California S. Ct. Overturns Gay Marriage Ban

Happened this afternoon. Some unsorted thoughts.

• Let us all recite The Great Progressive Conundrum which goes like this: I hate to see something like this in an election year with so much riding on it. On the other hand, it's hard to ask our gay allies, brothers, sisters, friends, etc. to disproportionately bear the burden for the sake of broader progressive goals. On the other other hand, one can question whether a court challenge is a more effective way to move toward equal marriage rights than the long slog of building a new political consensus. On the other other other hand, it's hard to fundamental rightness of the marriage advocates. Etc.
• The case was decided based on the California Constitution. As such it won't get to the U.S. Supreme Court, and doesn't "endanger" the marriage definition of any other state, given DOMA and the proliferation of state-level DOMAs. Shear logic alone won't keep it from being used as political fodder, of course.
• Gay marriage opponents have a Constitutional amendment initiative in the works. It may pull enough otherwise residents of Wingnuttonia to make the election closer.
  
• The language describing the decision in the LA Times piece is heavily reminiscent of Loving v. Virginia which overturned anti-miscegenation laws and about which see here and the links therein.
• The justices on the California Supreme Court are all Republicans, by the way. That won't keep conservatives from making the argument that Obama's court nominees will be favorably inclined toward gay marriage but it would undermine the contention that these decisions only come from moonbatty outliers, if logic had any sway.
• Which, again, it does not.
  

Rev. Tracy Lind Not Nominated to Be Bishop

The Rev. Tracy Lind, Dean of Cleveland's Trinity Cathedral, was in the running to be elected the second openly gay bishop in the American Episcopal Church. Today the Chicago diocese selected another of the eight candidates after two rounds of voting. Rev. Lind finished fourth on both of the ballots.

The Episcopal Church has been struggling to resolve the controversy between liberal and conservative factions over gay clergy. As a result, Rev. Lind's candidacy has received national media attention. Had she been voted in by the Chicago Diocese, she would have had to pass additional hurdles and her candidacy certainly would have heightened the controversies in the church.

State v. Carswell: SCOhio Doesn’t Recognize a Conflict When It Sees One

As noted last night, the Ohio Supreme Court handed down its long-anticipated decision in State v. Carswell. The defendant claimed gay marriage ban passed as a constitutional amendment in 2004 nullifies that part of the statute defining the crime of domestic violence that applies the statute to unmarried couples living together. On a 6-1 vote, the Court found against the defendant.

As Republican as the Ohio Supreme Court is, the ultimate result in the case posed a challenge to the Court. On the one hand, the conservative result would be to find the domestic violence statute constitutional. Conservative judges generally hesitate to overturn statutes as unconstitutional, especially when the rights claimed are not property or Lockner-era due process.

On the other hand, conservative jurisprudential methodology is supposed to include strictly interpreting the plain language of statutes and constitutional provisions. The plain language of the two provisions certainly appears to require finding that the statute conflicts with the new constitutional amendment. To reconcile the tension, the Court basically fudges.

First, the relevant provisions. Chapter 2919.25 of the Ohio Revised Code defines "domestic violence" basically as causing injury to a family or household member. The code further defines terms as follows:

(F) As used in this section and sections 2919.251 and 2919.26 of the Revised Code:
(1) “Family or household member” means any of the following:
(a) Any of the following who is residing or has resided with the offender:
(i) A spouse, a person living as a spouse, or a former spouse of the offender;

So the statute is defined in terms of familial relations and the familial relationship for unmarried couples living together is included because of its similarity to marriage.

Meanwhile, the gay marriage ban at issue reads as follows in relevant part:

“Only a union between one man and one woman may be a
marriage valid in or recognized by this state and its political subdivisions. This
state and its political subdivisions shall not create or recognize a legal status for
relationships of unmarried individuals that intends to approximate the design,
qualities, significance or effect of marriage.”

