Unless you were living in a cave you should be aware that a week ago Tuesday the people of Maine decided to pass on marriage rights for same-sex couples.  Commentators described it as not only “a harsh blow to the gay marriage drive,” but “a major set back to gay rights,” and “a tremendous and devastating loss for LGBT rights“.  From these reports the Maine vote served as a barometer for not only the fate of the marriage equality movement but for lgbt rights more generally.

In isolation, I don’t regard the vote in Maine to be as apocalyptic as some in the media have maintained.  After all, the sentiments of Mainers is trending, and trending quite quickly, in a favorable direction on the question of accepting legal marriage for same-sex couples.  If marriage is your issue, then give it a legislative session or two – they’re almost there.

But while we were all looking in a northeasterly direction, some very interesting things have been going on elsewhere in the country on the question of sexual rights.  Not only did the health care bill that came out of the House last weekend explicitly remove the tax penalty carried by lesbian and gay employees who put their partners on their health plans (removing its treatment as taxable income) but other important and positive legislative action has taken place since the Maine vote:

- The Fort Worth, Texas city council voted 6-3 yesterday to amend the city’s anti-discrimination ordinance to include protections for transgender people.  Fort Worth is not exactly the “Castro of the South,” and the fact that the vote was 2 to 1 in favor of the change in the law is fantastic.  But it gets even better.  As the Fort-Worth Star Telegram reports:  “A lot of the debate, though, centered on broader proposals, some of which the council has already tacitly approved.  City staffers will be trained on dealing with the lesbian, gay, bisexual and transgender community, and the Police Department has appointed a liaison to the community.  Other recommendations will require further study, including offering domestic-partner benefits and expanding the city health insurance plan to cover gender reassignment procedures, including sex changes.”

- Tharptown High School in Russelville, Alabama yesterday decided to reverse an earlier decision to bar a lesbian student from bringing her girlfriend to the Junior Prom.  After pressure from the ACLU on behalf of the student, Cynthia Steward, the school district yesterday capitulated and announced that they could attend the prom together.

- Yesterday the city council in Salt Lake City, yes Salt Lake City, voted unanimously to add sexual orientation and gender identity protections to its anti-discrimination law.  Why was the vote unanimous?  Because the change in the law had the full backing of the Mormon Church.  “The church supports these ordinances because they are fair and reasonable and do not do violence to the institution of marriage,” said an LDS church spokesman.  Don’t believe it?  Watch:

This embrace of gay and trans rights by the people of Salt Lake City and the LDS church did not come as a surprise to those who have been watching the sophisticated political work being done there by lgbt activists in coalition with other progressives.  As I blogged before: Lisa Duggan’s has written in What’s Right with Utah, about the successful and radically progressive political campaign going on in Salt Lake City undertaken by the lgbt community after they lost the chance to gain marriage rights when the state constitution was amended barring such unions.  They regrouped, found straight partners with whom to work in coalition, and have taken on much broader reforms than what they could have accomplished with “mere” marriage rights for lesbian and gay couples.  Brilliantly, they found local Mormons who opposed gay marriage, but who said they weren’t homophobic and took them at their word.  They found that of this group 62 percent supported employment nondiscrimination laws, 56 percent supported fair housing laws and 73 percent supported granting adult designees of state employees health insurance coverage. They also found that 56 percent backed legal protections like inheritance rights and job protection for LGBT people.  When they could no longer ask for marriage they found unlikely partners with whom they could ask for much more than what marriage would have provided.

The marriage crusade (and I mean crusade) had a set back in Maine the other day.  But let’s not overdetermine that event as indicative of  more than it can and should bear.  First of all, the folks in Maine working on this issue have suffered a set back, but not annihilation.  But perhaps more important, the fight for marriage equality isn’t the only thing lgbt people, or queer people for that matter, care about.   Whether it’s going to the prom with your girlfriend, getting a hate crimes bill passed, changing the heteronormative bias of tax laws, or thinking outside the politics of matrimony as they have in Utah, a gay rights agenda, and certainly a queer political agenda, is undermined by reducing it an up or down vote on marriage in any one state.

