Halloween

President Bush anominated Judge Sam Alito to the Supreme Court.

Judge Alito -- commonly known as "Scalito" among the wags -- is a very conservative judge who currently serves on the Third Circuit. He is quieter than Justice Scalia, but very similar in judicial philosophy. Judge Alito has a relatively clear judicial record, and it is clear to me that he has a much a narrower view of the right to privacy and equal protection than does Justice O'Connor.

Judge Alito has excellent judicial credentials.

I have no doubt that he will be confirmed after all the dust settles.

President Bush said that his models were Justice Scalia and Justice Thomas, and this time, under an ultimatum from social conservatives, he didn't blink.

The country is about to get what it voted for, twice.

Chickens and Roosts

It looks like the chickens are finally coming home to roost for the Republican coalition, an unholy and unstable alliance of fiscal conservatives and social conservatives. The Bush administration is fraying under the weight of scandals and incompetence, and as the administration becomes increasingly irrelevant to Republican politics, the coalition itself looks like it might be tearing itself apart.

The social conservative revolt over Miss Harriet is a visible sign of growing fizzures in the coalition, but the recent firestorm over Grover Norquist, confined within the Republican coalition, may be more important in the long run.

A bit of background:

The Republican coalition is built on two main pillars, the fiscal conservative movement and the social conservative movement, supported by a smattering of other movements, such as the neo-cons, who are largely concerned with foreign policy. The fiscal conservative movement forces Republican politicians to sign on to a "no new taxes, no raising taxes" agenda much as the social conservative movement forces Republican politicians to sign on to a "pro-life, anti-gay" agenda.

The two movements are not natural allies. Social conservatives are often hurt by Republican fiscal policies, and fiscal conservatives often do not share the fundamentalist mores foisted on Republican politics by social conservatives. The Republican coalition, accordingly, has been held together by a form of mutually assured destruction, in which politicians more closely allied to one movement are requuired to appease the other in order to get through the Republican primary system.

Grover Norquist is the founder of Americans for Tax Reform, the theological center of and driving force behind the "fiscal conservative" movement within the Republican coalition.

Norquist broke the MAD pact within the Republican Party, addressing a Log Cabin Republican fund-raiser in Dallas recently, and social conservatives are frothing at the mouth about it.

Log Cabin Republicans, in case you don't know, are a small (the LCR claims "thousands of members ... across the United States") but loyal band of GBLT Republicans who dare to be out of the closet, and who support the goals of the fiscal conservative movement but stand in opposition to the anti-gay agenda of the social conservative movement.

Norquist was the main attraction at the "Grand Ol' Party", a fund-raiser for the Dallas chapter of the LCR. Carla Halbrook, a member of the national LCR board and the organization's chapter in Dallas, said that Norquist gave a "fantastic" speech at the fund-raising dinner, discussing Social Security reform and reducing taxes and government in general -- in short, Norquist's stock message. Holbrook didn't seem to see a problem: "The fact that the group is gay was irrelevant. It was one conservative talking to other conservatives."

Holbok did may not see a problem, but social conservatives sure did.

One pro-family leader called Norquist's appearance "an act of utter betrayal."

The Texas Eagle Forum called Norquist's presence at the fund-raiser "traitorous" adding, "If he was a serious economic conservative, Grover Norquist would not have accepted the invitation or the honorarium for speaking at a fund-raiser for a group bent on the destruction of traditional families."

The American Family Association more or less accused Norquist of political treason, saying that it would urge its supporters "to withhold their future support until Grover 'takes the pledge' to no longer give aid and comfort to homosexual activist groups intent on undermining traditional marriage and the family."

The Family Research Council was equally incensed: "Grover has spent years working to assemble a coalition of fiscal and social conservatives and his decision to aid those who are trying to destroy the institution of marriage is truly a disappointment and will no doubt split this important coalition."

It isn't the first time that Norquist has demonstrated a disquieting lack of orthodoxy. In June 2004, the New York Times said this: "Norquist said some potential Republican voters might be turned off by raising the issue to a constitutional level, just as they were by too much talk of guns or abortions." The paper quoted Norquist as saying: "Obsessions turn people off."

Well, hell, ask any social conservative what they think of that ...

The LCR website features a whole host of social conservative quotes, under the heading "Talking Points - What the Radical Right Says About Us":

"The future of our country hangs in the balance because the future of marriage hangs in the balance. Isn't that the ultimate homeland security—standing up and defending marriage?" — Senator Rick Santorum (R-PA), July 2004 during U.S. Senate debate on the anti-family Federal Marriage Amendment.

"I really believe that the Pagans, and the abortionists, and the feminists, and the gays and lesbians, ... the ACLU, People For the American Way - all of them who have tried to secularize America - I point the finger in their face and say 'you helped this [terrorist attack] happen." — Jerry Falwell, 700 Club, September 13, 2001

"There is a master plan out there from those who want to destroy the institution of marriage." — Senator Wayne Allard (R-CO) during U.S. Senate debate on the anti-family Federal Marriage Amendment.

"Barring a miracle, the family as it has been known for more than five millennia will crumble, presaging the fall of Western civilization itself." — James Dobson, Focus on the Family, in a 2004 anti-gay fund raising letter

"If you still think homosexual 'marriage' won't affect you, think again. Your job may be at stake!...Once the state approves of homosexual 'marriages,' the full weight of the law will be brought down against men and women of faith who believe in Judeo-Christian values." — Gary Bauer, Campaign for Working Families in a letter to supporters.

"It does not affect your daily life very much if your neighbor marries a box turtle. But that does not mean it is right.... Now you must raise your children up in a world where that union of man and box turtle is on the same legal footing as man and wife." — Senator John Cornyn (R-TX), July 2004, during U.S. Senate debate on the anti-family Federal Marriage Amendment

"For the sake of our children and society, we must OPPOSE the spread of homosexual activity! Just as we must oppose murder, stealing, and adultery! Since homosexuals cannot reproduce, the only way for them to 'breed' is to RECRUIT! And who are their targets for recruitment? Children!" — Don Wildmon, direct mail letter from the American Family Association

"If the Supreme Court says that you have the right to consensual (gay) sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything," Santorum said in an interview published April 21, 2003 by the Associated Press. "All of those things are antithetical to a healthy, stable, traditional family," Santorum continued. "And that's sort of where we are in today's world, unfortunately. It all comes from, I would argue, this right to privacy that doesn't exist, in my opinion, in the United States Constitution." — Senator Rick Santorum (R-PA), April 21, 2003, AP interview.

"The family unit is under attack by dark and conspiring forces who desire to redefine the bond of marriage to include same-sex partners. This design is an abomination of nature and, if adopted by society as normative, will ultimately lead to society's downfall and destruction." — American Society for the Preservation of the Family

"'Gay' activists are like a freight train out of control, running over everyone and anyone in their paths, desperately seeking and desiring one thing: acceptance of their sin." — American Family Association, The Deception and Desensitization of America's Youth, February 20, 2003

"After all, since homosexual couples can't reproduce, they will simply go after your children for seduction and conversion to homosexuality." — Rev. Lou Sheldon, Traditional Values Coalition, from report Homosexuals Recruit Public School Children

"Homosexuals are not monogamous. They want to destroy the institution of marriage. It (same-sex marriage) will destroy marriage. It will destroy the Earth." — James Dobson, Focus on the Family, October 2004 speaking at a rally for OK GOP Senate candidate Tom Coburn

"I'm trying to find the correct name for it ... this utter absolute, asinine, idiotic stupidity of men marrying men. ... I've never seen a man in my life I wanted to marry. And I'm gonna be blunt and plain; if one ever looks at me like that, I'm gonna kill him and tell God he died." — Televangelist Jimmy Swaggart—in a September 2004 television broadcast.

It does make one wonder why the LCR thinks that it might have a snowball's chance in hell of accomplishing its mission:

"The mission of the Log Cabin Republicans is to work within the Republican Party to advocate equal rights for all Americans, including gays and lesbians. ... We are loyal Republicans working for change within the party. Through education and action, we demonstrate that gay and lesbian Republicans can, in a spirit of solidarity and integrity, contribute substantially to building and sustaining a majority Republican Party and a great nation."

The problem the LCR and other Republicans who want to move the Republican Party off the "faggot, faggot" hue and cry is twofold: (1) social conservatives see the issue of civil equality for gays and lesbians as an issue on which compromise is not possible, because to give an inch is to thwart God, and (2) without a high turnout among social conservatives, the Republican Party cannot win national elections.

If you think about this for a bit, the problem becomes very stark: The Republican Party cannot become an "inclusive" party, advocating equal rights for all Americans, including gays and lesbians, unless the party repudiates social conservatives. The Republican Party cannot repudiate social conservatives if it plans to win national elections during the next decade. And yet, the Republican Party cannot hope to become, in the long run, a party of the moderate middle, if it does not repudicate social conservatives, because when the next decade is over, the "faggot, faggot" rhetoric of the Republican Party will be seen for what it is, the modern equivalent of "nigger, nigger".

The conflicting facts pull and tug against one another, and are irreconcilable. The Republican Party, like the rest of us, have to make a choice.

