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Wednesday, June 26, 2013

Gay Marriage, the Supreme Court, and the Future



In a prior blog I predicted that the Supreme Court would strike down the federal portion of the Defense of Marriage Act (DOMA), but would duck the big questions in the California case which had the potential to create a right for gays to be married in all states.  That proved to be correct, and while we all might have hoped for that bigger result, today’s two decisions are major steps forward in the advancement of gay marriage.  Let’s deal with the DOMA case first.


A.  The Defense of Marriage Case: United States v. Windsor

Edith Windsor and Thea Spyer
The federal Defense of Marriage Act was signed into law by President Clinton in 1996.  The part of the statute under attack in this case is the portion stating that the federal government will not recognize gay marriages even if states do.  The plaintiff Edith Windsor had married Thea Spyer in Canada (2007), though both were citizens of New York when Spyer died two years later.  At that time the State of New York would have recognized the validity of the Canadian marriage even though the State did not at that time recognize gay marriages solemnized in New York (as it since has by statute).  Federal inheritance tax laws require non-spouses to pay huge tax burdens on inheriting property, though spouses do not have to pay a cent, and Ms. Windsor was hit with a $363,000 federal tax bill.  She paid it, but then sued in federal court in New York, contending that DOMA was unconstitutional under the Fifth Amendment to the United States Constitution, which requires the federal government to use due process (expanded by the courts to include some elements of equal protection, much like the 14th Amendment does for the states).  The lower federal courts ruled in her favor, and the Supreme Court today handed down a decision affirming the lower courts (5 to 4, with Justice Kennedy and the four liberals in the majority, and the conservatives all dissenting).

After making clear that the states have always had primary jurisdiction over marital issues, and that the federal government can step in and override state rules as to marriage only in limited circumstances, Justice Kennedy said this: “Against this background DOMA rejects the long­ established precept that the incidents, benefits, and obli­gations of marriage are uniform for all married couples within each State, though they may vary, subject to con­stitutional guarantees, from one State to the next.”

He added:

DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Gov­ernment. See U. S. Const., Amdt. 5; Bolling v. Sharpe, 347 U. S. 497 (1954). The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group. Department of Agriculture v. Moreno, 413 U. S. 528, 534–535 (1973). . . .  DOMA’s principal effect is to identify a subset of state ­sanctioned marriages and make them unequal. The prin­cipal purpose is to impose inequality, not for other reasons like governmental efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMA contrives to deprive some couples married under the laws of their State, but not other couples, ofboth rights and responsibilities. By creating two contra­dictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. By this dynamic DOMA under­mines both the public and private significance of state ­sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, 539 U. S. 558, and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.

The power the Constitution grants it also restrains. And though Congress has great authority to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment.

The majority opinion ends with a statement that this ruling applies only to states that have legalized gay marriages and says nothing about the constitutional status of state laws that restrict marriage solely to heterosexual couples.

Justice Antonin Scalia in his scathing dissent notes that when the Court struck down sodomy laws in Lawrence v. Texas (2003), it said then that the decision was not a precedent for later attacks on statutes regulating other homosexual behavior.  Today it cites Lawrence as just such a precedent.  Now, he wryly notes, the majority opinion similarly says it limits today’s holding to states in which marriage is permitted by law.  But he adds that won’t last:

That Court which finds it so horrific that Congress irrationally and hatefully robbed same-sex couples of the “personhood and dignity” which state legislatures conferred upon them, will of a certitude be similarly appalled by state legislatures’ irrational and hateful failure to acknowledge that “personhood and dignity” in the first place. As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe. . . . By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition. Henceforth those challengers will lead with this Court’s declaration that there is “no legitimate purpose” served by such a law, and will claim that the traditional definition has “the purpose and effect to disparage and to injure” the “personhood and dignity” of same-sex couples. The majority’s limiting assurance will be meaningless in the face of lan­guage like that, as the majority well knows. That is why the language is there.


