Mojo - August 2010

We're Still at War: Photo of the Day for August 5, 2010

Thu Aug. 5, 2010 5:00 AM EDT

US Army Chief Warrant Officer 2 Mark Davis (left) and Chief Warrant Officer 3 Mike Croslin discuss their last mission after landing an AH-64 Apache helicopter from Company B, 1st Battalion, 4th Aviation Regiment, Attack Reconnaissance Battalion in Kunduz, Afghanistan, on July 24, 2010. Photo via the US Army by Petty Officer 2nd Class Walter M. Wayman.

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San Francisco's Family Night

| Thu Aug. 5, 2010 2:53 AM EDT

READ ALSO: MoJo's Josh Harkinson on lovebirds' reactions and Celia Perry on why she's been waiting for this ruling since the third grade. Plus: Does Judge Walker's personal life matter?

The whole family came over. The bears and bois. The dykes and the daddies. The moms and the moms and the dads and the dads carrying their laughing kids on their shoulders and waving American flags. They marched by the thousands from San Francisco's Castro district down Market Street, just like they have so many times before, in protest, in mourning, or in celebration, but always in stubborn defense of the same principle: that they deserve all the rights afforded to other Americans. And for the moment, the US court system agrees with them.

Though Judge Vaughn Walker's landmark ruling in favor of marriage equality could be reversed by a higher court, it filled the Castro with a new sense of optimism. "It definitely marks an important milestone in gay civil rights," said Nathan Oyler, 29, who was carrying a tuba as he marched towards City Hall with the San Francisco Lesbian/Gay Freedom Band. And so too for the Freedom Band, which first formed and marched down this street in 1978 to celebrate the election of gay-rights champion Harvey Milk to the San Francisco Board of Supervisors. To commemorate today's good news, Oyler was going to play Alabama's "Hey Baby," because, you know, "It's a tuba solo."

Other marchers sounded off on the victory in less dulcet tones. "It's somewhat bittersweet to think about the discrimination and oppression that LGBT people continue to face," said David Waggoner, the co-president of the Harvey Milk Democratic Club, who was carrying a large cutout of Milk. A T-shirt worn by Miss Jane, a gray-headed civil rights activist, proclaimed: "So who can't get married now, bitch!" And Christopher Mika, an artist in his 30s, carried a placard with an upside-down cross on it that read: "Eat it Christians!"

Many gays and lesbians remain angry at the Mormon church for covertly funneling hundreds of thousands of dollars into passing Proposition 8, the ban on same-sex marriages that yesterday's court ruling invalidated. Others see a chance to forgive the Mormons and teach tolerance. "For me, it's very important that we build alliances with people of all faiths," says Michael Leslie, an openly gay Christian minister. He and his partner were carrying a sign that read, "God is Love."

"I don't think that God cares" who we marry, said Sister Titania Humperpickle, a member of the Sisters of Perpetual Indulgence, a 31-year-old mock-religious order that counts 1150 members worldwide. She was wearing a nun's habit, a coronet made from fabric patterned with pink flowers, and a goatee. Walker's ruling "is a step towards looking beyond gender, race, and sexuality," she added, "and I think it proves that it doesn't matter how much money you have to buy a ballot vote, that eventually truth and justice win out."

As night fell, the marchers gathered around the steps of City Hall—where Harvey Milk gave his first political speeches, where in 2004 San Francisco Mayor Gavin Newsom wagered his political career on marrying gay and lesbian couples, and where Aaron Peskin now whipped up the crowd. "We are standing on hallowed ground," said the former president of the city Board of Supervisors. "This is where it all began. It began as a movement that fundamentally changed the city and changed America. They said that it couldn't be done, but we have done it yet again."

"This Is a Victory for the American People"

| Wed Aug. 4, 2010 7:58 PM EDT

READ ALSO: MoJo's Josh Harkinson on San Francisco's family night and Celia Perry on why she's been waiting for this ruling since the third grade. Plus: Does Judge Walker's personal life matter?

In a jubilant and emotional press conference this afternoon in downtown San Francisco, the same-sex couples who sued to overturn California's constitutional ban on gay marriage said their victory affirmed America's most fundamental values. "I was raised to believe in the American Dream, that if you worked hard and played by the rules, everyone got an equal shot," said Jeff Zarillo, who lives with his partner in Burbank, California. "Well today, nowhere is that American Dream more real than in the state of California." A few moments later, he was overcome with tears.

