Band of Thebes

Marriage Equality Gains

Two weeks off to get that hot husband of mine birthdayed up and look at all the changes:

A Bush-appointed federal judge ruled Kentucky must honor gay marriages performed in other states.

Nevada's governor and AG withdrew their defense of the state's ban on gay marriage from a trial that has just been granted an expedited hearing.

Virginia's governor and AG announced they will not defend the state's anti-marriage-equality law in court.

AG Eric Holder announced additional equalities for same-sex married couples. And he repeated that the federal government will recognize those Utah gay marriages even though the state won't and has since halted them.

Scotland became the 17th country to approve marriage equality nationwide (effective October) in a romping vote of 105 for and only 18 against. Gay weddings begin in England and Wales on March 29.

A Clinton-appointed federal judge in Oklahoma ruled the state's ban on marriage violated the US Constitution. The decision is stayed pending an appeal.

A Clinton-appointed federal judge in Texas heard a request to block the state's ban on gay marriage, but did not issue a ruling, saying he would do so, "sometime."

Bucking the trend, Indiana lawmakers move forward a bill to ban marriage equality. The even worse version of the bill includes a purely evil "second sentence," that would also ban civil unions and prevent employers from offering benefits to same-sex couples. If it passes it will go to a voter referendum in November. UPDATE: Now, not before 2016.

Plaintiffs in Louisiana and Missouri join the fray, bringing the total number of states with legal challenges to their bans on marriage equality to twenty-four. 

A good place for all the breaking news on the topic is Freedom To Marry.

Revisiting 1950s Homophobia and Sen. Lester Hunt's Suicide

Placeholder. Read Roger McDaniel's Dying for Joe McCarthy's Sins: The Suicide of Wyoming Senator Lester Hunt [Kindle only $3.99] which inspired last night's amazing mock trial in DC of Joe McCarthy and his two nefarious sidekicks. Sponsored by the newly relaunched Mattachine Society of Washington. More soon. 

26 Years After Suing Gay Games, Olympics Adds LGBT Nondiscrimination

Somehow, the United States Olympic Committee needed until last Friday, October 11, 2013 to come around to adding "sexual orientation" to their non-discrimination policy. Bluntly, the USOC is not your friend. If they were sincere about lgbt athletes, they ought to have become inclusive twenty-six years ago, as a goodwill gesture after their bigoted case against Gay Games reached the Supreme Court.

This relevant backstory is missing from all news reports on the updated non-discrimination rules.

Originally, the event was to be the Gay Olympic Games, and in August 1982 the USOC sued the organizers to change the name. At that time many other groups used the word olympics for their events, including Junior Olympics, Special Olympics, Police Olympics, Eskimo Olympics, even Rat Olympics, yet the USOC sued only the gay group. The district court and the ninth circuit agreed with the USOC, as did, of course, the Rehnquist court in 1987 in a two-part decision 7-2 and 5-4. The USOC was represented by DC fatcat and owner of two sports teams, Edward Bennett Williams. The Gay Games' attorney was out lesbian Mary Dunlap, who died from pancreatic cancer at 54 in 2003, five months before the Lawrence v Texas decision.

The original olympics were all-made nude contests.

(Photo of Mary at the Supreme Court via.)

Ariel Levy Profiles Edith Windsor in The New Yorker

In a long fact piece for The New Yorker called "The Perfect Wife," lesbian staff writer Ariel Levy profiles lesbian plantiff Edith Windsor and includes her lesbian lawyer Roberta Kaplan. Triple the awesomeness. Read it here.

It begins:

“Fuck the Supreme Court!” Edith Windsor said, one hideously hot morning in June, when she’d had just about enough. Then she sighed and mumbled, “Oh, I don’t mean that.” What she really meant was that she was hot, she was tired of waiting, and, most of all, she was tired of being told what to do. “I’m feeling very manhandled!” she said.

It was Windsor’s eighty-fourth birthday, and she was spending it staring at a laptop screen as information from scotusblog.com flashed by in a typeface too small for her to read comfortably. Four years earlier, Windsor’s partner of more than forty years, Thea Spyer, died, leaving Windsor her sole heir. The two were legally married in Canada, in 2007, but, because of the Defense of Marriage Act, Windsor was not eligible for the exemption on estate tax that applies to husbands and wives. She had to pay $363,053 in taxes to the federal government, and $275,528 to New York State, and she did not think that was fair. So, with the help of her attorney, Roberta Kaplan, Windsor sued the United States. “When I saw it in print on the brief—Edith Windsor v. the United States of America—for a moment I panicked,” she said. “Then I thought, If Robbie’s not terrified, I’m not terrified.” But the waiting was getting to her. Once, when Spyer was alive, Windsor attended a meeting with the head of the Human Rights Coalition, at which someone asked him about gay marriage. He replied that it was something that ought to be dealt with later. Windsor stood up and barked, “I’m seventy-seven years old, and I can’t wait!”