Miss Harriet gets Borked

Miss Harriet, the "pit bull in size six shoes", has gone the way of Robert Bork ...

Well, not quite. Robert Bork was blocked by liberals and moderates because he was a on the far, far right end of the legal/political spectrum. Miss Harriet was blocked by social conservatives because she was not on the far, far right end of the legal/political spectrum. An interesting turnaround.

The President, of course, is saving face by casting the issue as an issue of separation of powers: "It is clear that senators would not be satisfied until they gained access to internal documents concerning advice provided during her tenure at the White House — disclosures that would undermine a president's ability to receive candid counsel. Harriet Miers' decision demonstrates her deep respect for this essential aspect of the constitutional separation of powers — and confirms my deep respect and admiration for her."

But no matter how he characterizes the Miss Harriet debacle, the President has a problem.

Social conservatives, it is now clear, will not settle for anything short of a total payback -- a nominee who is committed to overturn Griswold, Roe, Lawrence, and Weisman/Jaffree, among other landmarks.

And just about everyone other than social conservatives will find a nominee of that ilk unacceptable.

The chickens are coming to roost.

Stand Aside, Odious Fred

The odious Fred Phelps may have met his match in spreading the downright hateful, irresponsible gospel of the Christian right.

Randy Sharp, the Director of Special Projects of the American Family Association, wrote an OpEd piece reported in Agape Press, a right-wing Christian media outlet.

The OpEd piece charges that Walgreens signed on as a sponsor of Chicago's upcoming "Gay Games" to increase its profits from the sale of HIV drugs.

The OpEd article, which appeared on October 21, reads, in part, as follows:

"Someone at Walgreens deserves a huge bonus for the idea to increase sales by helping drive events that result in the need for the company's drugs.

Next July, when the 2006 Gay Games take place in Chicago, historical precedent promises that homosexual encounters will take place by the thousands, in bars, public parks, and shopping mall restrooms. ... This is where Walgreens' profiteers put their heads together to insure they get their piece of the pie. No doubt large numbers of gays will become exposed to HIV and other sexually transmitted diseases. ... "

"Walgreens must be salivating at the prospect of new customers this will create. And how better to become the official "drug dealer" of the Gay Games, than to donate $100,000 and become the top sponsor for incredible exposure? It's a brilliant marketing investment! ... The Gay Games will be a breeding ground for what Walgreens needs -- diseases that cause illnesses that require high-cost, high-profit drugs. They're making sure they capitalize on others' despair by supporting events that guarantee them a high yield return on their investment. Smart people, that Walgreens bunch."

As the old saw goes, "You know he's a Christian by his love, by his love ..."

Yeah, right.

Odiuous Fred and Free Speech

The odious Fred Phelps is the target of the latest dumb-ass idea to limit freedom of speech in this country.

Indiana Senator Brent Steel (Republican, Bedford), angered over a protest at Army SSG Jeremy Doyle's funeral in August, wants to make disorderly conduct a felony offense if it occurs at military funerals.

Members of Odious Fred's Westboro Baptist Church in Topeka, Kansas, picketed SSG Doyle's funeral, reportedly dragging US flags on the ground and shouting insults at Doyle's surviving family members outside a mortuary in Martinsville, Indiana.

Westboro has doing a lot of that sort of thing at military funerals in recent months. Odious Fred, the church's founder, contends American soldiers are being killed in Iraq as vengeance from God for protecting a country that harbors gays.

Senator Steele issued a statement this week indicating that would file a bill seeking to make disorderly conduct a felony punishable by a three-year prison sentence and $10,000 fine if committed during military funerals.

Well, Brent honey, I'm sorry. You are dead wrong, and you are doing a lot more damage than the Odious Fred could possibly do.

Free speech is a lot more important than peace of mind, even for families who have lost sons and daughters in the defense of our freedom. If you criminalize Fred Phelps' right to free speech, symbolic speech included, then you diminish your right to free speech, and mine.

And if you don't understand that, then think on it. The point of fighting -- and dying -- for freedom is to ensure that we live in freedom.

It was just a day like any other day ...

"At the time I was arrested I had no idea it would turn into this. It was just a day like any other day. The only thing that made it significant was that the masses of the people joined in." - Rosa Parks

Rosa Parks died yesterday.

Mrs. Parks was a secretary in Montgomery, Alabama. Ms. Parks was riding a Montgomery city bus on December 1, 1955, in the back as required by the segregation laws of the day. The bus was full. A white man got on the bus and demanded her seat. Ms. Parks refused, despite rules requiring blacks to yield their seats to whites. Two black Montgomery women had been arrested earlier that year on the same charge, but Ms. Parks was arrested, jailed and fined, and her arrest set off a 381-day bus boycott.

Ms. Parks did not set out that day to ignite the Montgomery bus boycott, setting off a firestorm that eventually matured into a civil rights movement that swept away segregation in public accommodations.

Ms. Parks did not have that in mind. She had simply reached the point where she had enough: "People always say that I didn't give up my seat because I was tired, but that isn't true. I was not tired physically, or no more tired than I usually was at the end of a working day. No, the only tired I was, was tired of giving in."

Ms. Parks' refusal to put up with the back of the bus would not have ignited the civil rights movement had other African-Americans reached the point where they, too, were tired to death of giving in. And the US Supreme Court would not have ruled in the case as quickly if other African-Americans had laid the groundwork for the case in other actions over the years leading up to Montgomery.

But, at bottom, it was Ms. Parks and others like Ms. Parks -- African-Americans who were tired of giving in an decided not to give in any longer -- that sparked and fueled the civil rights movement. It was Ms. Parks and many thousands like her who broke the back of segregation.

All of us -- black and white, gay and straight, young and old, all of us -- owe Rosa Parks a great debt.

The struggle for gay and lesbian equality under the law has many similarities to the civil rights movement of the 1950's and 1960's. As African-Americans then did then, gays and lesbians today face a wall of systematic, legal and defacto discrimination and oppression. As African-Americans heard then, gays and lesbians hear now that "the time is not right" and that gays and lesbians need to "change attitudes" before we will be win our equality under the law. And gays and lesbians today, as African-Americans then, know that our use of the courts to gain civil equality will lead to a fierce backlash from the majority, and that the road will be long and hard.

All of that may be true, but the most striking similarity is that the struggle for gay and lesbian equality in our time, like the civil rights movement of Ms. Parks' time, is sparked and fueled by individuals who are saying, "No, the only tired I was, was tired of giving in."

It is sparked and fueled by ordinary gays and lesbians who refuse to hide in the closet any more, fully aware of the cost of coming out. It is being sparked and fueled by the gay and lesbian teens who want to go to the prom, and refuse to take "No" for an answer. It is sparked and fueled by gays and lesbians in the workplace who refuse to put up with workplace harassment any longer. It is sparked and fueled by the lesbian couples who demand that both be listed as parents in their kids' school. It is sparked and fueled by gays and lesbians all over this country, acting alone and in concert, who are being hurt by the wall of systematic, legal and defacto discrimination and oppression, and no longer are willing to listen to "the time is not right" and "you need to change attitudes".

The push for same-sex marriage illustrates the "bottom up" nature of the struggle for gay and lesbian equality. The driving force for same-sex marriage has never been the GBLT "leadership". Same-sex marriage has been driven from the bottom up, by ordinary gay and lesbian couples who are directly harmed by the bans on same-sex marriage, and who have had enough. The bottom up push started in 1974, in Minnesota, and has never stopped, although it was thwarted again and again.

And the drive for same-sex marriage, like the drive for legal equality in all areas of life for gays and lesbians, is taking on a life of its own, leading the "leadership". Not, mind you, that the "leadership" likes it. Every time gay and lesbian couples have gone to court, with little or no support from the "leadership" other than hand wringing, and gained some traction, the GBLT "leadership" has issued calls for caution, prudence and adoption of a "sensible" strategy.

But hand-wringing has not stopped the bottom up push for same-sex marriage, and it isn't going to stop now. The reason is simplicity itself. Gay and lesbian families are put at risk by the ban on same-sex marriage, and parents will do a lot to protect their children, including but not limited to ignoring calls for adoption of a "sensible strategy" and risking a backlash from social conservatives.

All of us -- young and old, gay and straight, black and white, all of us -- owe a great debt to the individual gays and lesbians who reached the point where they, too, were "tired of giving in" and refused to go along any longer, the individual gays and lesbians who will have earned the right to look back on what they did in our time and say, as Ms. Parks did of her own refusal fifty years ago, "The real reason of my not standing up was I felt that I had a right to be treated as any other passenger. We had endured that kind of treatment for too long."

We owe them a great debt because they -- as individuals -- brushed aside calls for caution, prudence and adoption of a "sensible" strategy. We owe them a great debt because they are, like Ms. Parks, taking the risks that will, in time, bring equality to gays and lesbians.

Texas voters will go to the polls November 8 to cast ballots on the state's proposed anti-marriage amendment, which would ban same-sex marriages and civil unions.

