AFTER THE GREAT DAY: the Queer Civil Rights Lawyers Full Employment Act of 2013.

Summary: After our victories in yesterday’s marriage decisions, which had the queer nation holding its collective breath, we have been able to exhale.  The world has not fallen apart, and the planet continues to rotate majestically and indifferently on its axis.  Still, things feel different.  Opponents of marriage equality continue to fulminate, and we know that the demise of DOMA will only engender further litigation to fill in the gaps and address the implications of what may well prove to be as consequential a decision for queerfolk as Brown v. Board of Education was for Americans of color six decades ago.  Yet, integrating the demise of DOMA into the way we do things will inevitably call forth bureaucratic resistance.  Such resistance will spawn lawsuits, and in the end, we may all find ourselves looking at the Windsor decision as the Queer Civil Rights Lawyers Full Employment Act of 2013.

By: Paul S. Marchand

If you felt a bit of a breeze yesterday morning, it was probably the queer nation exhaling.  We had waited and held our breath for so long, and passed so much time in fearful, fretful anticipation of how the Supreme Court might rule in its marriage cases, that the sense of relief and joy was almost palpable.  “Even better than sex,” said a friend of mine who is no stranger to queer intimacy.  Indeed, for a community that has been running on adrenaline since the marriage cases were argued, the letdown after yesterday’s victory can seem somewhat akin to withdrawal.
Perhaps the one ineluctable conclusion we can draw from yesterday’s decisions in Hollingsworth v. Perry and U.S. v.  Windsor is that litigation, like small animals having sex in dark corners, simply reproduces itself.  It ain't over yet.

I suggested yesterday that nothing will ever be quite the same again.  This morning, on the morning after, as it were, as the alarm clock went off and I growled at it, I couldn’t help but remember the observation Aleksandr Solzhenitsyn made about the coming of the 20th century in his novel August 1914, in which he suggested that the world had now moved “into a new era: that the entire atmosphere of the planet -its oxygen content, its rate of combustion, the mainspring pressure in all its clocks- had somehow changed.”  Somehow, things just feel different.

The change brought about by the marriage cases will be subtle and exquisitely difficult to quantify.  We know what marriage is, and we understand the strong case to be made for marriage equality.  What remains uncertain is where the queer nation, and the larger American commonwealth of which our queer nation is a part, actually goes from here.  How do we implement the Court’s relatively simple holding in Windsor?  What cases and controversies will emerge therefrom?

Already, opponents of marriage equality have unburdened themselves of apoplectic, splenetic, over-the-top screeds and diatribes about the awfulness of what the Court did yesterday.  Yet, even if the entire atmosphere of the planet -its oxygen content, its rate of combustion, the mainspring pressure in all its clocks-have somehow changed, life continues.  The planet continues to rotate majestically, indifferently on its axis.  People still get up and go to work today, even if some gay people will be marching into HR offices today to change their W-4 status from “single” to “married.”

The change we sought, the change we ourselves have become, will manifest itself in the smallest and most mundane ways.  The married gay man in the HR office quietly changing his W-4 status from single to married on the authority of U.S. v. Windsor may well be more of a revolutionary than all of the prideful, happy homosexuals rallying at the Marilyn Monroe statue in Palm Springs, or at West Hollywood’s iconic intersection of Santa Monica and San Vicente, in the Castro, or in the Village in New York.  The revolution will continue when the first lesbian couple amends its recent tax returns from two single women to “married, filing jointly,” and bureaucratic heads at the IRS begin to explode.

For quiet revolutionary change often calls forth stuttering, sputtering, spluttering, splenetic resistance from stubborn bureaucratic holdouts.  Our victory in Windsor was equivocal in that the Court did not address the issue of whether Section 2 of DOMA, which allows states to withhold recognition of validly contracted same-gender marriages performed in other states, improperly impinges upon the Full Faith and Credit Clause set forth in Section 1 of Article IV of the Constitution of the United States.  Moreover, to the extent that the Windsor holding does little more than declare the unconstitutionality of Section 3 of DOMA, it effectively falls to legions of federal, state, and local bureaucrats to implement the Court’s ruling.  If the churlish behavior of certain county clerks in California in response to the California marriage cases back in 2008 is any indication, we can expect a lot of foot dragging from homophobic local officials.

