A Professor's Influence Suggests A Promising Outlook for the Future Gay Rights.

Despite the defeat of same-sex marriage in Maine and the possible upcoming battle over same-sex marriage in New Hampshire, where two legislative proposals aim to overturn the new law set to take place January 1 of next year, it's important to realize that the legalization of gay marriage is inevitable.

Exposing the hypocrisy - most recently evident when Carrie Prejean, who is against gay marriage, and at the same time, known for hard-core sex tapes, nude pictures, lying, and cover up, took her microphone off in the middle of an interview on CNN's Larry King Live. Why? She did not want to answer questions from Larry King and a caller inquiring about her views on gay marriage - is crucial to speeding up the process of legalizing same-sex marriage.

Laurence H. Tribe, author of An Invisible Constitution, Professor of constitutional law at Harvard Law School, who said that Obama was "overall the most impressive student he's ever had" (out of 7,000 students including Chief Justice John Roberts ), and who also served as judicial adviser to Obama's campaign, has the experience, depth of knowledge and understanding of what it takes to evolve gay rights to a point of total equality.

In his article, Toward a Less Perfect Union, written in 1996, Tribe pointed out the irony of eviscerating the Constitution's Full Faith and Credit Clause —by giving a state the right to deny the validity of a marriage already sanctioned by a another state - the provision in DOMA that discriminates against gay marriage,

"..The Constitution's principal device for assuring a "more perfect union" is the Full Faith and Credit Clause, which requires that each state must fully credit "the public acts, records, and judicial proceedings of every other state." More than half a century ago, the Supreme Court described the clause as "a nationally unifying force" that transformed the individual states from "independent foreign sovereignties, each, free to ignore rights and obligations" created by the others, into integral parts "of a single nation, in which rights . . . established in any [state] are given nationwide application."

And he went on to say,

This would convert the Constitution's most vital unifying clause into a license for balkanization and disunity.

Laurence Tribe, knowingly gave up any chance of winning a place on the "Reagan" Supreme Court when he argued Hardwick’s case in Bowers v. Hardwick, which resulted in a US Supreme Court decision that upheld the constitutionality of a Georgia sodomy law that criminalized oral and anal sex in private between consenting adults which was primarily targeted at homosexuals, even though heterosexuals violated this law nightly. Regarding that case, Tribe said he knew he "couldn't win but wanted to get some good dissents in".

"Tribe, was at the time, probably the only straight lawyer in the country to receive the National Lesbian and Gay Law Association’s Allies for Justice Award, which was bestowed on him in 1996. Tribe was so pleased when notified of the honor, that he asked the person on the phone if he could bring his wife to the award ceremony. There was a few moments of stunned silence on the other end. But, of course, this was all part of that same cultural change. The struggle for gay rights had transcended the gay community — equality under the law had become a fight by all and for all." -- Kathleen Sullivan, his student and later faculty colleague who went on to be named dean of Stanford Law School

After the Bowers decision, Tribe told his students that "time would correct the injustice". Seventeen years later in 2003, his words came true in Lawrence v. Texas, the landmark U S Supreme Court case, that struck down the sodomy law in Texas. Tribe wrote the ACLU brief that the courts accepted when it overruled Bowers.

He said that this is the only case in history that he knows of, where the court said that the earlier decision was wrong on the day it was decided. In other words, the court did not preface their decision with the rhetoric normally spoken before overruling, such as: things have changed, the world has changed, Brown v. Board addresses a world that's different than Plessy v. Ferguson, etc. Instead the court said, "the original decision fundamentally denied the dignity and equality of gay people and was wrong from the start."

One has to ask in light of the recent election results regarding Prop 8, if the right at issue (gay marriage) belongs to the public at large or is it, rather, an individual right that is not subject to majority infringement? Could the following be applied to same-sex marriage? I think so, but what do I know, I'm not an attorney.

The Fifth Amendment's Due Process Clause has been interpreted to require non- discrimination in treatment of people.

Specifically, regarding gender, * Reed v. Reed, established that, "arbitrary preference established in favor of males by § 15-312-14 of the Idaho Code cannot stand in the face of the Fourteenth Amendment's command that no State deny the equal protection of the laws to any person within its jurisdiction." That later lead to the equal protection component of the 5th Amendment Due Process Clause stated this way: "confers on petitioner a federal constitutional right to be free from gender discrimination that does not serve important governmental objectives or is not substantially related to the achievement of such objectives."

In addition, the Equal Protection Clause of the 14th Amendment was used in deciding Loving v. Virginia, the Supreme Court decision that stated blacks and whites could not be prevented from marrying as it clearly violated the 14th Amendment's due process clause.

