(Photo credit: St. Augustine Record)
Ed interviewed by Derek Boyd Hankerson on FirstCoast.tv re: Gay marriage decision
By Ed Slavin
“Joy cometh in the morning,” the scripture says. The morning of June 26 is now triply historic, as exemplified by the Supreme Court's Obergefell v. Hodges decision this morning, and two Supreme Court decisions the same morning in June 2013, and recognizing marriage equality and equal justice under law, and another Supreme Court decision on the same morning in 2003, overturning Texas' anti-Gay "sodomy" law.
It's morning in America.
Thanks to Justices Anthony Kennedy, Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor, the United States Supreme Court today recognized the Constitutional right to Gay Marriage. Their majority opinion stated, ""the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality. Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry." The Court held, "No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right."
In dissent, Justice Antonin Scalia attacks the majority's "mummeries," "hubris," "pretentious," "egotistic" "judicial Putsch," and "straining-to-be-memorable passages," indulging in fulsome Freudian slips when he scorns the "naked judicial claim to legislative—indeed, super-legislative—power." Scalia attacks our American Bar Association, stating, "the predominant attitude of tall-building lawyers with respect to the questions presented in these cases is suggested by the fact that the American Bar Association deemed it in accord with the wishes of its members to file a brief in support of" Gay marriage. Scalia mocks the opening line of the majority opinion by concluding that if asked to include such language in an opinion as the price of a fifth vote": "I would hide my head in a bag," opining that "The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie."
We are the United States of America, now joining some 23 other countries recognizing a right to Gay marriage, rejecting homophobia as belonging in the dustbins of history. We are not "Bushmen, Chinese, Carthaginians or Aztecs," Chief Justice Roberts, and this is no "fortune cookie," Justice Scalia.
I've been waiting for this day since 1974, when I was a freshman at Georgetown University. My improbable Gay American life begins anew today. I did not “come out” until I was 31, had graduated law school and completed a judicial clerkship at the U.S. Department of labor in Washington, D.C.
I was “afraid, very afraid.”
It was a time when Gay, Lesbian, Bisexual, Transgender and Queer/Questioning (GLBTQ) people were routinely killed, expelled, fired, evicted and even arrested, with the living enduring depression, suicide and addictions as a result of society's group hatred. I did not hear any school or church or government authority figure of any kind say one positive supportive word about Gays, either individually or as a group, until my freshman year at Georgetown, when, about five or ten days after we moved in, one of my two resident assistants on New North Hall, P. Michael Nugent, rebutted what another freshman said about "queers" -- a senior at the time, Mike Nugent earnestly and effortlessly pointed out that a prominent investigative reporter was Gay, and that being Gay was okay and nothing to disrespect or disdain.
But generally, in those decades: Hate ruled our world.
Gays lived in fear, in the closet, afraid of “detection, rejection and infection” (and that was before AIDS).
After all, thousands of Gays and Lesbians were fired on President Eisenhower's orders.
Those of us GLBT people under 40 years of age may have difficulty appreciating what a sea change this decision is in our country. Why? Because they're much more tolerant than earlier generations, and more accepting of diversity.
“Queers don't have constitutional rights!” That's emphatically what our courts said until 2003, only ten years ago when our United States Supreme Court voted 6-3 to invalidate Texas' sodomy law in Lawrence v. Texas. But as Justice Anthony Kennedy said in today's 5-4 decision, Obergefell v. Hodges, "Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty."
Forgive him. The Supreme Court in June 1986 held that states could criminalize Gay sex, with Chief Justice Warren Burger writing the majority ruling, holding anti-Gay prejudice “has ancient roots” (so does every other prejudice).
Justice Byron White rubbed it in when he actually wrote that to assert Gay rights under our Constitution was “at best facetious.”
When Hardwick v. Bowers was decided, I was in Memphis, studying for the Tennessee Bar Exam, and was deeply depressed at those harsh words in that erroneous holding (the sequela of vote-switching conservative Justice Lewis F. Powell falsely believing he had “never met a homosexual,” when he already had several Gay law clerks at the time).