Given the deep divisions within American society over marriage equality, and given calls from the religious right for opponents of marriage equality to engage in the same kind of so-called massive resistance to Windsor that supporters of Jim Crow urged in response to the decision in Brown v. Board of Education, it is reasonably foreseeable that Windsor will spawn the kind of protracted litigation that Brown called forth, as refractory, reactionary federal and state bureaucrats seek to frustrate the application of Windsor through selective and unsustainable invocations of rules, regulations, and policies originally informed by DOMA’s homophobic legislative intent.

• So, will the lesbian couple seeking to amend their tax returns from “single”to “married, filing jointly” catch flak from the IRS?  

• Will the gay man in the HR office wanting to change his W-4 status from single to married encounter hemming and hawing from the pen pushers in human resources? 

• Will married queerfolk have to do battle with self-appointed conservators and enforcers of so-called traditional values? 

• Will law enforcement agencies (which have historically tended to regard themselves as custodians and conservators of what they believe ought to be correct, traditional social mores) be able to integrate into their thinking the ramifications of possible marital evidentiary privileges as asserted by married queer couples? 

• Will healthcare providers be prepared to acknowledge the right of a same-gender spouse to make critical healthcare decisions for a stricken wife or husband?

In a sense, Windsor has raised as many questions as it settles.  Administratively speaking, Hollingsworth, which simply restored marriage equality in California, may not open merely the can of worms Windsor is about to open.

In fine, Windsor has done what watershed Supreme Court decisions are supposed to do; it has settled a broad principle of constitutional law --- that same-gender marriages are entitled to the same dignity as so-called traditional marriages --- but it has left the gaps be filled on an ongoing and ad hoc basis.  We now know what the law is, and what the Constitution says, about same-gender couples in federal law.  How we apply this newly articulated constitutional principle will be the subject of infinite wrangling, tangling, and litigation.

As American society struggles to integrate the implications and ramifications of Windsor into its thinking and policies, it will be incumbent upon the queer nation not to relax too much, but to keep fighting these further, interstitial skirmishes that will become an integral part of the changed legal landscape America’s queerfolk will need to navigate.  While Windsor has clarified one issue, it can justly be referred to as the Queer Civil Rights Lawyers Full Employment Act of 2013.

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Paul S. Marchand is an attorney who lives in practices in Cathedral City, California, where he served two terms on the city Council.  In 1993, he was one of the first attorneys in California to take on a same-gender marriage challenge.  The views contained herein are his own, and not necessarily those of any entity with which he is associated, and are not intended to constitute, and should not be construed as constituting, legal advice.  No haters allowed: comments containing personal attacks will not be approved for publication.

KEEPING TRYST WITH DESTINY:

KEEPING TRYST WITH DESTINY:


Summary: More than 40 years after two gay Minnesota activists unsuccessfully sought a marriage license, marriage equality took a huge step forward today as the Supreme Court held unconstitutional the so-called Defense of Marriage Act, and dismissed for want of standing washed out Republican Dennis Hollingsworth’s feckless attempt to keep alive California’s unconstitutional Proposition 8.  The queer nation has kept the tryst with destiny we made so many years ago.  The pledge of ultimate equality and first-class citizenship we made to ourselves so long ago has been redeemed, not wholly or in full measure, but very substantially. The soul of the queer nation, so long suppressed, has found utterance, and nothing will ever be quite the same again.   Be fierce.  Be proud.  Great days lie ahead.  
  
           "Long years ago we made a tryst with destiny, and now the time comes when we shall redeem our pledge, not wholly or in full measure, but very substantially."
            -Jawaharlal Nehru, addressing the Indian Constituent Assembly, on the night India  became independent, August 14-15, 1947.

