Tuesday, March 24, 2009

So Many Things To Do

Some things you’ve just got to do. You’ve got to clean the stove. And the bathrooms. Besides pay taxes and die, there are lots of things you’ve got to do your whole life long. You’ve got to remind people that organized religion does not run the country and its views on homosexuality should not prevail. It’s a life-long struggle, but you’ve got to keep coming back to it from time to time, when the spirit moves you, just as the kitchen stove keeps calling for a scrub.

You’ve got to remind Americans that there are times when they simply cross the line into stupidity and that stupidity has degrees. There is simple absent-minded stupidity, there is rank stupidity, as when people build bridges to nowhere, and there is cruel stupidity, as when we allow the argument to prevail that allowing assault weapons on the streets of our inner cities somehow serves the cause of freedom.

Last Saturday afternoon, two motorcycle cops pulled a guy over for a traffic violation and the guy shot and killed them. A manhunt for the killer followed and when the SWAT team moved in, the killer killed two more policemen. You can imagine what the mood is like here in the East Bay. Four policemen killed in one day – five shot, actually, but the fifth is still alive.

It will be another Mexican stand-off, of course. Anti-gun people will ask their standard question, “When will we learn?” and pro-gun people will haul out the statistics that crimes go down when laws are passed allowing people to own concealed weapons. I’m on the gun control side, but I don’t want to beat that drum here, except to ask the question even if we do allow guns do we really have to allow assault weapons?

Lovelle Mixon was one of those throw-away kids. Dysfunctional family, no education, apparently no hint of contact with a life outside of the ghetto and prison, no familiarity with a society where the law of the jungle does not prevail. After killing the SWAT team cops, he finished them off execution style with shots to the head. This was one angry 27-year old. Today we learn that DNA evidence links him to a rape, on top of all this, and his desperation apparently stemmed from not wanting to go back to jail. He was being sought on a parole violation.

So much to think and feel bad about. How kids turn this bad. How tragic that four cops should lose their lives – and what are we to do now, stop stopping traffic violators? The implications are profoundly depressing.

74th and MacArthur where this all took place is only ten miles from my house, but it’s another universe. I never go into East Oakland unless I’m lost, like when trying to take a shortcut from the Oakland Airport. Forty years ago I lived there for a while when I was trying to be progressive and demonstrate white solidarity with the black underclass. I had a black lover at the time and was clueless over how much he wanted out – and did get out eventually. Like others of my race and class, I don’t do things like that anymore and justify it by saying it was never about race and always about ignorance and poverty and one does not fight poverty by moving into the ghetto.

But it should not get lost in the discussion over what to assign to race and what to class, and where and how the categories overlap, that this ghetto that is East Oakland has been there as long as I’ve been in the Bay Area, soon going on half a century.

Reading about life in East Oakland is almost like science fiction sometimes. A tipster told the cops where the killer had run to – his sister’s apartment. She recognized his burgundy Buick from the news photos.

Go to Google maps and type in 2755 74th Ave., Oakland, CA and you will see the apartment building. What always hits outsiders, especially non-Americans, is how ordinary “the ghetto” looks. I mean it’s not Calcutta. A tad unkempt, maybe, but so are houses in my neighborhood. There’s something else about the poverty of the mind that doesn’t meet the eye.

The tipster didn’t want to be identified. People in her neighborhood can’t be seen to be helping the cops. In fact, outside the apartment were flowers, candles and balloons, now standard procedure in America when people get shot. Spontaneous rituals of providing a last bit of dignity and solidarity. “We gone miss u big cuzn,” one of the signs read.

That sign doesn’t bother me. I have no trouble understanding even the biggest losers of the world might have somebody to love them. But what did bother me were the flyers inviting people to a rally to “uphold the resistance” of “Brother Lovelle Mixon.”

If you want proof of social sickness, I doubt you can find a better example. A rapist, a violent felon, the killer of young policemen whose use of an automatic weapon reveals a willingness to take countless more lives, is framed as a hero engaged in “resistance.”

That’s not the only science fiction twist. When it was all over, the cops sealed the apartment with a piece of plywood which another inhabitant of the building then ripped off so people could get in and have a look around. When asked by the sister why he should invade her apartment like this, the man answered, “I wanted to see if it was an overkill.”

Such is the state of relations with the cops in this neighborhood. Still pending is the case of a BART policeman who shot a kid in the back after he got him on the ground after a scuffle at a BART Station only three miles from 74th and MacArthur. Still warm in local memory is the celebration by blacks of O. J. Simpson’s acquittal and the comment that it was about time a black man killed a white person and got away with it. Payback time.