Chinyere Ezie, Columbia Law School class of 2010 is Editor-in-Chief of the Columbia Journal of Gender and Law and former President of Outlaws (the Lesbian/Gay/Bisexual/Transgender/Queer/Allied student organization at Columbia Law School), offers the following reflections on ongoing attempts to bring lbgt people within the protection of federal hate crimes legislation in light of the deeply racialized nature of U.S. policing and criminal policy:

Last weekend, as LGBT-rights activists gathered in D.C. for the National Equality March, news broke of a vicious gay bashing in New York City. Jack Price, a 49 year old Queens resident, was attacked while leaving a neighborhood deli-grocery. Price was pummeled until his jaw shattered, both his lungs collapsed, and every rib in his body was broken.  (He was admitted to the hospital last Friday in guarded condition. However, this weekend he emerged from a coma and doctors are hopeful that he will survive his injuries.)

Price’s five minute beating is captured in lurid detail by a surveillance video that quickly made its way around the web. Last Wednesday, after reading a few articles about the case during lunchhour, I suddenly found myself watching a clip of the horrific attack unfold. The first 30 seconds of tape show Price careening from one street corner to another, frantically trying to evade his attackers. Eventually, he hits the asphalt in a hail of blows— images so startling that I was moved to grief in my law school cafeteria— suddenly choking back warm tears.

In the next minute of footage, Price is seen lying in the road in the fetal position as punches and kicks continue to rain down. At one point, Price’s assailants are shown brazenly standing over his body as cars pass by— a scene which left me puzzling about Foucault’s theory of the panopticon and the indifference of strangers — wondering why all of “the eyes on the street” failed to keep both Jack Price & Kitty Genovese safe.

In the final minute of footage, Price is shown vainly trying to stand after his attackers retreat. Seeing him collapse over and over—eventually crawling the ten blocks home— triggered an unspeakable wave of anguish as well as a crisis of moral philosophy. After several years of carefully crafting a set of objections to hate crimes laws, suddenly, I found myself questioning if they might be of value – even when deployed in a flawed criminal justice system.

Surveying the writings of critical legal scholars reveals a profound ambivalence for our modern system of crime and punishment. Bafflement with the criminal justice system still holds with respect to “protective” legislation like hate crimes laws, where law plays the role of guardian and protector. As critical race theory explains, it is hard to seek protection in the laws when you hail from a community where overpolicing and police brutality are the fabric of daily life. Kimberlé Crenshaw orients readers to these issues in Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color. As she explains, immigrants and racial minorities who are survivors of domestic violence oftentimes (credibly) fear that availing state assistance will attract undesirable forms of state surveillance to their communities— jeopardizing   immigration statuses, for example,  fueling the fever-pace of arrests and incarceration— perpetuating marginalization and subordination in their home communities.

Hate crimes legislation is a unique flash point for these tensions: by using sentence enhancements as its means of condemning violence that targets racial and sexual minorities, hate crime laws strengthen the U.S. system of corrections despite its myriad flaws— e.g. disparate policing, prosecution and sentencing, the privatization and monetization of prisons, and the political disenfranchisement and social ostracization of those persons with time served.

Because of its failure to reckon with the flaws of the criminal justice system, hate crimes legislation often attracts vociferous criticism from those it is designed to protect. In recent years, I have been one such critic: well-briefed on the sociology of criminal justice, so to speak, I left my first-year Criminal Law course with serious doubts that rehabilitation, deterrence and retributivism justified our imprecise system of crime and punishment.

Yet, watching those three, anguished minutes of video brought about a reckoning of a more personal sort— and suddenly I found myself taking solace in the notion that hate crimes law are an expressive, normative force. This fourth justification for criminal law— what I would call a Lockean theory of the law— is one that law school textbooks largely neglect. Under this so-called Lockean view of criminal law, law can be viewed as an expression of community values— forming the basis of a social contract to which we all belong — not due to coercion, but by being members of a democratic polity.

