03/23/2013

What To Watch For: 'Standing' in the Supreme Court's DOMA Case, Windsor v. United States

BY ARI EZRA WALDMAN

On Tuesday and Wednesday, March 26 and 27, the Supreme Court will hear more than 3 hours of arguments in the challenges to the constitutionality of California's Proposition 8 (Hollingsworth v. Perry) and the Defense of Marriage Act (Windsor v. United States). In a series of short posts, I will preview and summarize the legal issues that will be raised. In this column, standing in the DOMA case. 

In an earlier post, we discussed the "standing" issue in the Prop 8 case, Hollingsworth v. Perry. The issues there should be pretty familiar to regular Towleroad readers; we have been discussing them since shortly after Judge Vaughn Walker declared Prop 8 unconstitutional in 2010. The standing question in the DOMA case, Windsor v. United States, has not garnered as much attention, but it rests on similar legal principles.

Standing in Hollingsworth depends on whether ordinary citizens can step into the shoes of the state without showing their own "particularized" or "direct injury."

Standing in Windsor depends on whether one house of Congress can step into the shoes of the Executive Branch without showing their own direct injury.

There are really four related questions here:

First, could Congress ever have standing to defend a law like DOMA?

Second, even if Congress could, can one house of Congress defend DOMA without the other?

Third, even if one house of Congress could, did one committee of that house have the power to intervene?

Fourth, even if one house of Congress could defend DOMA, does the Obama Administration's agreement with the Second Circuit's decision striking down DOMA deprive the Supreme Court of jurisdiction regardless of who is defending the law?

Because Edie Windsor, President Obama, and House Republicans all believe that the parties have standing and the Court has jurisdiction, the Court, as it sometimes does, appointed a constitutional scholar -- Professor Vicki Jackson of Harvard Law School (right) -- to flesh out the standing argument.  

Think of Professor Jackon's argument this way: Winners can't appeal, the left hand can't do anything without the right hand, and, regardless, both hands are tied. That is, because the Obama Administration won at the Second Circuit and because only one house of Congress is trying to defend DOMA, the Court has no jurisdiction to hear the case. Plus, DOMA is not the kind of law that Congress ever has the authority to defend.

There are several persuasive legal reasons to think this argument is sound, but just as many persuasive reasons on the other side. And, there is one other factor that will most likely push the Court to go beyond the standing question and address DOMA's merits: If it doesn't, then DOMA is the law of the land in several jurisdictions, but unconstitutional in others, contributing to an absurd regime that would be impossible to administer.

I discuss the arguments AFTER THE JUMP.

Continue reading "What To Watch For: 'Standing' in the Supreme Court's DOMA Case, Windsor v. United States"

Posted Mar. 23,2013 at 12:29 PM EST by Ari Ezra Waldman in Ari Ezra Waldman, DOMA, John Boehner, Law - Gay, LGBT, Republican Party | Permalink | Comments (0)

Michelle Shocked Said She'll Be Showing Up to Her Canceled Show Tonight; Venue Tells Her 'Don't Come'

(image source)

Michele Shocked told followers on Twitter yesterday that she would show up at McCabe’s in Santa Monica despite the fact that they had announced cancelation of her show over her anti-gay remarks (listen to them HERE), according to the Hollywood Reporter:

Friday afternoon, the beleaguered singer tweeted that she would be appearing at Saturday night at McCabe’s in Santa Monica for a “speaking engagement” on the subject of “Effects of Gay-Bashing on the L.A. Mayoral Race.”

This came as news to the club -- and not good news.

“She is not welcome at McCabe’s,” said the venue’s angry concert director, Lincoln Myerson, who had just learned about Shocked’s vow -- or threat -- to show up after he got calls regarding the singer’s mysterious tweet.

McCabe's had not heard from Shocked since they announced her show's cancelation. Neither had any of the other 10 venues which canceled.

THR adds:

“Had Michelle attempted to talk to me [about taking part in some kind of nonmusical forum], I might have attempted to work something out with her." Myerson said. "But for her to go rogue on this shows that she’s her own sheriff. If she wants to do it at the park down the street, she can do it there, but she can’t do it at McCabe’s. I’m not intending to clean up this mess for her. I wish I could get on and tweet, ‘Hey, it’s at her house -- here’s her address.'"

Asked by The Hollywood Reporter via Twitter if she intended to make her "appearance" some sort of guerrilla action, Shocked, who was arrested two years ago at an Occupy protest, responded: "OK, OCCU-PIE!!" She also retweeted a fan who said: "You mean like on the sidewalk in front of @McCabesGuitar? It doesn't get much more punk rock than that. I'm there."

The police have been alerted to a possible appearance by Shocked and/or angry activists.

Stay tuned...

Posted Mar. 23,2013 at 11:22 AM EST by Andy Towle in California, Michelle Shocked, News | Permalink | Comments (16)

The Best Videos of Last Night's East Coast Meteor

Though it was nothing like the Russian meteor, the meteor seen on the East Coast did cause a brief flurry of activity on Facebook and Twitter last night.

We'll see if there are any better videos than this, but the three being circulated the most on social media.

Watch (without high expectations), AFTER THE JUMP...

Continue reading "The Best Videos of Last Night's East Coast Meteor"

Posted Mar. 23,2013 at 11:01 AM EST by Andy Towle in News, Space | Permalink | Comments (4)

Rick Perry Criticizes Madonna for Taking 'a Shot' At the Boy Scouts

Rick Perry took a shot at Madonna for blaspheming the Boy Scouts at the GLAAD Awards in NYC, the Houston Chronicle reports:

“It’s fascinating that someone would make that kind of gratuitous shot at an organization that has probably done as much to promote young men to the type of values that the vast majority of the people in this country aspire to,” Perry said.