I say these are issues that have to be visited with regularity, like cleaning the stove and making the toilet shine. But I know how to use Ajax and oven cleaner. I don’t know how to make American poverty and ignorance go away. One solution popped off the page that you might miss if you were just scanning the story. The tipster happened upon an “officer she recognized.” Bad as this event was, it could have gotten much worse if the police chase had been more protracted. A policeman she recognized. Sounds to me like a pretty good argument for beat cops and more neighborhood one on ones with the cops.

That, and keeping the dialogue going about how to get to the kids born to families that can’t or won’t take care of them, kids who can’t escape the ugly surroundings into which they were born. Big brother and big sister programs. Head start programs. School lunch programs. Stand and Deliver programs that teach kids discipline and self-esteem through academic success.

Got to keep the ideas coming. Got to get to these kids like Lovelle before they learn to think that they can kill people they don't like and their sisters can defend their actions because “he didn’t like his parole officer.”

Prevention goes not just for getting to kids in school. We should stay focused on how the police academy selects and trains its recruits so bad cops too are headed off. One bad cop can set back community relations years.

And we’ve got to keep the lights on on issues of life and death. For me that involves getting rid of the death penalty, avoiding war as a political solution, treating drugs as a medical problem instead of a criminal one, AIDS as a medical problem instead of a moral one – so much falls under the rubric of demonstration of the importance of treasuring all human life.

Laugh, if you need to, at the naivete of that statement I just made. But consider what happens when the lights go out and we avoid such questions because they are embarrassing or frustrating or simply too challenging.

Some things you just gotta do. And keep doing. Your whole life long.

I’m off now to Oakland City Hall to sign the book of condolences. I could be doing other things, like cleaning the bathroom.

I think this is a moment when I want to do both.

Saturday, March 21, 2009

Sunscreen Leads to Sunburn

The pope is making news again, travelling through Africa and telling people that condoms not only don’t prevent AIDS, they actually make AIDS worse.

If you are one of those folk willing to restrict all your sexual activity forever to sex with an opposite sex partner-for-life to whom Mother Church herself has joined you in the sacrament of marriage, and only when it is your intention to make a baby, this view of reality probably won’t set off your BS alarm. And even if it does, after all, you can say, he’s only doing his job.

If, however, you find yourself in the other 99.9% of the human race, this has got to strike you as full-fledged mischief, and you might want to suggest he get a new job. Or at least go on unemployment for a while.

Stomping around the planet telling people to throw out their condoms is an idea which gets worse the longer you think about it. Even if you are married and are among the 5% of the population in Cameroon living with AIDS, for example, what he is asking you to do is to stop all sexual activity with another person. Forever. Period.

And beyond Cameroon, what of the 22 million HIV sufferers in all of Africa?

There is the argument, of course, that by putting on a condom you get a false sense of security. Like with sunscreen. One religion site defending the pope’s actions actually makes the argument we ought to consider the possibility of overconfidence. Sometimes people put on sunscreen and then stay out in the sun longer than they should on the false assumption they are safe. Guess this is the catholic analogue to the Baptists who won’t have sex because it might lead to dancing. If your choice is between throwing away your condoms and doing without sex so you don’t risk overconfidence, and having the safest sex you can think of, which direction are most people going to take?

“Why are you surprised that the pope is catholic? There is nothing new in this message,” I hear you saying.

That’s absolutely true, of course. But each time this guy stomps around with his no birth control, no abortion, no condoms, no non-reproductive sex nonsense, there ought to be an equal and opposite force out there calling it nonsense.

The guy does pernicious evil. Let’s not forget the other example of church policy in the news in the past few days – the Brazilian 9-year-old who might well die if she doesn’t have the twins aborted her loving stepfather put in her womb. God’s will, says the church, if she does, and excommunicates the doctors and the girl’s mother for taking her to those doctors.


Just plain horseshit.

Stand up and tell this joker,

Papa, tenês caput in culō…

(or in God’s native English, “Pope, you’ve got your head up your ass,” if my high school Latin still serves.)

I Love You, Man: A Review

I Love You, Man is making a big splash, with publicity galore, $6.4 million in profits in its first week and hundreds of reviews, including a three-and-a-half star rating by Roger Ebert.

Almost everything that might be said of the movie has probably already been said, and the Roger Ebert review pretty much hits the nail on the head in my view, but I had a take on the film that I have not seen anybody else mention yet, so allow me to sound off here.

I wandered into a matinee yesterday and immediately had second thoughts. The theater was full of loud boistrous 25-35 year olds, either in couples, or in gaggles of hooting and hollaring females out to party party. If this were not Berkeley, I might have walked out, hyperconscious of my fish-out-of-water status as a 69-year old gay man.

