Lady lawyers strategizing after Hobby Lobby

Today's longread: The Road Ahead: Gender Equality after Hobby Lobby (PDF) from The Alliance: State Advocates for Women's Rights & Gender Equality.

We offer this Report and state strategies agenda as a resource for allies in the movements for reproductive rights, health and justice, for LGBTQ equality, and for other progressive change across the country. We invite allies throughout the progressive community to join us in adapting and evolving these and other state strategies as we continue forging a powerful joint effort to combat gender discrimination in all its forms, and to protect women’s and LGBTQ rights, health and dignity -- now and into the future.

Local participant in the Alliance is the Women's Law Project.

Voice in the wilderness, Indiana edition

In light of this week's clusterfuck in Indiana, I remind my readers of the proposal I offered nearly two years ago: The Indiana Church of Homo Matrimony:

You know what the state of Indiana needs? A church the only doctrine of which is same-sex marriage in the great State of Indiana. It should be called the Indiana Church of Homo Matrimony, and its greatest -- because only -- sacrament would be same-sex marriage.

So, Daily Beast? You're welcome.

Murderous and bizarro, part 2

My voice to god's ear? Three weeks ago I suggested that someone might start a disciplinary proceeding against the lawyer in California seeking to legalize extra-judicial killings of gay people, an astonishing abuse of California's direct democracy process. Today:

[T]he California Legislature's Lesbian, Gay, Bisexual and Transgender Caucus [has] filed a formal complaint against McLaughlin with the State Bar of California, asking that he be investigated.

So . . . keep an eye on Matthew McLaughlin's listing, I guess.

Murderous and bizarro

I don't understand the bizarro focus, the murderous bizarro focus some people have on non-heterosexual behavior.

Seeing that it is better that offenders should die rather than that all of us should be killed by God’s just wrath against us for the folly of tolerating wickedness in our midst, the People of California wisely command, in the fear of God, that any person who willingly touches another person of the same gender for purposes of sexual gratification be put to death by bullets to the head or by any other convenient method.

That's text from a proposed ballot measure in California (PDF). It's not on the ballot yet; the proponent has just filed and paid the fee to be allowed to start gathering signatures.

The proponent is an attorney, one Matthew McLaughlin, so he should know better -- you can't magically make something constitutional simply by getting voters to pass it. This proposed measure comes about a decade after he attempted, but failed (PDF), to require public schools to provide KJV Bibles to students.

McLaughlin's previous initiative had the plausible opt-out that it was voluntary to use the provided Bibles. He failed anyway because it was so obviously an attempt to get the thin end of the Christian religion wedge into public schools, and voters saw through it early in the process. He never gathered enough signatures. So now . . .  McLaughlin is doubling down? With some full-bore extreme reaction against the ultimate demise of Prop 8, maybe?

Whatever it is, as I said when I started writing this, I don't get it. I don't get how one person starts with reading the term "abomination" in their religious text and then carries that through to attempting to get it legislated that gay people can be legally executed on the street. It's not laughable. It's sad and intriguingly scary. Perhaps at this point someone in California can institute some lawyer disciplinary proceeding against him for this move.

Meet the new Anabaptists; same as the old Anabaptists

Gay members of an anti-gay church are shocked, shocked that the church is seeking to suppress them.

I feel like a blog-writin' version of "let me Google that for you." Look, Circle of Hope traces its roots to Anabaptist Christians called the Brethren in Christ. Whether they're a subset of Mennonites, or Mennonites are a subset of the Brethren in Christ, or they're parallel groups, I'm not entirely sure. But the main idea here is that they're Anabaptist Protestants! This is the same place the Old-Order Amish come from. They're not going to dig gay people, no matter what the young, hipster-y Circle of Hope congregation says to get them to their meetings! And it took me about three clicks to affirm my suspicion that a modern group of Anabaptists opposes same-sex relationships (PDF), considering them as sinful against their deity's plan for adult relationships as adultery, divorce, and spousal abuse. Though, to be fair, since the Brethren in Christ are modern Anabaptists, they're OK with homosexual inclinations -- so long as they're not acted upon.

Now, there does exist a Brethren Mennonite Council for Lesbian, Gay, Bisexual And Transgender Interests, which seeks "to cultivate an inclusive church and society and to care for the Mennonite and Brethren lesbian, gay, bisexual, transgender, and allied community." The suppressed members of Circle of Hope's congregation should look into starting up a local group.

