We’ve taken the holiday season to reinvest in our lives at home in Seattle. We’ve seen friends, put up and taken down a Christmas tree, rearranged our house for a crawling–and now cruising–Frances, found work (Ami) and pursued employment diligently (me). We still have a trailer parked in our driveway, which I’m sure the neighbors celebrate. We still own a V-8 Jeep, not the ideal commuter car. But our darling puppy, Esmerelda, put her unique mark on our vehicle by chewing through the back seat upholstery and severing the wires to the rear window defroster coils. How to sell such a vehicle? We are still working on that dilemma.

This year could be historic for marriage equality. I have been following the Prop 8 trial on the Courage Campaign’s Prop 8 Trial Tracker (in-depth and immediate coverage) and at Pam’s House Blend (summary coverage). So far only the plaintiff’s (our side’s) witnesses have been called, and so far it’s going well. When I say going well, I mean that our witnesses have made a very good case for why the plaintiff’s constitutional rights have been violated and have not faltered from their positions on cross-examination.

I’ve done some research as to what will happen if Judge Walker, the federal judge on the case, decides in favor of the plaintiff. It will undoubtedly be appealed, in which case it will go to the Ninth Circuit Court of Appeals. When that case is decided, in all likelihood the loser will appeal to the Supreme Court. (Strangely, I had a hard time finding out how many levels there were between this court and the Supreme Court. If my information is faulty, lease let me know so I may correct the information.)

Central to this case are the possible categorization of gays and lesbians as a “suspect class” and the violation of our “fundamental rights.” I didn’t know what these legal terms meant before this trial, so bear with me while I display my legal non-expertise in describing them. In the interest of (vain hope of?) concision, I will describe suspect class today and fundamental rights next time.

Interestingly, the idea of a suspect class originated from a discriminatory ruling on the part of the Supreme Court in 1944, Korematsu v. the United States. Ironically speaking for the majority, which upheld the legality of the internment of Japanese immigrants on the West Coast, Justice Hugo Black wrote:

all legal restrictions which curtail the Civil Rights of a single group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.

This ruling created the concept of the suspect class and of strict scrutiny. It relates specifically to the interpretation by the courts of matters related to the Equal Protection Clause of the Fourteenth Amendment to the Constitution. This clause of this amendment is the one that is violated by Proposition 8:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [Emphasis mine.]

There are three levels of scrutiny that can be applied to reviewing laws that may or may not violate the Fourteenth Amendment; strict is the highest. When strict scrutiny is applied, the law is assumed to be unconstitutional, and the court must prove the law is constitutional in order for the law to be upheld. To be constitutional in this circumstance, the law must be necessary to achieve a compelling state interest, and the law must be narrowly written so as to only achieve this result. So far strict scrutiny has only been used to interpret cases concerning discrimination on the basis of race, religion, national origin, alienage, the rights to travel and vote, and the right to privacy.

Contrast this with the lowest form of scrutiny, the rational basis test, in which it must be proven that the legislature made an arbitrary or irrational decision in forming the law in question. This is the default basis for deciding if a law is constitutional. Between the two is the intermediate level of scrutiny, which is used for the “quasi-suspect” class (essentially women), and for questions of legitimacy.

There are four indications for determining a group a suspect class. The state supreme courts in Iowa, Connecticut, and California have found gays and lesbians to be a suspect class. The quasi-suspect class fulfills some, but not all, of these qualifications.

1. The group must have a history of purposeful discrimination
2. They must be politically powerless
3. The trait the class shares must be immutable
4. The group must be a discrete and insular minority; i.e. that group is distinct from other groups and the rest of society

Still with me? I know, that was a lot. But it’s all at least marginally interesting in relationship to this case (to me, anyway). There’s an analysis of whether gays and lesbians can be a suspect class at the Prop 8 Trial Tracker.

And here’s some irony: After calling us child molesters, stating that just knowing we get married is something children need protection from, accusing us of taking down the institution of marriage just by joining it, lying to voters that their churches would lose their tax exemptions if we are allowed to get married, and implying that the claim that the best situation for a child is parents who are one male and one female is valid, now the Prop 8 side’s argument is that we are accepted members of society, not in any way a suspect class. How absurd is that? Prior to this we were like pedophiles and bigamists, the lowest of the low. Now we’re just like anyone else, and certainly deserving of no special consideration because of a history of discrimination.

