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Equality Forum: Legal Panel (Part I): Chewing Over Prop 8

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The New Civil Rights Movement’s John Culhane is the official blogger for Equality Forum, Philadelphia’s internationally known and always interesting cavalcade of events that celebrates, informs and provokes on all (or many, anyway) things LGBT. John will be sharing reports daily over the next few days. Read all John’s Equality Forum posts here. 

You could tell that National Legal Panel had some serious heft: The event (like the National Politics Panel, which followed) was held in the Constitution Center on Friday, and introduced by a public relations/education leader there. And then there was the way the panelists filed in — in single file, from stage right, while being announced like the day’s contestants on Jeopardy!

The credentials and background of the panelists, along with the absurd depth of their knowledge, justified this folderol. Moderator Jennifer Pizer is the Legal Director at the Williams Institute (LGBT research initiative) at UCLA; William Eskridge is a Yale law professor who has written extensively on many issues related to the LGBT community, but perhaps especially about marriage equality; Hayley Gorenberg is the Deputy Director of Lambda Legal and has litigated many high-profile cases; and Janson Wu is a staff attorney for the Gay and Lesbian Legal Defenders (“GLAD”) who has also been successful in cases brought in New England to secure LGBT rights — especially with regard to the vile Defense of Marriage Act.

In fact, the panelists had so much to say that one post can’t do the panel justice. In this Part I, let’s talk about Eskridge’s analysis of the Prop 8 litigation. (Stay tuned for a second post in a day or two.)

Pizer’s effective style was to get each panelist to catch the audience up on recent developments by asking a series of provocative, yet open-ended questions. Eskridge began the discussion by asking us how many thought there’d be full marriage equality in the U.S. within five, then ten, then twenty years. When he moved from ten to twenty years, the “yes” vote jumped from about half to almost all. And, as it turned out, that’s what Eskridge thinks, too. Instead of saying that directly, he used the progress of the Proposition 8 litigation to make his point. He’s hoping for a narrow win that would toss out Prop 8 — and thereby restore marriage equality to California — but leave other anti-equality laws intact.

As we know, Prop 8 is now before the Ninth Circuit court of appeals. The Prop 8 opponents (our side!) have won in both the federal district (trial) court and before a three-judge panel of the Ninth Circuit. Next, the judges are soon to decide whether to rehear the case en banc (in a group of twelve judged), or decline to do so, in which case the matter could be appealed to the U.S. Supreme Court right away. (The Court would not be obligated to hear the case; in that event, the decision by the Ninth Circuit that Prop 8 is unconstitutional would stand).

The most interesting aspect of Eskridge’s presentation was his discussion of the narrow basis on which the Ninth Circuit had decided the case — a basis, it turns out, that Eskridge had advocated in an amicus brief he filed with the court. Instead of asking the appellate court to affirm the lower court’s broad ruling that excluding same-sex couples from marriage is a violation of both their right to equal protection under the law and of the fundamental right to marry, the Eskridge brief, asked the court to rule that Prop 8 is unconstitutional only because it bears a close resemblance to another Supreme Court case, Romer v. Evans. In Romer, the court ruled that an amendment to the Colorado state constitution that prevented localities from providing gays and lesbians with legal protections was a violation of equal protection of the law in the most fundamental way. Eskridge drew three clear parallels between that case and Prop 8:

(1) Voters took away a fundamental right from a discriminated-against minority (before Prop 8, same-sex couples had a right to marry that the California Supreme Court had identified from principles in the state’s constitution);

(2) The rationalizations for Prop 8 sweep too broadly. Let’s put this in terms non-lawyers can understand, by using an example. One of the procreation arguments advanced to justify the measure is that marriage is needed to increase the chances that opposite-sex couples who “accidentally procreate” will stay together. But how  is this end served taking away the right of same-sex couples to marry?

(3) The campaigns and the effect of the initiative was to “effect a status denigration” on a particular class — in express defiance of Romer.  For example, ads emphasized that school children might now draw the inference that same-sex relationships were just as good as opposite-sex ones. Well, they should, if gays and lesbians are equal citizens. So these ads and the whole tenor of the campaign, then reflected in the vote, was in part to create a sort of forbidden caste system. That’s in defiance of Justice Kennedy’s quote in Romer that “the Constitution neither knows nor tolerates classes among citizens.”

Why pitch your legal tent on such a narrow piece of land? Eskridge, like many, thinks that Justice Anthony Kennedy’ vote will be decisive. And since Kennedy wrote Romer and might be reluctant to issue a ruling that would decide the marriage equality issue once and for all, this laser-focus might make sense.

We’ll see, but probably not too soon. This case probably has another year or two of twists and turns before the last word is spoken.