If one accepts that law can serve as an expression of community values, being named in the law, in the case of hate crimes legislation, serves an objective quite apart from administering a system of penalties and punishments. Rather, when the law takes cognizance of people like Jack Price, Lateisha Green & Angela Zapata, it communicates, as the video surveillance footage manages all too well, that a breach of the social contract occurs when violence is breathlessly directed toward racial and sexual minorities, based solely on the fact that they are different.

Katherine Darmer is a is a Professor of Law at Chapman University and is also a Distinguished Senior Fellow in the Gender & Sexuality Law Program this fall.   She offers the following observations about on-going litigation challenging a California High School’s failure to protect LGBT students from homophobic threats and violence:

Earlier this year, the New York Times reported that California’s Corona del Mar High School in Orange County had become the latest to try to put a stop the high school production of RENT, which depicts both gay and straight characters in a sensitive light.

Under the direction of drama coach Ron Martin, who picked RENT precisely to sensitize the student body at a time when Martin was alarmed by an increasing climate of homophobia at the school, the show ultimately went forward at Cornoa del Mar and won numerous national awards and ongoing media coverage.  Before the production, several male athletes at the school targeted HAIL KETCHUM, who played a starring role in RENT, releasing a video on FACEBOOK depicting threats to rape and murder Ms Ketchum.  On the same video, the boys also made numerous homophobic comments.  The video was posted via the school’s Facebook “network” and viewed by hundreds of students, causing acute distress to Ketchum.  Following the video, Ms Ketchum’s parents’ complaints to the school went largely unheeded.  Indeed, the boys were given athletic awards in the wake of the video’s release.

The ACLU of Southern California ultimately brought suit against the school district and administrators for failing adequately to protect Ketchum from the young men’s threat of violence and for failing to adequately protect LGBT students at the schoool.  As the Facebook video illustrated, misogyny and homophobia are frequently linked.

The ACLU suit arose against the backdrop not only of the controversy surrounding RENT at the high school, but also in the wake of the Proposition 8 campaign, which emboldened some at the school to articulate homophobic views.

The suit was one of the first to bring attention to the “collateral damage” of Prop 8 and the heated Prop 8 campaign done to young students coming to terms with their sexuality.

This past Sunday’s New York Times magazine profiled LGBT students in middle schools, noting that homophobic language in schools is frequently tolerated by teachers in a way that racist speech never would be.  As the article pointed out, phrases such as “that’s so gay,” deployed in a derogatory, dismissive manner, are part of a common high school vocabularly despite the pain such statements cause to LGBT students.  This environment of insensitivity was in evidence at Corona del Mar High School in Orange County.

The suit in Orange County was recently concluded in a favorable settelement that required district officials to apologize to Ms Ketchum and further required that school administrators, teachers and students participate in mandtory training.  The training will deal not only with the harmful impact of discrimination based upon sex but also with the problem of discrimination based upon sexual orientation and gender identity.  Details of the settlement are contained in an ACLU press release, and were covered by the New York Times.

Ms Ketchum and her parents, who recently chose to be publicy identified, made clear that the suit was broght primarily to ensure that the overall school envirnoment would be improved for other students.  Ms Ketchum is now a freshman at Loyola Marymount University in California.

It is unfortunate that a lawsuit of this sort was needed as a “wake-up” call to a school district and its administrators charged with protecting all students.  But as the New York Times story on Sunday illustrated, the gains we have made in protecting LGBT rights leave us a long way from a school environment that is fully protective of sexual orientation minorities.

–Katherine Darmer
(Darmer is a board member and chair of the legal team of the Orange County Equality Coalition, which was a named plaintiff in the Orange County lawsuit.)