So this certainly looks like a slam dunk. The state isn't allowed to either create a marriage-like status for and unmarried couple, nor may it recognize such a status, regardless of what the couple does short of getting married. The way the court finesses this is by holding at length that the domestic violence statute doesn't create a marriage status, and all but ignoring the fact that the statute recognizes the status. Here's the conclusion of the court's argument:

The state does not create cohabitation; rather it is a person’s determination to share some measure of life’s responsibilities with another that creates cohabitation. The state does not have a role in creating cohabitation, but it does have a role in creating a marriage. See R.C. 3101.01 et seq. The state played no role in creating Carswell’s relationship with the alleged victim. Carswell created that relationship.

True enough, but it's hard to argue that the statute doesn't recognize a legal status for unmarried couples living together, a status which includes features of marriage. Throughout teh opinion the court never comes to grips with the second prohibition in the ban -- recognizing a marriage-like legal status.

Things get downright surreal in the syllabus:

The term “living as a spouse” as defined in R.C. 2919.25 merely identifies a particular class of persons for the purposes of the domestic-violence statutes. It does not create or recognize a legal relationship that approximates the designs, qualities, or significance of marriage, as prohibited by Section 11, Article XV of the Ohio Constitution.

So according to the Court, the statute identifies Carswell as being in a relationship that is tantamount to a familial relationship without recognizing that relationship. As Justice Lanzinger puts it as she introduces her dissent:

Because of an understandable need to uphold the domestic violence statute as it is currently written and to avoid the unintended consequences that result from the passage of Section 11, Article XV of the Ohio Constitution, the majority misinterprets the amendment, thus saving the statute from being declared unconstitutional.

And that's pretty much at the heart of all of this. As the Court's tortured logic writhes on the page, it looks for all the world that the Court was more interested in saving the stature of the gay marriage ban than forthrightly interpreting the two clashing provisions.

When a court punts on the hard questions like this, it generally spells trouble for cases further down the line. Among those coming are Rep. Tom Brinkman's suit against Miami University for offering benefits to same-sex partners. While the Court's decision may not be a political win for gay rights supporters, the Court has put itself in quite a corner for cases like that one. After all, Miami University has merely identified people who are eligible for benefits. It hasn't created or recognized any legal status. Right?

Ohio Supreme Court Rules in Carswell

The Ohio Supreme Court today released its decision in State v. Carswell, the case in which a domestic violence defendant claimed that the gay marriage ban overturns that part of the domestic violence statute that applies to cohabiting, unmarried couples. H/t to Equality Ohio who just sent me an email alert.

The result is not surprising -- the Court upholds the DV statute notwithstanding the new amendment. Here's the syllabus:

The term “living as a spouse” as defined in R.C. 2919.25 merely identifies a particular class of persons for the purposes of the domestic-violence statutes. It does not create or recognize a legal relationship that approximates the designs, qualities, or significance of marriage, as prohibited by Section 11, Article XV of the Ohio Constitution.

BTW, in Ohio the syllabus is the supposed to be the only part of the case that has weight as precedent.

I'll try to take it in and write a more detailed post later. I'm kid-free for the next day or so and might actually be able to do some substantive blogging.

Akron Jumping on Gay Tourism Bandwagon

The Akron Convention and Visitors Bureau is trodding the now-familiar path toward pitching the city as a gay-friendly travel destination. They are meeting with gay-owned businesses " to see what incentives, promotions and programs it may offer to gay and lesbian travelers."

And by the way, it's a slow news day in the 'Kron when the ABJ off-leads this story.

This is, as I said, a trend. Which means it amounts to little more than keeping up with the Jonesvilles. In other words, other cities are doing it, so we might as well so we don't appear unfriendly and therefore unattractive.

But let's be real here. Akron will almost certainly not become a destination city in any event. We have a smattering of points of interest (the new Art Museum being the newest and arguably most gay-friendly) and events (Soapbox Derby, Inventers HOF Induction, AA Founders day), all of which draw small, discrete crowds. But we don't have mountains or a beach and we aren't a cultural mecca. We'll never be San Francisco or Provincetown or Jackson Hole. I once heard a New Yorker describe some town other than New York as "a nice place to live, but I wouldn't want to visit there." That's us.