Were he born 10,000 years ago, John Culhane would not have survived to adulthood; he has no useful, practical skills. He is a law professor who writes about various and sundry topics, including: disaster compensation; tort law; public health law; literature; science; sports; his own personal life (when he can bear the humanity); and, especially, LGBT rights and issues. He teaches at the Widener University School of Law and is a Senior Fellow at the Thomas Jefferson School of Population Health.

He is also a contributor to Slate Magazine, and writes his own eclectic blog. You can follow him on Facebook and Twitter if you’re blessed with lots of time.

John Culhane lives in the Powelton Village area of Philadelphia with his partner David and their twin daughters, Courtnee and Alexa. Each month, he awaits the third Saturday evening for the neighborhood Wine Club gathering.

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News

‘Antisemitism Is Wrong, But’: Marjorie Taylor Greene Pilloried for Promoting Antisemitic Claim

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55 mins ago

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May 1, 2024

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U.S. Rep. Marjorie Taylor Greene (R-GA) was strongly criticized Wednesday after promoting a historically and biblically false, antisemitic claim while declaring antisemitism is wrong.

As the House voted on an antisemitism bill that would require the U.S. Dept. of Education to utilize a certain definition of antisemitism when enforcing anti-discrimination laws, the far-right Christian nationalist congresswoman made her false claims on social media.

“Antisemitism is wrong, but I will not be voting for the Antisemitism Awareness Act of 2023 (H.R. 6090) today that could convict Christians of antisemitism for believing the Gospel that says Jesus was handed over to Herod to be crucified by the Jews,” Greene tweeted.

The definition of antisemitism the House bill wants to codify was created by the International Holocaust Remembrance Alliance.

Congresswoman Greene highlighted this specific text which she said she opposes: “Using the symbols and images associated with classic antisemitism (e.g., claims of Jews killing Jesus or blood libel) to characterize Israel or Israelis.”

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What Greene is promoting is called “Jewish deicide,” the false and antisemitic claim that Jews killed Jesus Christ. Some who adhere to that false belief also believe all Jews throughout time, including in the present day, are responsible for Christ’s crucification.

Greene has a history of promoting antisemitism, including comparing mask mandates during the coronavirus pandemic to “gas chambers in Nazi Germany.”

Political commentator John Fugelsang set the record straight:

“If only you could read,” lamented Rabbi Dr. Mark Goldfeder, Esq., CEO and Director of the National Jewish Advocacy Center. The Antisemitism Awareness Act “could not convict anyone for believing anything, even this historical and biblical inaccuracy. It only comes into play if there is unlawful discrimination based on this belief that targets a Jewish person. Do you understand that distinction @RepMTG ?”

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“Not surprising,” declared Jacob N. Kornbluh, the senior political reporter at The Forward, formerly the Jewish Daily Forward. “Rep. Marjorie Taylor Greene, who has been accused in the past of making antisemitic remarks — including her suggestion that a Jewish-funded space laser had sparked wildfires in California in 2018, voted against the GOP-led Antisemitism Awareness Act.”

Jewish Telegraphic Agency Washington Bureau Chief Ron Kampeas, an award-winning journalist, took a deeper dive into Greene’s remarks.

“Ok leave aside the snark. The obvious antisemitism is in saying ‘the Jews’ crucified Jesus when even according to the text she believes in it was a few leaders in a subset of a contemporary Jewish community. It is collective blame, the most obvious of bigotries.”

“The text she presumably predicates her case on, the New Testament,” he notes, “was when it was collated a political document at a time when Christians and Jews were competing for adherents and when it would have been plainly dangerous to blame Rome for the murder of God.”

“Yes,” Kampeas continues, “that take is obviously one that a fundamentalist would not embrace, but it is the objective and historical take, and *should* be available to Jews (and others!) as a means of explaining why Christian antisemitism exists, and why it is harmful.”

CNN’s Edward-Isaac Dovere also slammed Greene, saying she “is standing up for continuing to talk about Jews being responsible for the killing of Jesus. (John & Matthew refer to some Jews handing over Jesus to Pilate,not Herod. But also: many, including Pope Benedict, have called blaming Jews a misinterpretation)”

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OPINION

MAGA State Superintendent Supports Chaplains in Public Schools – But Not From All Religions

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May 1, 2024

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Visitors to Oklahoma’s State Schools Superintendent’s personal social media page will notice a post vowing to “ban Critical Race Theory, protect women’s sports, and fight for school choice,” a post linking to a Politico profile of him that reads, “Meet the state GOP official at the forefront of injecting religion into public schools,” a photo of him closely embracing a co-founder of the anti-government extremist group Moms for Liberty, and a video in which he declares, “Oklahoma is MAGA country.”

This is Ryan Walters, a far-right Republican Christian nationalist who is making a national name for himself.

“God has a place in public schools,” is how Politico described Walters’ focus.