Iranian President Mahmoud Ahmadinejad is back in New York for the annual fall gathering of heads of state at the U.N. General Assembly meeting.  As expected, his remarks to the body on Wednesday provoked outrage, walkouts, and general condemnation by various states and the media.  If all you did was read the press reports about it, you’d think that in his speech he once again denied the fact of the holocaust and threatened to wipe Israel off the map.  In fact, if you watch the speech, or read it, it’s much less inflammatory than the media reported, and in some respects merely echoes the condemnation of Israel’s invasion of Gaza contained in the report issued by the UN Human Rights Council Fact Finding Mission on the Gaza Conflict, led by Justice Richard Goldstone.  It’s interesting how any criticism of Israel is read as anti-semetic in this setting.

I mention Ahmadinejad’s speech because it’s hard to believe it’s been two years since he came to Columbia University as part of our World Leaders Forum.  As you may recall, Columbia University President Lee Bollinger “introduced” President Ahmadinejad with an anticipatory condemnation of what the Iranian President might say, calling him “a petty and cruel dictator,” and closed with the charge that “I doubt that you will have the intellectual courage to answer these questions.”  The tone and content of the introduction drove some members of the University faculty to bring to the full arts and sciences faculty a motion criticizing Bollinger for violating core principles of academic freedom.  See more here.

What garnered the greatest attention from President Ahmadinejad’s talk, however, were his remarks in response to a question about the mis-treatment of women and homosexuals in Iran.  He declared: “women in Iran enjoy the highest levels of freedom,” and then asserted that “In Iran we don’t have homosexuals like you do in your country.  We do not have this phenomenon. I don’t know who’s told you that we have it.”  The media frenzy in response included a New Yorker Magazine cover tying the Iranian President to Larry Craig.

Lesbian and gay human rights organizations the world over immediately condemned these remarks as ignorant and hateful.  “Of course there are gay people in Iran – we are everywhere!” they proclaimed.   But Ahmadinejad’s remarks and the responses they received demand much more complex thinking about the role of lesbian and gay human rights in global politics.  For this reason I’ve written a short paper trying to offer one such thicker reading of what happened when President Ahmadinejad came to Columbia.   I’m giving it as part of our Feminist Theory Workshop series next Tuesday, and you can read the draft here.  But it concludes:

Once we recognize that the normative homosexuality that undergirds human rights discourse is not merely a “fact” in the world, but more of complex value, it becomes easier to see how the state’s embrace of the sexual citizenship of these new human rights holders risks rendering more vulnerable a range of identities and policies that have refused to conform to state endorsed normative homo- or hetero- sexuality.  This is true both for queers whose desires refuse to orient themselves ineluctably toward marriage, or Muslims with sexual norms and practices of polyamory, homosociality, and modesty.  Under this scenario, newly patriotized gay subjects find themselves implicated, whether they want to or not, in the construction and identification of the “enemies of the state.”   Witness the ingenious strategy of StandWithUs and the Israeli Foreign Ministry to appeal to gay rights supporters in their efforts to shore up Israel’s foreign policy with respect to Palestine and Iran.

So does this discussion leave us helpless in the face of a critique that eschews both the epistemic violence of securing human rights for global gay subjects on the one hand, and state politics as cynical, manipulative, instrumental and tragic on the other?  To be sure, this is where some find themselves.  But we can do better than that.  Critical awareness of the state’s role as now-fundamental partner in the recognition and protection of a form of sexual rights should push us to regard these “victories” as necessarily ethically compromised.

The moral atrophy that has kept us from recognizing the tragedy of these strategies and outcomes is where more critical, and indeed discomfiting, work needs to be done.  By theorists and activists alike.  This means rethinking the horizon of success in this work.  “Victory” in the sense of gaining the state as a partner, rather than an adversary, in the struggle to recognize and defend LGBT rights ought to set off a trip wire that ignites a new set of strategies and politics.  This must necessarily include a deliberate effort to counteract, if not sabotage, the pull of the state to muster rights-based movements into its larger governance projects, accompanied by an affirmative resistence to conceptions of citizenship that figure nationality by and through the creation of a constitutive other who resides in the state’s and human right’s outside.