B.  The Proposition 8 case: Hollingsworth v. Perry

In this opinion the Court ducked the substantive questions presented about the constitutionality of state laws restricting gay marriage, and instead decided the case on the procedural issue of “standing.”  It is a basic of our laws that only the real parties to a case have “standing” (i.e., the legal ability) to litigate and appeal.  At the federal trial court level the plaintiffs were gay couples wishing to marry and thus had standing to attack the state constitutional provision (enshrined there by passage of an evil ballot initiative entitled “Proposition 8).  Plaintiffs sued the State of California, but state officials agreed with the plaintiffs that this part of the state constitution was invalid under federal law, and so the state declined to defend the lawsuit.  Up jumped potential defenders in the form of the original proponents of Proposition 8, and though their defense was so bad that the trial court judge begged them to do a better job, in the end he ruled against them and the State of California, holding that the Proposition 8 part of the California Constitution was unconstitutional under the 14th Amendment of the United States Constitution (which guarantees equal protection of the law to all).  The proponents appealed to the Ninth Circuit Court of Appeals, which first ruled that they did have standing for the appeal and then went on to uphold the trial court opinion on the substantive grounds that the state could take away existing gay marital rights only if it had a rational basis for doing so, which it did not.

The United States Supreme Court disagreed with the standing ruling.  It held that private citizens had no standing to appeal the trial court decision, so neither the Ninth Circuit nor the Supreme Court had jurisdiction.  Thus the trial court decision prevails, meaning that the portion of the California constitution forbidding gay marriage is invalid.  Interestingly the Supreme Court’s decision is also 5 to 4, but the liberals and the conservatives are mixed.  Chief Justice Roberts wrote the majority opinion, which Justice Scalia joined along with three of the liberals, but liberal Justice Sotamayor is one of the dissenters along with three of the conservatives.

The upshot is that gay marriage is once again available in the State of California, but—sigh— the Supreme Court did not accept the opportunity to expand its reach to other states. 

C.  The Future
Thirteen states and the District of Columbia now recognize gay marriages as legally valid, and that number is bound to enlarge as time goes on, with each year being better than the one before it.  The Court is doubtless hoping that the states will work this out so it won’t have to take on this issue again, but that’s a utopian vision that can’t possibly work.  First of all, some states, particularly those in the Deep South, are never going to recognize gay marriage (at least in this century) unless forced to do so.  Today’s decision only struck down the part of DOMA that said the federal government did not have to recognize gay marriages validly entered into in other states, but that doesn’t strike down the portion of DOMA that gives states the right to refuse recognition of gay marriages legally entered into outside that state.  What about that ugly part of DOMA?  It’s got to go too, of course, because we’ll have chaos if people are married only in some parts of the country, but not in others.  We’re a very mobile society in the United States, and already we have messy issues such as can an Ohio court (where gay marriage is not valid) grant a divorce to a gay couple married in a state where their marriage is valid (the answer, according to Ohio courts is, apparently, yes).  The United States Constitution requires that “full faith and credit” must be given by one state to the public acts of another, but whether that will apply to gay marriage is complicated by the existence of a very old United States Supreme Court decision holding that a Mormon polygamist marriage need not be recognized by a state not allowing marriage to more than one person.  Eventually  the United States Supreme Court will have to answer that question, and it’s hard to imagine that the Court will say that one state can ignore marriages validly entered into in another state even if the happy couple are (gasp!) homosexuals.  If the Court rules that “full faith and credit” requires states to recognize gay marriages valid elsewhere, then gays in states like Mississippi can simply fly to, say, New York, get married, and then return to Jackson and be as married as the Governor and his wife. 
Mississippi Governor Phillip Bryant and his wife Deborah
Eventually the Court is likely to hold that the 14th Amendment’s equal protection clause requires all states to recognize gay marriage (the step it ducked today).  After all, in Loving v. Virginia (1967), the Court struck down a state statute that forbade couples to marry across racial lines, using the 14th Amendment in an identical fashion.
D.  Conclusion

Patience.  Gay marriage is coming.  And today’s decisions are huge: the federal government must now recognize gay marriages, which extends to them the protection of thousands of federal laws and regulations (and Edith Windsor, by the way, gets back her $363,000!), and the State of California proudly joins the list of states allowing gay nuptials.  More battles are coming, but we will win them all, one by one, until generations in the future will be amazed there was ever an issue here at all.



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Related Posts:
“Jumping the Broom: How 'Married' are Married Gay Couples?” July 17, 2011
“Gay Marriage, DOMA, Proposition 8 and the Mysterious Supreme Court,” January 15, 2013 
“Gays Will Be Able To Marry in All States By July of 2016 (and Maybe 2015): A Prediction,” February 14, 2014
"Gay Marriage, The 6th Circuit, Jeffrey Sutton, and the Supreme Court," November 13, 2014
"Alan Turing: Torturing a Gay Genius to Death," November 26, 2014

