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DECEMBER 25, 2008 - JANUARY 8, 2009 VOLUME SEVEN, ISSUE 52

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HISTORIC UN DAY

General Assembly hears gay decriminalization decree

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BURNS EXITS CENTER

Longtime LGBT leader at helm for 22 years

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SODOMY LAW OUTRAGE

Alabama judge enforcesunconstitutional law

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YOUR FREE WEEKLY NEWSPAPER

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SERVING GAY, LESBIAN, BI AND TRANSGENDERED NEW YORK • WWW.GAYCITYNEWS.COM

AMERICA’S LARGEST CIRCULATION GAY AND LESBIAN WEEKLY NEWSPAPER!

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LEGAL

Jerry Brown Takes OnProp 8

BY ARTHUR S. LEONARD

fter having surprisedCalifornians by revers-ing his earlier-statedintention to defend Proposition8 from legal challenge, State Attorney General Jerry Brownthrew another curve ball onDecember 19, proposing a new theory not previously articu-lated in the case, which arguedthe measure adopted by voterson November 4 to end gay mar-riage introduced an untenabletension into the State Constitu-tion that could only be resolved

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S C O T T T O K A R / P I C S S A D D L E B A C K C H U R C H

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PASTOR RICK WARREN QUESTIONS BARACK OBAMA (BACK TO CAMERA) AT SADDLEBACK CIVIL FORUM ON THE PRESIDENCY

Gay City

NEWSNEWS

BY PAUL SCHINDLER

resident-elect Barack Obama’sdecision to invite Southern Cali-fornia megachurch Pastor Rick Warren to give the opening invocationat his inauguration on January 20 hassparked an avalanche of criticism fromLGBT activists and elected officials — as well as from other liberal and left-leaningDemocrats — who have characterizedthe decision as a slap in the face of gay Americans, a naïve effort to woo Chris-tian evangelists, or both.Still, other famous gay and lesbian voices, including rocker Melissa Etheridge, have embraced Obama’s deci-sion, while, from the other end of thespectrum, some are questioning why reli-gious leaders of any stripe should takepart in a civic event of such moment.In the week since inaugural plannersannounced Obama’s choice of Warren,the mainstream media has shorthandedthe problem the gay community has withthe popular pastor — whose book “ThePurpose-Driven Life” was a huge best-seller — by saying he opposes marriageequality for same-sex couples. Just about the only additional detail press accountshave bothered to mention is his activesupport for California’s Proposition 8.In fact, Warren’s views on homosexu-ality are considerably more troublesomethan simple opposition to legal equality for same-sex couples. In a video interview December 15 on Beliefnet.com, a faith- based Internet site owned by Rupert Murdoch’s News Corp, Warren explainedhis opposition to same-sex marriage by saying, “I am opposed to having a broth-er and a sister be together and call that

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Has Obama TurnedHis Back on Gays?

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HOLIDATE

Love amidst all thoseevening carols

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MILK MAN

Memories of SanFrancisco’s hero

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WINDED CITY

Can any “Joey” replacepal Gene Kelly?

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UPDO ARTISTS

Impersonators proudin “Pageant”

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DEC

2008 - 8

JAN

2009

Legal

Jerry Brown Takes On Prop 8

In a bravura legal brief, California’s attorney general adopts argument new to the case