I Love You, Man is a male-bonding flick and a romantic comedy about two people in their late 20s about to marry for the first time. Zooey’s girlfriends worry she is marrying a man without male friends and that could spell trouble later on. He could get all clingy or something. Peter overhears this conversation and sets about finding himself a buddy. He then would not be embarrassed at having nobody to be his best man.

You see how I felt I had crashed a private party. I’m not young. I’m not into the projectile-vomiting kind of humor of straight male bonding movies. I don’t spend a lot of time wondering why one asks somebody to marry him or her.

But I left the theater with a smile on my face. I had, in fact, laughed my head off. I think there were even times when I got jokes the young people missed, and mine were the loudest guffaws. It’s a very warm and often hilarious comedy.

Watching a straight romantic comedy has sometimes felt kind of like attending Christmas mass as a Jew. Watching straight male-bonding movies has involved waiting in dread for the inevitable exclamation of disgust when one or the other of the characters does something that might mark them as “gay.”

I Love You, Man’s success is appropriately attributed to the two main characters. Paul Rudd is brilliant and vulnerable. There’s no way not to fall in love with him, no matter who you are. Jason Segal is brilliant and even Roger Ebert wants him for his best friend. Together they are way more than the sum of their parts on the screen. But without diminishing their contribution, I think the real secret to the film’s success has to be in the magic touch of its scriptwriter and director, producer, editor and others involved in making a feel-good movie which invites in all people who love love. Gays not excluded.

Peter’s brother is gay and their father gets in a great line when Peter brings Zooey home to dinner and explains that he is looking for a best friend. “Who’s your best friend, Dad?” he asks him. “Your brother,” his father answers.

In his search for a buddy Peter goes on “man-dates.” Robbie, the gay brother, gives him lessons. “No candlelight dinners,” he tells him. “No movies like The Devil Wears Prada.” “I LOVED The Devil Wears Prada,” Peter says. Wrong response.

What you have in the main character, Peter, is the kind of straight man gay people mistake for gay, women believe is too good to be true, and a straight man like Sydney, the guy who ultimately fills the role as best friend, thinks he needs to teach how to be a man. In time Sydney realizes there is probably more learning going on in the other direction.

Increasingly gay characters show up as just part of the scene in Hollywood and TV dramas, so perhaps the gay-friendliness of I Love You, Man is no longer remarkable. Perhaps I’m just showing my age and too much direct exposure to the Mormon and Catholic homophobia that has set back gay rights in California, but it sure felt good to be able to cheer without reservation for the straight guy and want him to get his girl. And to watch two heterosexual men get close and have no fear they might do so at your expense.

Actually there was a gay misunderstanding joke thrown in. When Peter is man-dating one troll after another before finding a buddy he can relate to, a scene every gay man who has ever gone cruising will find achingly familiar, he meets a gay man who somehow doesn’t get the message this is a straight man-date. After the date, he plants a wet kiss on Peter. Peter rejects him with a complete absence of disgust, although there are jokes when he goes home and kisses Zooey, who tells him to wash the cigarette taste out of his mouth. She is totally cool when he tells her how it got there. Just get rid of it, she tells him. The gay man later sees Peter with Sydney, thinks they are a couple, and calls him a whore. And the joke repeats. Until the end, when you see him as a guest at the wedding, with all the misunderstanding obviously worked out. It’s that touch which sets the tone and allows the humor to flood through. If one were to hesitate over the humor, one might be put off at the gross jokes and the silly formulaic plotline and the wretchedly drawn out and predictable finish.

But there are no barriers to laughing out loud and feeling good in this movie.

It’s a total winner.

Paul Rudd as Peter Klaven
Jason Segal as Sydney Fife
Rashida Jones as Zooey
Andy Samberg as brother Robbie
J. K. Simmons as Oz, Peter’s dad
Jane Curtin as Joyce, Peter’s mom
Jon Favreau as Barry, Peter’s absolute opposite, the straight man from hell

Monday, March 16, 2009

Who’s Standing on Whose Foot, Cardinal Pell?

Homo sapiens – knowing creatures, we are called. Sometimes, though, we should go by that other descriptor, homo ludens – creatures that play games.

Take the Catholic Church, for example. (And I can’t say that without morphing into Henny Youngman – “Take my wife – please!”)

For years, the Church played “King of the Mountain.” But that was a competitive game and all kings of the mountain are eventually pulled down by younger more energetic forces. The Enlightenment. Democracy, for example.