In Laurence Tribe's book, The Invisible Constitution, he refers to the Ninth Amendment as an example that supports the recognition of rights not explicitly mentioned.

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

We can only hope the influence of Harvard Law Professor Laurence Tribe will shape the fundamental character and underlying assumptions that will inform the Obama administration regarding equal rights, freedom, liberty, and the chance for all citizens to engage in the pursuit of happiness.

Major court decisions effecting same sex marriage:

Griswold v. Connecticut (1965)
The U.S. Supreme Court held that a Connecticut law prohibiting the sale and use of contraception could not apply to a married couple because the U.S. Constitution generally guarantees a right to marital privacy.

Loving v. Virginia (1967)
The U.S. Supreme Court invalidated a Virginia law banning interracial marriage, partly on the ground that the 14th Amendment’s Due Process Clause guarantees a fundamental right to marry.

Eisenstadt v. Baird (1972)
The U.S. Supreme Court invalidated a Massachusetts law prohibiting the distribution of birth control to single people.

Bowers v. Hardwick (1986)
The U.S. Supreme Court upheld a Georgia anti-sodomy statute on the ground that the constitutional right to privacy does not guarantee the right to have private, consensual sex with a person of the same gender.

Romer v. Evans (1996)
The U.S. Supreme Court invalidated an amendment to the Colorado Constitution that nullified local anti-discrimination protections for gay and lesbian people.

Lawrence v. Texas (2003)
The U.S. Supreme Court invalidated a Texas anti-sodomy statute for violating the 14th Amendment’s Due Process Clause, thereby overruling Bowers v. Hardwick.

Goodridge v. Department of Public Health (2003)
The Massachusetts Supreme Judicial Court held that a state law limiting marriage to opposite-sex unions violated the Massachusetts Constitution.

Marriage Cases (2008)
The California Supreme Court held that sexual orientation is a "suspect class" under the California Equal Protection Clause, and state laws limiting marriage to opposite-sex unions therefore violate the state constitution.

Links:
Same Sex Marriage Timeline

"I want judges who have a heart, have an empathy for the teenage mom, the minority, the gay, the disabled. We want them to show empathy. We want them to show compassion." -- President Elect Obama

*An example of how some twist the meaning and intent of the law in the most outrageous ways to fulfill their own discriminatory agenda. This guy wants feedback. Give it to him.

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The Dove's Been Shot, and the Olive Branch, Snapped

According to George Lakoff,

Language always comes with what is called "framing." Every word is defined relative to a conceptual framework. If you have something like "revolt," that implies a population that is being ruled unfairly, or assumes it is being ruled unfairly, and that they are throwing off their rulers, which would be considered a good thing. That's a frame.

After reading the New York Times article, Obama on the Spot as Rulings Aid Gay Partners, I felt anxious, as if our whole economy hinged on this one decision.

Then, it occurred to me that the reason for my uneasiness was not grounded in reality, rather, the framing of this issue produced my anxious response. Right off the bat, before the reader even knows what it is that's specifically going to be disputed, he is told this "gay" issue is the most sensitive social and political issue of the day, and not only that, it places Obama "in a tight spot". Everyone knows the "tight spot" refers to the economy. It's as if his decision, regarding whether health insurance benefits will be extended to same-sex partners of federal employees, might just transform this nation into a third world country.

Of course, this is nothing new. The right wing, long ago, framed the gay rights issue with neoconservative divisive terms and hollow appeals to tradition that reinforced their position. This effectively limited political discourse on this subject to the arbitrary moral boundaries that they defined.

Instead of allowing individuals to take in the overall content of the issue and decide for themselves, conservatives understood that frames, can be very powerful as they focus the person who is receiving the information on one or two values, many times, creating a visceral reaction in that person, thus hijacking his ability to reason. The news media's responsibility is to present information, as much as possible, without imposing bias. It's not possible to eliminate frames, nevertheless, it is possible to reframe this issue in such a way that creates more balance.

President Obama made a promise to fight for gay rights, and was voted into office, after having made that promise. Why is that promise, all of a sudden, a divisive issue? While it's understood that President Obama wants the support of as many people as he can get regarding his policy to jump start the economy, he has an obligation to keep his promises regardless of threats made by conservatives.

Previously, I blogged that President Obama might be taking a page out of President Lincoln's book. At first he tries to resolve the issue at hand - the economy - in a reasonable and cooperative manner, in hopes that his opponents will respond in the same way. Fully realizing his opposition may snap the extended "olive branch" in half, his initial peace offering should be enough to unite the people behind him, thus giving him the fresh impetus required to tackle the structural changes that must take place for our economy to function in the 21st century.