Today, the House of Representatives voted on a bill that had come before them in 2007 and failed, the Matthew Shepard Act (officially, the Local Law Enforcement Hate Crimes Prevention Act of 2009 or LLEHCPA).  Last Friday the Act passed the House Judiciary Committee by a vote of 15–12.  Today, the House considered and passed the act, 249 to 175.   The bill would:

• expand the 1969 United States federal hate-crime law to include crimes motivated by a victim’s actual or perceived gender, sexual orientation, gender identity, or disability;
• remove the current prerequisite that the victim be engaging in a federally-protected activity, like voting or going to school;
• give federal authorities greater ability to engage in hate crimes investigations that local authorities choose not to pursue;
• provide $10 million in funding for 2008 and 2009 to help State and local agencies pay for investigating and prosecuting hate crimes;
• require the FBI to track statistics on hate crimes against transgender people (statistics for the other groups are already tracked).

It takes quite a bit to move me to sadness and tears while wanting to hurt someone.  Today, Representative Virginia Foxx, (R. N.C.),  stood on the floor of Congress before the mother of Matthew Shepard, and offered the following gratuitously hateful comments about the  murder of Mrs. Shepard’s  son:

I also would like to point out that there was a bill — the hate crimes bill that’s called the Matthew Shepard bill is named after a very unfortunate incident that happened where a young man was killed, but we know that that young man was killed in the commitment of a robbery. It wasn’t because he was gay.  This — the bill was named for him, hate crimes bill was named for him, but it’s really a hoax that that continues to be used as an excuse for passing these bills.

I am breathless just reading this statement.  Can you imagine how Matthew’s mother felt hearing it?   Rep. John Lewis, who knows a little bit (sic) about hate crimes and lynching, responded: “She should be ashamed.  That is unreal, unbelievable. The law enforcement people and almost every reasonable person I know believes he was murdered because he was gay.”

Every not-insane, not-hateful person knows that Matthew Shepard was ruthlessly murdered on account of his being gay.  The men who tortured and killed him said so, witnesses said so.  And the facts said so.  No one who was “merely” a robber would be have been subjected to the treatment Matthew got.  In fact, they men who killed him,  Aaron McKinney and Russell Henderson, admitted to planning to rob Matthew – not the other way around.   The evidence showed that he was robbed, pistol whipped, tortured, tied to a fence in a remote, rural area, and left to die. McKinney and Henderson also found out his address and intended to rob his home. Still tied to the fence, Shepard was discovered eighteen hours later who a man at first thought that Shepard was a scarecrow. At the time of discovery, Shepard was still alive, but in a coma.

It moves me to weep, to cry out, to want to get on the next plane to North Carolina that we live in a country where someone like Foxx can deny on the floor of the House in front of Matthew Shepard’s mother, the violent, pervasive, enduring reality of the violence against gay, lesbian and trans youth while blaming them for the violence they suffer day after day after day.

May the passage of this bill, and President Obama’s signature making it law, put Foxx and her supporters to shame.   But her ignorance and hatred toward gay people does not exhaust the full scope of her insensitivities.   Her voting record reveals votes against Katrina Relief, and the Voting Rights Act, while instead she, a former Christmas Tree farmer,  saw her time better spent introducing bills such as a joint resolution praising the Christmas Tree Industry as a national treasure.

The “Values” link on Rep. Foxx’s website describes her ethical commitments:

Protecting and encouraging a strong family is of vital importance to our nation’s progress and prosperity. We should continue to promote and push for policies in Washington that allow families to flourish and that protect life at any and all stages. Our nation was based on Judeo-Christian values and we must never turn our backs on these principles. While the First Amendment to the Constitution explicitly states that Congress shall make no law establishing a state religion, it also prohibits Congress from prohibiting the free exercise thereof. The First Amendment guarantees Americans the freedom to think, speak, and believe as they choose. To force Americans to check their religious beliefs at the door when engaging in any sort of public debate is wrong. I will fight to maintain our rights and to honor and carry on our religious heritage.

It’s one thing to say that you can’t support same-sex marriage because the bible says not to.  It’s another to say that your Judeo-Christian values require you to deny, if not endorse, deadly violence against innocent young people.  Shame.  Shame.  Shame.