Lo, it has been almost two generations that we queerfolk have been fighting what had seemed an unwinnable battle for legal recognition of our right to marry.  Today, we may have turned a great corner in that ongoing fight, winning a pair of victories that, while equivocal, may nonetheless represent game-changers.

On May 18, 1970, Richard Baker and James Michael McConnell unsuccessfully applied to the clerk of the Hennepin County, Minnesota District Court for a marriage license.  On December 19, 1990, three same-sex couples also applied unsuccessfully for marriage licenses at the Hawai’i Department of Health.  While Baker and McConnell’s early appeals were unavailing, the Hawai’i couples’ appeals two decades later produced what was for the time a startling result.  In Baehr v. Lewin (1993) 74 Haw. 530, 852 P.2d 44, the Hawai’i Supreme Court held that the state would have to show a compelling justification for restricting marriage to opposite-gender couples.

In 1996, in a classic example of what Lyndon Johnson once called “frontlash,” the Republican dominated Congress passed, and Bill Clinton (in one of his more unfortunate capitulations) signed the so-called Defense of Marriage Act (DOMA), largely motivated by homophobic Republican Congressional desires to keep us uppity queers from enjoying even a tithe of the civil rights taken for granted by our straight neighbors.

The subsequent history of the fight for marriage equality is almost too well known to require further recapitulation.  Civil Unions, which had emerged at the end of the 20th century as a possible “Plan B” option, soon gave way to growing insistence that marriage by that name, and not some other, was the only constitutionally defensible posture for the queer nation to adopt.

Here in California, the sad history of Proposition 22 and Proposition 8, both heavily bankrolled by the Mormon and Roman Catholic churches, bore witness not only to the challenges facing the queer nation, but also to California’s deplorable history of using the ballot box to discriminate against disfavored minorities.

As always, the remedy available to those who have been unfairly discriminate against lies not in so-called direct action, but in litigation challenging the constitutionality of discriminatory laws.

When the constitutionality of Proposition 8 was challenged, the trial, conducted in the federal court for the Northern District of California before District Judge Vaughn Walker, was almost a travesty.  Against overwhelming evidence submitted by the plaintiffs challenging Proposition 8, the supporters of the marriage ban presented a laughably weak showing.  When the Ninth Circuit agreed on the merits with the Northern District, grandstanding, termed-out sometime Republican state Senator Dennis Hollingsworth was permitted to butt in and petition for certiorari in the U.S. Supreme Court.  When the Court granted cert, it had the effect of staying the Ninth Circuit’s affirmance of Vaughn Walker’s District Court ruling holding Proposition 8 unconstitutional.

 When Edie Windsor took issue with the federal government charging her more than $300,000 in estate tax because it did not recognize the validity of her marriage to her late wife, Thea Spyer, she challenged DOMA, contending that DOMA’s federal definition of marriage as being only between a man and a woman was flatly unconstitutional.

Today the Supreme Court sent Dennis Hollingsworth back to the pit of political opportunism he bubbled up from, and slapped Congress’s chops for it, holding in Hollingsworth v. Perry that Hollingsworth’s grandstand play against marriage failed for want of standing, and that Edie Windsor was right, and that DOMA was indeed unconstitutional.

Today, American queerfolk have good reason to celebrate.  Yesterday, posting in this blog, I speculated that the Court might either dismiss Hollingsworth as having been “improvidently granted,” or dismiss it for want of standing, given that Dennis Hollingsworth was nothing more than a cynical termed-out Republican politician looking for a vehicle to inject new life into his aspirations of running for statewide office.  If the Court chose to swing for the fences, I suggested, it would do so in Windsor.

Certainly, Justice Kennedy’s majority opinion in Windsor contains strong suggestions that, as a matter of federal law, Congress may be as constitutionally constrained from enacting legislation simply to express its disapproval of queerfolk as individual states have been so constrained since the Court’s ruling in Romer v. Evans (1996) 517 U.S. 620, in which Justice Kennedy himself, writing for the Court, struck down a Colorado constitutional amendment that specifically prohibited any form of legal protection for queerfolk in Colorado.