Windsor first sought representation for her suit in 2009; she approached a number of gay-rights organizations. “I was told it was the wrong time for the movement,” she said. So a friend of a friend introduced her to Roberta Kaplan, who had been co-counsel on the (unsuccessful) case for marriage equality in New York State in 2006 but usually works at the furthest extreme from gay-rights non-profits. As a partner at the corporate law firm Paul, Weiss, Rifkind, Wharton & Garrison, she has numbered among her clients J. P. Morgan Chase and Fitch Ratings. Kaplan is a vigorous, highly assertive forty-seven-year-old, who wears a Rolex and drives an Audi. (Recently, she took her wife, Rachel Lavine, and their seven-year-old son, Jacob, to Yellowstone, on her way back from a conference in Montana. I asked if they had camped out. “Yes,” Kaplan said. “At the Four Seasons.”) . . .

Read more.

Flagrant Conduct by Dale Carpenter

Four cops walk into an apartment. Two don't see anything, one sees oral sex, and one sees anal sex that he says continues for two more minutes while he watches. What sounds like the set up to a bad joke was a set up of a very different kind -- a disgruntled neighbor calling the police to claim a black man was "going crazy with a gun" in the next apartment. No gun. But the officers did notice homoerotic drawings and arrested the men for sodomy, even though they weren't having sex. In fact, they were clothed. The arrests on September 17, 1998 also set up one of our greatest legal battles, Lawrence v. Texas, the landmark case that overturned the nation's antigay sodomy laws. The lying -- both by the police and the gay couple -- is just one of many revelations Dale Carpenter has uncovered through remarkable journalistic detective work in his new book Flagrant Conduct: The Story of Lawrence v. Texas [Kindle]. Generations of historians, legal scholars, and gay readers will be indebted to him.

I started the book wary that one court case could hold my attention, yet I was enthralled. The large cast comes vividly to life, from the heroic gay bartender who convinced Lawrence to pursue a case against the state to the helpful closeted gay men at the sheriff's department. Despite knowing the outcome, I found the Supreme Court testimony particularly harrowing for the dawning sense that it might so easily have gone against us if the lawyer arguing to uphold the antigay law wasn't such a dunce. My only quibble comes from the unchallenged quote of a joyful gay man sobbing at the decision, saying finally he is no longer a second-class citizen. Of course we still are. But this groundbreaking book brings us one step closer.

Dahlia Lithwick unravels the case in a terrific 3,500-word essay in The New Yorker.

[Bias alert: My partner and I are hosting Dale's book party in DC next week.]

Bush-Appointed Judge Strikes Down Key DOMA Provision

Jeffrey S. White, a federal judge appointed by George Bush, yesterday "declared the 1996 Defense of Marriage Act unconstitutional and ordered the federal government to ignore the statute and provide health benefits to the wife of a lesbian federal court employee." 

The NYT says:

'Judge White ruled that the act did not provide “a justification that is substantially related to an important governmental objective” which would be necessary for a law that is aimed at one specific group of people, in this case gay men and lesbians.

“The imposition of subjective moral beliefs of a majority upon a minority cannot provide a justification for the legislation,” he said in his 43-page ruling.'

In marriage news:

Today, Maryland's senate votes on the gay marriage bill that the house passed last week. Governor Martin O'Malley, who previously supported only civil unions, actually said the three words unknown in political circles -- "I was wrong" -- and has promised to sign the bill.

Early last week, Washington State Governor Chris Gregoire signed their gay marriage bill into law. Immediately, equality foes said they would file court cases to stop the law from taking effect June 7. They are gathering signatures to kill the law in a statewide referendum, a strategy that was horribly successful in California and Maine.

Late last week, New Jersey's legislature finally passed their gay marriage bill only to be vetoed by Governor Chris Christie who wants to put civil rights to a vote. Instead, the repugnant Christie deserves to face a recall election. Compounding the insult, he actually makes a semi-valid point that he has been consistent on the issue while Obama, who was for gay marriage before he was against it, straddles the unicorn fence:

"The President is silent on this like he’s silent on every issue that’s difficult for him. [...] Let’s have the President of the United States show some courage, come on this program, look into the camera like I’m looking into the camera, and state his position. He won’t because he wants to have it both ways. I’m not looking to have it both ways, I vetoed the bill. That’s my position."