Two 2013 landmark Supreme Court Gay marriage decisions roundly reject bigotry. The Supreme Court decisions rightly agree with Justice Antonin Scalia, who in 2003, in dissent in Lawrence v. Texas, the Supreme Court decision decriminalizing consensual sodomy, declared that it would lead to Gay marriage. Thank you for pointing out what indeed had to happen, and it happened yet again today.
And yes, Mr. Justice Scalia, our Constitution IS a “living document” and the reason I know that is my Memphis State University Constitutional and Civil Rights professors (Claude Coffman, former USDA Assistant General Counsel and Mississippi Law Review Editor and Barbara Kritchevsky, an “out” lesbian who taught me legal writing), both told me so, and they knew more than straight-laced ninny Nino Scalia ever will about the Constitution and the conscience of our country).
In much the same way that slavery, Apartheid, Jim Crow segregation, anti-Antisemitism and sexism have been or are being kicked into history's dustbins, anti-Gay hatred is becoming a remnant of the past. Young people don't hate as much as their great-grandparents. What a joy.
I was the scion of working-class Democratic Roman Catholic parents – an outspoken, heroic WWII 82nd Airborne Divn. trooper and a brilliant well-read secretary -- I struggled with my homosexuality for three decades.
I figure I would have made a good spy, because I kept my secret. I struggled through Boy Scout sexual harassment by older Boy Scouts demanding that the younger Scouts provide sexual favors (I rejected them and was guilt-ridden and afraid to tell my parents, staying in the Scouts and resenting the older Scouts' abuse of authority); to childhood diseases, one or both of which one learned doctor thought “psychosomatic” (arthritis and rheumatic fever); through college (where my college roommate and I were prematurely labeled as Gay and once “pennied” in our room by a couple of loudmouth drunks using pennies to keep us from opening our dorm room door; to Appalachia, where at the Appalachian Observer, I was possibly the world's most closeted newspaper editor, winning declassification of the world's largest mercury pollution event at the Y-12 Nuclear Weapons Plant, operated by Union Carbide, helping prod DOE to an environmental cleanup that will continue nationwide until at least 2043, when I will be 86 years old, and possibly 2057, when I will be 100. I was working 80 hour weeks, also helping citizens to eject a corrupt school superintendent and prosecute a corrupt Sheriff.
Then I went to law school at Memphis State University,still closeted (winning election as American Bar Association Law Student Division representative, then winning in 1985 ABA Law Student Division Assembly passage of eleven resolutions on law school reform, including nondiscrimination on the basis of sexual orientation)(batting average of .733).
Then I left Tennessee and accepted an administrative-judicial clerkship, in Washington, D.C., for the U.S. Department of Labor Office of Administrative Law Judges. In 1986, Federal employees could still be fired for being Gay – and were-- during the Administration of Ronald Wilson Reagan – who, until he learned Rock Hudson was Gay, let hundreds of thousands of people die of AIDS without adequate efforts to solve and halt the plague – reckless, feckless intolerance and indifference to the value of Gay peoples' lives.
In 1988, at the end of my judicial clerkship, I “came out” to my parents, who were lovely and accepting. My mother said Brian was “the kind of boy you want to invite home and bake cookies for (she always liked him the best).
A couple of my relatives were wonderfully accepting but I was quite cruelly rejected by almost all of my other living relatives, not one of whom has invited me to a single family gathering since 1988 -- 25 years. Several relatives' late arrivals, hate stares and coldness at my father's funeral are burned in my memory forever. How disappointing.
But as Wayne Dyer says, “Your friends are God's way of apologizing for your relatives.”
I “came out” to my parents at the conclusion of my judicial clerkships, at first for a marvelously outspoken openly Gay judge (the late Department of Labor Administrative Law Judge Charles P. Rippey, who died in 2014), then also for Nahum Litt, then the Chief Administrative Law Judge of the U.S. Department of Labor, whom I served as a policy adviser. I “came out” to Chief Judge Litt, who helped us pass a sexual orientation nondiscrimination resolution in the American Bar Association House of Delegates, of which he was then a member.