To a certain extent, therefore, one of the possible lessons to be drawn from Windsor is that Romer may now be as applicable to acts of Congress as it has been to acts of state legislatures or to state ballot initiatives.  Certainly, Windsor, which had not enjoyed as much attention here as Hollingsworth, is the more consequential of the two decisions, since it reached the merits of the issue in a way Hollingsworth shied away from.

Now, in all candor, I must admit that certain friends of mine, who still nurse a considerable amount of righteous moral indignation over the institutionalized homophobia of so many government institutions throughout the country, may not agree with me that we have won two fairly substantial victories this morning.  Yet, we should, like William Hurt’s character in Kiss of the Spider Woman, enjoy what life offers, and have a piece of avocado, because it’s a long time till lunch.  My friends who reject the good tidings of this morning should remember not only how long it is till lunch, but also should ask themselves whether carping over the limitations of a victory so significant really advances the larger cause of full first-class citizenship for queerfolk.

As much as I would emerge my unsatisfied friends to have that metaphorical piece of avocado and enjoy it, I would also urge moderation on some of the more ideological separatist fellow travelers who believe that the Court should simply have rejected the entire institution of marriage altogether.  Such a view may be attractive to Uber-libertarians, but from the perspective of a society steeped in respect -- even reverence -- for the rule of law and for a constitution many of its members have neither read nor understood, a libertarian rejection of marriage is unrealistic and unsustainable.  We know what marriage means; we understand the implications and ramifications of marriage; that’s why we queerfolk has sought for so long to be able to have our lawfully plighted troths recognized as authentic marriages, not only in the states that permit them, but also by the federal government.

Last night, as I passed the long hours of darkness in fretful sleeplessness, alone and without the reassuring presence of another man next to me, I found myself hoping for what became this morning’s outcome.  I recalled the words Jawaharlal Nehru addressed to the Indian constituent assembly on the night the world’s largest democracy became independent in 1947.  “Long years ago we made a tryst with destiny, and now the time comes when we shall redeem our pledge, not wholly or in full measure, but very substantially.”

Long years ago we, too, made our own tryst with destiny, and now the time has come when we, too, redeem our pledge, not wholly or in full measure, but very substantially.  While the world goes about its business, our queer nation takes a great step forward toward full and authentic participation in the American commonwealth.   As Nehru also observed, “[a] moment comes, which comes but rarely in history, when we step out from the old to the new, when an age ends, and when the soul of a nation, long suppressed, finds utterance.” Nothing will ever be quite the same again.

Be fierce.  Be proud.  Great days lie ahead.

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Paul S. Marchand is an attorney who lives and practices in Cathedral City, California, where he served two terms on the city Council.  Two decades ago, he was one of the first attorneys in California to litigate a marriage case.  After almost a generation, he may perhaps be excused in feeling a slight sense of vindication this morning.  The views contained herein are his own, and are not intended to constitute legal advice.

TOMORROW

Summary: The SCOTUS marriage cases will come down tomorrow.  The longer we queerfolk wait, the more fretful we become and the more sleep we lose.  The cottage industry of prognostication is in overdrive, though Justice Ruth Bader Ginsburg rightly notes that those who know aren’t talking and those who are talking don’t know.  It is possible that the Prop 8 case (Hollingsworth v.  Perry) may be DIGged (dismissed as improvidently granted).  If so, will the Court swing for the fences on DOMA, issuing a broad brush ruling that attempts to settle once and for all the issue of queer civil rights in this country?  If marriage prevails, it may be incumbent upon us queerfolk to rewrite much of our vocabulary of relationships.  Tomorrow.  We’ll know tomorrow.

By: Paul S. Marchand

Tomorrow. 

The long-awaited Supreme Court decisions on marriage will come tomorrow, on the last day of the Court’s 2012 Term.