What the CVB can do is put together the information needed so that gays who are thinking of stopping by -- to see the Art Museum for example -- aren't deterred by a false impression that we are the sort of intolerant backwater where they would have nothing to do and would not be safe. Which, for that matter, is what the CVB should be doing for any identifiable market segments.

Democrats Who Do Not Act Like Sissies

Gay writer and sex columnist Dan Savage recorded a now-classic This American Life piece for their show about “Sissies” a few years ago. His hook was gay personal ads seeking “straight-acting” men. His take was an effeminate man having the courage to act as he is damn the social reprobation is less of a sissy that at least some “straight acting” gays.

As it is with gay personal ads, so it is with politics. If the Democratic party had written a personal ad up through 2004, it would have read something like:

Curious party (NS) seeks straight-looking, straight-acting gay man/woman for discrete, politically advantageous encounters.

Democrats liked the idea of getting votes and volunteer help from the gay community. But did they have to act so gay and everything? Because it might make people uncomfortable.

Which is why I am enthused about the LGBT Presidential Primary forum co-sponsored by the Human Rights Campaign and Logo TV. The forum will happen August 8 and has now been extended to ninety minutes and will focus on issues important to the LGBT community. So far Clinton, Dodd, Edwards, Gravel, Kucinich and Obama have RSVP'd.

As important as it might be to discuss specific issues, the forum sends the overarching message that the Democratic Party will not be bullied by the far right into marginalizing our gay brothers and sisters. After years of trying to play both sides -- tell the gays we care but we'd really appreciate it if we did have to say it too loudly -- Democrats can be proud of the courage of these candidates. They know the far right will try to pillory them for attending the forum. They know that they won't be in complete agreement with the audience.

And they know that the thorniest issue of the '04 campaign -- that of gay marriage -- will be Topic A. Most of the candidates are not four-square in favor of calling it marriage, which should make for some interesting posturing. Especially since Kucinich isn't exactly shy about taking the absolutist position and beating his opponents over the head with it. (For those of you keeping score at home, my own view is that gays should be allowed to marry but I am willing to get there incrementally.)

As for the guest list, Biden and Richardson are currently missing. Interestingly, both are arguably the most Manly Mannish candidates. Which is all well and good, but it's no excuse for acting like a sissy.

Ann Coulter's Real Sin

I’m going to disregard Jill’s suggestion and write about Ann Coulter. If you haven’t heard, speaking at the Conservative Political Action Conferece Friday, she said toward the end of her bit that she had some things to say about John Edwards but couldn’t because she would have to go to rehab after using the word “faggot.”

I have to wonder how many liberal bloggers used some variant of “I’d like to talk about Coulter, but I’d be in big trouble with my female readers for using the word [fill in blank].” Anyway, when Michelle Malkin says you’ve stepped over the line, maybe it is time to check into rehab.

The "faggot" line was offensive and cheap and made me, well, cringe. But it didn’t get me as swearing-at-the-monitor enraged as this bit I learned from Media Matters. This is while she is endorsing Mitt Romney as “the best” Presidential candidate:

By the way, before I let that slide, I do want to point out one thing that has been driving me crazy with the media, how they keep describing Mitt Romney's position as being "pro-gays, and that's going to upset right-wingers." Well, you know, screw you, I'm not anti-gay. We're against gay marriage. I don't want gays to be discriminated against. I mean, I think we have, in addition to blacks, I don't know why all gays aren't Republicans. I think we have the pro-gay position, which is anti-crime and for tax cuts. Gays make a lot of money, and they're victims of crime. I mean, the way -- no, they are. They should be with us. But the media portrays us. If they could get away with it, they would start saying, you know, "Mitt Romney, he's pro-civil rights, and that's going to upset conservatives."

The “faggot” remark is offensive in the standard way but this schpiel is offensive in so many ways I don’t know where to start. First off, the idea that the only objection conservatives have to gays is just laughable. I’m not going to find links to the following because it’s all well known. Conservatives have:

• Blocked gays from serving in the military.