H/T Ryan Briggs at the Philadelphia City Paper.

Proposed: the Indiana Church of Homo Matrimony

You know what the state of Indiana needs? A church the only doctrine of which is same-sex marriage in the great State of Indiana. It should be called the Indiana Church of Homo Matrimony, and its greatest -- because only -- sacrament would be same-sex marriage. Which is a misdemeanor for a pastor to solemnize in Indiana. And I dearly, dearly want to see the pastor of the Indiana Church of Homo Matrimony to be arrested and charged for performing their congregation's most holy act. The law in question, via ThinkProgress and AmericaBlog:

IC 31-11-11-7 Solemnization of marriage between persons prohibited from marrying Sec. 7. A person who knowingly solemnizes a marriage of individuals who are prohibited from marrying by IC 31-11-1 commits a Class B misdemeanor.

A "Class B misdemeanor" in Indiana can set you back $1,000 and a half-year in jail. That's a lot of collection money going out the door, and a lot of Sundays with an empty pulpit.

You know, the Founding Fathers foresaw the trouble that comes when the state gets involved in deciding religious questions. As they put it when they were debating the text of what became the First Amendment, it's all fun and games for the legislature to mandate bible instruction in public schools, until you find out that the bible to be taught isn't your bible. Wars have been fought and countless people have been executed for hundreds of years over theological questions from "Should women be allowed to preach?" to "Which of the dozen commandments over multiple chapters and books are the actual Ten Commandments?" And when the government lays out religious doctrine as law and public policy, everyone except for rich, connected men loses.

Which, of course, is the point. It's the real reason underlying invasive, liberty-destroying restrictions on abortions: keep women from controlling their own reproduction, and they'll have to juggle duties at home and work, which keeps them from focusing on work as hard as their co-workers with fewer perceived home-based responsibilities (read: dads, and child-free men), which keeps them from being in a better position to bargain for higher wages and more power in the marketplace and the political arena. Keep young women from terminating unwanted pregnancies, and they'll have exponentially more trouble to finish vocational training or a college degree, which keeps them from fully actualizing themselves and earning more money.

And note that however it's done, when women don't earn decent money, they don't pay much into Social Security, which hurts both Social Security in general but also, and more importantly, themselves in particular, when they've retired (ha-ha) and receive smaller payments than what they would have seen if they'd had the credentials to earn higher paychecks in the first place. Again, fully actualizing themselves. (Which is why Justice Ginsburg practically begged women's rights proponents to give up on due process and aim for equal protection -- the strategy that finally worked against DOMA -- to attack abortion restrictions: privacy isn't the issue, because restrictions on abortion prevent women from "enjoy[ing] equal citizenship stature" and deny them "autonomy to determine [their] life's course" (Gonzales v. Carhart, 550 U.S. 124, 172 (2007) (Ginsburg, J., dissenting) (PDF)).)

But you know what is still available to a woman? Going to Indiana and starting up a church whose sole practice and faith is solemnizing same-sex marriages.

BBC asks "why get married?" but omits pretty obvious answer

BBC Magazine article discusses the question of why a couple would get married after having kids, without suggesting the most obvious answer: for health insurance or legal or tax purposes. (Granted, marrying for the health insurance is perhaps not so obvious in a nation with socialized medicine.) But my point is that government- or authority-recognized marriage has only ever been an economic contract. The religious trappings and moral imperatives were added for solemnity -- to make the couple take the marriage more seriously, put them in mortal fear of their souls if they change their minds afterward, and provide some predictability in estate planning.

Anecdotally, I know an American couple who got married only for the health insurance. They've kept their marriage open, have had two kids, and are still together some dozen years later. From what I understand of their decision to get married, they flatly wouldn't have done it if one of them hadn't needed healthcare. Another acquaintance of mine has been married twice, and both times it was solely for health insurance because of a chronic condition. The first marriage was kind of predictably a disaster, but the second seems to be going well.

And in the end, that person moved to England for, as they put it, simply to stay alive. No American health insurance company, even the Cadillac insurance they got through the second spouse who worked for a Fortune 500 company, would pay for their preventive and ongoing care in a timely and reasonable manner, so they moved to a country where you just go to a clinic, get treatment, and go home.

