Respected New York Times Supreme Court writer Linda Greenhouse posted an excellent blog Thursday night entitled: "Into the Closet." The opening line reads:
The post is about the unsigned US Supreme Court ruling denying permission -- authorized by US District Court Judge Vaughn R. Walker, who is presiding over the federal challenge to the constitutionality of Prop 8 -- to have a live video feed to federal courthouses in four other cities and a delayed posting of the video on his District website. By a 5-4 vote, the Supreme Court bought the allegations by the Prop 8 defenders that their witnesses feared harassment if their testimony was broadcast.
After reading the Prop 8 proponent William Tam's request to withdraw from the case fearing harassment by gays, I fumed that he and the Prop 8 defendants were elevating a graffiti sign to the level of the kind of real hate crimes that were perpetrated on LGBT people after the passage of Prop 8.
Ours are not just personal fears and allegations -- but reported in actual government reports. In LA County, for instance, hate crimes generally dropped 4% but they increased against LGBT people, prompted in part by Prop 8. According to the LA County Commission on Human Relations, there were 134 sexual-orientation hate crimes reported in 2008, up from 111 in 2007 - and were more likely to be violent than hate crimes motivated by race or religion.
In Santa Clara County, violent crimes against gays and lesbians accounted for more than half of the hate crimes last year -- a huge leap from the 15% reported in 2007, the San Jose Mercury News reported last March.
Deputy District Attorney Jay Boyarsky said:
"My belief from having done this work for many years is that surges in types of hate incidents are linked to the headlines and controversies of the day. Marriage equality and Proposition 8 have been in the news, and we have seen an increase in gay-bashing."
Leslie Bulbuk, president of BAYMEC, a regional political action, told the Mercury News:
"When there's a lot more information about gays and lesbians on TV or in the news, it brings out the worst in people who have an inherent bias against groups they don't belong to. It seems like visibility makes people come out of the woodwork."
Part of the reason for that bias, Yale history Professor George Chauncy testified Tuesday, is because of the long history of discrimination and the "demonization" of LGBT people - so that straight people come to accept that their children need to be "protected" from "predatory" gays.
"The wave of campaigns we've seen against gay marriage rights the last decade are (part) of the cycle of anti-gay rights campaigns."
The plaintiffs' attorneys are trying to show that the political campaigns ProtectMarriage.com used through commercials emphasizing the urgent need to "protect children" from being taught about gay sex - the inevitable "consequence" of learning about same sex marriage in kindergarten - are part of an on-going cultural norm of antigay discrimination.
On Wednesday, the stereotype of gays as predators was brought into sharp relief through a video shown in court of Tam's Dec. 1, 2009 deposition.
Question: "And it is your understanding that part of the gay agenda is legalizing underage sex?"
Answer: "Right." (Page 43 of deposition)
More from Tam:
"They lose no time in pushing the gay agenda -- after legalizing same-sex marriage, they want to legalize prostitution. What will be next? On their agenda list is: legalize having sex with children."
"We hope to convince Asian-Americans that gay marriage will encourage more children to experiment with the gay lifestyle and that the lifestyle comes with all kinds of disease."
In his cross-examination of Dr. Chauncey, Prop 8 attorney David Thompson suggested that much progress has been made and thus discrimination has lessened. After all, he noted, homosexuality was declassified by medical organizations as a disorder 35 years ago.
Let's look at that for a minute. The Stonewall Riots and Gay Liberation happened in 1969 in the midst of the massive counter-cultural revolution, along with the anti-Vietnam War movement, Black Power, the Women's Lib, and pot-filled "Make Love, Not War" which married swingers enjoyed, too - as Dr. Nancy Cott testified on Monday. Today, we honor Vietnam vets while still vilifying the war, an African American is President of the United States, and women of both political parties have been Secretary of State and National Security Advisor. And gays and lesbians are in court seeking the fundamental constitutional right to marry -- a right afforded without controversy to murderers and convicted child abusers.
Defense attorney Thompson was referring to the 1973 American Psychiatric Association declassification of homosexuality as a mental disorder. But that doesn't mean families and private doctors don't continue to put LGBT people into mental institutions, giving them shock therapy and other means to "change" them into "ex-gays." To my knowledge the practice of giving gays a lobotomy to "cure" them of the dreaded sin and perversion had stopped -- but not the attitude.
Defendant Protect Marriage.com is trying to prove that sexual orientation is not an immutable characteristic, deserving of equal protection under the 14th Amendment -- and gays can change from being abnormal to "normal." Tam represented the Orange County-based Traditional Values Coalition. In the past, Rev. Lou Sheldon tried to exorcise Satanic demons from openly gay civil rights attorney John Duran as Duran argued that the local LGBT group should have the right to hold a Pride rally. Duran is now a West Hollywood City Councilmember and Sheldon has shifted much of the political lobbying arm of his operation to Washington DC. He's also become slightly less shrill - promoting the newer Religious Right concept of homosexuality as a sexual addiction: "Love the sinner; hate the sin." However, you can still find the "special report" entitled "Exposed: Homosexuals as Child Molesters" on his website.