by striking it down. The argument came in a brief filed by Brown’s office thesame day as one authored by Kenneth W. Starr — former President Bill Clinton’s tor-mentor who is now dean of Pepperdine Law School — on behalf of the Official Propo-nents of Proposition 8, whohave been granted statusas “intervenors” by the highcourt. Starr represents theProponents, in tandem withattorney Andrew P. Pugno.Starr’s brief provided what had been expected from theProponents. Proposition 8 was not a “revision” of theState Constitution, as gay legal groups challenging Prop8 have maintained. Instead, it is merely an amendment, andso can be enacted through thestate’s ordinary voter initiativeand referendum process, rath-er than going through a morecumbersome process of first winning legislative approval.Starr’s argument was but-tressed by a close and persua-sive reading of nearly a cen-tury of case law involving post-election challenges to initiativeamendments to the California Constitution.Starr also argued that themeasure did not violate sepa-ration of powers and infringeon the high court’s preroga-tives, drawing analogies frompast referendums that effec-tively overruled its constitu-tional interpretations.Finally, Starr argued that the plain language of Propo-sition 8 and the way it wasdescribed in the ballot pam-phlet made clear that not eventhe roughly 18,000 same-sex marriages performed between June and Election Day remain valid. The attorney general con-cluded, apparently with somereluctance, that the highcourt’s past rulings confirmthat Prop 8 should be con-sidered an amendment, not a revision. In all the chal-lenges raising this question,the court had invalidated only two initiative amendments as being revisions. One was anextensive proposition aimedat repealing and replacingsubstantial portions of theConstitution and significantly reorganizing the structure of the government. The other flawed amendment, reactingto liberal California SupremeCourt rulings on criminalprocedure, provided that theCalifornia Constitution couldnot be interpreted to providegreater rights to defendantsthan were afforded by theUS Constitution, a revisionthat would have transferredauthoritative interpretation of the State Constitution fromthe California to the federal judiciary.In every other case, chal-lenges to initiative amend-ments have been rejected, eventhough many of those casesinvolved reversing the Califor-nia Supreme Court’s decisionson questions of fundamentalconstitutional rights, most notably regarding a ban onaffirmative action and restora-tion of the death penalty. Starr argued that it was not plau-sible to contend that estab-lishing a definition of marriagein the Constitution was a for- bidden “revision” when theseprior amendments had beenupheld.Given past high court rul-ings that upheld initiativeamendments that overturnedits own rulings, Starr andBrown agreed that there wasno separation of powers flaw inProp 8.Starr and Brown partedcompany, however, on thequestion whether Prop 8 wouldinvalidate same-sex marriagesperformed prior to its enact-ment. While arguing that the18,000 marriages already per-formed are no longer binding,Starr did not challenge thefact that they were valid whenperformed, and he concededthat some subsidiary ques-tions — such as how to deal with property rights of couples who married over the summer and acquired real property or entered into contracts inthe status of married couples — should be dealt with on a case-by-case basis as the needarises.Brown argued, on the other hand, that it was not clear onthe face of Proposition 8 that it was intended to have retro-active effect, and that courtsapply a presumption against retroactive application of a new measure unless it is clear that it was intended. Prop 8 had not clearly communicated to vot-ers, in his view, that it wouldeffectively dissolve thousandsof marriages performed prior to November 4. Proponentsof the proposition had never unequivocally stated that undoing those marriages waspart of what was intended, theattorney general maintained.Brown also argued that applying Prop 8 retroactively would “raise significant issuesunder the United States Con-stitution,” and so it should beinterpreted to avoid such prob-lems. Courts frequently adopt a narrow construction of a new state law if by doing so they can avoid raising federal con-stitutional questions. Brownimplied, for example, that ret-roactive application might befound to impair “vested prop-erty rights without due processof law,” and would overturnthe “settled expectations of couples who entered into thesemarriages in reliance on” theState Supreme Court ruling inMay.But the real news in Brown’s brief was his argument that Prop 8 should be invalidated“even if it is deemed to amendthe Constitution because it abrogates fundamental rightsprotected by Article I without a compelling interest.” The attor-ney general pointed out that the California Constitutionprotects rights considered by the framers to be “inalienable,” which by definition cannot betaken away from the individual by government, and cannot beabridged without some compel-ling justification. Brown founda tension between the voters’power to amend, establishedin the State Constitution, andthe protection of inalienablerights. “In reconciling theseseparate constitutional pro- visions,” Brown argued, theinitiative power given voters“could never have been intend-ed to give [them] an unfetteredprerogative to amend the Con-stitution for the purpose of depriving a disfavored groupof rights determined by theSupreme Court to be part of fundamental human liberty.”Here the Court’s stirringrhetoric from its May marriageruling comes into play; theright to marry, without regardto gender or sexual orientation, was treated there as a funda-mental right in the California Constitution. Brown insistedthat this was not about theamendment-revision distinc-tion, but rather about a morefundamental question: “Is theinitiative-amendment power wholly unfettered by the Cali-fornia Constitution’s protec-tion of the People’s fundamen-tal right to life, liberty, and pri- vacy?”He argued that the Consti-tution’s discussion of inalien-able rights “enjoys a privilegedstatus... as the essential safe-guard of individual freedom.”Looking to the framers of theCalifornia Constitution from1849 and 1879, Brown statedthat rights were recognized asinalienable “because it wasgenerally believed as a matter of political philosophy that a constitution is not the sourceof these rights. The rights ‘ante-date’ the constitution as inher-ent in human nature... Theserights were not surrendered inthe ‘social compact.’” This is an intriguing argu-ment, suggesting that thereare certain rights so fixed by natural law that even a con-stitutional convention pro-cess in which all the nicetiesof due process are preservedcould not effectively amend theConstitution to override them. There is irony here, of course,since religiously-inspiredopponents of gay rights reflex-ively argue that homosexuality is “unnatural” and contrary toGod’s law.Brown acknowledged that the 1849 framers were not thinking of same-sex marriage when they spoke of liberty, but argued that “the scope of liberty interests evolves over time as determined by theSupreme Court,” and that his-torical support for the argu-ment that the right to marry is fundamental dates back inCalifornia constitutional law to at least the 1948 Perez casethat overturned miscegenationlaws there.If a right is seen as inalien-able, then it cannot be takenaway by the government, andBrown argued those inalien-able rights were specified inthe Constitution “to act as a check on legislative excesses.” With that purpose in mind,the framers would not havegiven the Legislature or, after the advent of voter initiativeamendments, the people thepower to eliminate “a judi-cially recognized fundamen-tal liberty interest through a constitutional amendment passed by popular vote, at least not without a compellingreason for doing so.” The fact that a majority of voters want to eliminate the right is not initself a “compelling reason,” inBrown’s view.Brown argued that theSupreme Court should “har-monize” the Constitution’s rec-ognition of fundamental rights with the amendment power given to voters by finding that inalienable rights may only bealtered by amendment whenthere is a compelling reasonto do so; otherwise the pro-tection of such rights “would be stripped of all meaning.” The question before the court,then, is “whether the proposedinitiative-amendment suf-ficiently furthers the publichealth, safety, or welfare. Meremajority support alone for themeasure does not suffice,” inBrown’s view. The attorney general’s brief noted that Prop 8 not only involved a fundamental right, but also a “suspect class” — sexual orientation — for whichthe state faces a particularly high burden in justifying dif-ferential treatment. The May ruling by the Supreme Court found that the different-sex definition established in law by voter initiative in 2000 didnot present sufficiently com-