“A Gay Hoosier Lawyer Looks at Indiana’s RFRA: The Religious Bigot Protection Act,” March 30, 2015; http://douglaswhaley.blogspot.com/2015/03/a-gay-hoosier-lawyer-looks-at-indianas.html;
“Oral Arguments on Gay Marriage in the Supreme Court: What Was and What Wasn’t Said,” April 28, 2015; http://douglaswhaley.blogspot.com/2015/04/oral-arguments-on-gay-marriage-in.html
Married at Last! A Gay Lawyer Looks at What the Supreme Court Actually Said About Same-Sex Marriage,” June 30, 2015; http://douglaswhaley.blogspot.com/2015/06/married-at-last-gay-lawyer-looks-at.html;  “A Guide to the Best of My Blog,” April 29, 2013

Friday, June 21, 2013

A Homophobic Organization Throws in the Towel: Goodbye to Exodus International


For decades Exodus International has been a Christian organization with the goal of changing gay people into straight people, primarily using the power of prayer, much counseling, and various activities (such as avoiding gay situations, shunning all male environments (for  men) or female environments (for women), learning how to be more butch (for men) or girlish (for women), and similar nonsense.  This has never worked, but that didn’t stop Exodus International from having a 37 year run.

Mr. Chambers
All that has now ended.  This week Exodus International, through its President Alan Chambers, announced that it’s closing its doors forever.  Amazingly, this included an apology from Mr. Chambers, a married man who confessed that he himself still has homosexual urges.  He acknowledged that during his Presidency he’s heard numerous horror stories of gays who came to Exodus believing its message that change to heterosexuality is possible, stories about very religious people who wanted so much to change, to believe the message, and then to find it didn’t happen, leading to despair, depression, and even suicides.  Alan Chambers said this:

Please know that I am deeply sorry. I am sorry for the pain and hurt many of you have experienced. I am sorry that some of you spent years working through the shame and guilt you felt when your attractions didn’t change. I am sorry we promoted sexual orientation change efforts and reparative theories about sexual orientation that stigmatized parents. . .  I am sorry that I . . . failed to share publicly that the gay and lesbian people I know were every bit as capable of being amazing parents as the straight people that I know. I am sorry. . . that I callously celebrated the end of relationships that broke your heart. I am sorry that I have communicated that you and your families are less than me and mine. 

Exodus actually has an ugly history of failure.  This from Wikipedia: “In 1979, two of Exodus International's co-founders (Michael Bussee and Gary Cooper) quit the group and held a life commitment ceremony together. On June 27, 2007 Bussee, along with fellow former Exodus leaders Jeremy Marks and Darlene Bogle, each came out as gay or lesbian and issued a public apology for their roles in Exodus. In April 2010, Bussee stated he'd never seen Exodus actually change any participant into a heterosexual.”

Governor Brown
Exodus is not alone in this fraud.  Religious groups (like “Love in Action”—now renamed “Restoration Path”) and so-called reparative therapists have also seen their attempts come to nothing but heartache and tragedy.  Parents with homosexual children, their hearts rent with the horrors of homosexuality, send them to such entities, only to find that nothing happens except money is wasted (reparative therapy with a psychologist can cost upwards of $10,000 a year with no results to show for it) and years of futility down the drain.  In the end, homosexuals are still homosexuals in spite of earnest and sincere efforts to make them otherwise.  Ex-gay conversion doesn’t work, and even leading psychiatrists like Robert Spitzer, who once championed reparative therapy, have quit and themselves apologized for a practice that is now condemned by the American Medical Association, the American Psychological Association, and the American Psychiatric Association.  As of January 1, 2014, California will ban any “mental health advisor” from promising to change children from straight to gay.  As California’s governor, Jerry Brown said as he signed the bill, “These practices have no basis in science or medicine, and they will now be relegated to the dustbin of quackery.”  No reputable scientist currently believes that homosexuality is anything other than an inborn and unalterable trait, even if the reason why evolution has chosen it remains something of a mystery.  [For my own take on that, see Related Posts below for “Homosexuality: The Iceberg Theory”].

What does work is accepting one’s homosexuality and learning how to become a worthwhile human being, as to which sexual orientation plays a fairly minor part in living the good life.

During my gay rights activist days and right up until the current moment, I’ve had a standing offer about ex-gay conversion. I will contribute $5000 to the charity of choice of an individual or organization that can produce five men who were once gay and are now straight. There are various conditions: (1) the men must have had significant gay experiences in their lives, (2) become straight through whatever process, and (3) for at least five years thereafter remained completely straight. Finally, they must not have ever been leaders or volunteer workers for ex-gay organizations (just, therefore, normal members) and pass rigorous tests to determine their current sexual orientation (see me for details—I am serious about this). Since ex-gay organizations have been around for over thirty years, you’d think they’d have thousands of former participants who’d easily meet my criteria, but so far no one has taken me up on this. Note that I’m not proposing a bet. If the person/organization can’t find five men who pass the tests, they lose nothing other than a creditability that is often widely touted, but is in tatters whenever considered objectively.  (I would require that if five converted straight men are not produced, the expenses of testing be paid for by the entity accepting my challenge.)