It’s not unreasonable to imagine that all over the country, queerfolk are finding themselves in a state of fretful, ambiguous, sleep-deprived anticipation.

Already, speculation about the possible outcome of the marriage cases has become something of a cottage industry of prognostication.  As Justice Ruth Bader Ginsburg has observed, those who know aren’t talking, and those who are talking don’t know.

Nonetheless, one can feel a certain degree of vindication that a number of mainstream observers and commentators have begun, in recent days, to ventilate the possibility -- one that I had ventilated a number of months ago -- that the Court may dispose of the Proposition 8 case, Hollingsworth v. Perry, by dismissing Hollingsworth’s petition for certiorari as having been “improperly granted,” or DIGging it.  When I suggested that Hollingsworth might be DIGged, a number of non-knowledgeable so-called activists from Palm Springs chastised me rather sharply, and in rather primitive terms.  Having come very late to the cause, these activists did not know whereof they spoke.  That I might thus feel somewhat vindicated is only natural under the circumstances.  Sometimes it’s nice to be right.

And in truth, Dennis Hollingsworth’s bull-in-the-china-shop intrusion into the case represents an almost textbook example of what the law might refer to as “officious intermeddling.”  Hollingsworth had no real stake in the litigation, but he was a termed out Republican State Senator looking for some new cause to which he could nail the colors of his dwindling political future.  He had no demonstrable nexus to the litigation which would have given him any standing to butt in.  If the Court chooses to DIG the case, it may well represent the most expedient solution for a Court whose credibility has come into serious question.

If Hollingsworth is DIGged, the Court might choose to swing for the fences in U.S. v.  Windsor (the DOMA case) and issue a ruling that attempts to settle the vexed issue of same-gender marriage once and for all.  If the Court rules for us, it may well be the queer nation’s Brown v. Board of Education; if the result goes the other way, it may well be our Dred Scott.

Given that the Roberts Court has established something of a reputation for being a reliable right-wing tribunal, today’s decision in Shelby County v. Holder, which effectively gutted the Voting Rights Act, has not surprisingly sent a current of disquiet through much of America’s queer nation; if the court can deliver such a victory to the American right and the GOP on the issue of voting, what might it be prepared to do to America’s queerfolk?

Still, even if the Court upholds DOMA and Prop. 8, the status quo for queer Americans may well remain largely unchanged.  Certainly, an adverse decision will embolden our adversaries in state legislatures, yet there will still remain jurisdictions where marriage equality is a reality.  In blue states, progress toward marriage equality will probably continue as a matter of state law.  In red states, right-wing legislators will no doubt continue their monomaniacal effort to march us right back into the closet and to jam us so far into the back thereof that we may never again see the light of day.

On the other hand, if the Court rules favorably for marriage, it will put America’s queerfolk in the somewhat equivocal position of having to rewrite a large part of our vocabulary of relationships, and of coming to terms with having options millions of us never thought we would have.  If, to a certain extent, we have made a virtue of the crabbed necessity of not having the option of marriage, a pro-marriage holding in either Hollingsworth or U.S. v. Windsor will certainly upset that applecart.

No matter what happens, tomorrow will be a day of change for America’s queer nation.  

I may not sleep well tonight. 

Tomorrow.  We’ll know tomorrow.

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PAUL S. MARCHAND is an attorney who lives in practices in Cathedral City, where he served two terms on the city council.  He has been a marriage equality activist for two decades.  The views herein are his own, and are not intended as legal advice.

THINGS FALL APART:

How Change Communities Sabotage Themselves

Summary: Change communities sabotage themselves by falling out over trifles.  The felt need of many in change communities to engage in sterile recrimination among themselves over tone and language undermines the will to cohesion on which critical mass depends.  Without critical mass, the change we seek cannot happen.  Call it the Austria-hungry complex, where the hatred Austria-Hungary’s squabbling nationalities bore each other prior to World War I exceeded their hatred of Vienna, and helped keep the Danubian monarchy alive into the closing days of that conflict.  Where hypersensitive, hyperventilating umbrage-takers and fight-pickers hijack a movement, no critical mass is possible, and what could have been a successful community-based movement or bloc fragments and dissolves.  The enemies of progress prosper when change communities fall apart.  Is it any wonder that a lot of queerfolk prefer to avoid such frivolous controversies, and to tend their own private gardens?

