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Monday, July 13, 2015

Gay rights attorney ignores Supreme Court's 1972 gay marriage decision

Jan. 9, 1976 feature article by Anne Wood, 'Gay women: Coming out of the closet in Corvallis, 'Now I want to marry this woman,' on p. 7-8 of Corvallis Gazette-Times

PHOTO: Jan. 9, 1976 feature article by Anne Wood, "Gay women: Coming out of the closet in Corvallis, 'Now I want to marry this woman,'" on p. 7-8 of Corvallis Gazette-Times. One of the women profiled in the article came out in a letter to the editor of her student newspaper and she was active in early gay women's groups at Oregon State University. (See previous posts Gay 1976 newspaper controversy (5/3/06) and My opinion on upcoming gay marriage court decisions printed in local newspaper (1/28/15

The latest issue raised by people opposed to gay marriage is the agitprop that gay activists are celebrating their victory by vindictively trying to abridge the "religious liberty" of churches with demands they perform gay marriages and force their religiously devout members to bake wedding cakes against their will for gay couples.

I find it ironic that the religious bullies who voted to take away the right of gay marriage are now the same people who are claiming to be victims of religious discrimination. I learned as a child, if you get hit by a bully, and you dare to defend yourself by hitting your bully back, then the bully will go running to the teacher demanding that you, not them, be punished for it.

The professional anti-gay groups have recently invented the term "religious liberty" to describe what they claim to have lost as a result of the gay marriage decision. In my mind, the term "liberty" denotes something more than the "religious freedom" guaranteed by the U.S. Constitution. I hope to expand on my thoughts about the reversal of roles between theocrats and gays in a future blog post.

A bigger misconception being repeating today is the idea that the democratic process was short-circuited by the Supreme Court -- virtually overnight according to some gay marriage opponents. Incredibly, even some attorneys who have fought for gay marriage rights also mistakenly say the process was shorter than it actually was. Below is a copy of a letter the editor I wrote that tries to correct one attorney's misconception and also I include a portion of a previous post on reactions to the decision. (See previous posts OSU students react to SCOTUS gay marriage decision and the invention of 'religious liberty' by opponents (7/2/15) and Gay marriage decision by SCOTUS resolves 1972 Baker v Nelson case (6/27/15))

One of these recent examples of an attorney claiming a shorter time period for gay marriage court decisions was printed in the professional newspaper (circulation approximately 10,000) serving my small college town -- the same newspaper that printed the story about a woman desiring to marry another women in 1976 (see photo above) -- by printing the syndicated column by Noah Feldman, Bloomberg View, "It's the end of two eras for the court," Gazette-Times, Jul. 2, 2015, p. A7 concerning the Supreme Court's gay marriage decision Obergefell et al. v. Hodges, Director, Ohio Department of Health, et al. October Term 2014, decided Jun. 26, 2015:

"The gay-marriage decision, Obergefell v. Hodges, marks the culmination of a 25-year period of gay-rights decisions that coincided with an era of gay-rights advocacy, starting with the 1969 riot at the Stonewall Inn in New York. . .

A look back at this era should start with the gay-rights cases, which will certainly enter the history books. One early sign of their importance can be seen in the half-dozen books about the litigation and the lawyers who pursued it that were published in the last year. Supreme Court cases can be fascinating, and books that go into detail about a case or a line of litigation are often worth reading. Anthony Lewis's "Gideon's Trumpet" gave birth to the genre -- it's one of the main reasons I became a constitutional lawyer. But it's highly unusual for so many books to come out in such a short time about the same line of cases. The reason is simply that when there's been a historical accomplishment, we want to read a first draft to understand how to allocate credit. (See Note 1) . . .

Note 1: For the record, although there's plenty of credit to go around, Evan Wolfson argued the first gay-marriage case in Hawaii in 1993. When I was a summer associate at Davis Polk & Wardwell in 1996, I was given the chance to do a small amount of pro bono work for Wolfson's organization -- and it was obvious that he was at the cutting edge of something that would be a long time coming."