What a swell victory, and achieved so quickly – and one that had twice before eluded Gay activist-ideologues until I suggested the winning compromise. Future ABA President Jack Curtin of the Litigation section followed our suggestion, taking the definition from the District of Columbia Human Rights Act: “Sexual orientation means heterosexuality, bisexuality and homosexuality” – hence, no bogus arguments about pederasty or bestiality. (A St. Louis delegate was heard to quip, “When it comes to bestiality, just say, WHOA!”)
During 1989-1990, I represented the prevailing plaintiff Duane David Rinde in the Rinde v. Woodward & Lothrop Gay case. Duane's courage -- and the collective chutzpa of 24-year old Duane, his spouse, Steptoe & Johnson lawyer Robert I. Teir, the D.C. GlBTQ community (and my legal advocacy) and a threat of a boycott -- resulted in equal discount benefits for the partners of GLBTQ employees at thirty department stores in six states and D.C. (Woodward & Lothrop and John Wanamaker). Then I was asked to write the first article on Gay marriage for an ABA publication (“What Makes A Marriage Legal,” Human Rights, 1991), one of eight articles I published in American Bar Association publications (three in the Judges' Journal). A Gay marriage bibliography shows that this was the first article on Gay marriage in an American Bar Association publication.
It's probably one of the reasons I was targeted for disciplinary actions as an attorney for courageous environmental and nuclear whistleblowers in nine states, including nine federal administrative law judges. I'm glad I wrote the article, no matter what the consequences.
In 2004, my law license was taken away in the wake of the homophobic Chief Administrative Law Judge of the U.S. Department of Labor, John Michael Vittone, who was active in ABA circles and opposed the 1989 Gay rights resolution Judge Litt helped us pass in the House of Delegates.
On March 15, 2005, I attended former Reagan UNESCO Ambassador Alan Keyes' Nuremberg-style anti-Gay marriage hate rally, which County Commissioners allowed him to hold rent-free in our St. Johns County Convention Center at the World Golf Village. Sheriff David Bernard Shoar's lieutenants threatened to women who called for picketing, falsely claiming they could be prosecuted, falsely claiming it was "private property." (Sheriff Shoar is now under FBI criminal investigation as a result of coverups, including the September 2, 2010 shooting of a Sheriff's deputy's girlfriend, Michelle O'Connell, exposed to the world thanks to the New York Times, PBS Frontline, et al., Dateline NBC, Dr. Phil, The Guardian, et al)
Inspired by the Alan Keyes hate rally and Sheriff Shoar's harassment of activists, I did the historical research and lawyer recruitment that helped St. Augustine's Gay Pride committee leaders to win a federal court order by United States District Judge Henry Lee Adams, Jr. in Jensen v. City of St. Augustine under the First Amendment requiring flying of Rainbow flags in honor of Gay Pride on our historic St. Augustine, Florida Bridge of Lions in 2005 (a First Amendment victory that was achieved by showing GLBTQ history, including the 1566 order of a Gay French interpreter of the Guale Indian language on orders of our City's founder, because the translator was a “Sodomite and a Lutheran” in an intimate relationship with the son of the cacique (chief).
Listening to the tapes of the Supreme Court oral arguments on the Gay marriage cases in March 2013 and again this year, I am proud of our local governments, including our Sheriff, State's Attorney, Mosquito Control District and Cities of St. Augustine and St. Augustine Beach -- all have adopted sexual orientation nondiscrimination rules, commencing with the Mosquito Control District in 2009. That's eighteen local public officials.
Every single vote has been unanimous and bipartisan – St. Augustine amended its Fair Housing ordinance in 2012, St. Augustine Beach added one in 2013, also adding an employment nondiscrimination ordinance. This is in sharp and marked contrast with Jacksonville, Florida (formerly known as “Cowford”), where months of bigotry halted efforts to add “sexual orientation” and “gender identity” to that City's human rights ordinances.
