The Advocate

Change Is In the Wind

I grew up in Utah as a Mormon, and received my law degree from the University of Utah College of Law in 1988. It was in Utah that I began my life as a lesbian advocate. For all sorts of reasons, I've returned to Utah often since I left for San Francisco nearly 12 years ago. But I found myself there last week for a reason I had never anticipated: I am arguing before the Utah supreme court.

It's an out-of-body experience. It feels like a dream. I am in a courtroom filled to standing-room-only capacity. I am arguing an important parenting case. My client is a lesbian mother. Her former partner, who no longer identifies as a lesbian, is refusing to let her see their little girl. A lawyer affiliated with the ardently antigay Alliance Defense Fund is representing my client's former partner.

I look up and see the faces of the justices seated on the Utah supreme court and begin my argument. I am not dreaming.

I was also not dreaming when the California supreme court issued opinions in three lesbian parenting cases in mid August. In one of those opinions the court wrote, "We perceive no reason why both parents of a child cannot be women." The court added, "A person who actively participates in bringing children into the world, takes the children into her home and holds them out as her own, and receives and enjoys the benefits of parenthood should be responsible for the support of those children--regardless of her gender or sexual orientation."

In all three cases the court ruled that the coparents were legal parents and entitled to all the rights and subjected to all the obligations that legal parenthood demands.

All across the country, the battle for family recognition is going our way. The Maryland court of appeals ruled in favor of a gay father, holding that he must be given an opportunity to challenge a custody restriction that prohibits him from living with his partner. The Virginia supreme court held that the Department of Vital Records must comply with a state law requiring that new birth certificates be issued to all adopted children--after the department had refused to issue birth certificates listing two same-sex parents.

A divided West Virginia supreme court awarded custody of a child to a lesbian--ruling that a "psychological parent" can intervene in custody battles and defining "psychological parent" as a person who fulfills a child's psychological and physical needs and provides emotional and financial support. These rulings combined are a tremendous victory for children, for parental responsibility, and for common sense.

The National Center for Lesbian Rights, along with colleagues at the American Civil Liberties Union, Lambda Legal, and Gay and Lesbian Advocates and Defenders, are bringing cases, one by one, on behalf of LGBT-headed families in courts throughout the country. In one sense the fact that we are winning so many of these challenges is a small miracle. Our adversaries are so much better funded--the largest antigay group in the country has an annual budget of $130 million, while the combined annual budgets of the leading 12 national LGBT organizations, including NCLR, barely break $50 million.

We have our work cut out for us. In California two proposed constitutional amendments would not only forbid lesbian and gay couples any right to legally marry but would also repeal our hard-won and expansive domestic-partner protections.

But in yet another miracle, first the California state senate, last week, and then this week the assembly, in historic votes, became the first legislative bodies in the country to vote in favor of the basic right of lesbian and gay couples to marry.

Actually, this miracle, like the court victories, was the result of much hard work and commitment. Mark Leno, the assemblyman who authored the bill, never gave up believing that such a vote was possible, and California's statewide LGBT lobbying group, Equality California, worked tirelessly to make the vote happen.

But against this very encouraging backdrop several states are considering legislation to bar LGBT people from adopting, and there are more anti-gay marriage constitutional amendments on the way in other states. But make no mistake, the tide is turning. Between legal cases, talks with legislators, and conversations at the water cooler we are moving hearts and opening minds. The only way to win full equality is to engage in the hard work of making our lives real to everyone we know.

The faces of LGBT families are the faces of every family. In the days and weeks ahead, many of us will be called upon to tell the stories of our own families. This is the time to show courage. There's no turning us back.

Cabin Fever

Patrick Guerriero, executive director of conservative gay rights group Log Cabin Republicans, has been getting asked one particularly humorous question a lot these days: "So who are you going to vote for? John Kerry or Ralph Nader?" After all, he and his group of gay Republicans have seemingly been hung out to dry by the Bush administration and its backers in Congress. This week Republican leaders in the U.S. Senate pushed for but failed to pass a constitutional amendment banning same-sex marriage. A procedural vote on the proposal needed 60 votes to pass but went down on Wednesday by a vote of 48 votes backing the amendment to 50 against. Still, Guerriero and his fellow gay conservatives have been left feeling beleaguered by all the antigay rhetoric that surrounded the Senate debate. "I do a lot of soul-searching," Guerriero admitted. "Our membership is ticked off."