Sometimes I just can’t handle the hypocrisy.

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Representative Jay Inslee and our family

Act I: Getting There
Act II: You Again, Barney Frank?

It’s been over a week since we met with Representative Inslee, and some of you are probably wondering why it’s taken us so long to blog about it. Let me assure you: it’s not because we haven’t been thinking about it. There have been logistical problems in finishing the story, like the awful Internet connection I’m using as I write this. And the election happened.

Aside: speaking of the election, though the anti-domestic partnership–um–people have not conceded, we won in Washington State. Despite the small margin, we are elated. No, elated doesn’t cover it. We are overjoyed, thankful, and humbled by the people of Washington for their history-making vote.

When Inslee walked in, the first thing he did, as he folded his long body into a chair that had seemed perfectly adequate in size before he sat in it, was compliment Frances. That’s a way to win a mom’s favor, for sure. He said he had a grandson who was ten months old, and gestured to the pictures. I told him I was just asking about his grandson. Brody, your grandpa practically offered your hand in marriage to our little Frances, so grow up to be a good guy, OK?

Looking back on it now, I can see the strategy Inslee was using when he began the real conversation with us: start with a point of agreement. “What do you think of Referendum 71?” he asked.

“Well, we wish it had never happened in the first place, but we think it will pass,” I said. Everyone was still in the room, and I feel a little bad that with Inslee there, his legislative assistant, David, kind of faded into the background.

“My wife and I made a donation to the campaign,” he said. “And I sent out an e-mail in support of it–or at least I think I did–if not, I will.”

It must be interesting to have no idea if you’ve sent an e-mail or not. That’s not a criticism. I can only imagine having so much to do and so many people helping you get it done that you have no idea which steps you’ve completed and which ones you haven’t.

He said he’d been told we drove to DC to meet with him. That wasn’t exactly true, but it was a good way to up the importance of our visit, so I was fine with the misunderstanding. I did tell him the real purpose of our trip, though.

And then we talked about the Respect for Marriage Act. We brought up a couple of our talking points. Ami mentioned taxes, and I threw in a great phrase I’d picked up on the DC Marriage Equality website: “the poor man’s lawyer.” I explained to Inslee that to accomplish what marriage does, we have to pay a lawyer to write documents to even come close to the protections of marriage.

“The poor man’s lawyer,” he said. “I like that.”

We had done some research, as I mentioned. We were surprised to learn that the Respect for Marriage Act did not actually include the portability of our marriage. From the HRC summary of the bill: “The bill does not require states that have not yet enacted legal protections for same-sex couples to recognize a marriage.  Nor does it obligate any person, state, locality, or religious organization to celebrate or license a marriage between two persons of the same sex.  This legislation only requires the federal government to equally apply its policy of looking to the states in determining what legal relationships are eligible for federal benefits.” The bill is a repeal of the Defense of Marriage Act (DOMA), and given that some states have now affirmed our right to marry, the bulk of DOMA seems to be that you can’t force states to recognize that marriage. It was curious to us that it was not in the bill.

Then he asked us, if a bill were to pass to give us all of the federal rights and benefits of marriage, would we have the same rights as he and his wife?

I said yes, except for full faith and credit. Full faith and credit is the nickname given to Article VI, Section I of the U.S. Constitution–“public acts, records, and judicial proceedings” are recognized in all other states, not just the one in which they occurred.

“Well, I talked to [one of the main co-sponsors, either Nadler or Polis], and asked him about the full faith and credit part of the bill. He said not to worry about that.” Inslee said. “But that part is unenforceable. And I can’t sign on to something that isn’t legal.”

Here’s where I should have said that the law didn’t include marriage portability. But there were two things going on. One was that I was kind of dumbstruck–if you know me, you know that’s not a common occurrence–by talking directly to our Representative. The other was that given that he said he’d talked to one of the co-sponsors about it, maybe my information was incorrect. So I said nothing.

“Do you have the legal information on that?” He asked. Of course, we didn’t. “Nevermind. I’ll get the legal briefs from HRC.”