Back to history for a moment. Let's not forget that in California, homosexuality was against the law until 1976. In fact, nationally, homosexuality was still illegal in 14 states when the US Supreme Court overturned sodomy laws in 2003 in the Lawrence decision. That was just seven years ago.
Thompson also pointed out that many large companies now hire LGBT people -- so there's "progress" against antigay discrimination there, too. But the Employment Non-Discrimination Act has not been passed by Congress so gays in many states can still be refused employment or fired just for being gay. It's one thing to deal with unemployment in this economy, but it's quite another added burden to do so as a gay person -- perhaps with children -- who is forced to hide their identity in order to pay the rent and put food on the table. No other American citizen is asked to do that.
Ah, and then there's Hollywood - which Thompson pointed out has produced more media-friendly portrayals through such films as (the tragic love story) Brokeback Mountain and TV shows such as comedy Will & Grace. But as wildly popular as is "American Idol" runner up Adam Lambert - ABC still feared his gay male kisses and censored him. Joe.My.God notes the irony that GLAAD is about to honor ABC for its gay-positive portrayals.
On the witness stand, Dr. Chauncey told Thompson that gays may have greater acceptance -- but "continue to encounter tremendous hostility." That hostility, Chauncey said, is lessened as gay people are seen in the normal course of everyday life -- as family, as co-workers, neighbors, friends, tax-paying citizens who are also woven into the fabric of American society.
But the Prop 8 proponents seem intent on keeping gays separate and apart -- a abnormal sexual behavior rather than real people. On Friday Julia Rosen over at the Courage Campaign wrote that ProtectMarriage.com issued a Cease and Desist for their Prop 8 Trial Tracker logo depicting family of two mothers with two kids.
The ProtectMarriage.com letter is posted on their Prop8TrialTracker site -- along with a priceless response from Courage's lawyers:
"While our client (Courage Campaign) does appreciate the irony of the suggestion in your letter that a logo of a family made up of a man, a woman, and two children is "substantially indistinguishable" from a logo of a family made up of two women and two children"
Now, it seems, a lesbian couple and their two kids is also a scary predator from whom "normal" children need protection.
Chad Griffin, Board President of the American Foundation for Equal Rights, said this about broadcasting the trial:
"Proposition 8 attacks the core of what our nation stands for -- that all of us are entitled to equal protection under the law and equal treatment from the government. A trial on constitutional rights should be accessible to as many people as possible. Given the powerful evidence against Prop. 8 presented in court today, we are not surprised the initiative's defenders sought to keep this trial as private as possible."
And the one sure-fire way for citizens only familiar with the age-old stereotypes of LGBT people to learn about us would have been through video of the trial. The plaintiffs' stories are our stories; most of us fit into the patterns of historic and on-going discrimination.
But NYT Linda Greenberg's report seems to indicate that the justices who ruled -- in the closet - -to prevent at least some education about gays as a discriminated-against minority, "the other," had more to do with intra-judicial power squabbles than doing right by us.
"Beyond the ideological divide that the case produced, and the fact that Justice Sonia Sotomayor allied herself in dissent with her three most liberal colleagues, Justices Stephen G. Breyer, John Paul Stevens and Ruth Bader Ginsburg, a public spat between two powerful judicial forces provided another intriguing dimension to this fast-moving dispute.
One was Alex Kozinski, chief judge of the United States Court of Appeals for the Ninth Circuit, who approved the district court's remote video plan. The other was the Judicial Conference of the United States, the federal courts' chief policy-making body, headed by Chief Justice John G. Roberts Jr., who remained in the background as two top conference officials sent Judge Kozinski a coolly worded two-sentence letter "to bring to your attention" the longstanding Judicial Conference policy against televising trials.
Judge Kozinski, long the Peck's Bad Boy of the federal judiciary, known for flaunting both brilliance and quirkiness, shot back with a reminder of his own -- that "like it or not, we are now well into the 21st century." His six-page letter basically declared that the Ninth Circuit would continue to do what it wanted. To describe the Supreme Court's subsequent unsigned opinion blocking the video plan as a rebuke of Judge Kozinski would be an understatement.
That intrajudicial melodrama, so delicious that I could not resist describing it, should not obscure the larger canvas against which this episode unfolded. The Proposition 8 backers are far from the only proponents of "traditional marriage" to run for cover after invoking the levers of direct democracy. And the Supreme Court may have just begun to explore the issues raised by this quest for a new application of the old right to privacy."
But this ruling and this story now goes beyond the walls of the federal courthouse in San Francisco.