Yesterday, on the day Rosa Parks died, the city of Austin gave the Ku Klux Klan permission to hold a November 5 rally against same-sex marriage on a public square in front of city hall.

The Klan, for God's sake. Deja vu all over again.

What could, on this day, make more clear our debt to Rosa Parks?

And how long and hard the struggle, even now?

Romeo and Romeo in Kansas

The Kansas Supreme Court issued a final decision in the Matthew Limon case last week.

The case involved Matthew Limon, convicted in 2000 of having sex at age 18 with a 14-year-old boy when both were residents of a group home for the developmentally disabled.

Kansas law prohibits any sexual activity involving a person under 16. However, the state's 1999 "Romeo and Juliet" law specifies short prison sentences or probation for sexual activity when an offender is under 19 and the age difference between participants is less than four years. However, the "Romeo and Juliet" law applies only to opposite-sex encounters.

Accordingly, Limon was sentenced to more than 17 years in prison for violating the state's anti-sodomy law, having two similar offenses on his juvenile record. If the "Romeo and Juliet" law had been applicable, Limon's maximum sentence would have been one year and three months in prison.

In a unanimous decision, the state Supreme Court overturned a lower court ruling had said the state could justify the harsher punishment as protecting children's traditional development, fighting disease or strengthening traditional values.

The following is a summary of the opinion:

" Traditionally, when analyzing an equal protection claim, the United States and Kansas Supreme Courts employ three levels of scrutiny: strict scrutiny, intermediate scrutiny, and the rational basis test. Chiles, 254 Kan. at 891-92. The level of scrutiny applied by the court depends on the nature of the legislative classification and the rights affected by that classification. Romer v. Evans, 517 U.S. 620, 632, 134 L. Ed. 2d 855, 116 S. Ct. 1620 (1996). The general rule is that a law will be subject to the rational basis test unless the legislative classification targets a suspect class or burdens a fundamental right. 517 U.S. at 631."

Classification

"This case is different from Lawrence, where homosexual conduct was criminal and heterosexual conduct was not. The Lawrence Court focused upon the "stigma" the criminal statute imposed which it characterized as "not trivial." 539 U.S. at 575. Here, both types of conduct are criminalized and, thus, stigma attaches to the heterosexual conduct covered by the Romeo and Juliet statute. However, there is an enormous escalation in the severity of punishment for those punished under the general rape, sodomy, and lewd act statutes. The Kansas Sentencing Guidelines impose a presumptive sentence of prison upon all defendants, including those with no prior criminal history, who are convicted of a severity level 3 felony, the severity level applying to Limon's conviction. In contrast, a presumption of probation applies to all sentences, except those for defendants with criminal histories of "A" or "B," who are sentenced for a severity level 9 crime, which would be the applicable severity level for sodomy if the Romeo and Juliet statute applied."

"Additionally, the presumptive terms of imprisonment for a severity level 3 felony, as noted earlier, are approximately 15 times that of a severity level 9 felony. As also discussed earlier, for Limon, whose criminal history score was a B, this classification means the difference between a 13-, 14-, or 15-month prison sentence and a 206-month prison sentence. K.S.A. 2004 Supp. 21-4704. For a defendant with no criminal history, a conviction of criminal sodomy (as charged in this case) entails a sentencing range of 55-59-61 months' presumptive imprisonment while a conviction of unlawful voluntary sexual relations under the Romeo and Juliet statute entails a sentencing range of 5-6-7 months with the presumption of probation. K.S.A. 2004 Supp. 21-4704. This represents an extreme disparity in sentencing. ... Based upon these considerations we conclude there is a discriminatory classification requiring us to examine the level of scrutiny to be applied in testing the constitutionality of the classification. "

Level of Scrutiny

"... Thus, strict scrutiny does not apply to our analysis of whether the Romeo and Juliet provision unconstitutionally discriminates based upon sexual orientation."

"Justice O'Connor, in her concurring opinion in Lawrence, suggests "a more searching form of rational basis review" applies when a law exhibits a "desire to harm a politically unpopular group." 539 U.S. at 580 (O'Connor, J., concurring). Her suggestion was not discussed by the Lawrence majority, which did not analyze the Texas statute on equal protection grounds. The majority did note that the "alternative" argument that the Texas statute was invalid under the Equal Protection Clause "is a tenable argument, but we conclude the instant case requires us to address whether Bowers itself has continuing validity. Were we to hold the statute invalid under the Equal Protection Clause some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants." 539 U.S. at 574-75."

"Despite not deciding the case on equal protection grounds and never explicitly identifying the standard utilized for its due process analysis, the Lawrence majority, by approvingly citing and discussing the equal protection analysis in Romer, at least implied that the rational basis test is the appropriate standard when a statute is attacked because of its classification of homosexual conduct. In Romer, the Court considered whether "Amendment 2" to the Colorado Constitution, which prohibited government protection of the status "homosexual, lesbian, bisexual orientation, conduct, practices or relationships," violated the Equal Protection Clause. In Lawrence, the Court summarized the Romer decision, noting that the amendment named a "solitary class . . . and deprived them of protection under state antidiscrimination laws. We concluded that the provision was 'born of animosity toward the class of persons affected' and further that it had no rational relation to a legitimate governmental purpose." 539 U.S. at 574."

"The Lawrence opinion contains another oblique indication that the rational basis test would apply, stating: "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." 539 U.S. at 578. (Emphasis added.) Typically, a search for a legitimate interest signifies a rational basis analysis."

"Hence, we apply the rational basis test to determine whether the Romeo and Juliet statute is unconstitutional because of its exclusion of homosexual conduct."

Rational Basis

The court applied the "rational basis" standard to the law. As noted by the court, " As the Court of Appeals noted, the basic contours of the rational basis test are well-defined: "For a statute to pass constitutional muster under the rational basis standard, it therefore must meet a two-part test: (1) It must implicate legitimate goals, and (2) the means chosen by the legislature must bear a rational relationship to those goals." Mudd v. Neosho Memorial Regional Med. Center, 275 Kan. 187, 198, 62 P.3d 236 (2003).

Kansas argued that the state had a "rational basis" for the harsher punishment applicable to same-sex "Romeo and Juliet" cases because harsh sanctions against homosexual conduct protected children's traditional development, fought disease or strengthened traditional values. The court looked at each of these arguments, in turn, and rejected them.

Traditional Morality

The court rejected the state's argument that the law had a rational basis because it upheld traditional morality.

The court rejected the argument, based on Lawrence and Romer:

"The Lawrence decision rejected a morality-based rationale as a legitimate State interest. ... The Court of Appeals majority would dismiss this analysis in Lawrence because of the due process context in which the discussion was made. The Lawrence majority, however, signaled application of the principles to equal protection analysis: "Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests." 539 U.S. at 575. In essence, the Lawrence decision recognized that the substantive due process analysis at issue in that case and the equal protection analysis necessary in this case are inevitably linked. ... This [Kansas] court has described this link as follows: "The difference between the constitutional concepts of due process and equal protection is that due process emphasizes fairness between the State and the individual dealing with the State, regardless of how other individuals in the same situation are treated, while equal protection emphasizes disparity in treatment by a State between classes of individuals whose situations are arguably indistinguishable. The test in determining the constitutionality of a statute under due process or equal protection concepts weighs almost identical factors." (Emphasis added.) Chiles v. State, 254 Kan. 888, Syl. 10, 869 P.2d 707 (1994). Thus, we are directed in our equal protection analysis by the United States Supreme Court's holding in Lawrence that moral disapproval of a group cannot be a legitimate governmental interest."

Discouraging Teen Homosexuality

The court rejected the state's argument that the law had a rational basis because the law discouraged homosexuality among teenagers:

"Neither the Court of Appeals nor the State cites any scientific research or other evidence justifying the position that homosexual sexual activity is more harmful to minors than adults."

"After this court accepted review of the Court of Appeals decision, the National Association of Social Workers and the Kansas Chapter of the National Association of Social Workers filed an amici brief which specifically questions the Court of Appeals' conclusion that the exclusion of gay teens from the application of the unlawful sexual relations statute protects the traditional sexual development of children. That brief cites a number of studies indicating that sexual orientation is already settled by the time a child turns 14, that sexual orientation is not affected by the sexual experiences teenagers have, and that efforts to pressure teens into changing their sexual orientation are not effective."

We conclude, as the United States Supreme Court stated in Romer, the "status-based enactment [is so] divorced from any factual context" we cannot "discern a relationship" to the espoused State interest (Romer, 517 U.S. at 635) that the law preserves the sexual development of children consistent with traditional sexual mores. Additionally, we again recognize the Lawrence Court's conclusion that moral disapproval of a group cannot be a legitimate governmental interest."

Coercion

The court rejected the state's argument that the law had a rational basis because it discouraged coercive sex between older teenagers and younger teenagers:

"The legislature determined, at least as to those in a heterosexual relationship, that a mutual relationship between teenagers is less likely to involve the same coercion that a relationship between an older adult and a child might and is more likely to be one where the minor's participation is voluntary, although not legally consensual."