Zarillo's partner, fitness expert Paul Katami, kissed him amid a supernova of camera flashes before taking his place at the podium. "Thank you, Jeff, for setting me up for a cryfest," he told a room full of chuckling reporters. "I'm already labeled the emotional one, so why not continue that? Today is a very good day."

Minutes earlier, news that that a federal court had overturned Proposition 8, the state's same-sex marriage ban, had reached the handful of activists in the room via email and text message. "He's overturned it!" shouted Gloria Nieto, a gay-rights blogger who was clutching an iPhone. She embraced Alice Hoagland, whose gay son, Mark Bingham, had died on 9/11 aboard Flight 93 while traveling to the San Francisco wedding of a Muslim fraternity brother. "I've embraced the cause of the LGBT community," Hoagland told me, "and this is a momentous day. It's a much-needed boost for us and just a delight."

Speaking before a wall of American flags strewn between the staid Greek columns of the Bentley Memorial Building, gay-rights advocates praised the ruling. "It embraced the fundamental values of freedom and fairness," said Chad Griffin, the board president of the American Foundation for Equal Rights, which underwrote the case. "Today's decision affirms that under the Constitution, a government of the people, by the people, and for the people cannot discriminate against the people."

Joining the victors were David Boies and Theodore Olson, attorneys who'd famously sparred during the Bush v. Gore Supreme Court case that decided the 2000 election. They'd put aside their differences to try the Prop 8 challenge. Olson, who served as George W. Bush's solicitor general, called the ruling "a victory for the American people." Asked by a reporter if he thought the Supreme Court would uphold the ruling, Boies added, "Ted and I have a deal: He's going to get the five justices who voted for him in Bush v. Gore and I'm going to get the four justices who voted for me in Bush v. Gore."

Turning serious, he argued that the legal arguments in favor of gay marriage were overwhelming. Even many of Prop 8 supporters' expert witnesses had been forced to concede that marriage is a fundamental right, depriving gays of that right harms them, and granting them that right doesn't hurt heterosexuals. "It's very clear," Boies said, "and we believe that will be upheld by the Ninth Circuit Court of Appeals and by the US Supreme Court."

For now, at least, the ruling by federal judge Vaughn Walker is the undisputed law of the land. A reporter asked Paul Katami if he and Zarillo planned to rush out and get married today. That might be a bit too soon, Katami said. "I need time to order cake."

UPDATE: Yes, Anwar al-Awlaki Can Sue To Get Off Obama's Hit List

| Wed Aug. 4, 2010 5:30 PM EDT

The US Treasury Department has just granted the ACLU and the Center for Constitutional Rights the license they need to sue the Obama administration on behalf of Anwar al-Awlaki, an accused terrorist and American citizen who has reportedly been placed on a government "kill list." Here's the statement from the groups, who sued for the license on Tuesday:

The license issued by OFAC today will allow us to pursue our litigation relating to the government’s asserted authority to engage in targeted killings of American civilians without due process. While we appreciate OFAC’s quick response to our lawsuit, we continue to believe that OFAC’s regulations are unconstitutional because they require lawyers who are providing uncompensated legal representation to seek the government’s permission before challenging the constitutionality of the government’s conduct. Notably, OFAC has indicated that the license issued to us today can be revoked at any time. We will pursue our claim that OFAC’s attorney-licensing regulations are unconstitutional and should be invalidated.

This statement jives with what ACLU and CCR officials suggested in yesterday's conference call—namely, that even if they did get their license, they'd still sue, because they believe OFAC's licensing requirements are unconstitutional. Still, by issuing the license, Treasury is essentially calling the ACLU and CCR's bluff. This won't be an easy case for the groups to win. When I called around about potential al-Awlaki litigation back in February, sources at civil rights groups acknowledged that al-Awlaki—who's been linked to the Fort Hood shooter, the Christmas Day bombings, and even 9/11—is a particularly unsympathetic client. They weren't even particularly sure how they'd pursue the issue. "Presumably you could go to court to seek some kind of injunction or declaration," said one legal expert at a top civil rights group who asked to remain anonymous due to the sensitivity of the issue. "But there'd be all sorts of obstacles to a lawsuit like that," the expert explained.