"At its private conference on Friday, the Supreme Court is due to consider whether to hear an appeal brought by an organization called Protect Marriage Washington. Under the slogan of "Preserve Marriage, Protect Children," the group ran a successful petition drive to place on the state's November ballot a referendum giving voters a chance to repudiate a new state law that granted enhanced benefits to couples registering as domestic partners. (The voters ended up reaffirming the new law, which took effect last month.)
Under Washington's Public Records Act, the signatures on referendum petitions are public records, available for inspection and copying. The Public Records Act, itself the product of the public initiative process, provides as its rationale that "the people insist on remaining informed so that they may maintain control over the instruments that they have created."
Last summer, Protect Marriage Washington filed suit to bar public disclosure of the names of their 138,000 petition signers. It won an initial victory, but the Ninth Circuit ruled on the eve of the election that the names were subject to disclosure. The members of the three-judge panel observed that "referendum petition signers have not merely taken a general stance on a political issue; they have taken action that has direct legislative effect." The court held that the public interest in disclosure outweighed the "incidental limitations" that disclosure placed on the signers' exercise of their First Amendment right to political speech and association.
The issue of cameras in the courtroom, presented by the California case the court ruled on this week, is itself of long standing. But it has typically been seen as posing a free-press-versus-fair-trial question -- in terms of First Amendment doctrine, a claim by those behind rather than in front of the camera. This week's development suggests that a merger of two separate lines of First Amendment precedent, one on freedom from compelled disclosure and the other on access to government proceedings, may not be far off. In fact, in this media-saturated age, it may be overdue. Whether this deeply divided court can navigate the contested terrain of same-sex marriage to arrive at a useful synthesis is another question."
Read more about the Washington story here.
As Lambda Legal's Jenny Pizer has suggested here, the SCOTUS ruling on banning cameras does not automatically portend an adverse ruling in the Perry v Schwarzenegger case. And the plaintiffs and the LGBT community are lucky to have two lawyers in Ted Olson and David Boies who understand the mind of the court. The justices, David Boies once told me -- aside from certain "lapses" -- work out of judicial integrity.
But as this internal power snit illustrates -- the Supreme Court Justices are also human and inculcated with and susceptible to the same cultural biases that ProtectMarriage.com and the National Organization for Marriage and their ilk relied on to overrule logic, common sense and the general impulse of Americans to be "fair" in California -- and Maine and New Jersey and New York.
Marriage is like any other "social issue. Marriage is different." Consider how the Orange County Register put it in an editorial about the SCOTUS ruling:
"It is too bad that the U.S. Supreme Court on Wednesday indefinitely blocked cameras from covering the trial, with the video being posted online. This would have allowed many more people to be exposed to detailed arguments, governed by courtroom standards regarding relevance to the legal issues at hand, than otherwise would be the case. Finally, there's the plaintiffs' plan to call several prominent supporters of Prop. 8 as witnesses.
The plaintiffs' primary argument is that that the U.S. Constitution does not permit states to outlaw same-sex marriage because it guarantees equal protection of the laws to all residents. One presumes, therefore, that Messrs. Olsen and Boies will seek to show that opponents of same-sex marriage have no justifiable legal reason -- only discriminatory attitudes against gays -- to deny them the legal right to marry.
One wonders whether such a strategy will work.
Our position is that the State, as an institution, has no right to decide who can enjoy the institution of marriage, which predates the State by millennia.
As to whether the U.S. Constitution -- or the Supreme Court as currently constituted, which may be more relevant -- supports same-sex marriage, decent and intelligent people can disagree [emphasis mine]. The equal-protection argument is quite compelling, but it is doubtful that the lawmakers and justices who crafted those equal-protection clauses originally had same-sex marriage in mind. It also took years of shaming and numerous court cases before denial of equal protection on the basis of race approached a legal reality in this country. Turning principles into practice is apparently a never-ending process for imperfect human beings."
What this means is that -- once again -- we must be responsible for recording our own history -- though Variety's Ted Johnson reports that Judge Walker is not inclined to destroy the tape recordings of the trial.
To me, this is the open government version of when gay people with HIV/AIDS had to become their own health advocates in the face of a hostile society, church and government.
In the Colorado Amendment 2 case Romer v Evans and the sodomy case Lawrence v Texas, the US Supreme Court came close to recognizing LGBT people as a minority, an historically discriminated against group that deserves equal protection under the Constitution.
But I wonder if in the DNA of their upbringing the justices don't harbor a secret belief, perhaps religious, perhaps cultural -- that gay people are indeed predators. The fact that SCOTUS so blithely and anonymously continues antigay discrimination by rendering our lives and our struggle invisible suggests that we are somehow unworthy of human, as well as legal, consideration.
It also means that we must work hard to culturally supplement the legal work of Olson/Boies. We must make it difficult for these justices to look into the faces of their own children and their nieces and nephews and explain why gay people should not get the same treatment and rights as everyone else.