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By: Paul S. Marchand 
                      A prophet is not without honour, but in his own country, and among his own kin, and in his own house. Mark 6:4

                          No man is a hero to his mishpokhe.  -Yiddish proverb



Change communities (i.e. groups or coalitions of like-minded individuals seeking to alter established dispensations) often sabotage themselves by falling out over trifles, descending into purposeless backbiting and infighting. Like-minded people flee from consensus and seek discord.  Where no discord exists, it will be fabricated.

In almost any Usenet discussion thread, including threads on Facebook, the progress by which consensus breaks down can be easily detected just by reading the posts in the discussion thread.  Commentor A will post or comment.  Commentor B will take exception to the tone or content of A’s comment and the flame war will be well and truly underway.  No matter how uncontroversial or anodyne A’s comment may have been, ineluctably there will be someone to take offense, and sadly, it is the hypersensitive umbrage-takers or fight-pickers who often wind up hijacking comment or Usenet discussion threads, indeed, entire movements.
Such tendencies particularly show up when there may be matters of public or political interest under discussion.  The briefest visit to the discussion threads of the Los Angeles Times or the Desert Sun will disclose the inevitable tendency of comment threads to veer toward angry denunciations of the President, or toward off-topic personal attacks on other commentors on the thread.  Moreover, the degree of emotional capital certain commentors will invest in their posts is often in inverse proportion to the relevancy or importance of the original news item.  When, to cite a recent example, a comment thread on the use of Wikipedia in schools degenerated into exchanges of threats of violence, it was not difficult to conclude that way too much emotional capital was in play.

Yet, my disappointment is not with the inevitable inability of participants in a Usenet discussion thread to stay focused on the original matter under discussion, any more than it is a function of my deep suspicion of any invocation of Godwin’s law, which postulates that as the length of any Usenet discussion group increases, the probability of comparisons involving Hitler or Nazis approaches one.

Rather, my disappointment is more in the way like-minded people flee from consensus and eagerly set up barriers to joint action by engaging in self-sabotaging infighting that inevitably breaks the consensus, undermines collegiality, and destroys friendships.  Moreover, many participants in any kind of consensus or movement group find the courage of conviction somewhat difficult to muster, and their want of such courage often manifests itself in the form of prim little attacks upon the tone and manner in which others express their views.

Indeed, “I agree with you, but I don’t like your tone,” has become the bane of just about any effort to organize joint action.  No sooner will a more zealous and intrepid soul venture an opinion than do more timid souls emerge to find fault, and to attempt to police others’ tone.  In fine, it is hard to muster any kind of commitment or conviction when fellow members of the change community are busily taking one to task over “tone.”

A sentiment often attributed to Edmund Burke holds that all that is necessary for evil to triumph is for good persons to do nothing.  (Originally, Burke is said to have used the word “men” in its all-inclusive and traditional signification.  I changed it to “persons” precisely because I know that if I were to use the word “men” someone, somewhere would take umbrage and spin out of my word choice of whole lengthy attack on my sexist male chauvinist, piggery, flaming me in the process to a well done crisp, and utterly losing sight of the issue under discussion.)  The corollary here is that evil triumphs when good people fight among one another over tone, word choice, or irrelevant, overwhelm-the-main-event sideshows.
So, if I sound a little despairing, it is because I am.  Former Dean Alan Jones of San Francisco’s Grace Cathedral once observed that we live in an age in which everything is permitted, but nothing is forgiven.  We certainly live in an age in which paragons of dust jacket erudition or would-be punctuation police either react viscerally to summaries and blurbs or flyspeck written material looking for words or phrases to which they can then take histrionic exception, flaming the author to a well done crisp.