As Folio Weekly quoted me in 2012, decisive St. Augustine commissioners decided to protect Gay rights in less time than it took people in Jacksonville to “clear their throats.” In 2014, St. Augustine also adopted nondiscriminatory pension rules for Gay and Lesbian employees' surviving spouses. The motion was made by Commissioner Donald Crichlow, who once made pejorative remarks to Folio Weekly after our 2005 Rainbow flags victory: he said "it's the right thing to do" and I responded, in the words of Pope Francis, "who am I to judge?"
Our new St. Augustine Mayor, Nancy Shaver, recently met with the Parents and Friends of Lesbians and Gays (PFLAG) group about expanding protections for employing, housing and public accommodations nondiscrimination here in our Nation's Oldest European-founded City, an island of progressivism in Northeast Florida.
Reading the 2013 and 2015 SCOTUS and other Gay marriage decisions, I remember all of the pain that being Gay brings. The night Rev. Dr. Martin Luther King, Jr. was murdered, Senator Robert Kennedy said, “My favorite poet was Aeschylus, who said, “In our sleep, pain which cannot forget falls drop by drop on the heart until, in our own despair, against our will, comes wisdom through the awful grace of God.”
Here are 24 images of that “pain” carved in my brain – whatever “brain boogers” I may have I owe to these experiences:
1.Seeing (and almost walking into) a bloody crime scene sidewalk in DuPont Circle, on P Street in Washington, D.C., after the knifing hate crime murder of a Gay man. There but for the grace of God, go you or me.
2. Learning that GLBTQ teens have thrice the suicide rate of straight teens and watching unenlightened legislators try to bar teachers from helping (with “don't say Gay” laws).
3.Watching Georgetown University, my alma mater, fight for years recognizing a Gay student group, spending $1.2 million fighting to the highest court the case of Gay People of Georgetown University v. Georgtown University just to deny an office, mailbox and student activity fees; it then almost destroy our alma mater's future by appealing to the Supreme Court (Williams and Connolly partner Edward Bennett Williams wanted to ague the case personally, which would have placed us on a level with Bob Jones University and other institutional bigots in Supreme Court case law. (We won; Georgetown did not seek certiorari, thanks to the timely intervention of our Gay and Lesbian Alumni/ae of Georgetown University)
4.Watching President Bill Clinton sign the hateful compromise 1993 “Don't Ask, Don't Tell” law. (He has since apologized; the law has been repealed under President Obama). I later wrote an cover story for Out in the City (former Jacksonville GLBTQ publication) about a Navy nuclear submarine chief who successfully challenged his removal, which retired U.S. District Judge Stanley K. Sporkin told me was one of the ten judicial decisions of which he was most proud).
5.Watching President Billl Clinton sign the 1995 Defense of Marriage Act, which was declared unconstitutional. (He has since apologized and DOMA was held unconstitutional).
6.Watching an unapologetic, smirking President George W. Bush win re-election in 2004 on a wave of anti-Gay marriage sentiment, allied with organized bigots in states passing constitutional anti-Gay amendments, carving their bigotry into state constitutions.
7. Watching Governor Charles Crist support a state law constitutional amendment banning Gay marriage (he has since apologized).
8.Being brushed off condescendingly by then St. Augustine Record Editor Peter Ellis on the subject of Gay marriage, as if his (or advertisers) subjective value preferences should dictate what 200,000 St. Johns Countians are allowed to read and think and feel.
9. Reading the 32 very looong pages of anti-Gay hatred in the St. Augustine Record's “Talk of the Town” website in 2005 directed against Gays in response to the Bridge of Lions Rainbow flags cases, some of them written by public officials under NICs – then watching City Commissioners vote 3-1 to ban all but government flags from our Bridge of Lions (Commissioner Boles, later our Mayor, was the only “no” vote, and I salute him).
10.Listening to a Florida court-appointed mediator refer to a male litigant as “she,” and not correcting himself.
11.Complaining about an unruly child in a Houston restaurant and being told by the putative parent that we only complained because we “can't have children.”