After years of advertising this, no one has accepted my challenge.  If anyone ever does, stay tuned.  I’ll post massive details of what happens on this blog.



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Related Posts:
"The Aging Gay Rights Activist," March 24, 2010
"Frightening the Horses," April 4, 2010
“Homosexuality: The Iceberg Theory,” April 25, 2010
“How I Lost a Gay Marriage Debate,” April 29, 2010
“Straight Talk,” May 10, 2010
“Marijuana and Me,” July 11, 2010
“How To Tell if You’re Gay,” August 31, 2010
“The Thunderbolt,” September 3, 2010
“How To Change Gay People Into Straight People,” September 20, 2010
"How Many Homosexuals Are There in the World?" November 8, 2010
"Choose To Be Gay, Choose To Be Straight," January 25, 2011
"The Homosexual Agenda To Conquer the World," February 8, 2011
"Seducing Straight Men," March 3, 2011
"Coming Out: How To Tell People You're Gay," March 27, 2011
"Jumping the Broom: How 'Married' are Married Gay Couples?" July 17, 2011
"The Legacy of Homophobia," August 2, 2011
"Going Undercover at an Ex-Gay Meeting," September 19, 2011
"The Presumption of Heterosexuality and the Invisible Homosexual," October 2, 2011
"Gay Bashers, Homophobes, and Me," January 27, 2012
"On Being a Gay Sports Fan," March 9, 2012
"Sexual Labels: Straight, Gay, Bi," April 15, 2012
"The History of Gay Rights in Columbus, Ohio," June 4, 2012
“I Support the Right of the Boy Scouts To Ban Gays,” July 24, 2012
“Straight People: Thanks From the LGBT Community,” November 20, 2012
“Gay Marriage, DOMA, Proposition 8 and the Mysterious Supreme Court,” January 15, 2013
"Disowning Your Gay Children," October 9, 2013

“A Gay Hoosier Lawyer Looks at Indiana’s RFRA: The Religious Bigot Protection Act,” March 30, 2015; http://douglaswhaley.blogspot.com/2015/03/a-gay-hoosier-lawyer-looks-at-indianas.html
“A Guide to the Best of My Blog,” April 29, 2013

Friday, June 7, 2013

My Cats Get Involved in My Knee Surgery and Selling My Condo


I returned to Ohio in early April after my three month snowbirding experience in Fort Lauderdale, Florida, with the need to sell the condo in which I’ve lived for almost seven years so I can then move back to the Sunshine State and begin life anew.  So I promptly put my condo on the market, and made some changes to make it more attractive to potential buyers.

[Click to enlarge]
At the same time my increasing age is catching up with me, so it was clearly time to deal with my knees, which are mysteriously older than the rest of me.  The more evil of the two is my right knee, and it’s been bothering me a good deal for the last couple of years.  The left also has its pains, but the right one is the major sadist.  I ended up in the office of Dr. Andrew Glassman of the Ohio State Hospital faculty.  He asked me how often I thought about the problems with my right knee.  Ten times a day, he guessed?  More than that, I responded: every time I stand up or sit down or climb into a car, turn over in bed, etc.  All right, he ruled, it was time to schedule the operation, and he promptly did so for a month away, May 17th, a Friday. 