"Mr. Obama has broad discretionary authority to find ways to ameliorate some of the more blatant examples of discrimination.” -- Richard Socarides, a New York lawyer who was an adviser to President Bill Clinton on gay issues

The dove's been shot, and olive branch, snapped. Time to move on.

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Family Equality and the Constitutional Promise of Neutrality

Daddy, Papa and Me is a blog about "an unconventional family in today's world...adoption, parenting, same-sex parenting, marriage equality...a family headed by two men, a family with adopted children, a family that is transracial, an urban family, an American family, a family that deals with the 'mundane' issues like health and finances, starting a business and schools."

After reading the scathing grand jury report about the tragic death of 14 year-old Danieal Kelly, and the two Department of Human Services child protection workers that were charged with failing to protect her (timeline), it's an abomination that potentially loving parents are often prevented from adopting children solely because they fall in love with the same sex. This is especially true in a society where so many children are left to fend for themselves with no one but abusive "parents", foster parents, and/or institutions to "provide" for their needs.

We don't want our tax dollars used to take care of these kids, rationalizing that it's not our fault that these poor parents are total losers, addicts, etc, so we vote for people who instead line the pockets of the wealthy and rule out the very thing that might help to provide for these children, with no cost to we, the people...gay marriage and adoption. One can only come to the conclusion that we want these children to suffer for the sins of their "good for nothing" parents.

Years ago, I overheard someone say the following regarding another child who succumbed to a similar fate as Danieal Kelly. "It's a shame some children have to suffer like that, that they are tortured, die...oh well, that's too bad that child died...those stupid DSH workers...and to think our tax dollars pay these idiots...it makes me so mad when politicians talk about helping poor stupid parents with our money... oh, did you hear my poor little "buffy"? She had to sit on the bench for half the game. She practices her little heart out...it's tragic...just tragic!"

You can bet that same lady, too stupid to understand that the average DSH worker, having the most depressing job in the world, makes minimum wage, is overworked, and has little to no support from his or her superiors. Not to excuse the DSH workers at all but, what does that lady expect from over-worked, minimum-wage paid workers? You get what you pay for. In addition, I'm sure gay parents horrify her.

Hopefully, the Circuit Court judge who just ruled Florida's 31-year-old gay adoption ban unconstitutional in a case involving a special needs child, who testified that "he wanted the foster dad to be his 'forever father' - like all the other kids had" will finally change the law banning gay adoption, however, this ban has been ruled unconstitutional twice before.

When asked why he wanted his guardian to adopt him, the teen replied: "Because I love him," the order says.
A home study by a social worker "highly" recommended the guardian and his partner be allowed to adopt the boy, saying the two men provided a "loving and nurturing home", provided "fair and consistent" discipline and are financially secure, the order says.

The "Constitutional promise of neutrality"*, impartiality, respect, neutrality, equality, judicial independence and the rule of law are all concepts central to understanding our Constitution, yet these ideas do not seem to factor in to decisions regarding family equality the way they should in an "evolved" culture as ours supposedly is.

Links:
Adoption Laws: State by State.
Tips for coming out to your kids
Box Turtle Bulletin -News, analysis and fact-checking of anti-gay rhetoric

Blogs:
Daddy, Papa and Me is a blog about "an unconventional family in today's world...adoption, parenting, same-sex parenting, marriage equality...a family headed by two men, a family with adopted children, a family that is transracial, an urban family, an American family, a family that deals with the 'mundane' issues like health and finances, starting a business and schools."
Gay Fathers
FullerBrantner - 2 gay dads in San Francisco.
Guy Dads
Brian's Weblog - hasn't been updated since March of 2006 however I included it anyway because of the pictures.

Children of Gay Parents:
Kids of Queers
Damn Straight
COLAGE

* Supreme Court Justice Anthony Kennedy

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Should We Discriminate Against $712 Billion Dollars?

"It's the economy, stupid". Don't we vote in our own economic self-interest? We think we do, but we don't. We allow our politicians to manipulate the cultural baggage we all carry around with us, in an effort to hide the truth...especially the economic truth, as it is in their economic self-interest to do so. Nowhere, can this be seen more clearly, than the issue of gay rights.

$712 billon this year and $835 billion by 2011...that's the purchasing power (projected) of the gay population in 2008. These dollars are free to circulate and contribute to the system of production, distribution and consumption that enables us to live the lifestyle that the majority of the world is still deprived. Yet those same dollars can't purchase legal status -- now proven to make gay relationships last longer -- or equality, or freedom of expression, no matter how conducive those dollars are to the vitality of our economy...the same economy that is so crucial to the quality of the culture and society most of us enjoy or benefit.