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California Attorney General Jerry Brown on December 19 filed a bold, original brief in oppo-sition to Prop 8 at the California Supreme Court.

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PROP 8

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DEC

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2009

Human Rights

An Historic Day at the UN

Declaration, signed by 66 nations, presented to end sanctions on homosexuality worldwide

BY DOUG IRELAND

n an international affirma-tion of LGBT rights without precedent, a declarationcalling for the universal decrim-inalization of homosexuality,signed by 66 nations, was readfrom the podium of the UnitedNations on December 18. At a press conference follow-ing the reading of the “State-ment on Sexual Orientationand Gender Identity” to the UNGeneral Assembly by Argen-tina’s envoy to the world body, Ambassador Jorge Argüello,the foreign minister of the Neth-erlands, Maxime Vergahen,declared that “human rights arefor all people“ and that “therecan be no excuse for the pros-ecution, discrimination, or vio-lation of the human rights of gay, lesbian and transgenderedpeople.” Verhagen added that thereading of the non-binding dec-laration and its “broad support” by 66 member states meant that the question of LGBT rights was “no longer taboo [and]...now firmly inscribed on theagenda of the United Nations.” At that same press confer-ence, Rama Yade, the minister for Human Rights in France, which took the initiative in cre-ating the declaration duringthat nation’s six-month termin the rotating presidency of the European Union, calledthe reading of the statement “a historic day for LGBT peoplesand an excellent day for all whostruggle for human rights. ” All 27 EU member statessigned the declaration.But Yade, speaking inFrench, also said that the read-ing of the declaration was “only the beginning,” because the“ultimate goal” remains the“total depenalization of homo-sexuality.” According to a detailed report released this past May from theInternational Lesbian and Gay Association, which representsLGBT groups in more than 100countries, “In 2008, no less than86 member states of the UnitedNations still criminalize con-sensual same-sex acts amongadults, thus institutionally promoting a culture of hatred. Among those, seven have legalprovisions with the death pen-alty as punishment” (a link tothe full ILGA report appears inthe online version of this articleat gaycitynews.com). The United States was notably absent from among the dec-laration’s 66 signatories of thedeclaration. The Washington Times, the capital’s conservativedaily, on December 19 reported,“Gay Republicans are furiousat the Bush administration for opposing” it. The Bush administrationcited legal reasons for its deci-sion, saying that endorsing theresolution’s language wouldconflict with numerous statelaws nationwide that ban gay marriage. But the Washington Times quoted Richard Grenell,a gay Republican who untilrecently was a spokesman for the US mission to the UnitedNations, as saying, “That’s a real stretch. Concerns about a remote possibility ignoresthe purpose of the resolution, which is to make sure that peo-ple are not killed or oppressed just because they are gay.”“If being gay is a criminalact, then the State Department has granted hundreds of crimi-nals like me top-secret secu-rity clearance,” Grenell said,adding, “Common sense saysthat we should be the leader in making sure other govern-ments grant more freedoms totheir people.”Nations still have the optionto add their names to the decla-ration, but the incoming Obama administration has not yet said whether it would support it. A call to the Obama transitionoffice was not returned as of press time. At a meeting ten days ago of the Obama LGBT Task Force, which included representativesfrom more than a dozen lead-ing LGBT organizations andgay activists who worked on thecampaign, no one raised theissue of the incoming admin-istration’s position on the UNdeclaration, a source present at that meeting told Gay City News. The idea for a statement of principle by the United Nationsin support of decriminalizinghomosexuality globally was the brainchild of Professor Louis-Georges Tin, the founder of IDAHO, the International Day Against Homophobia, and thepresident of the Paris-basedInternational Committee for IDAHO. The campaign for thedeclaration was launched inNovember 2006, when IDAHO,at a Paris press conference,unveiled a list of hundreds of VIPs who supported it, includ-ing five Nobel Prize winners,ten Pulitzer Prize winners, twoformer French prime minis-ters, and six Academy Award winners (see this reporter’sNovember 21-27, 2006 “BoldMove for UN Action,” a link to which appears in the online version of this article at gayci-tynews.com). This past