Perry has been an outspoken advocate for the Boy Scouts for years. He authored the book, “On My Honor: Why the American Values of the Boy Scouts Are Worth Fighting For ” in 2008, explaining why the organization should adhere to its conservative values. When the Boy Scouts considered changing their policy earlier this year, Perry protested openly.

“I think most people see absolutely no reason to change the position and neither do I,” Perry said at the Texas Scouts’ 64th annual Report to State in February.

In his book, Perry also compared homosexuality to alcoholism.

Said Perry, in On My Honor:

..."Even if an alcoholic is powerless over alcohol once it enters his body, he still makes a choice to drink...And, even if someone is attracted to a person of the same sex, he or she still makes a choice to engage in sexual activity with someone of the same gender."

In related news, Scouts for Equality, the organization run by former Eagle Scout Zach Wahls, which has been leading the fight against the Scouts' ban, released numbers yesterday from internal documents obtained by SoE showing that the gay ban is a key factor driving the decades-long decline in scouting.

The internal Voice of the Scout poll showed that of the 5,800 survey respondents who commented on the policy, 95 percent said the 'reaffirmation of the membership policy negatively impacted their loyalty.' For boy scouts and their parents, that number jumped to 97 percent.

BSA also noted that "conservative estimates assign a 15:1 ratio of negative to positive comments about the existing membership standards policy" that prohibits gay scouts or scoutmasters.

The public relations pressure following the ouster of a lesbian den mother , Jennifer Tyrrell, in the summer of 2012, 'seems to have greatly impacted Detractors, as the membership standards policy was mentioned 42 percent of the time in their comments. This volume is significant enough to warrant further discovery as it may be a key factor in the NPS decline for parents of Boy Scouts / Venturers.'

More information at Scouts for Equality - and here's the polling document.

Posted Mar. 23,2013 at 10:18 AM EST by Andy Towle in Boy Scouts, Madonna, News, Rick Perry, Zach Wahls | Permalink | Comments (5)

Sony Pictures Co-Chair Amy Pascal: Let's Get Rid of 'Fag, Faggot, Homo, Dyke' in Movies

SONY Pictures Co-Chair Amy Pascal spoke about the need to get rid of gay slurs and steretyping in the movies at the LA Gay & Lesbian Center's gala on Thursday night, Deadline reports.

Said Pascal, in part:

Brokeback Mountain, Milk, Boys Don’t Cry, Philadelphia, The Hours, Gods and Monsters, The Talented Mr. Ripley, A Single Man, My Own Private Idaho, Cloud Atlas – in all these movies, the main character is murdered or martyred or commits suicide or just dies unhappily. And there are far more pernicious and dangerous images that confront gay kids and their parents: the lesbian murderer, the psychotic transvestite, the queen who is humiliated and sometimes tossed off a ship or a ledge. It’s a big joke. It still happens.

How many times have you heard a character imply to another that the worst thing about going to prison isn’t being locked up for the rest of your life, it’s the homosexuality? And old stereotypes still exist. The most benign stereotypes would have a gay kid believe that they will end up being the asexual, witty best friend of the pretty girl, or a drag queen, or a swishy hairdresser. The list goes on...

...Not every gay character needs to be defined by his or her sexuality. Can’t being gay just be one stitch in the fabric of someone’s life? Can’t we depict men and women who just so happen to be gay – perhaps a lawyer or soldier or business executive or scientist or engineer…

We need to create an atmosphere that encourages people to speak up, so we get this right.

How about next time, when any of us are reading a script and it says words like fag, or faggot – homo – dyke – take a pencil and just cross it out. Just don’t do it.

Read the full excerpt at Deadline...

Posted Mar. 23,2013 at 9:54 AM EST by Andy Towle in Amy Pascal, Film, Gay Slurs, News | Permalink | Comments (13)

03/22/2013

Towleroad Talking Points: One Cool Sixth Grader!

PHOTO OF THE DAY: Camping out to hear the Supreme Court hear Prop 8 and DOMA on Tuesday and Wednesday has begun.  

BY SAM GREISMAN

A look back at today's top stories

MARRIAGE EQUALITY

As we enter the final countdown to the Supreme Court arguments in the Prop 8 and DOMA cases, Ari Waldman previews the issue of "standing" in the Prop 8 case. SCOTUSBlog founder Tom Goldstein also gives everyone a heads-up about what to look out for next week. 

Also heterosexual and gay parents alike would be proud of the poise and precociousness of 12-year-old Matthew Lannon who spoke out on behalf of his two moms at last night's marriage equality hearing in Rhode Island. 

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WINGNUTTERY

A pro wrestler who goes by "Bully Ray" apologized yesterday after he was recently caught on video throwing gay slurs at a fan. It turns out that the deposed anti-gay Scottish Cardinal who stepped down after being accused of getting it on with other priests was having a long term affair with one of his accusers. And I don't know if this qualifies as "wingnuttery" but I think we can all agree that Google founder Sergey Brin's belief that smartphones are effeminate seems a little wacky. 

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VIDEOS OF THE DAY

Good luck not being moved by this powerful anti-hate ad that imagines what Harvey Milk, Matthew Shepard and other well known victims of hate would be like if they were alive today. And those interviews with underwear models continue with Long Islander Phillip Fusco. 

Posted Mar. 22,2013 at 10:28 PM EST by Sam Greisman | Permalink | Comments (1)