Mind you, that does not mean Guerriero is going to leave his Log Cabin post or the Republican Party. Growing up in a middle-class Boston suburb, he feared that his sexual orientation would thwart his political ambitions, especially as a budding young Republican. But unlike generations of gay and lesbian conservatives before him, he has refused to stay in the closet and has been successful. However, he is furious that the GOP – of which he and others have remained loyal to for so long – seems to be completely shunning gay men and lesbians while catering to a far-right agenda in which advocating the opposition of gay rights has become a favored means for raising campaign funds.

Guerriero, who declined to tell how he will vote in the upcoming presidential election, said he was heartened this week by a group of moderate Republican senators, including Arizona's John McCain, Maine's Olympia Snowe, and Rhode's Lincoln Chafee, who refused to support the Federal Marriage Amendment, which would have defined marriage as a union between one man and one woman. In fact, such senators, who did not want the Constitution tampered with, were key to ensuring that the measure died. In a stirring floor speech McCain said, "The constitutional amendment we're debating today strikes me as antithetical in every way to the core philosophy of Republicans." He added that the amendment "usurps from the states a fundamental authority they have always possessed and imposes a federal remedy for a problem that most states do not believe confronts them."

The developments provided an embarrassing defeat for Bush and the Republican leadership, including majority leader Bill Frist of Tennessee and Rick Santorum of Pennsylvania, who were advocating for the measure. "What we've seen in the last several days is that there are voices that will stand up against intolerance and actually take a different position than their president and their leadership in the midst of an election year," Guerriero said.

With questions about the war in Iraq, terrorism, and the economy looming large in this election year, many voters and lawmakers have seemed unconcerned about marriage rights for gay men and lesbians. Antigay groups and lawmakers have been hoping to turn the issue of same-sex marriage into the next "abortion issue." During debate on the amendment proposal, Santorum pleaded with his fellow lawmakers that "the future of our country hangs in the balance because the future of marriage hangs in the balance. Isn't that the ultimate homeland security – standing up and defending marriage?" But this week he and other amendment supporters learned that if there had been an up-or-down vote on the bill, as many as 60 senators were prepared to vote against it. So they turned to a procedural vote instead.

The week definitely had its bizarre moments as gay-hating senators tried to push through the FMA. In a move to get "celebrities" to show their support for the amendment, Santorum held a press conference and could only coax such people as actor Dean Jones (Herbie, the Love Bug) and singer Pat Boone. The press release chimed in that Boone is "the second most popular singer in the United States in the 1950s – second only to Elvis Presley." Meanwhile, Republican senator John Cornyn of Texas told an audience that gay marriage "does not affect your daily life very much if your neighbor marries a box turtle. But that does not mean it is right.... Now you must raise your children up in a world where that union of man and box turtle is on the same legal footing as man and wife."

In August, around the time of the Republican national convention, the Log Cabin Republicans' board will decide whether to endorse Bush. In 2000 it did endorse him, estimating that about 1 million conservative gay men and lesbians voted for the president. Back then, however, Log Cabin stated it believed the president when he said he was a compassionate conservative and "a uniter, not a divider"; his position at the time was that same-sex marriage should be handled at the state level, as opposed to the form of an amendment. After Log Cabin endorsed a more gay-friendly John McCain during the Republican primary campaign, an informal group of conservative gay men and lesbians known as the Austin 12 acted as a kind of sounding board for the Bush-Cheney campaign. The president said he was a "better man" for the interaction, and gay rights groups hoped that Dick Cheney's lesbian daughter, Mary, would speak out for equality. Openly gay congressman Jim Kolbe of Arizona subsequently spoke at the Republican national convention.

