NewsWrap for the week ending March 29, 2003 (As broadcast on This Way Out program #783, distributed 3-31-03) [Written by Cindy Friedman, with thanks to Fenceberry, Graham Underhill, Rex Wockner and Greg Gordon] Anchored by Dean Elzinga and Cindy Friedman U.S. military actions in the Middle East appear to be allowing more gays and lesbians to stay in uniform, despite the so-called "Don't Ask, Don't Tell" policy. U.S. military discharges of gays and lesbians decreased by 30% in 2002 -- from 1,273 to 906 -- after having increased every year since the policy was adopted in 1994. The discharges decreased in each of the military branches although most dramatically by one third in the Army, which has done the most in response to a Clinton administration order to train personnel about the policy. That's all according to the Servicemembers Legal Defense Network, a group that was organized as the policy was being adopted in order to aid its victims, which this week released its extensive annual report, titled "Conduct Unbecoming". The Pentagon has yet to release its own figures for 2002. SLDN attributes the drop in discharges based on sexual orientation to the U.S. attacks on Afghanistan and Iraq. That's despite the military's recent so-called "stop loss" orders to halt most administrative discharge proceedings having specifically excluded discharges for homosexuality for the first time. The best news is that SLDN reports a significant decline in "witch hunts" against gay and lesbian servicemembers over the last 3 years. It also notes that this year commanders are generally taking longer to act against those servicemembers, often six months or a year instead of the previous month or two. But anti-gay harassment continues, with SLDN receiving its second-highest-ever number of reports in 2002 -- and the military continues to generally fail to enforce its own rules against harassment. Women continue to be disproportionately discharged, making up more than 30% of those discharged for homosexuality even though they comprise only 15% of servicemembers. Gay and lesbian language specialists also appear especially likely to be discharged, despite the military's critical need for those services and despite a public outcry when the Army notoriously booted six gay Arabic speakers last year. A demonstration protesting the U.S.-led assault on Iraq included what may be Lebanon's first public display of gay pride. Ten participants in a big rally in Beirut last week gathered around a rainbow flag with a sign reading "Out against the war". One told the "An-Nahar" newspaper he had "absolutely" no fear of being harassed, declaring, "We have the right to unite and reveal our identity just like the others." In the Netherlands, the man charged with assassinating openly gay politician Pim Fortuyn this week said in open court that he did it to protect the nation's Muslims. Volkert van der Graaf freely confessed to shooting Fortuyn several times at close range ten days before last May's elections, a vote which might have made Fortuyn the first openly gay Prime Minister. Although van der Graaf had previously confessed, he had not discussed his motivation. He told the judges that he believed Fortuyn "was a highly vindictive man who used feelings in society to boost his personal stature. The ideas he had about refugees, asylum seekers, the environment, animals ... he was always using or abusing the weak side of society to get ahead." Van der Graaf believed that Fortuyn was especially making Muslims into "scapegoats," building on reactions to the September 11, 2001 terrorist attacks on the World Trade Center. Judges will next consider expert testimony on van der Graaf's mental status. Their verdict is expected in about two weeks. South Africa's highest court this week conferred legitimacy -- status equal to legally married couple's children -- on the twins born to a lesbian couple. Both the women, referred to as "J" and "B", can be considered the twins' biological mothers, with one serving as egg donor and the other as surr ogate. Theirs is the first case of that kind to be taken up by the South African courts. The Constitutional Court struck down a section of the Children's Status Act for its failure to recognize what it called a "permanent same-sex partner" as a legal parent, even though husbands whose wives bear children with donated sperm are recognized as fathers. South Africa's constitution was the first in the world to explicitly prohibit discrimination based on sexual orientation. The government had recently dropped its opposition to the women's case, but it had requested a delay in the ruling's enforcement to allow the parliament to amend the law. That request was denied, and the decision went into effect immediately. The U.S. Supreme Court heard oral arguments this week in a landmark case with the potential to strike down all state sodomy laws. A Texas statute that applies only to same-sex acts is being challenged with the help of the Lambda Legal Defense and Education Fund as a violation of the U.S. Constitu tion's guarantee of equal protection under the law and a violation of privacy rights. The case in question dramatically demonstrates the privacy issue as John Lawrence and Tyron Gardner were arrested in Lawrence's bedroom, when sheriffs responded to a third party's false report of an armed intruder on the premises. The Harris County prosecutor defended the statute as upholding Texas' interests in maintaining "moral standards," "marriage and the family" and public health. The high court's ruling is expected in June. The outcome is seen to rest on Reagan appointees Justices Sandra Day O'Connor and Anthony Kennedy, with three others fairly certain to support the statute and four almost sure to oppose it. The current Supreme Court bench includes two who were in the majority supporting a now-defunct Georgia gay-only sodomy law in the 1986 "Bowers versus Hardwick" decision, as well as one of the dissenters in that 5-to-4 ruling. All of the current justices were involved in the 6-to-3 "Romer versus Evans" judgment in 1996 that struck down Colorado's Amendment 2, which would have prohibited the state's cities and counties from legally recognizing lesbians, gays or