Sad when the president's cunning timidity allows the true bigot to create the false illusion of having the moral upper hand.

Born August 12: Radclyffe Hall

Ignored from infancy by her mother and stepfather, Marguerite Radclyffe Hall was educated at Kings College London and in Germany, where, when she was twenty-seven, she began a relationship with a singer named Mabel Batten, who was fifty-one and a grandmother and had once been painted by John Singer Sargent. They moved in together as soon as Batten's husband died; several years later Hall fell in love with Batten's cousin, Una Troubridge, and after Batten died the following year, they began living together. Their partnership lasted more than twenty-five years and weathered Hall's many short and longer term affairs as well as her success and scandal as a writer. Her second novel, The Forge (1924), a comedy of social manners, was published before her first, The Unlit Lamp (1924), about a young woman's thwarted wish to become a physician and set up house with another single woman. Her fourth novel, Adam's Breed (1926), concerns an Italian restaurateur in London who embraces spirituality, renounces the world, and lives hermit-like in the woods. It won two major literary prizes and became a bestseller.

So The Well of Loneliness (1928) was naturally anticipated by literary London. For the first three weeks, reviews were mixed but critics accepted its sympathetic portrayal of lesbians. Then the editor of the Sunday Express whipped up a frenzy, saying he would rather give healthy children a vial of prussic acid than the novel and demanding it be withdrawn. The nervous publisher sent a copy to the Home Secretary, William Joynson-Hicks, known as Jix, offering to suppress it if he disliked it. Despite his hip nickname and his kept promise to give women the vote in 1928, Jix was sixty-three and deeply conservative and had strenuously objected in Parliament to planned revisions to The Book of Common Prayer, successfully preventing the changes twice. No surprise then that he hated The Well of Loneliness and intended to sue the publisher unless they canceled the book immediately. They did, but they had already licensed the rights to an English publisher in France. When the book was imported, Jix ordered it seized, over the objections of the Chairman of the Customs Board who admired the novel. It became a matter for the Metropolitan Police, and the subsequent trial for obscenity depended solely on the judge's opinion without any expert testimony. For those of you who haven't read the 500 page novel lately, here are the sex scenes unabridged:

She kissed her full on the lips.

also

and that night they were not divided.

The case drew wide protest from other newspapers, dozens of famous people, the National Union of Railwaymen and the South Wales Miners' Federation. Virginia Woolf, E.M. Forster, H.G. Wells, and George Bernard Shaw defended Hall in letters to the editor. The judge ordered all copies of the book destroyed. He said that no reasonable person could claim that a call for tolerance or acceptance of homosexuality was not obscene. Kipling agreed to testify on behalf of the novel at the appeals trial. He appeared at court and was refused. The twelve magistrates took five minutes to uphold the original obscenity verdict. Eighteen years later, after Hall had died, after World War II, Troubridge tried again to get The Well of Loneliness in print in England and the Home Secretary said the publisher would be prosecuted. In America, the book faced two obscenity trials (garnering letters of support from Hemingway, Fitzgerald, Mencken, Sinclair, Dos Passos, St. Vincent Millay, and more) and both times the book triumphed. Its first year it sold more than 100,000 copies. It was finally published in the U.K. in 1949.

When Lambda Rising closed and sold their rarities, my boyfriend bought me a signed copy of the 1928 U.S. first edition.

First Ever Inclusion of Gay Rights Papers in Library of Congress Exhibit

In another historic first, two documents from the Frank Kameny archives are now on display in the Library of Congress's ongoing show "Creating the United States." The inclusion marks the first time the library has displayed papers advocating LGBT equality, and they have not ghettoized the LGBT artifcats but incorporated them as a natural component of the exhibit on the Constitution, which opened in April 2008. My partner was instrumental in getting Kameny's papers into the library's permanent collection and he has the first quote in the AP story out today:

“This inclusion is an epic milestone in the telling of gay history because it places gay Americans’ struggle for equality where it belongs — in the story of the Constitution itself,” Charles Francis, a founder of the Kameny Papers Project, told The Associated Press.

The two documents are Kameny's petition to the Supreme Court -- which we now know was rejected 9-0 fifty years ago this spring -- and John Macy's infamous "Revulsion Letter" to Kameny, establishing the government's antigay policy for decades. The papers will be on display approximately six months.

(Above, Charles' photo of Frank, 85, attending the exhibit.)

