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.

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.)

The Supreme Court issued a decision today authored by Justice David Souter that is likely his last opinion on the Court.   The Court decided Safford Unified School District v. Redding 8-1 that the Fourth Amendment’s prohibition against unreasonable searches and seizures was violated when public school officials searched a 13 year old girl by having her strip down to her underpants and bra and shake them to see if any “contraband pills” dropped out.  None did.  But the “none did” part wasn’t what the case turned on – instead the question was the reasonableness of asking a young girl to stand almost naked at school and prove that she hadn’t hidden drugs in her underwear when a classmate had told school officials that she had gotten prescription drugs from the girl searched.  It’s important to note that the drugs in question were not Quaaludes, speed, ecstasy or other street drugs, or even “recreational” prescription drugs such as vicodin or oxycontin, but were much more benign pain killers – prescription-strength ibuprofen and over-the-counter naproxen, common pain relievers equivalent to two Advil, or one Aleve.  Girls with bad menstrual cramps often use these drugs – you don’t/can’t get high from them.

But there she stood, shaking her bra and undies for school officials nonetheless.  As Justice Thomas argued in his dissent, wherever a pill could fit, it’s reasonable to search (he used a baseball bat in a pocket metaphor that I’ll skip for now).

Eight members of the Supreme Court felt the undie-shaking search was unreasonable under the law of the Fourth Amendment – only Justice Thomas held the view that it wasn’t, as he was the lone dissenter.  (I’ll resist the urge to think out loud about Justice Thomas’ history of sexual exhibitionism and the ironies of his dissent in this case.  It’s hard, but I’ll leave it to others to connect the dots here.)  Justice Thomas’ dissent boils down to this: discipline and rule enforcement in schools should not be governed by the Fourth Amendment (or the Equal Protection clause by implication) because school officials should be understood as having the unfettered authority parents have to discipline and regulate their children’s behavior (in loco parentis, in legal lingo).  If Savana Redding’s parents didn’t like the “zero tolerance – search your undies if you’re a suspect” policy they should have moved her daughter to another school.  (In fact, that’s what they did given how outrageous they found the behavior.)  This kind of “love it or leave it” approach to the scope of the Constitution defies belief: “hey, if you think you should have a right to better treatment, go find other people who share your views and move there.”

Chief Justice Roberts could have assigned the case to a more conservative justice than Justice Souter given that he, Roberts, was in the majority, but he didn’t.  So there is some significance to the fact that Justice Souter wrote the opinion for the overwhelming majority of the Court four days before his last day as a Supreme Court justice.   Justice Souter is no stranger to sex assault/civil rights cases, and one reading of the facts is that what happened to Savana Redding was a form of sexual assault (I don’t hold this view, but you almost feel that Souter does when you read the opinion).   Twelve years ago, Justice Souter wrote the opinion for an unanimous Court finding that Judge David Lanier could be tried for violating the civil rights of women who were told that Lanier would treat their cases favorably if they performed sexual favors for him.  Read about the case here.

What’s different about the Redding case, when compared with the Lanier case, and what might suggest that it will make a difference to have another woman on the Court (or at least a man like Justice Stevens who seems to “get” these issues), was that the Supreme Court found in Redding, unlike in Lanier, that the school officials’ conduct was not “constitutionally outrageous.”  This means that the school officials will be cut a break in this case becauase they, unlike Judge Lanier, might have been reasonably mistaken as to whether it was ok to subject Savana to a strip search looking for Aleve-like drugs based on an unsubstantiated tip.   Justices Ginsburg and Stevens wrote separately to insist that any reasonable school official should have known that this conduct ran afoul of the Fourth Amendment.  Press coverage of the oral argument in the case underscored Justice Ginsburg’s outrage at her male colleagues’ jokes about stuffing things down their underwear in junior high school.  As Dahlia Lithwick blogged at Slate about the case today, after the towel-snapping tone of the oral argument, one wonders what Justices Ginsburg and Stevens said to their colleagues in conference that got them to rule 8-1 in Redding’s favor, and got Souter the job of writing the opinion on his way out the door.