Today, they seem to be into playing victim. Got that from their Protestant friends, now that their stature has shrunk to a level where it pays to join forces with former enemies. I’m talking about the Protestant Evangelicals who line their walls with American flags and talk to Friend Jesus the way my niece Olivia used to talk to her imaginary friend Blueberry. They have discovered they can get some mileage out of declaring their religion is under attack. Seize the initiative, it’s called in business and politics. A kind of co-optation. Make yourself the wronged party so when you go a-stompin’ maybe nobody will notice who’s wearing the boots.

Read any gay publication and you will hear stories about how hate crimes against gays are skyrocketing since Prop. 8. The bullies have come out of their ratholes and are having a field day. During the Prop. 8 campaign, the Yes folks published who was supporting the No side and urged boycotts. If you blinked, you missed the fact that the No folks turned the tables and began doing the same in reverse. Without a familiarity with the chronology, you’d think all the aggressiveness was coming solely from the No side.

That’s politics, folks. Each side singing its own praises and rubbing forefinger over forefinger to shame shame shame the other side.

People do it all the time. Especially young people who lack maturity. Bullying comes naturally to the human race.

We shouldn’t be surprised when the church does it, too. They are, after all, despite all their claims to divine maintenance, a very human institution. Just look at Cardinal Pell, the man who runs the church for Rome in Australia. Just because he’s routinely referred to as His Eminence doesn’t mean he can’t act like a 9-year old.

Will get back to him in a minute. First a little illustration of how the conservative church works when it's not playing victim.

You may have read about that recent horror story in Recife, Brazil. A stepfather molests his 9-year old step-daughter and she becomes pregnant. The girl weighs all of 80 pounds and doctors determine that letting the pregnancy go to term – it’s twins - could be life-threatening. Accordingly, they abort the fetuses, in line with Brazilian law which allows abortion in rape cases before the 20th week of pregnancy. The worst of a bad event avoided, right?

Wrong. Excommunication! Excommunication! Archbishop José Cardoso Sobrinho of Olinda and Recife cuts off the offending limbs that are the doctors and the girl’s mother, and consigns them to eternal damnation. His decision is backed up by Cardinal Giovanni Battista Re in Rome.

Fortunately, the church is not monolithic. Archbishop Rino Fisichella, who heads up the Vatican’s Pontifical Academy for Life, let it be known an innocent child’s life was at stake and the doctors might not be monsters. Rome has not come down on Fisichella yet, but it will have to, to be consistent.

True, the church’s stand on abortion is the right one, he suggests, but, in a double-talk that has come to be known as “jesuitical,” Fisichella also opined that the girl “should have been above all defended, embraced, treated with sweetness to make her feel that we were all on her side…” Nice to see evidence there not all clergy have surrendered their souls for silks and satins and a place in the Vatican bureaucracy. But which is it? Do we let her die so that the church’s thinking can be upheld? Or do we attack the heartless rigidity of conservative catholicism and stress Christ’s mercy as a greater good than allowing a child to die to maintain papal authority? If you are clever enough to have your church run from Rome, you know there is a third way. In Calvinist or Lutheran nations you have only truth to guide you. The Italians know life works much better if you just say one thing and do another.

All of which simply shows the Catholic Church, no surprise, as a human institution, man-made, man-regulated, man-dominated and with very human weaknesses. And only if you have just opened your first newspaper or history book should it surprise you that this human institution’s main game is politics, not religion. If it were divine, perhaps it could be big, rich and powerful and not be political.

But there is politics, and there is dirty politics, and the church’s latest dalliance with the latter seems to be the Johnny-did-it-not-me victim game. Australia’s Cardinal Pell is also in the news lately for his claims that the church is under attack by secularists and homosexuals. Nothing new there. The standard conservative voice of the church can be heard well beyond Rome and Latin America.

Tom Delay, that paragon of American virtue, was shilling for the religious right back in 2006 and linking arms with the likes of Tony Perkins to insist gays were out to destroy Christianity when this game was first played in America in earnest. Now it’s the head of the Catholic Church in Australia who has picked up the refrain, and demonstrated the church can jolly well murder itself, thank you very much, by eating away at its own credibility.

Sometimes, in the lofty philosophical discussion of “culture wars” and “paradigm shifts” the specific issues driving this rhetorical shift to playing the victim itself gets lost. We should not forget what it is. On one level it is a clash of civilizations. But it’s also about individual people’s lives with very local consequences.

If you are my age you probably remember the time when those chair-desks with the fold-up writing surfaces were all made for right-handed people only. It went with the mind-set that left-handed people should be forced to write with their right hands. At some point versions for left-handed people began showing up, just as elevator buttons and curb-ramps at intersection crossings began to appear for the benefit of folks in wheelchairs as we began to stop seeing human beings as produced by cookie-cutters.