“I can contact them and ask them to send the briefs to you,” I offered.

“No, no, we’ll take care of that. That’s not your responsibility.” Attention, HRC, if you’re reading this, please make sure that Jay Inslee has those legal briefs, whether he asks for them or not.

And with that, the purpose of our visit was pretty much brushed aside. He needed more information. We didn’t have it. Shelved.

Throughout the meeting, he used the term “federal rights and benefits” a lot of times. Though he never said so, it seemed that he would co-sponsor a bill that gave us those “federal rights and benefits,” but not necessarily one that allowed us to marry.

Then guess who came up again. Yep, Barney Frank. He hadn’t heard my rather pointed rejection of the Barney Frank Excuse, as poor David had, but Inslee moved on when I replied that Frank’s position on the Respect for Marriage Act was very unpopular in the queer community. I told him to Google it. The word queer made him squint a little.

And then we were swept up into the land of agreement. We should all have the same rights, federally. Inslee’s a talker, and so am I, so we wound up speaking at the same time on occasion, which would horrify some people as incredibly rude. I’m from New York City, however, where the rules around turn-taking in speech are very different. So if Mr. Inslee was offended by my simultaneous chatter, I apologize.

We took a picture, and were all set to go. But I felt like I’d been talked out of my marriage. It was a non-sequitur, and not well-put, but I said, “Before we go, I just want to put in a plug for marriage. Even if we have all the rights of marriage, there are emotional and societal reasons that marriage equality is important.” I held out my hand toward Frances. “She’s going to understand the concept of marriage long before she’ll understand what a domestic partnership is.”

“So it’s not just the poor man’s lawyer, is it?” He said.

“No,” I answered.

And with that, our meeting was over.

I have, in the time since our meeting, thought about what I would have said about why marriage equality was the goal, not merely a federally recognized domestic partnership or civil union. It’s a topic for another post, though, and even within our family there is some degree of disagreement. Ami doesn’t care what we call it. I do. I’m trying to win her over to my side, but as of now we’re divided on the issue. And as we saw in Washington State with the first-ever passage of a pro-same-sex partnership bill by a popular vote, there are good reasons for shelving marriage, since it gets everyone so upset. For now.

If you want to hear some of those reasons, Jeanne Cordova does a good job of outlining them in her post, “What the Maine Vote Tells Us.”

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Lucky for me, Ami arrived a few minutes later, just about the time that the representative’s new communications person arrived, too. He said that he always tried to sit in with David, since he was so knowledgeable. I wondered if this was a way to make us feel like we were meeting with someone important, even if it wasn’t Inslee. We rearranged for the best translation vantage point, and got started.

We explained our trip, and got to our talking points. I’ll admit, we did some research and rehearsed them beforehand so we wouldn’t forget any. We talked about inheritance, and how we are unequally taxed for property we inherit from one another. We talked about how we can’t have a family business as far as taxes go. We talked about hospital visitation and medical decision making. We talked about the fact that we don’t get Social Security benefits from one another, and how we can’t claim a non-working spouse as a dependent on our taxes. Ami said, “I’m forced to lie on my taxes. I say I’m a single person when I’m married.”

We didn’t want to draw out the conversation unnecessarily, but we were invested in waiting to see if Inslee would show up. I kept feeling like if we said just the right thing it would make a difference. I couldn’t read David’s reactions to us and what we were asking him to relate to Inslee, but I decided he was on our side because he had cool glasses. I won’t say that conservative people have bad glasses, but I will say that the better your glasses are, the more likely I am to think you vote left.

Sooner or later, David brought up Barney Frank. I hope he didn’t take my reaction personally, because I’m sure the disdain I feel for Frank’s position on the Respect for Marriage Act–and the National Equality March, for that matter–was evident on my face. I tried to explain that his lack of support for the bill was not popular amongst LGBT people. But it was frustrating, because I didn’t have anything specific to quote or point to in order to prove my assertion.

So finally I said, as respectfully as I could, “With all due respect, Mr. Frank doesn’t live in Washington, and isn’t represented by Mr. Inslee.” Barney Frank lives in Massachusetts, where should he choose to marry, he could have state-level benefits. Must be nice.