12.Hearing a heterosexual fellow law student at Memphis State University in 1985 trash-talk about another student's assumed sexual orientation – doing so behind closed doors, in our Moot Court Board's chambers, in judging a Moot Court round -- trying to persuade two other Moot Court Board members to flunk his appellate argument because he was Gay. In response, my fellow Moot Court Board member and I both scored the Gay student somewhat higher than he deserved, thereby resulting in a mathematically correct score, the two of us correcting for the other student's bigotry sub silentio.
13.Hearing other law students on a faculty recruitment panel discuss the assumed sexual orientation of an applicant (and correcting for the bigotry by reporting it to my mentor on the faculty)
14. Learning our Black Muslim office manager quit her job in 1990 over me because I was hired at the Government Accountability Project (after a year of my working there, she quit in protest of my permanent hiring, without having another job).
15.Seeing my Washington, D.C. public interest group employer (Government Accountability Project) colleagues unkindly refuse to press the George Washington University HMO over equal health care benefits for Brian, even after I won the Woodies' case and Brian lost his job at AAAS, and never treat me as an equal, never inviting us to heterosexuals-only dinners and parties for four years.
16.Hearing anti-Gay jokes and taunts from schoolyard bullies and numerous and respected relatives, employers, and friends.
17.Reading the transcript of security clearance interviews where Gay people were quizzed for hours about their intimate affairs. (Thanks to Gay rights leader Dr. Franklin Kameny, fired as an government astronomer for being Gay in the 1950s --- and five days of House of Representatives investigative hearings in 1989-90 where whistleblowers, Gays and I testified, Presidents Clinton and Obama have banned such odious practices forever).
18. Seeing an illegal sign in the Oak Ridge Federal Building demanding that people report “criminal, homosexual or immoral conduct.” (Having it reported and removed – priceless).
19. Hearing a heterosexual friend say he was afraid to be seen swimming with me.
20. Hearing my respected high school teacher mentor talk about queers.
21. Learning my best high school friend never wanted to see or talk with me again after learning I was Gay during my clerkship.
22. Hearing some of my otherwise intelligent pre-law school employers emphatically ask, “Who would hire a queer lawyer? (And not saying a word).
23. Hearing that a rich and powerful Gay bank lawyer in 1982 told the local DA that he was afraid to drive into his East Tennessee hometown before dusk after neighbors learned he was Gay.
24. Reading news articles about heterosexual weddings, as my fellow Floridians, and residents of other American states, pass Nuremberg-style laws banning Gay marriage, enshrining hatred and discrimination into our state constitutions, using hatred and oodles of corporate cash, from sea to shining sea, to divide rather than unite us, in much the same manner as Adolf Hitler manipulated the laws for years to offend, hurt, insult, discriminate against and then kill millions of Jews.
Father, forgive them. Every single one of them (well, except Hitler).
All people are created equal – our Founders in 1776 were the first people to write t down, in our Declaration of Independence, the 237th anniversary of which we shall celebrate on July 4th. Today is a time for healing, across America, and Florida.
Today, we are blessed to live in the UNITED States of America, with an independent judiciary.
Today it is no longer so bossed by bigots, bullies and braggarts (“Christian conservatives” who are neither) – the Supreme Court has rejected sputtering extralegal arguments by arrogant authoritarians who purport to love “freedom.”
In anger and depression at invidious discrimination and a world of hurtful people, I would often ask myself, for years, “Why does it have to hurt so much?”
Well, the United States Supreme Court (and numerous other courts) have told the world, it was a violation of the Fifth Amendment for Congress to enact DOMA, for the express purpose of hurting Gays and Lesbians allowed to marry by their states, expressing “moral disapproval of homosexuality” in the wake of a Hawaiian court decision that promised that Gay marriage would become reality. DOMA writes inequality into the entire United States Code.”
Passing laws to hurt GLBTQ people is unconstitutional, the Court reaffirmed. Meanwhile, the Court held that organized California bigots do not have legal standing to appeal the lower courts' ruling that California voters' Amendment 8 is unconstitutional. California's Attorney General and Governor did not appeal – carping harpies don't have Article III standing to contest the lower courts rulings: California Gay marriages will now resume. Two wonderful 2013 victories for human rights from our United States Supreme Court, and many more since: we won.