bisexuals as a minority group. One Colorado Republican legislator is still battling against what he called a "special protection" for gays and lesbians, and he won a party line floor vote in the state House this week that would allow medical personnel to deny them treatment. Jefferson County Representative Don Lee's amendment removed a provision from rules set by Colorado's Medical Services Board. Back in Texas, the trial court judge who dissolved a gay male couple's Vermont civil union vacated his own divorce decree this week. Beaumont area State District Judge Tom Mulvaney ordered a new trial after Texas State Attorney General Greg Abbott found it illegal to divorce a couple who had not been married, noting that Texas law does not provide for dissolution of a civil union. The attorney for one of the men argues that even though Texas' marriage law refers to "husband" and "wife," its law regarding dissolution refers only to parties. A sizable majority of the couples who've contracted civil unions in Vermont are residents of other states, but Vermont requires a year's residency to dissolve those contracts. The issue of dissolving them outside of Vermont has come before several courts, including a rejection by a Connecticut appellate court. In Israel, a rabbinical court has awarded custody to a gay father for what's believed to be the first time, New York City's "Jewish Week" reported. When the unnamed man came out to his wife, she sued for divorce. But the rabbinical court in Beersheva gave him custody of the couple's two teenaged boys, on the grounds that Jewish law obligates fathers to provide for their sons' education. The mother plans to appeal the decision. In Canada, the prospect of church blessings for gay and lesbian couples has led 8 Anglican parishes in British Columbia to reject their own bishop's leadership in favor of the Yukon's. The parishes have strongly protested their Vancouver area New Westminster Diocese's vote last year to approve the union ceremonies, and their Bishop Michael Ingham's support for them. Bishop of the Yukon Terrence Buckle shares the dissident parishes' opposition to the ceremonies and had offered himself to them as an alternative bishop, an offer they voted strongly this week to accept. The New Westminster Diocese has formally requested a disciplinary action against Buckle from the archbishop who oversees both British Columbia and the Yukon, David Crawley. And finally... this year's Academy Awards nominations were trés gay in both characters and personnel, and some of those took Oscars home this week. The Best Picture and winner in 5 other categories, "Chicago", was produced by open gay Martin Richards along with gay executive producers Craig Zadan and Neil Meron, gay Best Director nominee Rob Marshall and gay Best Adapted Screenplay nominee Bill Condon. Openly gay Spaniard Pedro Almodóvar, who'd also been nominated for Best Director, won for Best Original Screenplay for "Talk to Her", perhaps the least queer of his works though one of the strangest. Nicole Kidman won Best Actress for appearing as real-life bisexual author Virginia Woolf in "The Hours", the screen adaptation of gay author Michael Cunningham's Pulitzer Prize-winning novel whose other nominations included Ed Harris as Best Supporting Actor for his role as a gay man, Best Director for open gay Stephen Daldry, and Best Picture for gay producer Scott Rudin. "Frida", based on the life of bisexual Mexican painter Frida Kahlo and including a lesbian sex scene, won Oscars for makeup and original score. And while openly gay filmmaker Todd Haynes went home empty-handed from the Oscars despite several nominations including Best Screenplay for his gay-themed "Far From Heaven", the film was the big winner at the Independent Spirit Awards with 5 awards including Best Feature. The Indy Spirit Awards, hosted again this year by openly gay director John Waters, have always been gay-friendly, and that's almost by definition: the qualifications include not just economical production but original and provocative subject matter plus what's described as "uniqueness of vision". === Selected Lawrence v Texas SCOTUS transcripts === The oral arguments heard before the U.S. Supreme Court on March 26th in the case of Lawrence v. Texas dramatically define many of the issues that make sodomy law reform key in the fight for gay and lesbian equality. It's more than the constitutional challenges: that Texas' "same-sex only" sodomy ban violates the guarantees of equal protection under the law, and the right to privacy. It's even more than the sensational circumstances of the case, in which the couple was arrested in the plaintiff's own bedroom. Excerpts from the court transcript provide a fascinating primer on the broader legal ramifications of such laws. Attorney Paul M. Smith argued against the Texas sodomy statute before the Supreme Court. Harris County District Attorney Charles A. Rosenthal, Jr. argued in its defense. Reading from the Alderson Reporting Company transcript as published in the "New York Times", and from Associated Press accounts, are This Way Out's CINDY FRIEDMAN and DEAN ELZINGA. ----- MR. SMITH: The one thing, that I submit the court, the state should not be able to come in to say is: We are going to permit ourselves, the majority of people in our society, full and free rein to make these decisions for ourselves, but there's one minority of people [who] don't get that decision and the only reason we're going to give you is we want it that way. We want them to be unequal in their choices and their freedoms, because we think we should have the right to commit adultery, to commit fornication, to commit sodomy. And the state should have no basis for intruding into our lives, but we don't want those people over there to have the same right. JUSTICE ANTONIN SCALIA: I mean you can put it that way, but society always — in a lot of its lives — makes these moral judgments. You can make it sound very puritanical, the, you know, the laws against bigamy. I mean, who are you to tell me that I can't have more than one wife, you blue-nose bigot? Sure, you can make it sound that way, but these are laws dealing with public morality. They've always been on the book; nobody