"This, however, begs the question of whether there is a rational basis to distinguish between a class of those 18 years old and younger who engage in voluntary sex with minors aged 14 or 15 who are of the same sex and a class of those 18 years old and younger who engage in voluntary sex with such minors of the opposite sex. We see no basis to determine that as a class one group or the other would have a higher tendency to be coercive. A distinction on this basis has no factual support."

Public Health (HIV)

The court rejected the state's argument that the law had a rational basis because it discouraged sexual conduct (anal sex) that carried a high risk of HIV transmission:

" In essence, the Romeo and Juliet statute is over-inclusive because it increases penalties for sexual relations which are unlikely to transmit HIV and other sexually transmitted diseases. Thus, the statute burdens a wider range of individuals than necessary for public health purposes. Simultaneously, the provision is under-inclusive because it lowers the penalty for heterosexuals engaging in high-risk activities. In other words, the statute proscribes conduct unrelated to a public health purpose and does not proscribe conduct which is detrimental to public health."

Thus, the conclusions of the Romer Court are, again, particularly salient. The status-based distinction in the Kansas Romeo and Juliet statute is so broad and so divorced from supporting facts that we cannot discern a relationship to the facially legitimate interest of protecting public health and "its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects." 517 U.S. at 632. The "statute's superficial earmarks as a health measure" (Eisenstadt, 405 U.S. at 452) do not satisfy scrutiny under the rational basis test.

Procreation and Children

The court rejected the state's rather strange argument that the law had a rational basis because homosexual sex was not procreative:

"The Court of Appeals stated that the legislature might have determined that lengthy incarceration of a young adult offender who has become a parent as a result of a heterosexual relationship with a minor would be counterproductive to that young adult's duty to support his or her child. But, because same-sex relationships do not lead to unplanned pregnancies, the need to release a same-sex offender from incarceration is absent."

"... Judge Green's findings regarding the State's interest in relationships which lead to procreation make no sense since the State's interest is to discourage teen pregnancies, not encourage them. Further, the [Romeo and Juliet] statute does not reduce penalties solely for conduct that results in pregnancy, but also for heterosexual intercourse which does not result in pregnancy, i.e., sodomy and lewd contact. Again, the relationship between the objective and the classification is so strained that we cannot conclude it is rational. "

The Kansas court's bottom line was similar to that in Goodridge, in which the court looked at, and rejected, a relatively long list of disconnected rationales for a law that is based on little more than a political decision to discourage homosexuality:

" We conclude that K.S.A. 2004 Supp. 21-3522 , the Kansas unlawful voluntary sexual relations statute, does not pass rational basis scrutiny under the United States Constitution Equal Protection Clause or, because we traditionally apply the same analysis to our state constitution, under the Kansas Constitution Equal Protection Clause. The Romeo and Juliet statute suffers the same faults as found by the United States Supreme Court in Romer and Eisenstadt; adding the phrase "and are members of the opposite sex" created a broad, overreaching, and undifferentiated status-based classification which bears no rational relationship to legitimate State interests. Paraphrasing the United States Supreme Court's decision in Romer, the statute inflicts immediate, continuing, and real injuries that outrun and belie any legitimate justification that may be claimed for it. Furthermore, the State's interests fail under the holding in Lawrence that moral disapproval of a group cannot be a legitimate governmental interest. As Justice Scalia stated: "If, as the [United States Supreme] Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest," the statute cannot "survive rational-basis review." 539 U.S. at 599 (Scalia, J., dissenting).

Limon is important, however, not so much because of its conclusion but because it foretells, I think, the direction in which state and federal courts will be deciding GLBT equality cases in the future, drawing primarily from the equal protection analysis in Romer and Lawrence. The implications of Limon are, I think, particularly important in the area of same-sex marriage, a legal analysis that depends almost entirely on equal protection arguments. If Limon is an early case in what will become a large body of cases over the next decade, the theoretical underpinnings of state and federal decisions extending marriage to same-sex couples will have been firmly laid.

Gee, is an election coming?

The President's approval ratings are in the basement, Tom Delay is indicted and Bill Frist is under investigation, Miss Harriet's nomination is exposing the fissures in the Republican coalition, and mid-term elections are coming up in a year.

If nothing changes, the GOP going to lose big in November 2006.

What to do?

Drag out the Federal Marriage Amendment and begin pounding the "faggot, faggot" drum.

Republicans on the Senate Committee on the Judiciary Subcommittee on the Constitution, Civil Rights and Property Rights began yet another round of hearings on the FMA this week with the usual warnings about the dire but unknown consequences of allowing gays and lesbians to protect their families by getting married.

Right on cue, the "protect marriage" crowd went into full throated homohysteria, claiming that us queer folk are out to destroy marriage, topple civilization and generally scare the horses.

The usual Republican pre-election circus is coming to a town near you, folks.

Senator Patrick Leahy offered a bit of sanity into the proceedings, issuing the following statement on October 20:

As a nation, we are facing many pressing and problematic issues at this very moment -- the war in Iraq, devastation from flooding and hurricanes, record-high fuel prices, the threat of a flu pandemic, and a burgeoning national debt, to name just a few. This Committee is seeking to conduct expedited proceedings on President Bush's nominee to succeed Justice Sandra Day O'Connor on the United States Supreme Court. Perhaps as a distraction from these important matters, we now are asked to again turn to a divisive measure that will contribute nothing to rebuilding the homes that have been destroyed or saving the lives that are threatened or jumpstarting the economy.

As the Members of this Committee surely remember, proponents of the Federal Marriage Amendment last year could not even assemble a bare majority of Senators to move to consider the amendment. At that time we were warned that immediate action had to be taken to protect the fragile institution of marriage, which was said to be under immediate threat by those in black robes.

In the ensuing months, no States have been forced to recognize same-sex marriages. Rather, several States voted to amend their constitutions to ban same-sex marriage. The Defense of Marriage Act remains the law. Now, even more than last year, there is no imminent crisis that demands the diversion of Congress’s attention from all these other urgent problems or that justifies an alteration of our founding document.

We heard a lot of rhetoric about “judicial activism” in last year’s debate. The proponents of the FMA claimed that we had to pass it in order to prevent courts from inflicting same-sex marriage on the American people against their will. Ironically, the FMA – now renamed the Marriage Protection Amendment – would itself produce a wide range of litigation that judges would need to resolve.

We cannot say that other state courts will not someday follow the lead of the Republican-appointed judges in Massachusetts to interpret their State constitutions to allow gay marriage within their States, or to recognize same-sex marriages entered into in other States. If this is “judicial activism,” however, it is of the State-based variety. We should not adopt a doctrine of constitutional preemption. We should take the prudential course and respect State governments to be responsive to their citizenry.

....

I remember a time when leaving States in control of such issues as family law was an easy decision for Members on both sides of the aisle. I am disappointed that our Republican colleagues would endorse this broadly drafted amendment since it so clearly violates the traditions of Federalism and local control that their party, at least in the past, has claimed to respect and cherish.

....

In addition to my concerns that this effort will trample on States’ rights, we should all be aware of how the discrimination in such a measure will affect American families that currently exist in this country who seek the protection of civil unions and the acknowledgment of their committed relationships.

As an American who has been married for 40 years, I am a great fan of the institution of marriage. I believe it is important to encourage and to sanction committed relationships. I continue to oppose measures such as the Federal Marriage Amendment. I do not think it is necessary and believe it would be a sad day for our nation if we amended our founding document for the first time to specifically disfavor a group of Americans. I hope that those who claim to care about healthy families will turn away from wedge politics and scape-goating so we can focus on, and I hope, properly address the variety of pressing issues already piling up on Congress’s agenda.

Miss Harriet's Homework

It has been a long time since I've seen as cocked up a mess as the Harriet Miers nomination.

The latest twist in the saga is that Senator Arlen Specter Senator and Patrick Leahy, the Republican and Democratic leaders of the Senate Judiciary Committee, asked Miss Harriet to resubmit parts of her judicial questionnaire, saying various members had found her responses "inadequate," "insufficient" and "insulting."

The Senators also asked Miss Harriet to provide detailed accounts of private reassurances about her views given by the White House or its allies to social conservative supporters who have been anxious about her positions on abortion and other social issues.

Senators Spector and Leahy -- not to mention other members of the Judiciary Committee -- are seriously pissed about the back door "winks and nods" given by the White House and its allies to social conservatives and might actually subpoena leaders of the so-called Religious Right to get to the bottom of who said what to whom, and when.

Talk about tossing the fox in the henhouse ...

The issue is not going to go away. Senators, if nothing else, have a strong sense of their own prerogatives, and do not take kindly to being kept in the dark.

The original inquiry pointedly asked Miss Harriet about reports that in conference calls with social conservative the White House and its allies had offered private assurances about her views on abortion and other matters. The first part of the question asked if Miss Harriet had made any statement to anyone about how she might rule from the bench, and a second part requested information about "all communications by the Bush administration or individuals acting on behalf of the administration to any individuals or interest groups with respect to how you would rule."

Ms. Miers's answer to both was "No." No? Well, maybe to the first part of the question, but the second?