(Quoted from Noah Feldman, Bloomberg View, "It's the end of two eras for the court," Gazette-Times, Jul. 2, 2015, p. A7)

After reading the above opinion column, I first noticed that Noah Feldman ignored the "Baker v Nelson" gay marriage case by referring to 25 years (1990-2015) of cases before then abruptly adding the Stonewall comment. I agree with him that there have been many books published seeking credit for gay marriage, but it appears that Noah Feldman is unaware of the history that will be documented in a soon to be published book on gay marriage by Michael McConnell with Jack Baker, As told to Gail Langer Karwoski, "The Wedding Heard 'Round the World, America's First Gay Marriage," University of Minnesota Press, Jan. 2016.

Here is my letter to the editor in response to Noah Feldman, in which I try to counter the idea that the Supreme Court decision on gay rights happened too fast and short-circuited the democratic process:

Noah Feldman's opinion column, "It's the end of two eras for the court," (Gazette-Times, July 2) erroneously claimed, "The gay-marriage decision, 'Obergefell v. Hodges,' marks the culmination of a 25-year period of gay-rights decisions."

In fact it is over four decades, because the Supreme Court's June 26 decision, starting on page three, reconciles it with its 1972 decision, which left it up to state laws, by explicitly overturning "'Baker v. Nelson' 409 U. S. 810."

The source of Feldman's error can be surmised from his footnote, not printed in the G-T, where he takes credit for doing "a small amount of pro bono work" for a "gay-marriage case in Hawaii in 1993" led by attorney Evan Wolfson.

Anybody of average intelligence can easily read the Supreme Court's gay marriage decision at to download a 103-page copy, although fully understanding it requires some basic education in constitutional law.

It should be clear, even to the opponents of gay marriage, from reading the court's decision that the democratic process of letting voters decide on the constitutional rights of others was allowed to go on for decades longer with same-sex marriage rights than it was in other landmark cases decided by the court.

(Quoted from Thomas Kraemer, "Letter: Court waited long enough," Gazette-Times, Jul. 13, 2015, p. A7)

It appears the newspaper editor carefully chose to print, on the same day and page as the day my letter ran, a syndicated opinion column by Meghan Daum, LA Times, "I'm so over the rainbow on Facebook," Gazette-Times, Jul. 13, 3015, p. A7, in which she sarcastically says, ". . . within three days of the Supreme Court's ruling in favor of same-sex marriage, some 26 million people had shown their support by rainbowifying their pictures with Facebook's "celebrate pride" tool . . . I stand for gay rights, but I'm also standing for my right to avoid the group hug and flag waving. On my feed, it appeared that at least half of my friends had opted in . . . It was also kind of irritating. Though I too was thrilled at the ruling, all that Facebook rainbowification felt like blackmail . . . Some say the danger of symbolic, social-media-driven activism -- "slactivism," as it's often called -- is that it lets people off the hook from working toward real change . .. ."

I suspect this opinion piece was chosen by the editor because it probably reflects well the local newspaper readers' ambivalent and residual anger concerning a subject, gay marriage, which many do not have a strong opinion on either way and they are tired of hearing about it.

ONE Magazine Aug. 1953 'Homosexual marriage?' cover headline PHOTO: ONE Magazine was also ahead of the time in 1953 when it discussed the idea of "homosexual marriage" long before "gay marriage" or same-sex marriage become a cause of a few gay liberationists. (See James T. Sears, PhD, "1953: When ONE Magazine, Headlined 'Homosexual Marriage,'" posted Aug. 11, 2003 and my previous post Gay free speech victory 50th anniversary (1/18/08)) A former Oregon State University Professor W. Dorr Legg was an editor of this early journal advocating homosexual rights. See previous posts W. Dorr Legg OSU archives records 1935-1942 (7/31/10) and OSU Social Justice Walking Tour includes W. Dorr Legg story (6/8/14)

So far, before my letter ran, the several letters to the editor printed in my local newspaper have opposed the gay marriage decision. For example a letter by Jane Newton, "Letter: Justices must have integrity," Gazette-Times, posted Jul. 6. 2015 says, "In the same-sex "marriage" ruling, not only did John Roberts abandon this obligation, he flouted it by saying, 'This had nothing to do with the Constitution.'"

Similarly, was a letter by Jonathan A. Hayes, "Letter: Supreme Court gets it wrong," Gazette-Times, posted Jul. 6. 2015 said, "Same-sex marriage: the court should have declined to hear the case on the grounds that it does not have jurisdiction."

See previous posts: