I just had an idea for a book title

The Mendacity of Hope--an anti-Obama book.

Now to write the book....

Prop 8 Ruling

This is a longish post taken in large chunks from a conversation with a friend who is understandably quite upset about the news from California.

My friend takes cold comfort in the fact that existing marriages stand. To paraphrase him, why should those 18k couples have valid marriages and the rest of the GLBT community not. He has a point: it is offensive to most sensibilities of justice that some GLBT couples get "marriage' whereas the rest must settle for "separate but equal."

I say the blow to equality was dealt in November, and today's opinion merely reminded us of that problem, but didn't itself strike an additional one unless you put all your hopes onto a slim, almost impossible chance of reversal.

I have not read the full 186 page opinion, so I may still be mistaken, but it seemed that the controversies at issue were about amendment versus revision of the California State Constitution and not directly Equal Protection Jurisprudence, such a ground seemed shaky one at best, but the only one that could really assert that the "constitution is itself unconstitutional."

As for Equal Protection, although California recognizes the GLBT community as a suspect class deserving strict scrutiny (this designation allows courts more easily to overturn discriminatory laws and is why the court was able to overturn the legislative ban on same-sex marriage in the first place), currently the Federal courts do not. Romer v. Evans and Lawrence v. Texas came out our way despite this (thankfully), but in the case of marriage I fear that the opponents have arguments that can reach the very low bar of "rational basis" (which doesn't even require factually correct basis).

The fact is that Equal Protection Jurisprudence does a good job of mocking itself, and the California Supreme Court, as far as I can tell, didn't have much choice except to uphold the odious amendment. If we want to continue through the courts, the real challenge is to convince the federal courts that the GLBT community deserves "suspect class" designation. By my count, we seem to fit all the criteria: a discrete and insular minority who possess an immutable trait, share a history of discrimination and cannot adequately protect themselves via the political process.*

But, my friend reminds me, good reasoning or bad, the outcome is morally wrong.

And my firend is absolutely correct, but sadly the strength of the reasoning matters a great deal. A good result on flimsy grounds is in many ways worse than a bad result on solid ground.

A poorly reasoned result intensifies the resolve of opponents and creates the kind of legal and political minefield we have seen with regards to abortion jurisprudence. A good result on bad reasoning becomes a talisman for both sides, who perceived it as being forever vulnerable to the whimsy of the court. Therefore both sides devote resources to either upholding it or defeating it, making it difficult for the matter to be settled socially or addressed through sustainably long term means. Also, it may have the consequence of lowering the bar for both sides, meaning it becomes easier for our opponents to win their battles.

On the other hand, a bad result on good reasoning (like this) allows the losing side to accept the defeat and work to either change the circumstances of future battles (remember California still has unbelievably lax constitutional amendment procedures) or find battles within the current circumstances that are more winnable. Once we change the circumstances or the battles, battles won are much more robust than if they rested on flimsy opinions.

In a generation, Prop 8 and amendments like it will be remembered as disappointing and embarrassing hiccups on the road to true equality, if they are remembered at all.

*Update: Someone is moving forward on making the Equal Protection arguments in Federal Court (as well as Due Process arguments). Read the complaint here (PDF). Also note that the attorneys filing are the attorneys who argued each side of Bush v. Gore, and according to Ted Olson (the Republican) "This is about the rights of individuals to be treated equally and not be stigmatized." And that the two attorneys from each side side of the political spectrum "wanted to be a symbol of the fact that this not a conservative or a liberal issue. We want to send a signal that this is an important constitutional issue involving equal rights for all Americans."

No kidding, Andrew

Andrew Sullivan is starting have a little buyer's remorse.

But I have a sickeningly familiar feeling in my stomach, and the feeling deepens with every interaction with the Obama team on these issues. They want them to go away. They want us to go away.

Here we are, in the summer of 2009, with gay servicemembers still being fired for the fact of their orientation. Here we are, with marriage rights spreading through the country and world and a president who cannot bring himself even to acknowledge these breakthroughs in civil rights, and having no plan in any distant future to do anything about it at a federal level. Here I am, facing a looming deadline to be forced to leave my American husband for good, and relocate abroad because the HIV travel and immigration ban remains in force and I have slowly run out of options (unlike
most non-Americans with HIV who have no options at all).

And what is Obama doing about any of these things? What is he even intending at some point to do about these things? So far as I can read the administration, the answer is: nada. We're firing Arab linguists? So sorry. We won't recognize in any way a tiny minority of legally married couples in several states because they're, ugh, gay? We had no idea. There's a ban on HIV-positive tourists and immigrants? Really? Thanks for letting us know. Would you like to join Joe Solmonese and John Berry for cocktails? The inside of the White House is fabulous these days.

What did you expect?

Update

Like many young transactional lawyers, I have found myself back on a very soft legal job market. But frankly this minor challenge is the only thing bad in my life right now, so over all, I am in a good place.

For those concerned about this, take heart: I was prudent enough to save considerably, and I have enough to keep my loans current (my only real obligation) for six months, and perhaps the rest of the year if I find some employment. For places to live I have several options (including the BF), and by a stroke of luck I am employed through the term of my current lease. As far as new jobs go, firms are pretty much not hiring at all, so I am looking elsewhere. I have a few leads, including doing tax work-outs or taking over the small estate planning practice of a lawyer who has grown disillusioned and is going back to school for economics. So we'll see how they pan out. I could even go the non-profit route. I have applied to the Army and Air Force JAG, but I am leaning against going full active duty, largely because in just a a year I have become rather integrated here, and I don't want to chuck that. Reserves may still be an option for extra cash flow if I go out on my own.

In the full half of the glass:

I am still with the same boy, and continue to love him very much. We basically live together in two apartments. He's still a damn, dirty Democrat, but our relationship isn't contingent on our politics. Besides, I can put up with his support of Obama so long as my boyfriend continues to let me wear his designer ties!

I have become heavily involved in my local and county Republican parties as a result of my connections through the Log Cabin Republicans. I am my State House District Secretary for the county party and my State Senate District Chairman for the state party. My county party is an urban county party and has made a concerted effort to reach out to gay Republicans. In addition to soliciting the LCR for folks to take leadership positions (which is how I got two of them), the county party is a paid member of the local gay and lesbian chamber of commerce. Last night the county chairman said, "I may be a stauch social conservative [he is], but ours is a party of the Big Tent, and those wedge issues aren't going to unify or help us here." The local young republicans meet at a restaraunt in the gay district--not necessarliy as a means of outreach, but to show that we young, urban Republicans are more interested in liberty than what some people do in the bedroom. I'd like to say this is my influence, but it isn't, and perhaps that's an even more encouraging sign.

The connections I have been making in the party may well pay off. For instance, I have some inside information on who will be running for what in 2010, including early smart money bets. I have contacted one campaign before it announced to offer my support, and the reaction I got suggests that it could turn into a job once it gets started. I'm brushing up on non-profit taxation, campaign finance, and electioneering law just in case. (P.S. this candidate has a moderate record on gay issues for a Republican. For instance, he opposed the FMA).

I'm out to more people, though none of the important ones. Mostly college friends. One was surprised, the other was just waiting for me to admit it.

More good news

Yesterday, Vermont did the right and honorable thing and LEGISLATIVELY legalized same-sex marriage by overcoming (just barely, but by still enough to matter) the Governor's veto. This is exciting news. It eviscerates the opponent's misdirection argument against "activist judges." That means if Federalist types who opposed court imposed gay marriage still oppose Vermont's gay marriage, they reveal their real animus is with the policy not the process. Of course, for some that will be no problem. For others, the only opposition to gay marriage was if the court imposed the policy and they welcome the Vermont outcome. And then there are those who much preferred to make the Federalist argument without touching the merits of gay marriage. I don't have a link for that third type because I can't be quite sure who they are just yet (I will note that the bloggers on NRO Corner had a lot more to say about Iowa on Friday than Vermont yesterday, although some of the usual suspects did chime in on both). Nonetheless a little sunlight won't hurt here.

As far as I am concerned this is an even more important victory for marriage equality than Iowa was.

Iowa

First the good news:

As most gay people in the U.S. are already aware, the Iowa Supreme Court unanimously declared Iowa's defense of marriage statute to be unconstitutional on equal protection grounds.

Further a Proposition 8 type backlash in Iowa is unlikely because Iowa has properly stringent procedural requirements to amend the state constitution. There are only two procedures, the first is that the amendment must pass both houses in two consecutive legislative sessions, and then be approved by a majority of voters in a general election. Unless the democratic Iowa legislature passes a Prop 8 type amendment in the current session, the earliest such an amendment would appear before voters would be 2012. The second is via constitutional convention. In 2010, the voters of Iowa can vote to have constitutional convention, and if they so vote, in the following session (beginning in 2011) the legislature determine when to have such a convention.

Either way, there is good amount of time for the citizens to realize that allowing gay marriage does not lead to rampant bestiality, polygamy, child abuse, and whatever else the gay marriage opponents pretend to worry about.

Now the bad news:
It is still likely to galvanize efforts in other states, perhaps making marriage equality across the nation more difficult to achieve. Outrage will be directed towards "activist courts," and states without marriage amendments are likely to see a push for such. States with marriage amendments that allow for the possibility of civil union may see a push to explicitly prohibit civil unions, perhaps even to the Virginia extreme.

This is a battle won, and an encouraging one at that, but the war continues.

W. did something good for gays

Bush signed a new law requiring employers to roll over retirement benefits to same-sex partners upon the death of the employee partner.

It would be nice to see more coverage.

[courtesy GayPatriot]