We are coming around to an awareness that the church is wrong in its cookie cutter view of gender and sexuality as well and more and more people understand the idiocy and unfairness of declaring “gays have the same rights we do; they have a right to marry someone of the opposite sex just like everybody else.”

Many want to attribute the recent rise in gay bashings to the leadership of the church, even though the leadership is quick to point out they do not support violence against gay people. Responsible gay leaders don’t make a direct connection (although many make an indirect one), but all the talk about a “gay agenda” notwithstanding, there is no Gay Central Office dictating what gay people should say and do. It’s chaos out there.

The Church, which does have a Central Office by the way, wants to have its cake and eat it too. It won't accept responsibity for the gay bashings but at the same time insists the bashers of church property somehow represent the entire gay community. You've got to admire their skill in playing dirty.

Cardinal Pell has learned to play the American game, like all political lambs in religious sheep’s clothing and charge that gays are not honoring the right of the church to be Christian. Never mind that being Christian, in this instance, is demanding gays lose their rights to live as free and equal citizens in a democracy. We’ve got a right to discriminate, say the churches. We’ve got a right to stand on your foot without your shouting we are standing on your foot!

The Sydney Herald has suggested this guy is the voice of “corporate catholicism.” Quite possible. Still, you gotta admit he’s got cojones. "We should note the strange way in which some of the most permissive groups and communities, for example, Californian liberals in the case of Proposition 8, easily become repressive, despite all their high rhetoric about diversity and tolerance," he said.

He’s referring to, in his words, “how churches and temples were subjected to violence, vandalism and intimidation, and how some supporters of the amendment were forced from their jobs and blacklisted.”

Anybody following the news knows that the number of gays stepping over the line and frightening worshipers at church or defacing church property is miniscule. To tarnish the civil rights movement of millions of people by the few who get out of hand is no different from laying blame on the gay bashers directly on the Archbishop. He knows he did not instigate the violence; are we to believe this fellow is too dense to see the parallel?

Misrepresentation is the currency with which the Cardinal operates. Taking on the culture war battle between traditional Roman Catholic authority and modern public life, the fighting back against religion, he claims, stems mainly from a “misplaced belief in ‘absolute sexual freedom.’” Absolute sexual freedom? You mean like the freedom to have sex without fear of pregnancy and with the person of one’s choice without regard to gender? What’s next? A demand for clean water and fresh air? Misplaced belief in freedom? Eminence, listen to yourself!

You say to-may-to, I say to-mah-to, but let’s not lose sight of the fact nobody is telling you, your Eminence, how you should behave. You are the one dictating how we should behave and we are simply not having it. We are not fighting your right to be Christian according to your dictates, just your right to be dictator.

And I think you know that. I think this attempt to muddy the waters by claiming we are out to get religion when we are only out to get religion off our backs, is dishonest. Political.

You enter the political arena and take your political shots.

You can even fight dirty, if you want. But stop feigning surprise when we call you on it.

It’s not that we don’t expect it.

After all, you’re only a human institution.

Wednesday, March 11, 2009

Gay Couples? What Gay Couples?

One of the essentials to understanding politics is to spot the ways words are used to mislead. “We are the party of small government,” goes the Republican party line. “Keep the government off our backs,” says the rightwing demagogue, and the masses cheer.

By now the secret is out. Small government was a codeword for a return to Robber Baron democracy. What it meant was keep the government regulators out so laws could be written for the benefit of the super-rich. If anybody got an inkling of what was going on, it was explained away by the trickle-down theory.

Small government was Bush-Cheney-speak for government big enough to wage war in several countries at once, big enough to get their friends at AT&T (you remember them – they once overturned elected democracy in Chile ) to listen in on your conversations, powerful enough to put in place an attorney general who would help get rid of political enemies, a judiciary that would justify torture.

Orwell must be rolling over in his grave to see words “small government” used to hide the phenomenon of “big government.” It was never a question of big government on the left, small government on the right, but big government on both sides. The difference was only in what government was used for. The left wants it used to make sure contracts are kept, minorities are protected, the environment is protected, water is safe, schools and hospitals and bridges are built. All this takes big government. Murdering government in the bathtub sounds good if you are a rightwinger, and might actually make it easier for you to privatize your wars, but in the end you need government to pull it all together. You don’t run an empire on volunteer labor.

But while all eyes are turned to our economic woes, we miss other evidence that the “less government” party-line on the right is a crock, little more than a slogan for a game of bait-and-switch. At the heart of right-wing politics are the folks who are pedaling as fast as they can to assure the government is run “on Biblical principles.” They want the government out of their business affairs, perhaps, but certainly not out of the lives of citizens, Christian and non-Christian alike, when it comes to what they tell us is “God’s law.”

We like to contrast ourselves with tyrannical governments. In the American legal tradition you are innocent until proven guilty, and that which is not expressly forbidden is permitted. Oppressive governments work the other way around. Republicans, if they were consistent with their claim to favor small government, would not be dictating who should marry whom, for example. Here’s one case where it’s the left that favors minimal government interference. The right wants government front and center in determining who marries and how marriage is defined.

We recently went to the polls in California and took away the right of gay people to marry. The Supreme Court appears to be leaning in favor of allowing that decision to stand, arguing that the majority can, in fact, remove the rights of a minority it doesn’t like, provided that that minority can find equivalent benefits by some other means. The jury is still out, and this could change, but that’s how it appears to be at the moment.

When the California Supreme Court found gays have the right to marry in the constitution, San Francisco Archbishop Niederauer phoned his Mormon friends in Utah, and his own boys in the Knights of Columbus, and a few dozen million dollars later, we have this retrograde limitation on individual rights the court declared in writing “serves no state interest.” To be sure, freedom loving gays and others need to take much of the blame here for not getting their asses into the voting booths to counter this force, but that doesn’t change the fact that what was going on was government swinging into place to impose the religious views of some of us on all of us.

It actually gets worse. It turns out the Census Bureau has determined that in the upcoming census in 2010 census takers must mark same-sex married couples who live together as "unmarried partners." Why? Because the government, in the form of the Defense of Marriage Act (DOMA) does not recognize same-sex unions sanctioned by states. Get that? If you were married in Massachusetts or Connecticut, or if you are one of the 36,000 people married in California, but happen to be married to a person of the same sex, you will be registered by government as unmarried. Despite the open secret that only certain religious groups favor limiting the civil rights of gays, and 83% of those polled after the election who say they never attend church favor gay marriage, government continues to do the bidding of the religious right.

But isn't this "the people" voting? Don't Christians have the right to vote their principles? How is government to blame if people take their cue from religious leaders?

The problem comes when the state throws its weight behind one side or the other instead of staying out of religious fights. If you look at who is pushing prayer in school, it's invariably Christians who have problems with believers of other faiths. In order to make atheists and followers of other religions not feel like second-class citizens, we hold back on the appearance of state endorsement. If you look at people pushing for the ten commandments to be posted in the public arena, we see the same kind of people - those who want their views to dominate all Americans, not just those who follow their faith - and they want the government to help them pull it off.

The neutral position in the marriage issue is for government to recognize the categories created by its citizens, and not override their categories. In this battle over rights, the very heart of the issue is recognition. Gays want their relationships recognized; religious folk want them not to have it. Prohibiting the Census Bureau from using the categories defined by the states is taking the side of biased groups as surely as if they had chosen to define Jews or Hindus as non-religious simply because they are not Christian.

Martin O'Connell, chief of the Census Bureau's Fertility and Family Statistics Branch, argues that his hands are tied. It appears to be a bureaucratic hang-up, and not a prejudice on his part. "It's not something the bureau could arbitrarily or casually decide to change on a whim, because our data is used by virtually every federal agency." They don’t want to falsify information, he said, but if government doesn’t recognize your marriage, well then, you’re unmarried. After all, government has to publish data in a way that “is consistent with the way every other agency publishes their data."

Gay couples? What gay couples?

Thursday, March 5, 2009

California Supreme Court Case S168078

The Supreme Court hearing on Prop. 8 just finished. There were three hours of debates, five people arguing for its overturn, and Ken Starr arguing it should be maintained. Although my cold, now in its second week, prevented me from showing up in person as I had planned for months to do, I was able to get a live streaming of the deliberations on the computer, over morning toast and tea. Not a bad compensation prize.

If you are not used to how different Supreme Court hearings are from other court hearings, it will probably come as a shock to hear the justices interrupt and even badger the lawyers making their cases, sometimes asking them questions before they’ve even said Word One. They wouldn’t characterize it as badgering, I’m sure, but it comes across that way at times. Which is fine. It’s refreshing to see people get to the point and abruptly bring others back to it, after all the years I spent sitting through hours and hours of public meetings, including court sessions, where one bloviator followed another.

Thousands of people watched these proceedings on pins and needles, as I did, desperately seeking to predict the outcome from the nature of the questioning. Before I tell you what I predict the outcome will be, let me say just how hard that is, and how little confidence I have in my conclusions.