has ever told them they're unconstitutional simply because there are moral perceptions behind them. Why is this different from bigamy? MR. SMITH: First of all, the first law that's appeared on the books in the states of this country that singles out only same-sex sodomy appeared in the 60's and the 70's, and it did not — and it does not — go way back, this kind of discrimination. Now, bigamy involves protection of an institution that the state creates for its own purposes, and there are all sorts of potential justifications about the need to protect the institution of marriage that are different in kind from the justifications that could be offered here involving merely a criminal statute that says we're going to regulate these people's behaviors, we include a criminal law which is where the most heightened form of people protection analysis ought to apply. This case is very much like McLaughlin, Your Honor, where you have a statute that said, We're going to give a specially heightened penalty to cohabitation, but only when it involves a white person with a black person. That interracial cohabitation is different, and the state there made the argument, We're merely regulating a particular form of conduct, and that's a different form of conduct than interracial cohabitation. And this court very clearly said, No, you're classifying people; and that classification has to be justified. CHIEF JUSTICE REHNQUIST: If you prevail, Mr. Smith, and this law is struck down, do you think that would also mean that a state could not prefer heterosexuals to homosexuals to teach kindergarten? MR. SMITH: I think the issue of preference in the educational context would involve very different criteria, Your Honor, very different considerations. JUSTICE RUTH BADER GINSBURG: Your first argument was the right of personal privacy in one's most intimate sexual relations. You were asked and you didn't get a chance to answer because you went back on your equal protection track. You are asking the court to overrule Bowers against Hardwick. I thought that was very —— MR. SMITH: Yes, Your Honor. We're asking you to overrule it, and we think that the fundamental right of unmarried people to make these choices about private adult consensual intimacy applies to different sex couples as well as same sex couples . . . MR. ROSENTHAL: The petitioner also claims that the mores of our nation have changed to the point where physical homosexual intimacy is now part of the fabric of American values. And it's our position this cannot be correct. Even if you infer that various states acting through their legislative process have repealed sodomy laws, there is no protected right to engage in extrasexual — extramarital sexual relations, again, that can trace their roots to history or the traditions of this nation. JUSTICE SCALIA: I'm sorry. I didn't get that argument. I thought you were going to say — you were responding to the argument that the morals haven't changed, or that the morals have changed so that homosexuality is now approved... Do you think there's public approval of it? MR. ROSENTHAL: Of homosexuals, but not of homosexuality activity. JUSTICE SCALIA: What do you base that on? MR. ROSENTHAL: I beg your pardon? JUSTICE SCALIA: What do you base that on? MR. ROSENTHAL: Well, even —— ” JUSTICE SCALIA: I mean I think there ought to be some evidence which you can bring forward. MR. ROSENTHAL: Sure. JUSTICE SCALIA: Like perhaps the failure of the federal Congress to add the sexual preference to the list of protected statuses against which private individuals are not permitted to discriminate, that addition has been sought several times and it's been rejected by the federal Congress, hasn't it? MR. ROSENTHAL: Yes, sir, and in addition, what I was trying to say by the fact that various states have changed their position on sodomy, they've done it through the legislative process. And that's where we believe this belongs, is in the statehouse of Texas, not this court. JUSTICE SCALIA: Might there be a difference between the people's willingness to prosecute something criminally and the people's embracing of that as a fundamental right? MR. ROSENTHAL: Well, certainly. And just because someone has decriminalized sodomy doesn't mean that they embraced that practice as something that ought to be taught in the schools, as was mentioned before. JUSTICE STEPHEN G. BREYER: But the argument of Bowers, to overrule Bowers, is not directly related to sodomy. It's related, but not directly. It's that people in their own bedrooms, which have their right to do basically what they want, it's not hurting other people. And they, the other side, says Bowers understated the importance of that. It got the history wrong. It didn't understand the relationship of the sodomy to families, and, in addition, Bowers has proved to be harmful to thousands and thousands and thousands of people, if not because they're going to be prosecuted, because they fear it, they might be, which makes it a possible instrument of repression in the hands of the prosecutors. Now, that's the kind of argument that they're making. Harmful in consequence, wrong in theory, understating the constitutional value. MR. ROSENTHAL: We believe Bowers v. Hardwick is still good law, and there is nothing that has changed about the fundamental liberties or traditions of our country. MR. SMITH: Most Americans would be shocked to find out that the decision to engage in sexual relations with another person might result in a knock at the door and a prosecution. JUSTICE BREYER: What is the justification for this statute?... Is it simply, 'I do not like thee, Dr. Fell, the reason why I cannot tell?' What is it, other than that?... The hard question here is, can the state pass anything it wants because the state thinks it's immoral? If you're going to draw a line anywhere, it might start with a line at the bedroom door. ----- These have been excerpts from transcripts of the oral arguments at the U.S. Supreme Court on March 26th in Lawrence v. Texas, the case challenging the constitutionality of the Texas state sodomy law. The Court is not expected to issue its ruling until June. For "This Way Out" I'm Dean Elzinga... .. and I'm Cindy Friedman.