The conversation started to wind down, and maybe I panicked a little. “Is that Mr. Inslee’s grandson?” I asked, pointing to one of the many pictures of an infant boy in the office. There must be something more to say!

And before David had a chance to answer, in walked the man himself.

He looked a little like Superman, only with grey sideburns. He asked us to call him Jay, and quickly sat down with us, apologizing for being late.

I was stunned for a minute. At this point, I hadn’t expected him to show up. I realized that until he did, I didn’t really believe that he was held up in another meeting. I thought that was an excuse, politics-speak for us not being important enough.

In my next post on our meeting I’ll talk more about what it is to be an ordinary, reasonably informed person meeting with an experienced politician. But for now I’ll just give credit where credit is due. Representative Inslee showed up to meet with us. You don’t have to be a guy in a suit. You don’t have to be a lobbyist. You can be a couple of dykes in jeans, ragged and road worn, and you can talk to the people who make the decisions that affect your life.

If we can do it, so can you.

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Now, I was a city kid, through and through. My idea of a good vacation included lots and lots of neon and zero mincemeat pie. We would visit covered bridges and Amish demonstration farms. Gift shops that sold butter churns and preserves. We would walk–yes walk–behind horse-and-buggy travelers in suspenders, straw hats, and button-down pastel shirts. I hated it. The one bright spot of the trip was going to Dutch Wonderland, an amusement park with the occasional nod to the surrounding culture.

Oh, and I liked hex signs. So much that the tattoo I got to memorialize my mother has the imagery of the double distelfink. Let’s hope in the afterlife or whatever, my mother has developed an appreciation for tattoos and a healthy sense of irony.

So it’s with this appreciation for the varied cultures of Pennsylvania that I report on their laws concerning LGBT people.

Pennsylvania

• There is no recognition of same-sex relationships in Pennsylvania. Pennsylvania law states: “It is hereby declared to be the strong and longstanding public policy of this commonwealth that marriage shall be between one man and one woman. A marriage between person of the same sex which was entered into in another state or foreign jurisdiction, even if valid where entered into, shall be void in this commonwealth.”
• After five other people are consulted, a same-sex partner may make medical decisions on behalf of an incapacitated partner. The law recognizes a health care power of attorney–it must identify the person appointing the health care agent and declare that the agent has the power to make medical decisions on the person’s behalf.
• Single LGBT people in Pennsylvania may adopt. At least one case sets precedent for joint adoption, and the Supreme Court of Pennsylvania has ruled that same-sex couples may adopt each other’s children.
• A person’s sex may be amended on his or her birth certificate.
• Hate crimes are enforced by federal law as of Wednesday, but only in the case that the state cannot or will not prosecute the crime as a hate crime. In the case of Pennsylvania, a 2002 amendment would have protected both sexual orientation and gender identity, but the Pennsylvania Supreme Court struck those amendments down in 2007. So to the Feds it is, Penn.
• In Pennsylvania only state employees are protected against discrimination based on gender identity or sexual orientation.
• Pennsylvania has no safe schools laws. [via HRC]

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Matthew Shepard, 1976-1998

On Wednesday President Obama signed the Matthew Shepard & David Byrd Jr. Hate Crimes Prevention Act into law.

The Act was buried in a defense spending bill that had wide Republican support, and in this way found its way to the president’s desk after ten years of advocacy. Yesterday Obama lifted the HIV travel and immigration ban that barred positive individuals from visiting or immigrating to the U.S. And he reauthorized the Ryan White Care Act–having worked for an HIV/AIDS organization in the past, I know how critical these funds are to people living with HIV/AIDS.

It’s been a pretty good week for LGBT activism. Let’s hope next week is even better. It could be the first time pro-LGBT legislation has been approved at the polls (Washington State) and the first time anti-marriage-equality legislation was defeated (Maine). If you live in Washington, get that ballot in the mail and contact Approve Referendum 71 to see how else you can help. We plan to be on the phones this weekend. If you live in Maine, volunteer for election day activities by calling the No on 1 Campaign. If you live elsewhere, give them a call anyway. There are still ways you can help.

I don’t know where we’ll be on the night of November 3. Maybe Atlanta. I do know what we’ll be doing: watching election returns. Let’s make this year the one that finally turns things around in our favor. I know we can do it.

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