• Blocked laws that would make it illegal to discriminate against gays in the workplace.


• Criticized a Supreme Court decision that decriminalized gay couples having consensual, private sex.


• Criticized gay couples for having children.


• Provided safe harbor for people who express virulent and unequivocal hatred.

And let’s not forget that her Edwards slam, together with those against Clinton and Gore, reminds us that she will be on the lookout for any man who is a fraction less than full-chested, gravelly-voiced, square-jawed, hairy-backed macho. And will denigrate that person with a slur that celebrates the history of burning gays at the stake. (But only if that person is liberal, no matter how pretty Tucker Carlson is.)

Aside from all that, Coulter insists that she is down with the gays. As long as they don't get married, raise children, serve their country, work for a living, have sex or mind being called names that carry an implicit threat of violence, gays are OK with Ann.

Reading Coulter’s words brings on images of old-time Southern segregationists insisting that they love Black people, then waxing about their nannies and housekeepers. I half-expected Coulter’s next words to be “Why, my decorator . . .”

But more than anything, Coulter’s sudden pro-gay stance illustrates her fundamental intellectual, as well as moral, bankruptcy. She cares little about actual debate. She is all about schtick. What she does is call attention to herself. At the same time, her politics is entirely of expediency. If her friends can win elections by bashing gays, gays are evil. If her guy has a soft-on-gays history, gays are actually OK. Both conservatism and liberalism are mutable depending on circumstances, so long as one stands poised to gain power and the other serves as a convenient boogey-man.

Somehow I hate hypocrisy more than I hate hate.

Ohio Roundup

A necessarily incomplete survey of reaction on other Ohio blogs. As expected, Jill is all over it with two posts prior to the just-ignore-her-she'll-go-away take. Anthony at Blue Ohioan had a reaction to the Edwards fundraising appeal hooked on the incident similar to mine. The breathless tone of the email made Team Edwards sound all verklempt about the slur. Rule of thumb: If someone calls your candidate a fag, make sure the response doesn't make him sound like a sissy.

Joseph Hughes finds a pro-Romney site that defends the remark and draws a bizarre false equivalency with remarks by Howard Dean. You can find that cross-posted at AOG and ProgOH. BSB has the video up. Also reaction from Stubborn Lib, Bill Sloat, Blue Bexley and OhioDave. Sorry if I missed anyone.

Gay Tourism in Cleveland?

Today’s WCPN 9:00 show focused on the effort to market Cleveland as a gay-friendly tourist destination. I got a bit of a heads-up on the issue with this article in the Gay People’s Chronicle. (Listen to the program)

The upshot is that the Convention and Visitor’s Bureau is working with the Cleveland LGBT Community Center to put up a gay-specific web page on the Convention Bureau website and otherwise reach out to gays to come here.

One factoid that struck me: The overwhelming concern for gays traveling anywhere is that they will be safe. That is they will not be hassled, harassed or jumped when, for instance, holding hands in public with a partner. Think for a moment about how much that sucks. Think about how likely it is that someone willingly chooses a life where that happens. Think about that as you consider Ted Haggards’ miracle conversion from closet gay hypocrite to out ex-gay hypocrite.

Anyway, best of luck to Cleveland will all of that. I wonder about C-town and the safety thing. More importantly I wonder about overcoming the biggest barrier to generating tourism in Northeast Ohio – the fact that we have about 20 days a year of entirely nonsucky weather. I love the place, but let’s face facts.

As this moves forward, we need a Wingnut Wigout Watch. Someone on the Right is going to try to make political points with the increasingly alienated Culture Worriers. Some lawmaker is going to propose something along the lines of a state law barring tax dollars from being spent blah blah blah. They may even schedule a Wingnut Action Lobby Day around it. The clock is ticking on this one.

Finally I wonder if the Con Bureau and the LGBT Center have been in touch with Carrie Callahan. She might have some interesting ideas.