The California Supreme Court justices each have their own style. All of them strike you as profoundly intelligent, occasionally as crafty. Every one of them would be an advocate you’d want on your side. They are lawyers’ lawyers. You sense that when they work collectively, as you assume they always do, they leave no stone unturned, no issue unaired.

It was clear from the outset by their demeanor and from the fact they wanted to ask questions more than listen to answers that they had done their homework and were ready for the fight. I was surprised, in fact, at how hard it was for presenters to make their case, and I feel the petitioners were given short shrift, although in fairness to the justices, they had read all the arguments already in the briefs. You could see what issues they had already settled in their minds and what issues they were in need of help on. Justices George and Kennard did most of the talking for the court, Justice Baxter the least, but none was about to sit back. What kept you from predicting their decision on the basis of the slant of their questions was the fact that you couldn’t always be sure when it was confirmation they were looking for and when they were hoping somebody would challenge their tentative conclusions. They are master devil’s advocates, and masters at pushing the logical consequences of decisions through hypotheticals.

My guess is that they will uphold Proposition 8 but allow the 18,000 same-sex marriages legalized between May 15 and November 5 to stand.

If I am wrong – and I profoundly hope that I am wrong about their letting Prop. 8 stand – it will be because I am giving too much weight to Justice Kennard’s line of questioning. She all but came out in total agreement with Ken Starr’s argument – that in a democracy the people reign supreme. Starr all but conceded that Prop. 8 might be mean and stupid before arguing that the opinion of the masses didn’t need to be wise, or even “right.” It still had to be respected as the opinion of the majority.

The petitioners (petitioners = invalidate Prop. 8; interveners = uphold Prop. 8) made passionate articulate arguments that there were such things as fundamental inalienable rights that people could not overturn. Those two words, fundamental and inalienable, figured large in the debate. The justices showed they were concerned how one would identify just what those are. In the absence of clarity over whether the right to go fishing was up there with the right to free speech (believe it or not, there is legal precedent that speaks to that issue), I got the impression Kennard was buying Starr’s argument.

Last year, what worried gays and lesbians was the fact that they are all Republicans, except for Moreno. Baxter and Chin are “conservatives” and the rest (Werdegar, Corrigan, George and Kennard) are considered moderates, politically. But this is, I think, an example of where the liberal-conservative spectrum of labels falls down. Last year, George, the moderate in the middle, and chief justice, wrote a strong defence of the right of gay people to marry. Kennard concurred strongly.

Today, Kennard explained her decision. She found that right in the constitution. And she will make her decision on today's hearing on the same basis. That is not happy news for Prop. 8 opponents, since now the constitution contains Article 1, Section 7.5. If that doesn’t ring a bell, that is Prop. 8 now written into the Constitution. Last year it wasn't there; this year it is. In both cases her job as Supreme Court justice is to uphold the Constitution. That’s a position both progressives and conservatives endorse, although they may disagree with her reasoning.

We should not be talking in terms of justices taking or switching sides, and drop our overuse or misuse of the terms liberal, progressive and conservative when it comes to legal reasoning. A progressive could well take the stance that there is no greater sovereign power than the will of the people on progressive grounds, and a conservative could do the same on conservative grounds. What troubles me, though, if I have read her right, is that she is effectively saying, “Go ahead, people. Exercise your right to be unwise. I cannot and will not interfere.” That strikes me, who likes the progressive label, as a failure to exercise the court’s prerogative to interpret the Constitution according to its overriding spirit. But perhaps not.

“OK, people,” I think I heard her say, “Get up and change the constitution again the way you did this time.”

How much she was speaking for others, as I say, I can’t be sure. I’d love to be a fly on the wall when the Court confers and they have their own private debate on the merits of the argument that some rights cannot be abrogated. Justice George probed that issue several times. What happens if the people of California determine at some future date that only men can be justices of the Supreme Court? Does the majority have the right to override hard-fought and hard-won rights of citizen equality without regard to categories of identity, usually referred to as minority status?

Two other issues, besides Justice Kennard’s line of questioning, are telling. One is there was considerable discussion about whether to leave the interim marriages intact. It was generally understood that if they were inclined to invalidate Prop. 8 this would be a moot point and not worth spending time on. Since they did spend so much time on it, that suggests they are seriously considering upholding Prop. 8.

One question was whether “invalidating” those marriages suggests that no contract is safe. How is a Californian to enter into a contract if he or she knows that at some future date it can be invalidated?

Ken Starr made the kind of distinction that makes people hate lawyers. You don’t “invalidate” any of the marriages. You simply “withhold recognition” of them from now on.

