Interestingly, Justice Thomas, a black man, married a white woman in Virginia some years ago, though after Loving had been decided.]  His view of the Fourteenth Amendment, however, has not persuaded the Court in the past, where it has often used the Amendment to create new substantive rights in the same way it did in this case.

Finally, Justice Samuel Alito filed a comparatively short dissent pointing out that the right of gays to marry is not “fundamental” at all under the tests developed by the Court’s prior decisions—it is completely new.  And he doubts the policy implications that so persuaded the majority:

While, for many, the attributes of marriage in 21st­ century America have changed, those States that do not want to recognize same-sex marriage have not yet given up on the traditional understanding. They worry that by officially abandoning the older understanding, they may contribute to marriage’s further decay. It is far beyond the outer reaches of this Court’s authority to say that a State may not adhere to the understanding of marriage that has long prevailed, not just in this country and others with similar cultural roots, but also in a great variety of countries and cultures all around the globe.

Alito also worried about the vilification of those who don’t agree that homosexuality is as normal as heterosexuality:  “By imposing its own views on the entire country, the majority facili­tates the marginalization of the many Americans who have traditional ideas. Recalling the harsh treatment of gays and lesbians in the past, some may think that turn-about is fair play. But if that sentiment prevails, the Nation will experience bitter and lasting wounds.”  

Here is his concluding thought: “Most Americans—understandably—will cheer or lament today’s decision because of their views on the issue of same-sex marriage. But all Americans, whatever their thinking on that issue, should worry about what the ma­jority’s claim of power portends.”

Reading the five opinions (one majority opinion, agreed to by five Justices, and four dissents) I suddenly was reminded of a sensation I had often in law school back in the sixties when I read Supreme Court decisions that were contentious and produced opinions on both side of the same issue.  I would first examine the majority opinion and find myself nodding my head in agreement, eventually concluding that there was no possible argument against what was said.  Then I would read the dissent and be confounded by having the same thought about the opposite conclusion.  My head spinning, I would often end with the uncomfortable idea I wasn’t smart enough to be a Supreme Court Justice and should resign myself to a legal practice that involved writing simple wills or merely stamping routine documents.  That was my reaction in 2015 to the opinions in Obergefell too, though I firmly believe the majority opinion has the best of it.  Let me explain why.

The Fourteenth Amendment has often been used to protect those who are marginalized in society and whose rights are not likely to be granted by a democratic process.  If the Court had ruled the other way ask yourself how long it would be before Mississippi voters authorize gay marriage.  Indeed, following last Friday’s Obergefell decision the Attorney General of the State of Mississippi stopped gay marriages in the state because Obergefell technically only applies to the four states that appealed the 6th Circuit’s opinion, and Mississippi is in the 5th Circuit, which has yet to rule on gay marriage bans.  This is just a delaying tactic since the 5th Circuit currently has just such a case before it and Obergefell now dictates how it will come out.

There is something to be said for the argument harped on by the dissenters (and the foundation of Judge Sutton’s opinion in the 6th Circuit) that the Court should stay its hand and let the issue of gay marriage have a fuller trial in the states before the result is forced on everyone by five members of the Court.  But, as I said in a prior blog post, if the Justices thought that then they waited too long to say it; see].  When an appeal is made to the Supreme Court it only takes four Justices to vote to take it up before the Court must hear the case, and the four dissenters could easily have forced this issue at a time when Justice Kennedy, a cautious man, might have agreed with them.  On June 25, 2014, the 10th Circuit Court of Appeals ruled Utah’s gay marriage ban unconstitutional in Kitchen v. Herbert, and that case was appealed to the Supreme Court, which refused to hear the appeal on October 6th of last year.  The Court then refused to hear appeals of similar decisions from a number of other Circuit Courts of Appeal, waiting until the 6th Circuit became the first one to rule in favor of gay marriage bans to accept an appeal.  But by then huge numbers of gays had been married all over the country and it was too late to unscramble the egg.  The states in which there had been gay marriages celebrated for months had accommodated themselves to it, and if Obergefell had now come out the way the dissenters desired (gay marriage bans were constitutional after all) we would have had a major mess: states would have already married gays when they shouldn’t have had to, while their state gay marriage bans had been declared unconstitutional by the Circuit Court of Appeals in which those states were located (like Utah) when they should have been held constitutional.  It would be too late to now declare those marriages invalid and the state bans resurrected without new lawsuits in each state and years of trials and appeals, until all Circuits were finally in agreement with Obergefell. What the four Justices who dissented were thinking when they didn’t take the first appeal, a time when their argument to let the states decide was strongest, I don’t know.  But waiting until over 30 states were forced to marry gays and then trying to undo things was a major mistake.

There will be big battles yet to fight about gay issues in general and Obergefell in particular, and these battles will be fought in the courtrooms, the press, etc.  All over the world some people will be very, very upset by what the Court has done.  I wonder if it’s occurred to the Justices that their lives could actually be in danger if some rabid homophobe decides to make an example out of one of them.  Kennedy would be the most obvious victim, followed by the liberal members of the Court, but no one should expect some irrational person to make fine distinctions, and, lumping the Justices altogether, even one of the dissenters, ironically, could be at risk.  I trust they are all taking precautions.

I was involved in gay rights battles in Columbus when the first major gay organization here, Stonewall Columbus (then called Stonewall Union), was founded in 1981.  One of the major leaders of the new group was Craig Covey, Stonewall Columbus’s first President, and a brave man I much admire.  He moved to Detroit thirty years ago to run the state’s AIDS organization, but we remained good friends.  By coincidence, he called my husband and me a week or so ago and asked if he could visit last weekend, and as he was getting in his car in Michigan on Friday morning to come for that visit, I texted him and asked if he’d heard that we’d won in the Supreme Court just moments before.  He was delighted, and his visit to Columbus that weekend was a fitting time for celebration of gay rights and reliving the battles we’d fought so many years before.  Talking with him and others about the incredible thing the Supreme Court had done juxtaposed with our mutual past was most fitting (and thrilling).