Dowd Interviews Olson and Boies; Krugman, Hentoff on Obama

A few highlights from Maureen Dowd's talk with Ted Olson and David Boies about their legal case to overturn the ban on gay marriage. Quoting conservative Olson:

“I think there’s something the matter with you if you don’t care enough to feel the suffering that they’ve been through and if you’re not emotionally upset about the fact that we’re doing an immense amount of harm to people,” he said. “We’re not treating them like Americans. We’re not treating them like citizens.”

And Dowd writes:

While Charles Cooper, the lawyer on the anti-gay-marriage side, cited President Obama’s declaration that marriage should only be between a man and a woman, Olson noted that Obama’s parents could not have married in Virginia before he was born.

I asked the lawyers if they were disappointed that the president who had once raised such hope in the gay community now seemed behind the curve.

“Damned right,” Boies snapped. “I hope my Democratic president will catch up to my conservative Republican co-counsel.”

Olson added: “I’m not talking about Obama, but that’s what’s so bad about politicians. They say, ‘I must hasten to follow them, for I am their leader.’”

Meanwhile, Krugman looks at the administration's first year and finds a series of failures:

"The Obama administration’s troubles are the result not of excessive ambition, but of policy and political misjudgments. The stimulus was too small; policy toward the banks wasn’t tough enough; and Mr. Obama didn’t do what Ronald Reagan, who also faced a poor economy early in his administration, did — namely, shelter himself from criticism with a narrative that placed the blame on previous administrations."

Nat Hentoff, in the Voice Voice, has an essay titled George W. Obama about the many ways the new administration is entrenching the worst aspects of Bush / Cheney. Even the policies Obama campaigned against, like FISA, and suppressing Abu Ghraib photos. Another example:

Five customers of AT&T had tried to go to court and charge that the government's omnipresent spy, the NSA, had been given by AT&T private information from their phone bills and e-mails. In a first, the Obama administration countered—says Kevin Bankston of Electronic Frontier Foundation, representing these citizens stripped of their privacy—that "the U.S. can never be sued for spying that violated federal surveillance statutes, the Foreign Intelligence Surveillance Act, or the Wiretap Act."

It is one thing, as the Bush regime did, to spy on us without going to court for a warrant, but to maintain that the executive branch can never even be charged with wholly disregarding our rule of law is, as a number of lawyers said, "breathtaking."

New Yorker on the California Gay Marriage Court Case, Arab Novels

Lingua Franca co-founder, Senior Fellow at the New America Foundation, and Whiting award winner Margaret Talbot writes a 10,200 word piece on the gay marriage court fight in today's New Yorker to coincide with the opening day of the California case brought by strange bedfellows David Boies and Ted Olson. Delving directly into the question of how sincere conservative Olson is on this issue, Talbot quotes him saying:

“Separate is not equal. Civil unions and domestic partnerships are not the same as marriage. We’re not inventing any new right, or creating a new right, or asking the courts to recognize a new right. The Supreme Court has said over and over and over again that marriage is a fundamental right, and although our opponents say, ‘Well, that’s always been involving a man and a woman,’ when the Supreme Court has talked about it they’ve said it’s an associational right, it’s a liberty right, it’s a privacy right, and it’s an expression of your identity, which is all wrapped up in the Constitution.” The Justices of the Supreme Court, Olson said, “are individuals who will consider this seriously, and give it good attention,” and he was optimistic that he could persuade them. (The losing side in San Francisco will likely appeal to the Ninth Circuit, and from there the case could proceed to the Supreme Court.) Olson’s self-assurance has a sound basis: he has argued fifty-six cases before the high court—he was one of the busiest lawyers before the Supreme Court bench last year—and prevailed in forty-four of them.

Plenty of people, including gay legal scholars, say defeat is inevitable. The high court doesn't lead on divisive issues like this; after all, the Loving decision was 1967, not 1959 when the couple was arrested. Recent losses in California, Maine, and New Jersey further hurt the chance of success, they say.

Yet Talbot shows the defenders of hetero-only marriage have no legal leg to stand upon. The procreation argument failed to sway the judge in pretrail hearings:

THE COURT: The last marriage that I performed, Mr. Cooper, involved a groom who was ninety-five, and the bride was eighty-three. I did not demand that they prove that they intended to engage in procreative activity. Now, was I missing something?
MR. COOPER: No, your Honor, you weren’t. Of course, you didn’t.
THE COURT: And I might say it was a very happy relationship.
MR. COOPER: I rejoice to hear that.