Indeed. I asked Deborah Pearlstein, a Princeton University professor, about al-Awlaki a few months ago. She said potential plaintiffs shouldn't get their hopes up. "In general, civil suits against US government officials alleging violations of US and international law based on the government’s post-9/11 conduct (torture, etc.) have been roundly unsuccessful," Pearlstein wrote in an email. "While Al-Awlaki’s citizenship makes his case a more complicated—and somewhat more promising—case than the case of the non-citizen torture victims, I would still be enormously skeptical about the ability of such a lawsuit to succeed in US courts today."

The Prop 8 Ruling, My Moms, and History

| Wed Aug. 4, 2010 4:59 PM EDT

READ ALSO: MoJo reporter Josh Harkinson on the jubilation in San Francisco and Road Trip blogger Tim Murphy on the reaction in Louisiana. Plus: Does Judge Walker's personal life matter?

Judge Vaughn Walker in San Francisco has overturned Prop. 8, California's same-sex marriage ban. His ruling reads: "Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed the evidence shows Proposition 8 does nothing more than enshrine in the California constitution the notion that opposite sex couples are superior to same sex couples."

As the daughter of a lesbian couple that's been together for 30 years, my reaction is kind of lukewarm. Don't get me wrong: I think this is a significant milestone and a huge step forward. But this fight is far from over. Walker's ruling will be challenged all the way up to the US Supreme Court, and with that court's rightward shift, there's no guarantee it will rule the way it should. I'm not too worried though, because Walker and the opponents of Prop. 8 are on the right side of history. I've had that sense of moral certainty for as long as I can remember. And when I look back at how far the movement has come in 20 short years, today's decision is just another reminder that we're on the right track.

Consider this: It was 1989 when an American court for the first time ever granted same-sex families—and by extension my own family—some semblance of legitimacy in the eyes of the law. The case started in 1986 in New York City. Leslie Blanchard and Miguel Braschi were two men who'd been in a committed relationship for more than 10 years when Blanchard died of AIDS. Their rent-controlled apartment was leased in Blanchard's name, so the landlord saw the death as his chance to force Braschi out and jack up the rent. (Because Braschi was not related to Blanchard by birth or marriage, he didn't qualify as family in order to meet the rent-control requirements.) Braschi took the case to court, arguing that the meaning of family should not be limited to blood, marriage, or adoption but instead should be determined by the extent to which its members are emotionally and financially interdependent. New York's Court of Appeals agreed, ruling that rent-control protections "should not rest on ficticious legal distinctions or genetic history, but instead should find its foundation in the reality of family life."

It's ironic that today's focus is on marriage—one of those "fictious legal distinctions." But for better or worse, it's that legal distinction that will bring public acknowledgement and equal treatment to gay couples. And it's also that legal distinction that would have brought me—who once upon a time was embarrassed to talk about my moms—a whole lot of security and comfort growing up.

I was eight when Braschi's case was decided. Like any normal eight-year-old, I certainly wasn't up on LGBT caselaw, and I definitely didn't know how precarious my family's legal situation was. But although I didn't understand it intellectually, I could feel it in my gut. I knew that my family was different, and that most Americans didn't approve of it. No matter how loving a family is—and let me tell you, mine epitomizes the four-letter verb—that's a whole lot of shame for a third-grader to internalize. And that shame is probably part of the reason why, in October 2008, I was a sobbing mess as I spoke at my moms' wedding. (They'd scheduled the wedding before the November elections, knowing that Prop. 8 would likely pass, making their nuptials no longer legally viable.) As I stood before 150 of our closest friends and family with one mom on either side of me, so many things raced through my mind, like all the times I heard the word "faggot" casually thrown around at recess, and how Ellen DeGeneres stunned the nation when she came out on TV only a decade earlier. But most of all, the thing making me bawl like a baby was knowing that I hadn't talked to my best friend about my moms being gay until after we'd graduated from high school in 1999. And that, right there, is why marriage is so important. It's a public seal of approval. It's our society saying that one's sexual orientation, or the sexual orientation of one's parents, doesn't bestow second-class citizenship. And that it's never something to be ashamed of.

It didn't take Judge Walker's ruling today for me to know that my moms deserve the rights of marriage. But after all this time, it sure is good to hear a judge say it.

