Pufferfish

One Sweet World

In a symbolic gesture to support the legalization of gay marriage, the Ben & Jerry’s ice cream outfit is renaming Chubby Hubby to Hubby Hubby.  Here's the company's official statement:

In partnership with Freedom to Marry we are gathered here to celebrate Vermont and all the other great states where loving couples of all kinds are free to marry legally.  We have ceremoniously dubbed our iconic flavor, Chubby Hubby to Hubby Hubby in support, and to raise awareness of the importance of marriage equality. Check out our press release.

If you live in Vermont, or visiting, you’re invited to celebrate the pride-filled occasion with an all naturally fabulous union of Peanut Butter Cookie Dough ice cream, fudge and pretzels. Enjoy our Hubby Hubby Sundae for the month of September in participating Vermont Scoop Shops!

Meantime, Congresswoman Michele Bachmann (R-MN) is urging Americans to "slit our wrists, to be blood brothers" in opposition to health care reform. Bachmann did not indicate whether hunting knives would be provided at her next town hall. 

Virtually Latina

Yesterday, Sullivan wrote that Judge Sotomayor's "constant, oppressive consciousness of her identity - racial and gender - and the harping on it so aggressively so often does strike me as a classic mode of victimology deeply entrenched in her generation." A few readers correctly pointed out that it isn't Sotomayor's harping on race that we've been hearing about insomuch as its the racist Latina characterization by Republicans that has become a central theme during her confirmation. But Sullivan's response to his readers isn't satisfactory:

The distinction I draw is the distinction made in Virtually Normal. I do not consider myself better than anyone because I'm gay; I do not think gay people have some superior wisdom; I seek civil equality so the sharp division between homosexuality and heterosexuality can eventually be elided. I've never shied from being honest or talking and writing about being gay, but I hope the goal of all of it is to move beyond the reductionism of the victimology of the left, not to entrench it. If Sotomayor had written an essay called "The End Of Latino Culture" or had written of the day she hopes Latino-specific political organizations disappear, I'd feel differently about her non-judicial record. 

Sullivan makes a fair argument about our culture of victimization, but in the context of Sotomayor's comments, I think he misses the mark. Sotomayor's "wise Latina" remark carried with it the view that she has the potential to have better judgment on issues involving race and gender because, as a minority, she understands how the law effects the disenfranchised. And so I wonder if Sullivan, as a gay man, feels that he has the potential to exercise better judgment than a straight man otherwise might on issues that involve gay rights/gay marriage/the HIV travel ban, etc.?

Better Late Than Never

Anonymous Liberal isn't so sure about Olson and Boies:

They're taking a very big risk. Some have even suggested that this lawsuit is a cynical ploy to have this issue litigated at the federal level before the time is right. I don't think that's the case. I think Boies and Olson are sincere in their beliefs and want to win. I do think, however, that they are knowingly taking a big risk because they want to be the lawyers whose names are forever attached to the landmark opinion creating marriage equality. They want to be the Thurgood Marshalls of this particular civil rights issue, even though they are latecomers to the cause. In other words, they are grandstanding.

My best guess is that they're gambling that we are nearing a tipping point on gay marriage and they want to be the first lawyers to get their case all the way to the Supreme Court. They're gambling that by the time that happens, the political environment will be ripe for a Loving v. Virginia type of decision. I don't know if that's true. I've written here before that I think we'll see such a decision within ten years. But within 2 to 4? I don't know.

But having their name attached to the suit brings more attention to the cause. I'm not one interested in waiting for the right time to fight for civil rights.

Taking The Fight To Them

Sullivan is hopeful:

It's almost certainly premature, and will probably not get very far. But what it does is reveal, especially in Olson's strong and inspiring language, is that this is a civil rights issue, should not be a Democrat-Republican concern, and should command the support of all decent Republicans and conservatives eager to ensure equality under the law and greater stability and inclusion for gay citizens. Maybe it's strategically unwise. But the public impact of that bipartisan statement is real. In the long run, that matters.