The new letter asks for detail: "This would include any and all communications, including those about which there have been recent press reports, in which friends and supporters of yours, among others, were said to have been asked by the White House to assure certain individuals about your views. If you do not have firsthand knowledge of these communications, please endeavor to determine what sorts of communications, if any, took place."

In a news conference on Wednesday, both Senator Specter and Senator Leahy focused in on this issue. Senator Spector said: "It's been a chaotic process, very candidly, as to what has happened because of all of the conference calls and all of the discussions which are alleged in the back room." Senator Leahy vowed not to allow "quiet promises over conference calls" in the debate on her nomination.

In short, a cocked up mess. Senior Senators are telling the press that they've seen nothing like it in modern memory.

So how did the Bush administration get into this mess?

My guess is that the President and his advisors seriously "misunderestimated" the determination of social conservatives to put a justice in place who would overturn Roe, Lawrence and a host of other decisions of the Court in the last thirty years, and tried to avoid a bloodbath in the next election by continuing the Republican strategy of "talking the talk" with social conservatives, but doing nothing substantive by way of rolling us back into the 1950's.

The traces are all over the nomination's history.

The White House tried to "wink and nod" social conservatives by talking up the 1989 document showing she held clear anti-abortion views, but then appeasing Republican women by emphacizing that the 1989 document expressed the "personal" views of a "political" candidate for the Dallas City Council, and was not a sign of how Miss Harriet might vote on the Supreme Court. Maybe, but it is a long maybe ...

The White House tried to "wink and nod" social conservatives by talking up Miss Harriet's "I'm in with Jesus ..." religious views, but then taking it back with the next breath. For example, President said that "part of Harriet Miers' life is her religion" and that was one of the reasons he nominated her. Within hours, Press Secretary Scott McClellan was whining on camera that too much was being made of Miss Harriet's membership in an right-wing Texas evangelical church.

The White House tried to "wink and nod" social conservatives by talking up Miss Harriet's constancy as a conservative. The President said he knows her heart and that she won't change. Well, sure, but all you have to do is look at her history to see that she did quite a few 180's in her past -- she converted from Roman Catholicism to Air Jesus, and flipped parties when it was convenient.

So far, all that the White House has accomplished through all of this is to piss off social conservatives while worrying the political center. Oh, and get the general populace almost universally asking "What the hell is going on with this, anyway?"

We'll see a lot of pressure for Miss Harriet to withdraw in the next week or so. Social conservatives smell blood in the water and are not going to miss the chance to derail this nomination if it can be done. But a withdrawal will not solve the White House's problem, because the next nominee will create a second firestorm, enraging the social conservatives if the nominee is anyone other than a hard-line right-wing radical in the tradition of Robert Bork and Antonin Scalia, and costing the Republican party moderate support in the 2006 election if the nonminee is a bomb-thrower.

So my guess is that the President will insist on an "up or down vote". He has little choice, given Republican politics.

To confirm Miss Harriet, the White House needs to build a 51-vote coalition of moderate to conservatives Republicans and moderate Democrats. If the President can hang on to 35-40 Republican votes and pick up 15-20 Democratic votes, then the hard core social conservatives like Sam Brownback can go pray themselves.

The rest of us can pray, laugh or cry, each according to our inclinations.

Too Hot for Prime Time

Too hot for prime time ...

No, not these guys. A television ad for the United Church of Christ.

You will recall that the UCC aired an ad last fall showing these guys turning away people of color away. The ad ended with a message from UCC that it welcomes all comers to its churches, and momentarily showed a lesbian couple embracing.

The ad was shown on various cable channels, but was rejected by all three networks because it was too controversial for prime time.

Deja vu all over again, as Yogi Berra used to say. Or maybe the same old same old.

The UCC has come up with a new ad, and while UCC officials are not yet disclosing the content, the theme is said to be similar to last year's ad.

The new commercial will, reportedly, include a gay couple, this time showing the couple being turned away from church.

Ron Buford, coordinator and team leader of UCC's "Still Speaking" initiative, said that inclusion of the gay couple was intentional: "We hope to reach 70 percent of the population with this message. We want to raise questions in people's minds about their preconceived notions about homosexuals."

While Buford insists that the ads are merely meant to alert gays and lesbians that they will not be ostracized from UCC –- and not as advocacy for hot button political issues like same-sex marriage -- the networks things differently, according to Buford.

Each of the networks think that the commerical is an advocacy ad and declined to air it, according to Buford:

ABC - ABC, which ran the ad on its ABC Family channel on cable last year but not the network, rejected the new spot for the network because it has a policy of not running religious commercials.

CBS - CBS characterized the ad as an advocacy ad. "CBS said to us it was continuing to hold its position that our ad is an advocacy ad and they don't do advocacy ads. I asked them what will it take for our ad not to be an advocacy ad and they said when acceptance of gay people has been accepted generally." Yeah, in my lifetime.

NBC - NBC rejected the ad, although Buford noted that NBC might reconsider: "With NBC I made the case it may not be as controversial as you think. Even Jerry Falwell said while he disagrees with the message he thinks we have a right to air it." Good for Jerry.

As things stand, the ad will air on cable but not on the networks.

It might not be the end of the world, of course.

Network ads are expensive, and publicity is free.

The controversy and media coverage surrounding last year's ad resulted in a bonanza of free publicity for the UCC.

According to Buford, it paid off -- the UCC web site received 5 million hits in the months following the ad, with 500,000 people entering their ZIP codes to locate the nearest church.

Miss Harriet and the American Way

The hypocrisy is suffocating.

Last week the Bush administration abandoned the "pit bull in six inch heels" line -- apparently social conservatives realized that Steel Magnolia wasn't a movie about Jesus -- and fell all over itself trying to convince social conservatives that because Miss Harriet attended a Bible-thumping church with her long-time cover, Nathan Hecht, she would vote to reverse existing precedent on GLBT rights, school prayer and abortion.

If I learn anything more about Miss Harriet's religious life, I'm going to barf, although I do want to know what she thinks of the central question facing Evangelical Christians: "If you don't have a liturgy, why not just sing the recessional hymn first and get it over with?" But I don't suppose she has a paper trail on that, either ...

As Rosie Braverman said after coming back from a Catholic wedding: "Jesus, Jesus -- all they talked about was Jesus! They didn't mention God once ..."

Not that the Jesus road hasn't been entertaining, in a way.

President Bush told reporters Miss Harriet's faith was one reason he nominated her. James Dobson, president of FOCFam, said (after the dust settled on his secret knowledge) that he had been assured by Karl Rove that Miss Harriet was a conservative Christian. And Pat Robertson warned GOP senators of dire consequences if they turn their backs on "a Christian who is a conservative", suggesting, perhaps that this time God would actually wipe out Key West in a mis-aimed attempt to destroy the Republican National Headquarters.

Ant then the Wall Street Journal reported that Karl Rove arranged for two of Miss Harriet's close friends and professional colleagues -- Justice Nathan Hecht of the Texas Supreme Court and U.S. District Court Judge Ed Kinkeade -- to speak with members of the executive committee of the Arlington Group, an alliance formed to oppose marriage equality for gays and lesbians. The WSJ article reported that the two judges were askedif Miss Harriet could be counted on to vote to overturn Roe v. Wade. Kinkeade is reported to have said, "Absolutely," and is reported to have Hecht concurred, although he denies it.

Jesus, Jesus! Where Miss Harriet is concerned, the White House is winking like a Walmart Christmas creche.

But, if I may be so bold as to ask, wasn't it just a month ago that a Democratic senator asked nominee John Roberts if he had given thought to how he would handle conflicts between his Catholic faith and the law, only to have social conservatives scrum all over him about how inappropriate and offensive it was to inject religion into the confirmation process? Well sure, but that was then and this is now. And Judge Roberts was a Roman Catholic and Miss Harriet is a real Christian.

Okay.

We did the pit bull in six inch heels, and we did Jesus.

Maybe we can put it to rest.

The latest Karl Rove tack seems to be to talk about qualifications.

The White House trotted out six former Texas Supreme Court justices yesterday. The president introduced them, saying: "She's impressed these folks. They know her well. They know that she'll bring excellence to the bench."

The six former justices, all men, waxed eloquent about Miss Harriet, highlighting her qualifications as White House counsel and legal trailblazer for women. "I think this is an excellent choice by the president of the United States and I think when people get to know her and understand her like we do, they'll find her an excellent choice. And she'll be a legend on that court before her career is finished," said former Texas Supreme Court Justice Craig Enoch, for example.

Nobody mentioned her shoe size, as far as I know. Or even called her "Miss Harriet". Having finally wrapped my mind around the Steel Magnolia nonsense, I was crushed.

So be it.

The most poignant endorsement came from former Texas Supreme Court Chief Justice John Hill, who told reporters: "I'd trust her with my wife and with my life."

So much for the rumors that her relationship with Nathan Hechet might be something less than passionate, I guess.

Despite all of this, it looked for a moment as if something of substance might have emerged yesterday, believe it or not.