Last week the Southern Poverty Law Center published an extensive profile of Walters, alleging “hateful rhetoric toward the LGBTQ+ community, calls to whitewash curriculum, efforts to ban books, and attempts to force Christian nationalist ideology into public school classrooms.”

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“Walters is superintendent of public instruction, and public schools are supposed to serve students of all faiths, backgrounds and identities,” Sarah Kate Ellis, president and CEO of GLAAD, told SPLC.

Walters is supporting new legislation in Oklahoma that follows in Texas’ footsteps: allowing untrained, unlicensed, uncertified, and unregulated religious chaplains and ministers to be hired as official school counselors.

“We heard a lot of talk about a lot of those support staffs, people such as counselors, having shortages,” Rep. Kevin West, a Republican, said, KFOR reports. “I felt like this would be a good way to open that door to possibly get some help.”

Walters praised West, writing: “Allowing schools to have volunteer religious chaplains is a big help in giving students the support they need to be successful. Thank you to @KevinWestOKRep for being the House author for this bill. This passed the House yesterday and moves on to the Senate where @NathanDahm is leading the charge for this bill.”

As several Oklahoma news outlets report, there’s a wrinkle lawmakers may not have anticipated.

“With the Oklahoma House’s passage of Senate Bill 36, which permits the participation of uncertified chaplains in public schools, The Satanic Temple (TST) has announced its plans to have its Ministers in public schools in the Sooner State. If the bill advances through the Senate, this legislation will take effect on November 1, 2024. State Superintendent Ryan Walters, a vocal advocate for religious freedom in schools, has endorsed the legislation. The House approved SB 36 by a 54-37 vote on Wednesday,” a press release from The Satanic Temple reads. “The Satanic Temple, a federally recognized religious organization, has expressed its dedication to religious pluralism and community service.”

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Walters responded on social media to The Satanic Temple’s announcement.

“Satanists are not welcome in Oklahoma schools, but they are welcome to go to hell,” he wrote.

Former Lincoln Project executive director Fred Wellman served up an equally colorful response.

“Hahahaha!!! You are an idiot,” Wellman wrote. “How did you not see this coming? Satanists, Muslims, Jews, Buddhists, Pastafarians…come one come all! After all you’re not trying to establish Christianity as the state religion are you? We had a whole ass revolution about that. There are history books about it…oh…right. Not your thing. What a fool.”

The Freedom From Religion Foundation (FFRF) served up a warning.

“The state of Oklahoma cannot discriminate against people or groups based on their religious beliefs,” the non-profit group wrote. “Walters’ hateful message shows, one again, that he only believes in religious freedom for Christians and that he is unfit to serve in public office.”

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News

Potential Trump VP Pick Says ‘If You’re a Billionaire’ You Should Vote for Trump

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7 hours ago

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May 1, 2024

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One of the possible picks to be Donald Trump’s vice presidential running mate, seen as “rapidly ascending” the list, is urging billionaires to vote for the ex-president.

North Dakota Republican Governor Doug Burgum “is quickly moving up former President Trump’s list of possible vice presidential picks because Trump’s team believes he would be a safe choice who could attract moderate voters,” Axios reported on Sunday. “Burgum is on a long list of VP contenders, but Trump’s rising interest in the North Dakota governor has been clear in recent weeks — and reveals his latest thinking about how he thinks his running mate could help him with undecided voters.”

Praising Governor Burgum, the National Review’s Michael Brendan Dougherty on Monday wrote he was “the only candidate in 2024 to easily exceed expectations in the debates.”

“He is a well-liked governor from a small state. He projects seriousness and sobriety, two qualities Pence also had that were important to balance the 2016 Republican ticket. Burgum is also good at championing Republican policy, including our desperately needed policies of energy abundance and supply-side reform. He is also the right age — 67 — with no signs of slowing down. Burgum needs to survive the millions poured into opposition research, but, if he does, I think he would bring credit and balance to the Republican ticket.”

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On Tuesday, Gov. Burgum, appearing on Fox News, told Laura Ingraham, “when you see someone who cares this deeply about this country, what he’s going through and what the Democrats and the liberal media is putting him through, and how he gets up and fights for every day people in America every day, and then his policies are all in the right direction.”

“If you’re a billionaire and you care about your shareholders, you care about your family and your grandkids, you should be voting for someone that’s going to bring prosperity to America and peace to the world, that’s what President Trump is going to do, that’s what he did for us when he was president,” Burgum claimed.

The Hill adds, “Ingraham suggested a lot of billionaires are still planning to support President Biden, especially those that are the ‘Wall Street types.’”

Last year, asked if he would ever do business with Trump, Bergum told NBC News, “I don’t think so,” and added, “I just think that it’s important that you’re judged by the company you keep.”

Some reports call Bergum a billionaire, while Forbes last year reported it “estimates Burgum’s net worth to be at least $100 million.”

Watch the video below or at this link.

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