May, after a year-long lobbying campaign by IDAHO and an alliance of French LGBT groups spanningthe political spectrum fromright to left, the French govern-ment promised to push for “a European initiative calling for the universal decriminalizationof homosexuality,” according toa statement released by Minis-ter Of Human Rights Yade after conferring with a delegationfrom the gay coalition (see thisreporter’s May 22-28 “FranceFights for Decriminalization,”a link to which appears in theonline version of this article at gaycitynews.com).In view of her advocacy onmoving the declaration, it isunfortunate that Yade, who is black and proved sympatheticto LGBT human rights in her post, is about to lose her jobin a New Year’s cabinet shuffleafter falling out of favor withconservative French President Nicolas Sarkozy. Yade pub-licly refused to run at the headof the list of Sarkozy’s UMPparty candidates for the Euro-pean Parliament in the Parisregion, angering the president.Sarkozy has told his entou-rage he wants to abolish theHuman Right post, and hisminister of Foreign Affairs,Bernard Kouchner, said three weeks ago that having a sepa-rate minister for that area was“superfluous” because lookingafter human rights was the jobof the foreign minister.IDAHO President Tin, who worked closely with the Frenchgovernment in coordinatingthe campaign to pressure UNmembers to sign the declara-tion, told Gay City News that the next stage in the campaignfor global decriminalization would probably be launchedthis coming summer, whenSweden assumes the rotatingEuropean Union presidency from the Czech Republic, which will carry the mantle in the first half of 2009.“Unlike the Czech govern-ment, the Swedish govern-ment has a long record of beingLGBT-friendly, and our think-ing at this point is that discus-sions about crafting an actualUN resolution on decriminaliza-tion of homosexuality and gen-der identity to be presented for a vote at the General Assembly could most usefully take placeunder a Swedish EU presiden-cy,” said Tin, the day after thereading of the decriminalizationdeclaration at the UN. Tin said that his next project will be to have IDAHO launcha global statement against transphobia. He was one of thespeakers at a panel discussionlast week at the UN on “HumanRights, Sexual Orientation andGender Identity” that France,the Netherlands, and interna-tional LGBT groups organizedin connection with the decrimi-nalization declaration. Gay activists from a dozen countriesspoke. When it came time for him to speak, Tin declared, “Inthe French territory of Martin-ique, where I’m from, we have a saying that ‘A little song is often better than a long speech,’”upon which he launched intoa vibrant a capella rendition of “We Shall Overcome” that was vigorously applauded by theaudience.UN television captured boththe panel discussion featuringgay activists from around the world and the press conferenceat which Dutch Foreign Minis-ter Verhagen, French HumanRights Minister Yade, andIDAHO President Tin discussedthe decriminalization declara-tions. Links to those videosappear in the online version of this story at gaycitynews.com.

Doug Ireland can be reached through his blog, DIRELAND, at http://direland.typepad.com/.

Louis-Georges Tin, the intelligent moving force behind the decriminalization declaration,appeared in New York last week to talk about his initiative and also to sing a vibrant a capel-la rendition of “We Shall Overcome.”

pelling justification, and that Prop 8 merely restored the lan-guage from that law into theConstitution. Therefore, thesame analysis should apply.Proposition 8, Brown argued,“should be stricken as incon-sistent with the guarantees of individual liberty safeguarded” by the Constitution. This is a bravura move by Brown. Whether the Court willembrace it is a question withprofound implications, since it would turn an important cor-ner in the law of constitutionalamendments. I don’t think there is really any precedent for it, at least in federal law. The brief cites cases for spe-cific elements of its argument, but points to no case that sup-ports the entire theory that theamendment process, either federal or state, is constrained by the identification of funda-mental, inalienable rights inthe Constitution itself. In some ways, it is a startling use of theconcept of “original intent” that will no doubt infuriate many of those who identify themselves with that school of constitu-tional interpretation, such asUS Supreme Court Justice Antonin Scalia. The impact it will have onthe California Supreme Court, which now occupies the politi-cal-jurisprudential hot seat of deciding Prop 8’s fate, after oneof the most expensive initiative battles in history, is unclear.

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PROP 8

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