Senate Judiciary Committee Chairman Arlen Spector met with Miss Harriet, and emerged from the two-hour meeting saying that Miss Harriet believes in a Constitutional "right of privacy". Senator Spector said that Miss Harriet told him she supported the Court's decision in Griswold v. Connecticut (right of privacy prohibits states from banning married couples from using birth control) and Eisenstadt v. Baird (right of privacy prohibits state from banning unmarried couples from using birth control).

The right of privacy in sexual matters is important to gay and lesbian equality because the right to privacy provided the basis for the Lawrence decision, in which the Supreme Court banned states from outlawing private, consensual oral and anal sex between adults. So I thought we might finally be learning something of use to the gay and lesbian community.

But, alas, it was not to be. No sooner had Senator Spector spoken than the White House said Senator Specter had misunderstood Miss Harriet. A short time later, Senator Specter's spokesman issued a statement saying that the senator had misunderstood Miss Harriet and that she had not taken a position on a constitutional right to privacy.

Oh well. It was fun for the fifteen minutes it lasted.

But we learned on thing. The flap over the right to privacy shows how serious the nomination has become for the White House and the Republican Party, which remains in power by pandering to the likes of James Dobson, Pat Robertson and Jerry Falwell.

John Roberts recognized the right to privacy at his Senate confirmation hearing last month, but refused to say if he would vote to outlaw abortion, saying he did not want to prejudge cases that may come before him.

For Roberts, that was enough.

Not so Miss Harriet. The standard has changed.

The hypocrisy is suffocating.

Putting it on the line in Texas

The National Gay and Lesbian Task Force is trying some creative experimentation in Texas, running ads in the Houston market that go to the heart of the debate over the anti-marriage amendment that is on November's ballot -- marriage, family and religion.

I don't know whether NGLTF's tactic of going to the heart of the matter will work in Texas, given the conservative nature of the state, but I'm in favor of putting the real issues on the table in the current struggle for gay and lesbian equality.

The ads do that very well, in my view, and are worth a careful look:

Every Sense of the Word
File: Quicktime Movie (3.3 mb)
© 2005 National Gay and Lesbian Task Force.

God Loves Us
File: Quicktime Movie (3.7 mb)
© 2005 National Gay and Lesbian Task Force.

Pack Your Stuff
File: Quicktime Movie (3.4 mb)
© 2005 National Gay and Lesbian Task Force.

Redneck
File: Quicktime Movie (3.3 mb)
© 2005 National Gay and Lesbian Task Force.

Someone Who Loves Them
File: Quicktime Movie (4.0 mb)
© 2005 National Gay and Lesbian Task Force.

The Real Thing
File: Quicktime Movie (3.3 mb)
© 2005 National Gay and Lesbian Task Force.

Unthinkable
File: Quicktime Movie (3.6 mb)
© 2005 National Gay and Lesbian Task Force.

Worth Reading: Come out, gay conservatives

Patrick Guerrieo, who heads the Log Cabin Republicans, issued the following statement today:

Come out, gay conservatives
History will record not only those who had the courage to stand up, but sadly those who remain silent.
By PATRICK GUERRIERO
Oct. 14, 2005

THIS CRITICAL MOMENT in the history of the LGBT movement’s fight for equality demands that another group of Americans come out of the closet: gay conservatives.

Now is the time for closeted gay conservatives to find the courage and personal strength to stand up and be counted. Now is the time we can really make a difference. If every gay conservative came out of the closet today, the journey to full equality would be over in years instead of decades.

It would soon become ineffective to use gay and lesbian families as wedge issues in campaigns. The cynical efforts to amend our federal and state constitutions would be stopped. The hypocrisy of anti-gay political tactics being used by way too many Republicans and some Democrats would be finally exposed.

One of the biggest unkept secrets in Washington, D.C., is that closeted gay Republicans are everywhere: the White House, Republican Party organizations, the halls of Congress, the most influential law offices, and the most powerful lobbying firms in our nation’s capital.

Some of those who remain closeted have chosen to be either passive bystanders or, in some cases, active critics of our movement while comfortably partaking in the fringe benefits of our community work, sipping the finest martinis in our trendiest gay bars.

COMING OUT IS an intensely personal journey. As someone who struggled long and hard with how and when to come out of the closet, I unequivocally oppose outing.

I am unaware of a single forced outing that led to passage of a single piece of pro-LGBT legislation. Coming out on your own terms, with free will, and with personal courage, is a positive catalyst for change. Forced outings don’t advance our movement because they’re motivated by vengeance.

Over the years, many closeted gay Republicans have discreetly helped advance equality. In spite of attacks from too many on the partisan gay left, some gay conservatives work behind the scenes to pass equality legislation, increase funding for HIV/AIDS, offer vital counsel to LGBT groups, and help defend us against anti-gay legislation.

These gay conservatives have quietly come out to their bosses and colleagues, changing some into gay allies and challenging others to soften their positions over time. These individuals have been quiet heroes, not asking for or wanting public credit.

Other gay Republicans, however, simply have failed to stand up, more concerned about keeping their title, their paycheck, their chance for promotion or their chance to attend another White House cocktail party.

AT THIS POINT in the culture war, we face a fight that will determine how LGBT Americans are treated for decades to come. Those who choose to be missing in action are running from the most critical fight of our generation.

During these historic times, the closet is not only a place that suffocates personal dignity, but that suffocates personal integrity that has the potential to change hearts and minds of even the most conservative Americans.

Coming out doesn’t have to mean putting a sticker on your car, flying a rainbow flag from your front porch or marching in a parade.

It may be as simple as putting a picture of your partner on your desk at work, sharing your personal story with your boss, or speaking up when someone says something anti-gay. It may be as difficult as offering a letter of resignation instead of implementing or assisting with an anti-gay campaign strategy.

For many conservatives, coming out will come with real and profound sacrifice. Thankfully, we can find role models in and inspiration from a new generation of Log Cabin members who are coming out in some of America’s most conservative places.

They are coming out to families who turn them away from the Thanksgiving dinner table if they insist on bringing their partners, in towns where they’re the only openly gay person, in traditional churches where they’ve heard intolerance from the pulpit, in high schools without gay/straight student alliances, and in workplaces where there are no protections.

They are the real heroes of today’s LGBT movement and they need and deserve a helping hand in the days ahead. It should come from gay conservatives.

Only with the help of gay conservatives can we prevent anti-gay conservatives from hijacking the Republican Party. Only with the help of gay conservatives can we defeat the voices of fear and intolerance. The history books will note not only those who had the courage to stand up, but, sadly, those who remain silent. The time is now.

Patrick Guerrieo has it exactly right. Aided and abetted by self-serving politicians and the staff who serve them, social conservatives have the country in a frenzy of homohysteria right now. All of us are under attack in a way we weren't even a few years ago. The gays who used to have the luxury of staying outside the fray -- "the silent rich, the cozy students, the quiet couples" -- are needed in the fight.

Our culture will not change until gays and lesbians in large numbers insist on a level playing field with straights, legally and culturally. Gay and lesbian conservatives have a special role to play in the stuggle, but need to come out, and come out now. We can't insist on equality from the closet.

Gay conservatives, like the rest of us, have a choice -- walk toward the sound of the battle, or walk away.

Odds and Ends

Odds

After a couples of weeks of "winks and nods" implying that Miss Harriet vote right because she is an Evangelical Christian, President Bush entered the fray, suggesting that he picked Miss Harriet because of her faith: "People are interested to know why I picked Harriet Miers. They want to know Harriet Miers' background. They want to know as much as they possibly can before they form opinions. And part of Harriet Miers' life is her religion."

The President was asked why his advisers were using Miss Harriet's religious affiliation to defend a judicial nomination to religious leaders like James Dobson, who owned up to the fact that his "secret knowledge" didn't amount to anything.

In past debates over Bush judicial nominees - including Chief Justice John Roberts, a devout Catholic - the Bush administration vehemently insisted that personal religious beliefs had no relevance to the confirmation process.

Now, oddly, Miss Harriet's personal religious beliefs are not only on limits, but a qualification.

And, even more oddly, it is the so-called Religious Right that is raising hell about Miss Harriet, suggesting that she might be right-thinking, but not right-thinking enough.

So will Republicans vote her down despite her religious leanings? I doubt it. As Pat Robertson, another White House crony and religious right blowhard said, "Not on your sweet life, if they want to stay in office."

So much for the tradition that religious tests aren't a requirement for civil office.

Ends

As reported earlier, a funny thing happened on the way to David Dreier's ascension to the post of House Majority Leader. The Republican caucus backed off and elected Roy Blunt of Missouri, the Majority Whip, instead.

The reasons behind David Dreier's short-lived resurrection are starting to emerge from the shadows, and, not surprisingly, Dreier's on-again, off-again closet act was involved.