“What if we were to up the marriage age to 21,” Justice George asked, “and declare that all marriages between 18-to-20 year olds were no longer to be recognized?” No problem, Starr answered. There are other ways for them to be recognized as common-law relationships.

Nobody connected the dots that this clearly puts gay marriages into a second-class status – which was the heart of the proponents’ argument. We will have to wait for the written decision due in the next 90 days to find out what play that argument got.

I’m leaving out the many complexities which will no doubt be summarized in various media venues in the coming twenty-four hours and beyond.

I just wanted to get out the word that I am afraid we might not win this battle, and will have to sit on our bitter disappointment until the next referendum, confident in the knowledge that with every passing year people are less and less inclined to see gay people as unworthy of equal rights. From Prop. 22 to Prop. 8 there was a huge drop in anti-gay sentiment abroad in the land – indeed Prop. 8 passed by only four percentage points. We’re simply going to have to wait and let this process continue.

If they do let Prop. 8 stand, there is no denying it will be a terrible blow, and lots of people will take support of the “majority rule” line of reasoning to mean you can express your homophobia freely. It may set back gay rights more than just a year or two.

For that reason, I can’t tell you how fervently I hope I’m wrong about Justice Kennard’s having made up her mind and about the possiblity she represents the majority opinion.

I’ve been terribly wrong about a lot of things lately. Pray God this is just another one.

Monday, March 2, 2009

Civil Marriage, Sanctified Marriage

On the opinion page of this morning’s San Francisco Chronicle is a piece by Douglas W. Kmiec and Shelley Ross Saxer, professors of law at Pepperdine, Ken Starr’s university, suggesting for the n’th time a solution to the gay marriage problem which they offer up as a compromise – gays can marry, they just need to give up the word.

Compromises are good when they are both fair and necessary. This one is neither.

To revisit this old argument one more time, Proposition 8 would never have happened if we had done what most civilized nations do. Start off by considering marriage a contract, acknowledge it is one of government’s duties to oversee contracts, and go from there. When you marry in Ouagadougou, you don’t get the Bishop of Rome’s signature on your marriage certificate; your Burkina Faso francs go to pay the fees at the local magistrate's office. Locally, marriage may involve grinding the grain and giving flour to the old women of the village (religion, in other words), but when you come to get your doctorate in divinity at Yale and want to bring your wife with you, the U.S. visa office wants the marriage license, not the flour.

Why do educated Americans – law professors yet – think we are the only people in the world to get married? That we are the only people to use the word marry? The Emperor of Japan marries the Empress in a religious ceremony, but when Mrs. Empress collects social security, it’s the state that checks her entitlement, not the goddess Amaterasu.

Try getting married in church in France or Germany or Mexico or Japan or China or just about any place where people live in the 21st century without having your marriage processed by state authorities, and see how married they consider you.

There is absolutely no justification to the claim that the church owns the word marriage, much less the concept. The notion existed before the church was invented; it will be around long after people forget how to play bingo.

Kmiec and Saxer are a breath of fresh air in the Prop. 8 camp, I must admit. At long last we have Prop. 8 voices that want to recognize church-state separation. But their insistence that the church has authority over the word marriage – never mind that nobody “owns” words – reminds me of the burglar who takes your TV and your VCR and when you catch him at it, suggests you compromise and let him keep the VCR. He may trick you into thinking you’re a cad for not wanting to compromise. But don’t lose sight of the fact it wasn’t his in the first place.

By all means let’s take the good part of Kmiec and Saxer. Separate church and state. Get Americans used to doing what they do in France. Marry in City Hall. Then, if you wish, bless that union in a church. Gussy it up any way you like, flowers, Cousin Gladys singing Ave Maria, the works. The license will say you were married by the city clerk, heaven will say you were married by Father Patrick down at St. Brigid’s. Everybody will be happy, and infelicitous word constructs like domestic partnership can go the way of the icebox and the Stanley steamer.

Consider K & S's alternative. We once again go our own way from the modern world, and use “marriage” to represent only those unions sanctified in a Christian church. We insist when a Spanish couple comes to New York that they erase the checkmark they put next to "married" and put one next to “in a domestic partnership” instead. First, of course, we have to ask them whether they were married in a church or by a civil authority. When they say they were married by a judge and are therefore esposo and esposa, we correct them and say, “Not here, you ain’t buster. Here you’re merely 'partners domésticos.'”

Good idea, Kmiec and Saxer, to have two separate institutions, each with their own ceremonies. We’ll call them civil marriage and sanctified marriage. The state will control the former via the IRS and the divorce courts and we will all participate in how the rules for this are made. The latter will be up to the angels and their agents on the ground and need not concern the rest of us.