Four years later, however, not one of the Austin 12 is publicly supporting Bush. And most Log Cabin members are falling into the same boat. "I think that our membership is at a boiling point," Guerriero said. At the group's convention in Palm Springs, Calif., earlier this year, he noted that Log Cabin members were still almost evenly split on whether to vote for Bush. Now they are more against the president than they've ever been. "We always thought that the worst the president would do is support the amendment but do it behind the scenes," he said.

What may have been the final nail in the coffin for many conservative gay men and lesbians was Bush's weekly radio address last Saturday when he talked about the need for senators to support the FMA. "He greatly jeopardized any chance of a formal endorsement," said Guerriero. "It was a watershed moment. What was remarkable was that there was not even any tolerance in the address. There was nothing saying that he respected all families or the Employee Non-Discrimination Act or hate-crimes legislation. All he used was the lexicon of the far right and did not even give a bone to gay and lesbian families. It was a slap in the face."

Openly gay Washington, D.C., city council member David Catania, who was one of the Austin 12, left the Republican Party in disgust several months ago and now says he plans to vote for John Kerry. "I want to say that Patrick Guerriero is doing the best job that he can, and it's important to have our voices in both parties," he said. "However, my gag reflexes have expired and I'm not longer able to listen to the rhetoric of the Republican Party. I feel like Tom Hanks in the movie The Terminal. I no longer have a home." Catania said it won't necessarily be the loss of conservative gay men and lesbians that will hurt Bush in the election, but their friends and family members who no longer feel they can vote for him.

Whatever the amendment's future in Congress, there were signs its supporters intended to use it in campaigns already unfolding. "The institution of marriage is under fire from extremist groups in Washington, politicians, even judges who have made it clear that they are willing to run over any state law defining marriage," South Dakota Republican senatorial candidate John Thune said in a radio commercial airing in his state. "They have done it in Massachusetts, and they can do it here," added Thune, who is challenging Senate Democratic leader Tom Daschle for his seat. "Thune's ad suggests that some are using this amendment more to protect the Republican majority than to protect marriage," said Dan Pfeiffer, a spokesman for Daschle's campaign.

A Great Day to Be Gay

It's fitting that the U.S. Supreme Court announced its decision striking down the nation's sodomy laws on the final day of its 2002-2003 session, because it's also the week that U.S. gays and lesbians mark the 34th anniversary of the Stonewall riots. While the civil disturbance of Stonewall -- where gays, lesbians, and transvestites fought back against police who had harassed them for decades with routine bar shakedowns -- was profound enough to kick-start the modern gay liberation movement, the Lawrence v. Texas decision by the high court is equally profound for its legal, social, and symbolic impact.

Awaiting this decision -- the case was argued before the court in March -- gay America was bracing itself for a reconfirmation of the type of institutionalized homophobia that we have seen consistently in this country, or at best a decision that struck down same-sex-only sodomy laws but left standing those laws that criminalize heterosexual sodomy as well. But the Supreme Court's 6-3 split demonstrates a cultural shift from which there will be no retreat. Only one of the six, Justice Sandra Day O'Connor, who had voted with the majority to allow criminalization of sodomy in the 1986 Bowers v. Hardwick decision, argued that sodomy laws applied to both gays and straights should be legal. That still leaves a solid five-vote majority siding with Americans' right to privacy in their bedrooms.

At a time when gay civil rights initiatives are often stalled and defeated -- not one state that has put same-sex marriage up for a vote has sided with gay rights, including Hawaii -- and at a time when the Bush administration has demonstrated neglect and sometimes outright hostility toward gay rights, this decision puts equality for all back in the national discourse. It's also significant that it comes just one day after a Bush administration position paper argued that religious groups should be allowed to discriminate against (that is, summarily fire without any other cause) gays and lesbians, whatever local laws may say, while receiving federal funds.

For homosexuals, Lawrence v. Texas helps to build a legal and moral foundation for the argument that our private behavior is protected by the U.S. Constitution. It's truly historic, considering that just 43 years ago every state had sodomy laws and that in the 13 states that until today had such laws, they were inevitably used to harass and discriminate against sexual minorities. How can a woman be a good mother, conservative judges have argued as recently as this year, when her lesbian status makes her inclined to violate state law? That argument is now dead and gone. It's unconstitutional to ask what Mom does in the bedroom.