Craig and Me in the 80s
Craig (left) and Me (right) Last Friday

The Constitution is a living document, and like all living things it must change with the times.  Yes, Obergefell will cause problems and we will have to deal with those.  But the Supreme Court has righted an obvious wrong so let’s accept that and move forward.  I’ll give Thomas Jefferson the final words of this blog post:

I am not an advocate for frequent changes in laws and constitutions. But laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.

Related Posts:
“The Aging GayRights Activist,” March 24, 2010;;
“The History of Gay Rights in Columbus, Ohio,” June 4, 2012;;
Gay Marriage, The 6th Circuit, Jeffrey Sutton, and the Supreme Court,” November 13, 2014;;
“A Gay Hoosier Lawyer Looks at Indiana’s RFRA: The Religious Bigot Protection Act,” March 30, 2015;;
“A Guide to the Best of My Blog,” April 29, 2013;

Thursday, June 18, 2015

Atheists and Gays In Islamic Countries: Ugly Deaths

In western countries like the United States we take for granted concepts like freedom of speech and religion and, in recent years, tolerance for the idea that gay people should be treated like everyone else.  In these societies it’s easy to forget that in much of the world the very opposite is true.  In Russia, for example, there is a startling return to the totalitarianism of the former Soviet Union and dissent is punished severely, and it is now illegal in that country to advocate homosexuality (and practicing it can get you killed, while your killer will walk away whistling).  

Moscow Anti-Gay Pride Riot

In Islam-dominated countries Muslims are not allowed free speech, and Muslims who leave their faith (and particularly those who become nonbelievers) are subject to death.  Thirteen of these countries sanction execution for blasphemy: Afghanistan, Malaysia, Maldives, Mauritania, Nigeria, Pakistan, Iran, Qatar, Saudi Arabia, Somalia, Sudan, the United Arab Emirates, and Yemen.  I have written on this topic before [see “Muslim Atheist”], but in this post I want to look at current developments on Islamic treatment of both atheists and gays.

1.  Atheists

While the Qur'an claims that Allah demands that apostates be severely punished, it doesn't specify the punishment. Most, though certainly not all, of the religion's scholars decree that death is the appropriate choice. But most apostates in the Muslim world who suffer death aren't killed by the state enforcing laws like those in the thirteen countries above, but by their outraged family and neighbors or by religious authorities self-acting as Thought Police.

Muslims who leave Islam for another religion (say, Christianity) can and have been condemned to death.  In Saudi Arabia the penalty for conversion to Christianity is beheading.  To leave Islam for no religion might strike neighbors as even greater madness. It's one thing to tell your neighbors that they are wasting much of their lives due to an ancient disagreement as to which religion is the right one, and another to state that 90% of the population of the entire planet has this same unfortunate delusion. 

On January 14, 2014, in Bangladesh two atheist bloggers were brutally attacked and beaten by Islamic fundamentalists, both surviving the attempt only to have one of them hacked to death a month later.  

Avijit Roy

When prominent Bagladeshi author/blogger Avijit Roy published an anti-religious book entitled “The Virus of Faith” he was so hounded that he fled to the United States and wrote about his persecution in an article in Free Inquiry (the leading freethinker magazine in the USA); see In February of this year he and his wife returned to Bangladesh to attend a book fair, and they were dragged from a bicycle rickshaw and hacked at with machetes, killing Roy and critically wounding his wife.

In 2012 a Saudi man named Raif Badawi was arrested for insulting Islam on his website, tried and found guilty of apostasy and originally sentenced to seven years in prison and 600 lashes.  When he appealed to the Saudi Supreme Court last year his sentence was increased to ten years and 1000 lashes, plus a fine.  The first 50 lashes were administered on January 9th of this year, and damn near killed him, causing further lashes to be postponed until he was healthy enough to stand them.  His wife asserts that further lashes will kill him, and this harsh punishment has caused an international outcry, which the Saudis have so far ignored.

ISIS has routinely been beheading or shooting those with religious beliefs contrary to its stern view of Islam, and dumping the bodies in mass graves.

2.  Gays

Type “gay executions” into Google and then watch endless videos on YouTube and other websites of gays being shot, thrown from buildings, hung, buried alive, or beheaded.

August 6, 2014.  Two gay Iranian men, Abdullah Ghavami Chahzanjiru and Salman Ghanbari Chahzanjiri, were hanged for their sexual orientation. Their deaths are part of a wave of executions in Iran, with more than 400 in the first half of 2014 alone, according to the NGO Iran Human Rights.  In July of last year a Saudi Arabian man has been sentenced to three years in jail and 450 lashes after he was caught using Twitter to arrange dates with other men.

ISIS has been particularly hard on those it suspects of homosexual behavior.  Recently the execution style of choice for gay men has been tossing them, blindfolded, off buildings into a crowd below.  If the fall doesn’t kill the offender, the crowd, including children, will enthusiastically kick him to death.

3. Conclusion

If you are an atheist or LGBT stay out of Muslim countries (and Russia), and if you are already a Muslim in such countries be a good one and keep your thoughts to yourself and your behavior strictly heterosexual within a good Muslim marriage.  That’s how they want you to behave, and you damn well better do it.

A Guide to the Best of My Blog, April 29, 2013;