As for marrying for legal and tax purposes, for crying out loud, what do you think the fight about gay marriage is all about? It's about hospital visitation rights, intestate inheritance issues, and mortgage interest tax deductions.

Most of the time, follow the money. Marriage qua marriage is an economic and legal question, and that's all it will ever be. Consider how easy it is to get married, compared to how complicated it is to get divorced. And have you noticed that, once you are divorced, you tend to have to identify yourself as "divorced," not "single" again? A marriage that ended years or decades ago follows you forever!

When boys dress like girls

A five-year-old boy dressed up as Daphne from the Scooby-Doo cartoons, and a crew of moms from his kindergarten gave his mom a hard time. Mom fought back in a blog post that's been making the rounds:

Thirdly, I am not worried that your son will grow up to be an actual ninja so back off.

Ah, now that brings back memories! Memories of me and my BFF Stu when we were kids, playing superheroes and fighting over who got to play Wonder Woman, or playing Donny and Marie and fighting over who got to play Marie. And Stu never turned out -- oh, wait. No, hmm. Actually, as a matter of fact, Stu did turn out to be queer as a three-dollar bill. And he's in show business now.

But you know what? I love my big gay friend Stu, and I always will! Here's to you, Stu!

That bill in Iowa that eliminates protection for LGBT people from bullying

The bill in question, HF 2291:

A BILL FOR

An Act relating to protected traits or characteristics of students under public and nonpublic school harassment and bullying prohibitions and policies.

[ ... ]

Section 1. Section 280.28, subsection 2, paragraph c, Code 2009, is amended to read as follows:

c. "Trait or characteristic of the student" includes but is not limited to age, color, creed, national origin, race, religion, marital status, sex, sexual orientation, gender identity, physical attributes, physical or mental ability or disability, ancestry, political party preference, political belief, socioeconomic status, or familial status.

EXPLANATION

This bill strikes sexual orientation and gender identity from the definition of the term "trait or characteristic of the student" used for purposes of protecting students in public and nonpublic schools from harassment and bullying.

Wasn't this kind of thing determined to be unconstitutional "animus" in Romer v. Evans, 517 U.S. 620 (1996)?

Study: banning gay marriage harms traditional marriage

FiveThirtyEight did the math and found that, while the overall divorce rate in the U.S. has declined in the past several years, the decline has proceeded more slowly in states that have enacted legal bans to gay banns. In other words,

[t]hose states which have tended to take more liberal policies toward gay marriage have tended also to have larger declines in their divorce rates.

In other words, it's not same-sex marriage that harms traditional marriage. What actually harms traditional marriage is putting up legal roadblocks to the civil recognition of same-sex partners' happiness.

Laurence Tribe: "Calm the fuck down, anti-DOMA people"

So DoJ filed a brief in the 9th Circuit urging that Smelt v. United States be dismissed, and anti-DOMA activists are upset at this perceived betrayal by the Obama Administration. But Laurence Tribe figures that it's not that President Obama wants DOMA to stand. Rather, he sees DoJ's move as strategic: Obama doesn't want DOMA to go to the Supreme Court on this case, because the plaintiffs aren't nearly as well situated legally as the ones in Massachusetts:

A strategic Justice Department interested in a litigation strategy that has some realistic chance of success certainly would not have taken [the Smelt] case as the one in which the constitutional vulnerabilities of DOMA should be explored.

Bad cases make bad law, people. No matter how strongly you oppose DOMA, you really, really don't want the Supreme Court to get their hands on Smelt.

Comments making puns about fish are not only welcomed, but encouraged.

Anyway, here's an interesting paragraph from the brief:

When States began to consider adopting historically novel forms of marriage, Congress took a wait-and-see approach. It codified, for purposes of federal benefits, a definition of marriage that all fifty states had adopted (i.e., that between a man and a woman) and continued to accord financial and other benefits on the basis of that historical definition. At the same time, it cautiously declined to extend federal benefits on the basis of a newer definition of marriage that no States had adopted at the time of DOMA's passage (and only a very small minority of States have since). Thus, by defining "marriage" and "spouse" as the legal union of a man and a woman and affording federal benefits on that basis, Section 3 of DOMA simply maintained the status quo: it continues the longstanding federal policy of affording federal benefits and privileges on the basis of a centuries-old form of marriage, without committing the federal government to devote scarce resources to newer versions of the institution that any State may choose to recognize.