The private sexual activity between consenting adults goes to the heart of what the Constitution means in theory and in practice. It's telling that the court has explicitly overturned its own ruling in Bowers, a decision just 17 years old that upheld Georgia's sodomy laws. It's a stunning cultural shift in less than a generation. Justice Anthony Kennedy, writing the majority opinion, reversed Bowers, saying in fact that it was wrong in 1986 and remains wrong. More important, Kennedy's opinion for the majority of five signals that there will not be a morbid retreat to moralized abstractions, as was the case in the Bowers decision, in which the majority opinion was a rambling catalog of historic and religious prohibitions against homosexual behavior (even though Georgia's law applied equally to straights) that had little to do with constitutional law.

Kennedy, reading from the bench, said that homosexuals should have "the full right to engage in private conduct without government intervention" and that "the state cannot demean their existence or control their destiny by making their private sexual conduct a crime." The court's words instantly swept away the antiquated, selectively enforced, and damaging sodomy laws still active in 13 states. What's more, Lawrence bolsters privacy rights for all Americans. Remember that Roe v. Wade, which established abortion rights, also rests on the privacy rights that decided Lawrence, and that the current president and his right-wing backers would like to see that decision overturned as well.

Privacy wasn't a difficult concept to apply to the specific circumstances in Lawrence. In September 1998, Texas state police, called to the scene by a false report about a man with a gun, barged in on John Geddes Lawrence and Tyron Garner having sex in Lawrence's bedroom and proceeded to arrest the pair on misdemeanor charges under Texas's 123-year-old sodomy statute. Remarkably, the Texas law had been reaffirmed as recently as the 1970s, and the pair were convicted of "deviant homosexual conduct" -- two private individuals caught up in an Orwellian "sex crime" scenario in which their private sexual behavior was criminalized and prosecutable.

Many gays who can today applaud this decision lived secret lives for decades, existing in a world half-hidden from their families, coworkers, and straight society. As more people came out and gay politics gained ground in recent decades, and as gay Americans became mainstream and visible, rigid sodomy laws may have seemed irrelevant and virtually null. But they remained a nasty weapon to be used against gay people by anyone arguing against our equal rights, from the simple right not to be fired from jobs we're good at, to the right to raise our own children to the right to marry our loved ones. With Lawrence, the court is certainly redressing the grievous harm done by Bowers and countless other previous decisions by courts and laws passed by state legislators nationwide. No state has the right to ban gay sex: That is the inalterable law of the land, and it ushers in a solid legal basis on which we can argue for equal constitutional protections across the board.

The dissents in Lawrence came from Chief Justice William H. Rehnquist (author of the Bowers opinion) and Justices Antonin Scalia and Clarence Thomas. Scalia, writing and reading from the bench -- an unusual move, since dissenters typically issue their opinions in writing only -- argued that "the court has largely signed on to the so-called homosexual agenda." He said, rather disingenuously, that he has "nothing against homosexuals, or any other group, promoting their agenda through normal democratic means," but that sodomy laws should have been overturned only through legislative means, not through the courts. He ignored completely the historical precedent of the countless racist laws struck down by the courts -- laws that would have been easily upheld by majority vote in many parts of the country. Instead, Scalia said that the court has "taken sides in the culture war." Well, if so, it's about time it did.

Antigay forces were quick to respond to the court's decision, echoing Scalia's (and Sen. Rick Santorum's) opinions about homosexual conduct by absurdly linking a gay person's right to privacy to the rights of those who want to engage in consensual incest, polygamy, and a list of other human behaviors that have nothing to do with this debate. No, what led to Lawrence is not the triumph of kinky behavior but the decades of struggle by millions of lesbian and gay Americans fighting for their basic civil rights. Now that our equality has been confirmed by the highest court in the land, the struggle continues to apply that simple standard in every area of American life. Let's hope that gays and lesbians will be encouraged by the court's decision to not give up the necessary fights that still must be fought to achieve genuine equality. The "culture war" is not over, but today at least it looks like the side of fairness, freedom, and equality is winning.


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