Yet what comes of unproductive flame wars and testy exchanges?  In many communities, civic minded citizens attempt to coalesce, as Gandhi once counseled, to be the change they seek.  Yet, such efforts often fail because group cohesion often takes second place to gratifying the felt need of specific individuals to be seen to be right (which is apparently more important to them than doing right), score points, and police the tone or thinking of other participants in the effort.  When, to cite a recent example, a commentor spins an entire rant out of the use of the phrase “make an honest man out of him” in remarks about marriage, where it is often said that to marry someone is “to make an honest man [or woman] of him [or her],” you can tell that the commentor has either missed the author’s point, or that the commentor is deliberately spoiling for a fight.  Given the prevalence of hypersensitive, hyperventilating commentary on the Internet, it’s hard to give such commentors the benefit of even the slightest doubt.  Does such a commentor have a legitimate point, or is the commentor merely trying to hijack the discussion, creating a sideshow the commentor apparently hopes will overwhelm the main event?

Too often, change communities founder on the rock of their unwillingness to muster the will to cohesion upon which success and positive change depend.  Call it the Austria-Hungary effect, thanks to which the Danubian Habsburg monarchy was able to hold itself together into the closing days of the Great War because the minority nationalities of the Monarchy hated each other more than they hated the Habsburgs.

Scripture tells us in Mark’s Gospel that “a prophet is not without honor, but in his own country.”  Jesus having been Jewish, he might with a wry smile have agreed with the later Yiddish proverb “no man is a hero to his Mishpokhe (family).”  Any movement, even if ultimately successful, ultimately falls prey to its own internal contradictions.  When the internal contradictions arise before a change community can reach a critical mass of self-sustaining, long-term cohesiveness, the change community dissolves.

In the marriage-equality community, our movement --at least our movement in part of the Coachella Valley -- seems to have Balkanized end fragmented.  An earlier post on this blog called forth just the sort of tone-based, often primitively personal, criticism that tends to reinforce the negative reputation which some parts of the queer community have for backbiting and recrimination.  As Bernard Shaw once said of the Irish, put one queer on a spit and you can always find another queer to turn him.

If we are to ensure meaningful, positive change in our community, we will need to coalesce into a broad-based community movement whose members understand the importance of vigorous, zealous advocacy, organization, and action.  Unfortunately, the recent flurry of flame wars and testy exchanges among those who should be at the forefront of being the change we seek engenders skepticism about the ability of the queer nation to stay focused on our long-term goal of full first-class citizenship.  Is it any wonder that so many queerfolk prefer to tend their own private gardens rather than be caught up in the recrimination and backbiting that seems to emerge when we try to coalesce for change?



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Paul S. Marchand is an attorney who lives and practices in Cathedral City.  He does not live in Palm Springs.  The views herein are his own and not anybody else’s, and he expects to be roundly attacked by hypersensitive umbrage-takers.  Given what has happened of late, Mr. Marchand finds himself increasingly emotionally constipated, and has difficulty giving a shit.  This post is an adaptation of an earlier post originally published under the headline “Austria-hungary All over Again: Why Cathedral City Endures Bad Government.”  The views herein are his own, and not necessarily those of anybody else, particularly not angry flame-warriors in Palm Springs.  They are not intended as legal advice.

WAITING FOR THE OTHER SHOE TO DROP

 Will Marriage Equality turn Queer Boys into Victorians?