David Ireland's column in this week's LA Times discusses Dreier's demise:

"Within hours [after Hastert's announcement], according to a low-ranking Hastert staffer who requested anonymity, the speaker’s office received more than 400 phone calls about Dreier’s being gay. Many of those calls were from right-wingers. The Hill — the D.C. weekly covering Congress — later reported that "Republican aides across Capitol Hill said they were overwhelmed by phone calls from conservative activists" about Dreier. A lot of those calls, House staffers told me, were homophobic about Dreier's being gay. Slate reported, "The House 'Values Action Team,' a group of GOP members tasked with pushing pro-life/pro-family issues within the caucus, blasted ane-mail to their colleagues alerting them that Dreier was to be tapped as a replacement and underlining his voting record supporting stem-cell research." These conservative GOP congressmen didn't need to tell their colleagues that Dreier is a closet case — it’s hardly a secret on Capitol Hill. When I was first reporting on Dreier’s outing, one well-known gay congressman told me, "Everybody in the House knows," adding that he was "100 percent sure" that Dreier was gay."

Was Dreier's closet-case status the only reason he was dumped? No, of course not. Roy Blunt is a darling of social conservatives, Dreier is closely allied with California's unbeloved Governator, and although reliably homohysterical (Dreier voted against the Hate Crimes Prevention Act a couple of weeks before he was dumped, for example), Dreier has a reputation among social conservatives as being a bit shy of 100% reliable on social conservative issues. All of that factored in, but the fact that Dreier is widely known as a closeted homosexual, played a part, too.

I note, without surprise, that David Dreier did not call a press conference on National Coming Out Day. Not that anyone doesn't already know.

Miss Harriet at the Circus ...

I confess ...

"If Dr. Dobson knows something that he shouldn't know or something that I ought to know, I'm going to find out... If there are back-room assurances and if there are back-room deals and if there is something which bears upon a precondition as to how a nominee is going to vote, I think that's a matter that ought to be known by the Judiciary Committee and the American people." - Senator Arlen Spector, Chairman, Senate Judiciary Committee, October 9, 2005

James Dobson is a big drama queen.

Dobson, faced with the Spector of being subpoenaed to testify under oath in the Miss Harriet hearings, confessed all yesterday on his weekly radio broadcast.

All, it turns out, isn't all that much -- assuming that the Dobbin is telling the truth, the whole truth, and nothing but the truth now.

The official transcript can be found at the FOCFam website.

For those of you who have your browser set to block FOCFam (sensible choice, if your bloodpressure means anything to you), I offer the transcript, with running commentary:

Dobson: Well, John, if our listeners and friends have been monitoring the news on radio and television and the Internet and if they have been listening to other talk shows in the past week, then they know well, that I have been a topic of conversation from the nation's Capitol to the tiniest burg and farming community.

Dobbin Darling, I don't think that people were paying all that much attention. But maybe folk don't have anything better to do in those tiny downs and farm communities. God, I hope not, since I'm moving back to one next spring.

Dobson: And the issue that's propelled this unprecedented interest in something that I've said is my conversation with Deputy White House Chief of Staff, Karl Rove, that occurred on October 1st, just a few days ago. And that was the day before President Bush made his decision to nominate White House Counsel, Harriet Miers, to be the next Justice of the Supreme Court. Now, as you know and as I'm sure many of our listeners know, there are members of the judiciary committee who are running from one talk show to another, threatening to subpoena me to find out what occurred in that conversation with Karl Rove.

I can see how having to tell the truth about something might seem like a threat to you. For the rest of us, though, telling the truth isn't a big deal. We just do it. Of course, we don't play "wink and nod" with Karl Rove, claiming knowledge we don't have to impress the ignorant who we milk for money, so it is simpler for us.

Dobson: And I am going to make their job easier (Laughter), because in the next few minutes, I'm gonna tell them what I would say to them if I were sitting before the judiciary committee. And this is the essence of what transpired between the Deputy Chief of Staff of the White House and me. So, is that clear?

Clear as a bell, Dobbin. You don't want to go under oath and be asked questions about your conversation with Rove, so you are trying to head it off at the pass by confessing in a radio show where you control what gets asked and what you have to answer.

John: I think that is. And for our listeners, you wouldn't believe all that's going on here at Focus, as so many of the mainstream media -- most of the mainstream media -- is contacting us. They, like those Senators, want to know, "What does Doctor Dobson know? What did he talk about? Tell us, please."

Dobson: Well, John, I think it's time that I did that.

You bet. As I recall, you claimed that Karl Rove gave you secret information, and on the basis of that secret information, which you could not divulge and which you shouldn't have been given, you endorsed Miss Harriet. Have I got that right?

John: Okay, before you do though, it probably would be helpful for our listeners to understand why you can talk about that now and previously you couldn't.

Dobson: Yeah, I haven’t been willing to. The reason is because Karl Rove has now given me permission to go public with our conversation. And I'm gonna say a little more about that in a minute.

Drama, drama, drama. Roll it out, one color at a time. Play it for all it is worth.

John: Okay. Well, fill us in then on what happened.

Dobson: Well, let me go back through the sequence of events and...and explain what happened. The President announced his decision on Monday morning, October 3rd, that Harriet Miers was his selection and the debate was on. And a few hours after that, many conservative Christian leaders were involved in a conference call, wherein some of those men and women were expressing great disillusionment with President Bush's decision and there was a lot of anger over his failure to select someone with a proven track record in the courts. And I came in a little bit late and I caught just a bit of that angst and then I shared my opinion, that Harriet Miers might well be more in keeping with our views than they might think and that I did believe that she was a far better choice than many of my colleagues were saying and that they obviously believed.

Well, my reasons for supporting her were twofold, John. First, because Karl Rove had shared with me her judicial philosophy which was consistent with the promises that President Bush had made when he was campaigning. Now he told the voters last year that he would select people to be on the Court who would interpret the law rather than create it and judges who would not make social policy from the bench. Most of all, the President promised to appoint people who would uphold the Constitution and not use their powers to advance their own political agenda. Now, Mr. Rove assured me in that telephone conversation that Harriet Miers fit that description and that the President knew her well enough to say so with complete confidence.

Sounds a lot like more of the old White House snake oil to me, Dobbin, but then I'm not a man with a lot of faith in either Karl Rove or President Bush. Or in you, for that matter.

Dobson: Then he suggested that I might want to validate that opinion by talking to people in Texas who knew Miers personally and he gave me the names of some individuals that I could call. And I quickly followed up on that conversation and got glowing reports from a federal judge in Texas, Ed Kinkeade and a Texas Supreme Court justice, Nathan Hecht, who is highly respected and has known Harriet Miers for more than 25 years. And so, we talked to him and we talked to some others who are acquainted with Ms. Miers.

So, I shared my findings with my colleagues, not only what I just mentioned, but other calls I made. I talked to Chuck Colson, my great friend, who is a constitutional attorney --

If you think that Chuck Colson is a constitutional attorney, I can't imagine what you think a theologian is ... but ... now that I think about it, it all fits together. Your grasp of theology is as thin as Chuck's grasp of constitutional law.

John: Uh-hm, uh-hm.

Are we bored yet, John? You get paid to listen to this stuff, remember. So at least fake it. I'm not asking you to do an Elton John imitation or anything, but show at least a little enthusiasm when the Dobbin bloviates.

Dobson: -- and talked to him four times. He helped me kind of assimilate the information that we had garnered, but I would not say much about the phone call from Karl Rove, even though I'm very close to many of the people who are on the telephone. Why would I not do that? Because it was a confidential conversation and I've had a long-standing policy of not going out and revealing things that are said to me in confidence. That may come from my training as a psychologist, where you hear all sorts of things that you can't go out and talk about.

John: Sure.

John, you sound about as convinced by this bullshit as I am ...

Dobson: And I feel very strongly about that. And frankly, I think it's a mistake and maybe even an ethical problem for people to do that — to go out and brag about being a player on the national scene, maybe to make themselves to look important. You know, I just wish that didn’t happen like it does and I certainly didn't want to be part of it.

Why is my hypocrisy-dar going off the meter here? Oh, read on ...

Dobson: So, I wouldn’t reveal any of the details about the call, although I did say to these pro-family leaders, which has been widely quoted, that Karl had told me something that I probably shouldn’t know. And you know, it really wasn’t all that tantalizing, but I still couldn't talk about it. And what I was referring to is the fact that on Saturday, the day before the President made his decision, I knew that Harrier Miers was at the top of the short list of names under consideration. And as you know, that information hadn’t been released yet, and everyone in Washington and many people around the country wanted to know about it and the fact that he had shared with me is not something I wanted to reveal.

Snort! Didn't you just say that it created ethical problems for people to go out and brag about being a player on the national scene? And isn't that pretty much what you did? Of course ...

Dobson: But we also talked about something else, and I think this is the first time this has been disclosed. Some of the other candidates who had been on that short list, and that many conservatives are now upset about were highly qualified individuals that had been passed over. Well, what Karl told me is that some of those individuals took themselves off that list and they would not allow their names to be considered, because the process has become so vicious and so vitriolic and so bitter, that they didn’t want to subject themselves or the members of their families to it.

Dobbin, I think that Miss Harriet can handle it. Miss Harriet seems to be up to dealing with all the vicious, vitriolic and bitter attacks the right wing can throw at her, at least according to her boyfriend, Nathan Hecht. So what happened to the others? Were the others a bunch of wussies? What happened to the brave band of conservative judges who were going to stand up and fight for 1950's America? Wimps. It is a sad commentary on the social conservative movement when Ann Coulter has the big balls ...