Does that sound to you as if the Obama Administration is saying, "Dear Congress, please repeal or amend DOMA, and I'll be more than happy to sign a new federal definition of marriage into law"? 'Cause that's the vibe I'm getting from that paragraph, myself.

Here's some bad news for the plaintiffs, if it's true (I haven't read the complaint, though):

Plaintiffs fail to allege that they have ever applied for any federal benefits that are available on the basis of married status -- let alone that they have been denied any as a result of DOMA.

D'oh! No harm, no standing! No standing, no jurisdiction! So kick it out of court without even addressing the merits, which would be great for the President.

You should feel free to download the brief and read all 54 pages for yourself, because I'm going to do only a short wrap-up of it right now.

The plaintiffs are arguing equal protection. When you make an equal protection argument, you're saying that Congress has passed a law that identifies a certain class of people and treats those people differently from other people, and that the way the law does it is not allowed under the Constitution. Congress has to articulate a really, really good reason for the discrimination, and the law has to be very closely drawn to address Congress's articulated reason. And if the law involves a fundamental right (e.g., privacy, raising and educating your children, free speech), then the law is almost certainly unconstitutional. In the context of this case, for plaintiffs to have DOMA declared unconstitutional, they need to get the Supreme Court to agree with their view that same-sex marriage is a fundamental right.

Now, I agree with that view, and you agree with that view. But right now, the Supreme Court doesn't agree with that view. So if Smelt gets there, even with Judge Sotomayor on the bench, the risk is that the Supreme Court will affirmatively declare no fundamental right for same-sex people to marry. Then DOMA will go away only through Congressional action; states with constitutions that will allow it will be able, under the U.S. Constitution, to enact restrictions on same-sex marriage, and feel welcome to do it; and progress toward recognition of same-sex marriages and full equality for gay people throughout the country will be set back for years, if not decades. I think it would even open the door to reviving the Federal Marriage Amendment. Jesus christ on a pogo stick, people.

So I agree with Professor Tribe's view. Let Smelt get dismissed with prejudice, and let's find a better case and wait for a better bench.

Gay marriage now legal in New Hampshire

Apparently the governor of the state "personally opposes gay marriage," but (like most thoughtful religionists [1]) he figured that nobody was trying to force his church to recognize marriages that his church doesn't like. So he signed the bill into law once the legislature made that clear in the bill:

Cheers from the gallery greeted the key vote in the House, which passed it 198-176. Surrounded by gay marriage supporters, Lynch signed the bill about an hour later.

Whoa-whoa-whoa, wait a minute: 198 to 176? Exactly how many people in New Hampshire aren't in that state's House of Representatives?! Wikipedia tells me 400 representatives, serving a state of about 1.3 million people. The U.S. House of Representatives has 435 voting members representing 306.5 million people. So if the U.S. House had as many members, proportionally, as New Hampshire's does, it would number about 100,000. There must be a happy medium. Oh, wait. Here's a mention of the state Senate:

[T]he Senate . . . approved it 14-10 Wednesday afternoon.

Uh, I guess that balances it, having 24 Senators for all 1.3 million people? State governments are weird.

News via Mithras.

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[1] Cue LBBastard telling me that thoughtful religionist is an oxymoron in 3, 2, . . .

Profoundness: on marriage

As a post-married person, I wonder if a lot of gay couples' desire to be married is a simple -- though understandably strong -- desire to have what they're told they can't have.

Saying "Been there, done that" is more dismissive than I mean to be to people who love each other and want to share their lives together. But honestly. Been there, done that.

Of course, it's perfectly natural to want what you can't get, if only for the sole reason that you can't have it. If my hair didn't have this coarse, Mediterranean texture, I wouldn't have so much grief taking care of it. When we were growing up, my sister wanted my bedroom. Then we switched, and I mentioned how I liked my new room better. Guess what that made her want to do? If my friend L. weren't gay, she could have married the partner with whom she shared both a condo and a spectacularly dysfunctional relationship, and just think how much easier that break-up would have been! In short, the grass is always greener on the other side of the fence.

Hell, it's happening to me, too. At school I'm surrounded by people in their mid-20s who are getting married, left and right. I catch myself on a nearly daily basis, especially on the nearly daily basis when I don't have a date that night, selectively forgetting what it was that made me pour a generous shot of whisky for myself one night, set the soon-to-be-ex-husband down, and say to him, "Dude, this just ain't workin'."