Does Prop 8 Judge's Personal Life Matter?

| Wed Aug. 4, 2010 4:50 PM EDT

READ ALSO: MoJo's Josh Harkinson on San Francisco's family night and Celia Perry on why she's been waiting for this ruling since the third grade.

Back in February, the San Francisco Chronicle took the bold step of outing Judge Vaughn Walker, who ruled today, in Perry v. Schwarzenegger, that Prop 8 is unconstitutional: "The biggest open secret in the landmark trial over same-sex marriage being heard in San Francisco is that the federal judge who will decide the case, Chief U.S. District Judge Vaughn Walker, is himself gay." This was well-known among San Francisco court reporters (who didn't feel it was all that important) but juicy news to the right. Fox News ran a headline today asking, "Why Has Media Ignored Judge's Possible Bias In California's Gay Marriage Case?" The National Review has argued that the judge should have recused himself from the case because a judge must do so when he has any "interest that could be substantially affected by the outcome of the proceeding" (28 U.S.C. § 455(b)(4)).

Of course, while this plays well in the conservative media, it would be a tough argument to make in the courtroom. To state the obvious, arguing this point could mean conceding that there is a substantial difference between a domestic partnership and marriage, something the Prop 8 defendants have steadfastly denied.

The larger point, however, is that it doesn't matter what Walker's sexual orientation is. He's an extremely well-qualified judge who, despite the right's complaints, has shown himself to be an impartial and unbiased jurist throughout his career and this trial. Actually, as the two-and-a-half-week trial began, there were some serious concerns in the LGBT community. After all, this is the same Judge Walker who was appointed by George HW Bush after a failed appointment by Ronald Reagan; the same Judge Walker who was harshly criticized by Nancy Pelosi for being insensitive to gays; and the same Judge Walker who prevented the "Gay Olympics" and put a lien on an AIDS-stricken organizer's home.

Throughout the court trial, he peppered both sides with equally tough questions. Interjecting often, he was clearly an engaged and active participant. He gave little quarter to either attorney, and it showed in his follow-up questions during closing arguments. There, it became clear that not all arguments are created equal, and given the number of "I don't know"s and "I don't have to prove anything"s that the Prop 8 defenders responded with, the right has only intself to blame for Walker's ruling. (See page 144 of the closing arguments transcript [PDF].)

However, while his sexual orientation does not matter from a legal perspective, it does put the judge in a tough position politically and personally: No matter how he ruled, he was bound to come off as biased, insensitive, or both.

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Treasury, ACLU Still At Odds Over Al-Awlaki

| Wed Aug. 4, 2010 3:25 PM EDT

[Update, 5:21 p.m. EST Wednesday: the ACLU and CCR just got their license.]

On Tuesday, the ACLU and the Center for Constitutional Rights sued the Obama administration. The two rights organizations hoped to obtain a permit that would allow them to sue on behalf of Anwar al-Awlaki, an alleged terrorist who is supposedly on a list of American citizens who the US government is trying to kill. Late last night, Politico's Josh Gerstein reported that the Treasury Department intends to give the ACLU and CCR the license they need to sue on al-Awlaki's behalf. But the ACLU and CCR quickly issued a statement saying that it still hasn't received that permission:

OFAC has neither issued a license nor stated that we don’t need one. It suggests that it might eventually grant us a license for our work, but our application has already gone unanswered for eleven days. OFAC is well aware that the case relates to the government’s decision to add a U.S. citizen to its ‘targeted killing’ list. To say that the matter is urgent is a dramatic understatement. Instead of issuing press releases, OFAC should simply issue us a license.

I just exchanged emails with two ACLU spokespeople, Laurie Beacham and Rachel Myers. The organization has still not received a license to represent al-Awlaki (who could be killed by a drone strike at any point)—just a "form letter saying they received our application," Beacham says—"nothing responding to it." Myers' response was similar. "I don't think Josh saw our statement before he wrote," she says. "We stand by it."

DOJ's Marxist Web Makeover

| Wed Aug. 4, 2010 11:57 AM EDT

Obama-haters these days seem to find evidence everywhere of socialism creeping into the federal government. The latest outrage: the Department of Justice's new website. DOJ recently scrapped the old Bush-era stars and stripes website banner in favor of a more somber look, prompting lots of online conservative angst about the Obama administration's lack of patriotism. But it wasn't just the flag replacement that has conservatives atwitter. It's the quote that now graces the top of the page, which says, "The common law is the will of mankind issuing from the life of the people." 