Today, it doesn't hurt so much any longer. Former U.S. Department of Labor Chief Administrative Law Judge Nahum Litt, my mentor (now retired to New Smyrna Beach) said after SCOTUS ruled in 2013, “You won.”
He said the same thing earlier this year after I told him about Judge Hinkle's order on Florida's law he asked when I was going to get married (a question my late mother would sometimes ask until I came out to her).
I just called Judge Litt again. He expressed hope that I might marry and might get a notary license to perform the ceremony. From his lips to God's ears.
How sweet it is. Our Supreme Court has again said that GLBGT people are not to be treated as persona non grata.
We are now "a Rainbow Nation."Thanks to mentors like the late Dr. Franklin Kameny, Ph.D. and a cast of thousands, from Duane David Rinde and his partner, Rob Teir, to hundreds of prevailing plaintiffs and lawyers, from to David Boies and Ted Olsen and Evan Wolfson, to President Obama and Vice President Biden to Mary L. Bonauto and Shannon Minter and Abby Rubenfeld and Solicitor General Donald B. Verrilli Jr., who argued for the United States of America before our Supreme Court, “Gay and lesbian people are equal. They deserve equal protection of the laws, and they deserve it now.”
Queers DO have constitutional rights. As former South African Nelson Mandela declared after Apartheid fell in South Africa; “courageous people do not fear forgiving, for the sake of peace."
In 1978, Moral Majority” leader Rev. Jerry Falwell announced a "Thirty Years War against homosexuality." In 1988, Republican Presidential candidate and former Nixon White House aide Patrick J. Buchanan declared a “culture war” at the Republican National Convention in Houston.
In 1996, dissenting in Romer v. Evans (invalidating Colorado voters' anti-Gay Nuremberg law, Amendment 2), Justice Scalia used the phrase “Kulturkampf,” German for “culture struggle.”. Well, today the “Kulturkampf” is over. The “Thirty Years War” is over. All thinking people now know the “Christian Right” was neither – it was asinine “AstroTurf” designed by bullies , using it in 1978 in election after election, using Gays as objects of fear and loathing to mobilize voters. Why?
To defeat progressives at the polls, dividing our country.
Gays won the “culture war,” because hundreds of Fortune 500 corporations (after the Woodies case) supported us, including signing on to Supreme Court amicus curiae briefs. We did it.
Gays have beat the Ku Klux Klan and its allies (once again), just as we did here in St. Augustine in 2005 with our Rainbow flag case in Federal Court.
Kudos to Judge Robert Louis Hinkle for his January 1, 2015 Order and earlier orders, Florida became on Twelfth Night (January 6, 2015) the 36th state to recognize gay Marriage. Kudos to our St. Johns County Circuit Court Clerk and her lawyer, Geoffrey Dobson, for not taking the low road (as nine other Florida Court Clerks did in refusing any more Courthouse weddings, and the multi-million dollar Florida Court Clerks' Association, which tried to delay matters by publishing an incendiary threat emitted by Greenberg Traurig, an unethical corporate law firm, that court clerks could be prosecuted).
As I predicted in 2013, "We will soon be seeing Gay marriage everywhere." This is both equality and “Democracy on the March,” in the words of David Lillienthal's book about TVA.
“Let America be America again,” wrote the poet Langston Hughes (a Gay African-American).
“America, I'm putting my queer shoulder to the wheel,” wrote the poet Alan Ginsburg, in “Howl.”
Someday, we'll elect a President – I predict: she (or he) will be “fabulous.” What do you reckon?
St. Augustine, Florida 32085-3084
(c) Copyright Ed Slavin 2013, All Rights Reserved
(This article is revised from what I wrote in June 2013 after the Supreme Court's decision in two Gay marriage cases and in January of this year after Florida Gay marriages were recognized by Judge Hinkle).