Absolutely, gay people should be allowed to get married and have access to the full complement of rights that non-gay people may obtain merely because they may get married. I'm just failing to understand exactly why they want it.

Pastor Rick Warren for invocation in January: hard nut to crack

Like just about every other bleeding-heart, filthy hippie liberal I've talked to or read today, I'm finding it hard to square President-elect Obama's message of tolerance and meaningful, constructive dialogue with his invitation to celebrity pastor Rick Warren to deliver the inauguration invocation. Whereas Obama has been talking about meeting on a common ground on all kinds of issues, Warren is an anti-contraception religious extremist. Whereas Obama has promised to "always be honest with [the nation] about the challenges we face," Warren used inflammatory and misleading words when he supported Prop 8, using "activist judges" language, and still falsely portrays the controversy as "really a free speech issue."

Today, Obama reasserted his stance as "a fierce advocate" for gay rights. But Warren has famously equated any version of marriage outside of the Christian heterosexual norm with incest, forced marriages of children to adults, and polygamy (video: start at 2:00 and continue to Interviewer: "Do you think those are equivalent to -- gays -- getting married?" Warren: "Oh, I do!") Note that that's two different things, though. The other examples were centrism vs. extremism, honesty vs. dishonesty. Advocating for gay rights vs. opposing gay marriage is apples vs. oranges, not apples vs. applesauce.

Of course, the next step in the conversation is to argue that a gay person can't have the full complement of a citizen's rights if she's statutorily barred from getting married. So what's a centrist, pragmatist to do? You work it so that a civilly united person can get the full complement of a married person's rights, and then make it the law that no one can be barred from getting a civil union on the ground that she's gay. Put another way, you get rid of any distinction between a couple united by marriage or united by civil union. Taxes, health insurance, inheritance laws, medical confidentiality rules, whatever -- you make the religious ceremony and church sanction completely irrelevant to whether a couple is legally united.

The only signature on the marriage/union certificate that would matter, then, is that of the state official, whether officiant (e.g., justice of the peace) or functionary (e.g., marriage/union registrar).

It's very French. Or very Soviet. But in any event, I doubt that it's one of the seven signs.

Rationalizing the invitation by offering "worse" choices --"At least he didn't pick Reverend Wright or James Dobson or Joel Osteen" -- is only a race to the bottom. It's like arguing that unionized workers should be happy to accept a cut in benefits or pay because everybody else who isn't in a union gets less.

Noz has posted some thoughtful comments, concluding with the observation that Warren wouldn't have been chosen if his hateful rhetoric had been aimed at other oppressed groups of people.

The pick is a hard nut to crack. I almost wonder if Obama didn't jokingly say, "Hey, well, if I win, you can do the invocation at the inauguration next January, how's that sound!" at the Saddleback Forum. Oops.

A big gripe of mine, personally, is that the fuss is all fine and good but it all begs the question that having a religious invocation before the inauguration is appropriate to begin with.

David C. Codell presentation and Q&A on anti-Prop 8 lawsuit

Drexel Law will host a discussion by David C. Codell, Esquire, lead counsel for the legal challenge to Proposition 8, the recently enacted ban on same-sex marriage in California. Codell was also lead counsel in In Re Marriage Cases, the California Supreme Court decision that in May legalized same-sex marriages in California.

Where: Drexel University Earle Mack School of Law, 3320 Market St, Phila 19104 -- Room 240 of the law building

When: Friday 21 November 2008, noon

Food: Yes, there will be free food

Who: Not limited to the Drexel University community

Monday art house: greeting cards

Call it performance art. The American Family Association, which spends a lot of time focusing on gay people, has provided a quick and E-Z form to send outraged e-mail to the CEO of Hallmark for marketing "congratulations on your gay marriage" cards. But you can modify the text of the message to say whatever you want. Here's a suggestion:

Dear Chairman Hall:

I am surprised so very pleased that Hallmark is promoting an unhealthy lifestyle the recognition of same-sex unions which is illegal will surely soon be legalized in 48 states. There was a time Hallmark told us to send the very best. Sorry I'm very glad to see you have taken a giant step down forward. No more. Now, American Greeting Cards, your competitor, will be getting less of my business.

Have at it yourself and send your support letter today on AFA's dime! Then, when you're done, tell them you're a pastor and give them an e-mail address so you can hear about these alerts in future.