The quote is also inscribed on the DOJ's headquarters in DC, but according to administration critics, it's a sign of just how serious Obama is about spreading Marxism in America. While no one seems to know for sure where the quote comes from, some believe the source to be C. Wilfred Jenks, the head of the United Nation's International Labour Organization in the 1930s and a leading member of the "international law" movement. The American Spectator, which first alerted the blogosphere to the change, insists that Jenks helped make the ILO a tool of the communist movement and, "Most telling: Jenks, as director of the ILO is credited with putting in place the first Soviet senior member of the UN organization, and also with creating an environment that allowed the ILO to give "observer status" to the Palestinian Liberation Organization, and to issue anti-Israeli statements, which precipitated efforts by the U.S. Congress to withdraw U.S. membership from the ILO."

What's most interesting about the Spectator article is the many anonymous quotes attributed to DOJ staffers, who have nothing good to say about their employer and the new website. One tells the Spectator, ""We were told that the media team and the senior leadership that signed off on the design thought that the patriotic shtick from the Ashcroft days was a bit much for an agency that isn't supposed to be political. It was a real effort not to laugh at that." The internal sniping suggests that despite some efforts by Attorney General Eric Holder to re-professionalize the department, it is still full of Bush-era political hacks who burrowed their way into the bureaucracy where civil service rules make it difficult to remove them.

Arizona Law Mastermind Triumphs at the Polls

| Wed Aug. 4, 2010 10:46 AM EDT

Kris Kobach—the mastermind behind Arizona's immigration law—used his reputation as an anti-immigration crusader to ride to victory in the Republican primary for Kansas Secretary of State last night. Kobach took advantage of the heated debate over the Arizona law to raise his national profile, becoming a regular on Fox News and appearing with the likes of Arizona Sheriff Joe Arpaio to rally against illegal immigration.

Kobach's spot on the Kansas ballot has put the spotlight on a typically low-profile race. All three Republican candidates charged that there was rampant voter fraud in the state, which Kobach explicitly linked to illegal immigration. He now faces incumbent Democrat Chris Biggs in the general election. A former chairman of the Kansas Republican Party, Kobach insisted on ideological purity during his tenure and alienated some of the state's party establishment, which rallied behind his opponents during the primary. But Kobach's notoriety gained him widespread visibility and the support of right-wing notables like Michelle Malkin and Tom Tancredo.  Whether or not Kobach prevails this fall, the race will just be the latest stepping stone in his political ascendancy.

Sexism in the Immigration, Birthright Debates

| Wed Aug. 4, 2010 7:11 AM EDT

Several Republican Congressmen, including Jon Kyl (Ariz.), Mitch McConnell (KY), and Lindsey Graham (SC) have been calling for revisions or hearings on the 14th Amendment, which grants US citizenship to any child born on its soil. Even Arizona's John McCain (who was born in Panama, by the way) has  agreed, if reluctantly, that having Congressional hearings on the 14th would be a good thing. I might believe they were genuinely concerned about the Constitution (rather than attracting a conservative base for upcoming elections) if it weren't for the virulent racism and sexism underlying the statements of many with their eyes on the 14th.
 
Case in point: According to an email circulated by Arizona state Senator Russell Pearce, undocumented immigrant women don't "give birth" or "have a baby" or "start a family": they "drop" a child. "If we are going to have an effect on the anchor baby racket, we need to target the mother. Call it sexist, but that’s the way nature made it. Men don’t drop anchor babies, illegal alien mothers do," read the email. One California activist called it "invasion by birth canal" and Sen. Lindsey Graham said that: "They come here to drop a child. It's called 'drop and leave.'" 
 
The use of the word "drop" by 14th Amendment revisionists is deliberate. Not only does one "drop" anchor, the word "drop" is also used when animals give birth. Mares will "drop" a foal, for example, or you can buy a "drop calf": one that's been taken from its mother shortly after birth. Women only "drop" a baby when the fetus descends into the pelvis, or they physically lose their grasp of on an infant. Equating women, regardless of their legal status, with farm animals is just plain offensive.