Sometimes losing is a form of winning if the result is that the argument gets more play and the debate advances.

The ACLU might have reservations about going the federal route, but when has it ever been easy to fight for equal protection for Americans being discriminated against? Brown v Board of Education wasn't exactly a gimme. Eighteen thousand gay couples are allowed to stay married as a result of the California Supreme Court's ruling earlier this week. That doesn’t make any sense. It plainly demonstrates the lack of equal protection for gays in that state. Because you got married within a certain window, it’s deemed legit? Moreover, this country’s courts have repeatedly struck down the idea that we can put civil rights up for a vote. Ted Olson and David Boies are going to make their case by following the Constitution. It will be up to "activist" judges and ignorant conservative blowhards to argue in favor of codifying bigotry.

Olson And Boies

Despite what the California Supreme Court had to say yesterday, Bush administration solicitor general Ted Olson and David Boies, who argued against Olson in Bush v. Gore, say that their client has a case:

"I personally think it is time that we as a nation get past distinguishing people on the basis of sexual orientation, and that a grave injustice is being done to people by making these distinctions," Olson told me Tuesday night.  "I thought their cause was just."

The two legal icons have decided that gay marriage is a civil rights issue that is bigger than political ideology. Finally, the cause has an advocate. Literally. And they're taking the case to the federal courts, despite the overwhelming number of conservative judges. I can't say I'm not stunned.

Jonathan Turley has more here:

A successful challenge would circumvent the need for a state by state fight on the issue. The Supreme Court has long dodged the question, even in its historic Lawrence v. Texas decision.

They are challenging the prohibition of same-sex marriage as a violation of the equal protection and due process clauses of the Fourteenth Amendment to the U.S. Constitution.

Religion Is More Of A Choice Than Homosexuality

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Email Of The Day

A reader writes that I'm wrong to say that the anti-gay blacklist isn't a problem:

While it may seem like the harassment Prop 8 donors are getting is "just desserts" for their bigotry and ignorance, I would argue that their "outing" is in fact a serious affront to freedom of speech and actually weakens the robust discourse which makes our nation so strong.

I would direct your readers to a little known 1958 Supreme Court case called NAACP v. Alabama.  In the mid 1950s, southern state governments were determined to do whatever they could to stamp out the civil rights organizations that had invaded their states.  To that end, the Alabama state legislature passed a law requiring that the NAACP provide the names and addresses of its members to the racist state government or cease its organizing activities.

Needless to say it was fairly unpopular to be a member of the NAACP in 1958 Alabama.  It might be especially difficult if you were an upstanding member of the community -- a lawyer, a doctor, perhaps even a member of the city council -- and your affiliation with the NAACP became public knowledge.  You might think twice about standing up for what you know is right if it meant a firebomb might fly through the window of your home.

Luckily, the NAACP challenged the law, claiming that the law chilled the right of NAACP members to associate. Luckier still, when the case made it to the U.S. Supreme Court, a unanimous Court majority, that included arch-liberals Earl Warren, William Brennan, Hugo Black, and William O. Douglas, struck the law down as a violation of the First Amendment.  Writing for the Court, Justice Harlan declared that "privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs."

Sound familiar?  While it may feel great to relish the "tough shit" Prop 8 opponents find themselves in, would we feel the same way if the South Dakotans were turning their wrath on people who gave money to fight the state's recent draconian abortion ballot initiative or Michiganders were seeking out and picketing those who gave money to support stem cell research in the state?  I think not.

Being free means living with the ugly, ignorant views of those we despise and hitting back at them with speech of our own.  It also means protecting the right of of anonymous speech because the dissident view of today might be the civil rights crusade of tomorrow.

The oddity here is that the published names come from a silent majority seeking to strip a minority of civil rights. But the reader makes a vital point. Giving deference to the law often has to take precedent over deference to the cause.