Dobson: So, even today, many conservatives and many of them friends of mine, are being interviewed on talk shows and national television programs. And they’re saying, "Why didn’t the President appoint so-and-so? He or she would have been great. They had a wonderful judicial record. They would have been the kind of person we've been hoping and working and praying for to be on the Court. Well, it very well may be that those individuals didn't want to be appointed.

I can't wait to hear what Ann Coulter has to say about this ...

John: For understandable reasons, because the grilling that they get in that confirmation process is just brutal.

Dobson: Well, it's true. The Democrats have so politicized that process that it's become an ordeal and many people just don’t want to go through that. And I'm not sure I blame them. So, Karl Rove shared some of that with me. He also made it clear that the President was looking for a certain kind of candidate, namely a woman to replace Justice O'Connor. And you can imagine what that did to the short list. That cut it ... I haven’t looked at who I think might have been on that short list, because Karl didn’t tell me who was not willing to be considered.

Aaaawwww ... the mean Democrats. I don't want to inject any reality into this, Dobbin, but have you heard what Ann Coulter and Gary Bauer and your other social conservative pals have been saying about Miss Harriet?

Dobson: But that many have cut it by 80 percent right there. But I was not gonna be the one to reveal this. I knew that people would eventually be aware of some of that information, but I didn’t think I had the right to say it. And so, I made my comment.

Eighty percent? Eighty percent of the conservative judges that President Bush appointed to save the Republic cut and run? If I were a social conservative, I'd be thankful that it is only a culture war.

Dobson: Now there's ... there’s something else I'll say in a moment that I was referring to. But let me just say that some of my friends that I was talking to that day and thought I was speaking in confidence, went straight to the media and…and shared what I had said or what I had not said. And that's where the firestorm began. You know, "What did Dobson know and when did he know it?"

Or, more to the point, Dobbin, what didn't you know and why did you pretend you did?

Dobson: Now let me go back to the statement that there were some things from my conversation with Karl Rove that I couldn’t talk about. And of course, the media has keyed on that statement. I had no idea that was going to be released to the media, but there it is.

But you released it ... so there it is.

Dobson: So, what was it that I couldn't talk about? The answer has everything to do with timing. It's very important to remember that when I first made that statement about knowing things that I shouldn't know, and shared that with my colleagues the day that the President made his announcement, maybe two or three hours after his press conference.

And then, that very night, I went on the Brit Hume program — the FOX News program — and and talked about the President's nomination. And then, the following day — Tuesday — I recorded a statement for FOF, which was heard on Wednesday. And that is the last time that I said that I had information that was confidential and that I really couldn’t talk about.

Why? Because what I was told by Karl Rove had been confirmed and reported from other sources by that time.

I'm trying to follow the logic here ... I really am ...

Dobson: What did Karl Rove say to me that I knew on Monday that I couldn’t reveal? Well, it's what we all know now, that Harriet Miers is an Evangelical Christian, that she is from a very conservative church, which is almost universally pro-life, that she had taken on the American Bar Association on the issue of abortion and fought for a policy that would not be supportive of abortion, that she had been a member of the Texas Right to Life. In other words, there is a characterization of her that was given to me before the President had actually made this decision. I could not talk about that on Monday. I couldn't talk about it on Tuesday. In fact, Brit Hume said, "What church does she go to?" And I said, "I don’t think it’s up to me to reveal that." Do you remember my saying that?

John: I do, yes.

Dobson: What I meant was, I couldn't get into this. But by Wednesday and Thursday and Friday, all this information began to come out and it was no longer sensitive. I didn’t have the right to be the one that revealed it and that's what I was referring to.

I think that the operative phrase is "rolling on the floor laughing my ass off", Dobbin. The big secret was that Miss Harriet is an Evangelical Christian who has attended Valley View for the last 25 years? And this was such sensitive information that you had to lie about it? Gawd. And you claim us queer folk are sensitive.

John: Well, I'd also guess, Doctor, that the answer you gave here about the contents of that conversation and why you couldn’t divulge some of those matters, won't satisfy the senators on the judiciary committee, who were looking for some red meat.

Well, I'd also guess, that Dobbin Darling put his own foot right in it, trying to pretend that he and Karl were pillow talking ... and then when Arlen Spector called his bluff, he decided to try to head off the spectacle of having to admit under oath that he was talking through his hat.

Dobson: Well, John, I have no doubt that what I've just said will be a great disappointment to Senator Schumer and Senator Salazar and Senator Biden and Senator Durban and Senator Leahy and Senator Lautenberg and some of the other liberal Democrats, because Karl Rove didn’t tell me anything about the way Harriet Miers would vote on cases that may come before the Supreme Court.

Maybe. But it ought to be a bigger disappointment to the social conservatives you duped by pretending to know something you didn't, but I don't suppose I need to point that out.

Dobson: We did not discuss Roe v. Wade in any context or any other pending issue that will be considered by the Court. I did not ask that question. You know, to be honest, I would have loved to have known how Harriet Miers views Roe v. Wade. But even if Karl had known the answer to that and I'm certain that he didn't, because the President himself said he didn't know, Karl would not have told me that. That's the most incendiary information that's out there and it was never part of our discussion.

Okay, so why did you suggest that you were sure about Miss Harriet, so sure that you were willing to risk the blood of babies on your hands if you were told wrong? Were you just talking through your hat, yet again, about something you don't know anything about?

Dobson: One thing is clear. We know emphatically that Justices Souter and Kennedy and Breyer and Ginsburg and Stevens have made up their mind about Roe v. Wade, by politicizing their decrees on that issue and others. They have usurped the right of the people to govern themselves and they imposed a radical agenda on this country. And John, as long as I’m talking about that, let me say one other thing.

More recently, they have been drawing some of their conclusions, not from the Constitution and not from precedent and not from the American people, but from public opinion in Western Europe. You know, that’s one of the most outrageous developments in the history of the Court. American public opinion is ignored and so are previous Court decisions or precedent. And frequently, the Constitution itself is bypassed. And instead they favor the views of people who have no commitment to our freedoms and our traditions that the Founding Fathers gave us.

So, I want the President to appoint someone who will go to the original intent of the Constitution and tell us what the founding fathers meant. If we don’t like what they wrote, there’s a process to change it. But the way it works now, every time the Court meets, it can be more or less a constitutional convention, where five or more justices reinterpret the meaning of that precious document.

Wiggle, wiggle, wiggle ...

Dobson: Now Karl Rove didn't tell me all of that, but what he said, in essence, is that Harriet Miers is a strict constructionist, which is why the President likes her. And you know, I've never met her; I don't have any personal communication with her. I've never received a letter or a phone call from her or any firsthand knowledge, but I do believe President Bush is serious when he says this is the kind of person I'm looking for and Harriet Miers is such a person.

Well, hell, I like Miss Harriet, too, particularly since she got rid of the big hair. And I'm sure that the President thinks highly of her ... but this is the secret knowledge you were so portentous about?

...

Dobson: Now John, I feel like I have clarified the nature of my conversation with Karl Rove. Let me just say in the conclusion to my comments here -- and I want to speak directly to members of the judiciary committee about the possibility of my coming to testify -- if they want to do that, then I just suggest that they quit talking about and just go do it. I have nothing to hide and I’ll be happy to come and talk to you. But I won’t have anything to say that I haven't just told millions of people. And so, that's really the end of my statement.

Yup, you sure don't want to go under oath and testify. It might hit the bottom line if your followers find out what a fraud you are ...

John: That...that is about as clear as you can make things, I think, for our listeners and we'll have this broadcast posted on the Web, if they'd like to refer back to it at any point in time. ...

Dobson: Well, John, I think it's about time I did that, because I'm tired of talking and I'm tired of even listening to my own voice.

Don't think you are alone, Doctor Dobson. A whole lot of us are tired of listening to you.

Well, anyway, you've confessed, after a fashion.

The bottom line is that you claimed that Karl Rove gave you secret information about Miss Harriet, and on the basis of that secret information, which you could not divulge and which said you shouldn't have been given, you bloviated on and on about Miss Harriet. And then, when threatened with having to tell what you heard under oath, you pulled a Jimmy Swaggart on your radio show, saying "Aw, shucks, I was just talkin', telling a little Texas truth ..."

So which is the lie?

Here come the clowns ...

Speaking of amusement, has it occurred to anyone else how completely Miss Harriet has turned Republicans inside out?

For five years now, we've listened to Republicans insist that the President of the United States should have broad discretion in choosing judges.

Suddenly, the Republicans seem to have changed the tune ...

For five years now, we've listened to Republicans attack Democrats for voting against the President's nominees because of the nominee's judicial philosophy

Suddenly, the Republicans seem to have changed the tune ...

For five years now, we've listened to Republicans fight off efforts to get information about the President's nominees, either by obtaining documents and records or by asking questions of the nominee.

Suddenly, the Republicans seem to have changed the tune ...

For five years now ... oh hell.

It is kind of fun to watch the Republican coalition eat its own babies.