“The best available Census data on same-sex couples supports the understanding, however, that gay populations tend to be somewhat more concentrated in major metro areas, and less likely to live in rural, under populated areas -- a characteristic generally associated with higher than average income. We also see that same-sex couples are less likely than their married heterosexual counterparts to have kids, and they are more likely to have both partners in the workforce, factors which yield higher per capita household income, especially in the case of gay male couples.” -- Bob Witeck, CEO of Witeck-Combs Communications, Inc.

Of the approximately 300 million people in our nation, 250 million are over 18-years old. "Experts" judge the gay population ranges anywhere from 4-10%, however Harris Interactive, an American research company, reports 7% of the population or 17 million American adults are gay based on anonymous polls they have taken over the last decade...so 7%, it is. That adds up to a lot of *disposable income, when you consider many gay people do not have children, therefore they have the time and money to pursue consumerist activities that keep our economy afloat. Private industry seems to be catching on as 471 (94.2%) of the 2008 FORTUNE 500 companies voluntarily include sexual orientation in their employment nondiscrimination policies.

"The FORTUNE 500 have overwhelmingly decided that including sexual orientation is in the best corporate interest and helps communicate corporate values to the estimated $660 billion (2007) annual domestic GLBT consumer market," stated Malcolm Lazin, Executive Director, Equality Forum.

It's important to note that Senator Obama favors and Senator McCain opposes including sexual orientation in the federal Employment Non-Discrimination Act (ENDA).

* Bureau of Economic Analysis (BEA)

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On the Absence of Equal Justice

"To such a height th' Expence of courts is gone, That poor Men are redress'd -- till they're undone."
- Benjamin Franklin, Poor Richard's Almanack, 1734

"Justice, sir, is the great interest of man on this earth. It is the ligament which holds civilized beings and civilized nations together."
- Daniel Webster, , September 12, 1845

"It was the boast of Augustus that he found Rome of brick and left it of marble. But how much nobler will be the sovereign's boast when he shall have it to say that he found law dear and left it cheap; found it a sealed book and left it a living letter; found it the patrimony of the rich and left it the inheritance of the poor; found it the two-edged sword of craft and oppression and left it the staff of honesty and the shield of innocence."
- Henry Peter Brougham, Lord Chancellor of England, 1845

"Nine tenths of you are in jail because you did not have a good lawyer and, of course, you did not have a good lawyer because you did not have enough money to pay a good lawyer."
- Clarence Darrow, Address to prisoners in Cook County Jail, 1902

"What does it profit a poor and ignorant man that he is equal to his strong antagonist before the law if there is no one to inform him what the law is? Or that the courts are open to him on the same terms as all other persons when he has not the wherewithal to pay the admission fee?"
- Yale Professor WIlliam Vance, "The Historical Background of the Legal Aid Movement," THE ANNALS (March 1926),

"Equality before the law in a true democracy is a matter of right. It cannot be a matter of charity or of favor or of grace or of discretion."
- U.S. Supreme Court Justice Wiley Rutledge, Speech to American Bar Association, September 29, 1941

"Poverty or wealth can make all the differences in securing the substance or only the shadow of constitutional protections."
- U.S. Supreme Court Justice Wiley B. Rutledge, Foster v. Illinois, 332 U.S. 134. 142 (1947) dissenting opinion,

"Any man who seeks to deny equality among all his brothers betrays the spirit of the free and invites the mockery of the tyrant."
- President Dwight David Eisenhower, Inaugural Address, 1953

"The poor man looks upon the law as an enemy, not as a friend. For him the law is always taking something away."
- Attorney General Robert Kennedy, Law Day Speech, May 1, 1964

"Helplessness does not stem from the absence of theoretical rights. It can stem from an inability to assert real rights. The tenants of slums, and public housing projects, the purchasers from disreputable finance companies, the minority group member who is discriminated against -- all these may have legal rights which--if we are candid--remain in the limbo of the law."
- Attorney General Robert Kennedy, Law Day Speech, May 1, 1964

"There can be no equal justice where the kind of trial a man gets depends on the amount of money he has."
- U.S. Supreme Court Justice Hugo Black, Griffin v. Illinois, 373 U.S. 12,(1964),

"Our responsibility is to marshal the forces of law and the strength of lawyers to combat the causes and effects of poverty. Lawyers must uncover the legal causes of poverty, remodel the system which generates the cycle of poverty and design new social, legal, and political tools and vehicles to move poor people from deprivation, depression, and despair to opportunity, hope, and ambition."
- E. Clinton Bamberger, first Director of the OEO Legal Services Program, Speech to National Conference of Bar Presidents, Chicago, Illinois, February 8, 1966