 
Nurse Ratched tortures Jack
Nicholson in "One Flew
Over the Cuckoo's Nest"
It’s interesting how our mind/body connections work.  Within 24 hours of this scheduling my right knee was completely free of pain or symptoms of any kind whatsoever.  What pain?” my right knee had the audacity to ask me.  “See, you sissy, no pain at all!  What you’ve got here is a teenage knee!  Want to climb steps?  Hell, let’s climb them fast.  Want to run?  We could run!”  It was like a miracle.  I asked Dr. Glassman if he’d seen this phenomenon before. “Oh, yes,” he replied, “and do you know what would happen if we cancelled the surgery?”  Yes, I did.  So it went ahead as scheduled, and I plunged into a life of constant pain, and therapy, and major pain pills, etc.  First Barbara Shipek, the woman who runs my life (see Related Posts below) came to do her self-described “Nurse Ratched” act for a week, and then was replaced by Barbara Williams, professional cook from Toledo (and founder of the Great Lakes Atheists group, and primary promoter of my novel, “Imaginary Friend,” of which she says she’s my number one fan), who was here for four days.  Both of them were terrific in dealing with my invalid status (and, okay it’s true, I love being waited on and cared for, particularly when in pain).
Both women had to deal with the fact that my condo was on the market, so they had major duties in getting the place ready for showings.  Normally when the potential buyers arrive the seller vacates the premises, but that was impossible here (and they were so warned), so I would greet buyers and their rental agent, invite them to look first at the master bedroom, and then I and my caregiver would move into the bedroom, shut the door and leave the buyers to look over the rest of the place in peace.  When they left, David Vargo, the new man in my life who I met in Florida earlier this year, came to visit for four days and was very helpful in making life worth living on many levels before he had to return to his job in Fort Lauderdale.  In the photo below we got out of the house and can be seen renewing our mutual interest in frog statuary.



And what, you might ask, do cats have to do with any of this?  They did play a part both in the condo sale and my recovery from the knee replacement. 
Barney and Mama at Home
When potential buyers come to see the condo the owner is supposed to leave, but (once I was able to vacate the premises before and now after the surgery) there was no way to take the cats with me, so I posted on the front door a notice saying “Two friendly cats are inside, please do not let them out.”  Mama, my smartest cat, loves visitors, so unless asleep my guess is that she greets them at the door with much rubbing of the legs and then walks all over the house as they view it.  I’ve told her to make complimentary comments about the condo, the visitors, and how nice it is to live in such a handsome place, and I’ve no doubt she does that.  When the visitors get to the second floor they will encounter Barney who loves to sleep on the leather sofa up there, but he would rise, stretch, and in his dumb-but-appealing manner beg to be picked up, purring happily.  The cats have done their share to sell the place.  One of the comments on the internet in a post-visit review stated “The cats were very friendly.”  Another visitor left a post-it note on the front door stating “I’m not interesting in the condo, but I would like to purchase the cats.” 
I’ve come very close to selling the place, which went on the market on April 14th.  One woman came back and brought her ex-husband and their son with her, and told me she loved my home.  She then wandered outside, ran into a neighbor who was on the condo board, learned that there is an association rule with a limit of 40 lbs. for dogs as pets, and since she had a 65 lb. dog, there went that sale.  [Here insert swear words I learned in the Navy when but a youth.]

As for the therapy, Mama has been no help at all, wanting to sleep on top of the healing knee, which has me tossing her from the bed at various times during the night, using some of those Navy swear words.  Barney’s been more interesting.  He was abused as a kitten and had never before in his life been loved or loved anyone, as my prior posts explore.  But he’s been with me for almost three years now, and it’s clear that that cat loves me, dimwitted though he be.  Barney, a big beautiful Tom, looks imposing, but is small of brain, and you never know what’s getting through to his limited perception (as opposed to Mama, who’s so smart she can translate from the French).  When Rachael the therapist began her work on me she would get close to the knee and urge me to bend it in various painful ways, which I would do with loud grunts and protests.  This brought Barney from the other end of the house, and he would jump onto my lap.  This was an inconvenience (“No, Barney, get down, what are you doing?”) but no sooner dumped on the floor he was back in my lap, looking suspiciously at Rachael.  When we moved to the bedroom for exercises done lying down, Barney insisted on lying between her and me on the bed.  It warmed my heart to realize what was going on: he was protecting me.  This strange woman was somehow hurting me, and Barney was doing what he could to make sure I was all right. 

So that’s how cats have helped with both the condo sale and the knee replacement.  Now if they can only persuade a buyer to sign on the dotted line or figure out a way to ease my pain, life will be grand again and there will be a happy ending in Florida before 2013 is over.
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Related Posts:
"Mama, Biopsies, and My iPad," May 19, 2010
"Teaching English to Cats," August 6, 2010
"The Purring Heart," November 23, 2010
"Two Cat Stories: Mama and Barney in the Wild," July 9, 2011

"Zoo Stories," August 30, 2011
“Mama Cat Saves My Life,” October 23, 2011
"Stepping on Cats," February 8, 2012
“Snowbirding, My iPhone 5, and the Coming Crazy Cat Trip,” December 5, 2012
“Barney and the Big Mammal Nightmare,” January 7, 2013 
"A Decision To Move to Florida," March 30, 2013
“A Guide to the Best of My Blog,” April 29, 2013