And the argument that gay marriage harms straight marriage disintegrated in the opposing lawyer's mouth:

Judge Walker kept asking Charles Cooper, the lawyer defending Proposition 8, how exactly it did so. “I’m asking you to tell me,” he said at last, “how it would harm opposite-sex marriages.”

“All right,” Cooper said.

“All right,” Walker said. “Let’s play on the same playing field for once.”

There was a pause—it seemed like a long one to people in the courtroom, though it was probably only a few seconds. And Cooper said, “Your Honor, my answer is: I don’t know. I don’t know.”

Claudia Roth Pierpont surveys the contemporary Arabic novel in a long piece called Found in Translation. A rather unimaginative roundup aimed at absolute novices, her essay does correctly highlight Alaa Al Aswany's novel The Yacoubian Building. This terrific book examines a Cairo apartment complex's tenants, one of whom, a newspaper editor named Hatim Rasheed, is gay. Despite this taboo-breaking inclusion, the 2002 novel "quickly became one of the biggest best-sellers that the Arab world has ever seen," and, Pierpont notes, "it has been an astonishingly big seller here, too," and has been reprinted in 20 languages worldwide. Perhaps even more surprisingly, the 2006 Arab film version (left and below), reputed to have cost an unprecedented $3 - $6 million in a major effort to get Egyptian filmmaking back on the global cultural map, was not degayed. A television series followed in 2007. 

Rick Warren's Rwanda To Criminalize Gay Sex, Advocacy This Week

While western gay rights watchers are diverted by Uganda's antigay law (voting is today on the original version with the death penalty still part of the bill), the Rwandan parliament is poised this week to consider a law that will make gay sex illegal and will criminalize encouraging or sensitizing people to homosexuality. Penalties of up to ten years in prison and fines of up to four times the average annual income await "any person who practices, encourages or sensitizes people of the same sex, to sexual relation or any sexual practice." Since 2005, Rick Warren (shown here with President Paul Kagame) has been working toward making Rwanda the first "purpose drive nation."

Louis Bayard Slams Martina's "Homophobic" Divorce Strategy

Writing in Salon, novelist Louis Bayard regrets having to blast Martina Navratilova, who has done so much for sports, women in sports, and lesbian visibility, for aggressively taking "advantage of a legal double standard that is both sexist and homophobic" in her divorce from Toni Layton. As you know, this isn't Martina's first high-profile split, nor is it the first time she's argued in court that same-sex relationships are nothing like a marriage. In 1991, after ending her partnership with Judy Nelson, Martina's lawyers in a pre-trial meeting portrayed their relationship as prostitution, claiming they "had had a contract for sex" and "therefore [it was] against public policy" according to another ex, Rita Mae Brown.

Bayard argues:

"What was cynical then has become indefensible now. Martina Navratilova can no longer cast herself as an apostle for gay rights while using a homophobic legal code to deny her ex-partners alimony. This is more than bad behavior, it is bad precedent. And it comes at the worst possible time.

"Very soon -- sooner than anyone could have guessed -- gay marriage will become the law in much of the land. A great deal has been written about whether straight America is ready; less has been written about whether gay America is ready. Not just to be held to the same contractual standards as heterosexual couples but to believe (after years of being told otherwise) that their relationships really are of equal standing. And to go on believing it when those relationships collapse.

"...If we want our relationships to be taken seriously, if we want the legal sanction of marriage, we must be ready to stand by our contracts and our obligations -- no matter how expensive or inconvenient it is and no matter what example is set by our culturally designated "heroes." Equality has its blessings. It also has its price."

Complicated. (Pre-nup?) In addition to wanting to keep her money, Martina may feel it's a bit much to ask her to forfeit millions now to make a point about the "deeply inhospitable" Florida legal system that gave her no benefits or security of couplehood when they were together. We know she's mad. She had Toni forcibly removed from their property and denied her access to her belongings. And she's about to get madder. Toni's lawyer publicly threatened to reveal "many dark secrets from Navratilova's past and present life ...such as the intrigue surrounding arch-rival Chris Evert, the incestuous nature of the Women's Tennis Association, former lovers, improprieties between business associates, and more."

I think Bayard is wrong in his assertion that public opinion would be with Toni if Martina were a man. That's why we have the term "gold digger." Besides, fans always side with the famous person. But he could be right about precedent, or at least raising the public profile. Things that have long existed out of the spotlight don't penetrate our culture until they've happened to a celebrity: aids needed Rock Hudson, bulimia needed Princess Diana, African adoption needed Angelina Jolie, public sex needed George Michael, voguing needed Madonna, etc.