"Except for the few that legal services lawyers can represent, poor people have access to American courts in the same sense that the Christians had access to the lions when they were dragged, unarmed, into a Roman arena."
- Earl Johnson, Jr., quoted in Becker and Gibberman, On Trial! (1987) page 17,

"Equal justice under law is not just a caption on the facade of the Supreme Court building. It is perhaps the most inspiring ideal of our society . . . It is fundamental that justice should be the same, in substance and availability, without regard to economic status."
- U.S. Supreme Court Justice Lewis Powell, Jr., ,

"Substantive and procedural law benefits and protects landlords over tenants, creditors over debtors, lenders over borrowers, and the poor are seldom among the favored parties."
- John N. Turner, Attorney General of Canada, Speech to Canadian Bar Association, December 7, 1969

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American Way of Equality.

Income inequality is on the rise. The rich are getting better at passing their advantages on to their kids. Lifestyle and values gaps are widening between the educated and uneducated. So the big issue is: Will Americans demand new policies to reverse these trends — to redistribute wealth, to provide greater economic security? Are we about to see a mass populist movement in this country?
Nobody was smarter on this subject than Seymour Martin Lipset, the eminent sociologist who died at 84 on New Year’s Eve. Lipset had been a socialist in the hothouse atmosphere of City College during the 1940s, and though he later became a moderate Democrat, he continued to wonder, with some regret, why America never had a serious socialist movement, why America never adopted a European-style welfare state.
Lipset was aware of the structural and demographic answers to such questions. For example, racially diverse nations tend to have lower levels of social support than homogeneous ones. People don’t feel as bound together when they are divided on ethnic lines and are less likely to embrace mutual support programs. You can have diversity or a big welfare state. It’s hard to have both.
But as he studied these matters, Lipset moved away from structural or demographic explanations (too many counterexamples). He drifted, as Tocqueville and Werner Sombart had before him, to values.
America never had a feudal past, so nobody has a sense of social place or class-consciousness, Lipset observed. Meanwhile, Americans have inherited from their Puritan forebears a sense that they have a spiritual obligation to rise and succeed.
Two great themes run through American history, Lipset wrote in his 1963 book “The First New Nation”: achievement and equality. These are often in tension because when you leave unequally endowed people free to achieve, you get unequal results.
Though Lipset never quite put it this way, the clear message from his writings is that when achievement and equality clash in America, achievement wins. Or to be more precise, the achievement ethos reshapes the definition of equality. When Americans use the word “equality,” they really mean “fair opportunity.” When Americans use the word “freedom,” they really mean “opportunity.”
Lipset was relentlessly empirical, and rested his conclusions on data as well as history and philosophy. He found that Americans have for centuries embraced individualistic, meritocratic, antistatist values, even at times when income inequality was greater than it is today.
Large majorities of Americans have always believed that individuals are responsible for their own success, Lipset reported, while people in other countries are much more likely to point to forces beyond individual control. Sixty-five percent of Americans believe hard work is the key to success; only 12 percent think luck plays a major role.
In his “American Exceptionalism” (1996), Lipset pointed out that 78 percent of Americans endorse the view that “the strength of this country today is mostly based on the success of American business.” Fewer than a third of all Americans believe the state has a responsibility to reduce income disparities, compared with 82 percent of Italians. Over 70 percent of Americans believe “individuals should take more responsibility for providing for themselves” whereas most Japanese believe “the state should take more responsibility to ensure everyone is provided for.”
America, he concluded, is an outlier, an exceptional nation. And though his patriotism pervaded his writing, he emphasized that American exceptionalism is “a double-edged sword.”
Political movements that run afoul of these individualistic, achievement-oriented values rarely prosper. The Democratic Party is now divided between moderates — who emphasize individual responsibility and education to ameliorate inequality — and progressive populists, who advocate an activist state that will protect people from forces beyond their control. Given the deep forces in American history, the centrists will almost certainly win out.
Indeed, the most amazing thing about the past week is how modest the Democratic agenda has been. Democrats have been out of power in Congress for 12 years. They finally get a chance to legislate and they push through a series of small proposals that are little pebbles compared to the vast economic problems they described during the campaign.
They grasp the realities Marty Lipset described. They understand that in the face of inequality, Americans have usually opted for policies that offer more opportunity, not those emphasizing security or redistribution. American domestic policy is drifting leftward, but there are sharp limits on how far it will go.

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