Summary: If the Supreme Court finds that queerfolk have the right to marry, it will fundamentally alter the dynamic of America’s queer nation.  Will sex continue to be a way gay dudes can share pleasant recreation together without necessarily entering into an institutionalized, legally-significant, relationship, or will two gay men sacking out together necessarily become a precursor to marriage?  Will I have to make an honest man of the dude I may have had sex with last night?  If the court rules in favor of marriage, we will find ourselves entering a curious and uncharted country composed in equal measure of anticipation and apprehension, an unexplored country in which we have no precedent to guide us, where we must make up new rules as we go along.  It will be an uncertain and delicate time for the happy-go-lucky, the sexually adventurous, or the commitment-phobic.
By: Paul S. Marchand


“Be careful what you ask for, you just might get it.”
    -Variously attributed so-called conventional wisdom

“After a time, you may find that having is not so pleasing a thing, after all, as wanting. It is not logical, but it is often true.”
    -Star Trek: The Original Series, “Amok Time.”  Teleplay by  Theodore Sturgeon 

"a beginning is a delicate time." 
        -Frank Herbert,  Dune.
 
As the queer nation counts down toward the so-called Day of Decision when the Supreme Court announces its rulings in Hollingsworth v. Perry and U.S. v. Windsor, the two marriage cases, we find ourselves in a curious and uncharted country composed in equal measure of anticipation and apprehension, an unexplored country with neither precedent nor rules to guide us.

An old and dear friend --- a straight ally from the time many of us were more afraid of dying than were contemplating the possibility of marriage --- recently asked me a question I almost wish he had not asked.  After having fought for so long for marriage, what will we do if the Court decides in our favor?  Is it possible that the worst outcome might be “yes?”
Perhaps we should be careful what we ask for.  If the Court finds that queerfolk have as much right to marry as do our straight neighbors, it is not unreasonable to foresee that we may find ourselves facing societal encouragement or even pressure to marry.  If I take an appealing dude to bed, do I then have to make an honest man out of him?  Or do he and I get a certain number of mulligans, a sort of free zone in which my dude and I may explore our personal and sexual compatibility without having to contemplate making honest men of one another?

The coming of marital liberty to the queer nation may well radically alter how gay men interact intimately with one another.  While asking the fraught question of whether sex must necessarily open up a conversation about marriage may seem a bit much, a favorable decision in Hollingsworth nonetheless puts the issue front and center.

Now we should acknowledge that among our straight neighbors, there is a great deal of shared intimacy outside or even in spite of the existence of pretty much unrestricted access to marriage.  Yet, for us, the sheer novelty of marital liberty may have the effect of raising a whole new set of potentially perverse and Victorian expectations with respect to congruency between sexual intimacy and marriage.  Will we be able to continue to speak a language of sexual intimacy unconstrained by the need to institutionalize it?  Will sex continue to be, as it has been for many of us, a pleasant form of recreation to be shared with a partner with whom we may not have a desire to form an institutionalized, legally significant, relationship, or will man-to-man intimacy necessarily become a precursor to marriage?

Not having the faculty of marriage has, to some extent, had a remarkably liberating effect upon our discourse.  Queer pundit Andrew Sullivan has suggested -- and perhaps with some justice -- that one of the most distinctive marks of differencing between the gay community (and I address specifically that part of the LGBTQ community consisting of gay men) and our straight neighbors is our substantially greater degree of candor concerning things sexual.  Because heretofore the faculty of marriage has been denied us, we have not felt ourselves constrained from discussing sex and sexuality more openly than do our married, straight neighbors.  Will we find that saying “I do” in a marriage ceremony leads to saying “I mustn’t” when it comes to talking about sexual intimacy in a gay context?

I cannot know what awaits us if the Supreme Court decides that Ruth and Naomi or Jonathan and David are constitutionally entitled to the same liberty of marital contract enjoyed by their straight neighbors.  But I do know that if the Day of Decision has the effect of lifting the ban, whether here in California or throughout the nation, our queer lives will never be the same.

It may not work to be commitment-phobic in whatever brave new world awaits us; confirmed bachelors take note.   We may find ourselves living in a beginning, and as Frank Herbert observed in Dune, "a beginning is a delicate time."

After a time, we may find that having is not so pleasing a thing, after all, as wanting. It is not logical, but it is often true.

-XXX-

Paul S. Marchand is an attorney who lives in practices in Cathedral City, California.  He served two terms on the city Council there, and was one of the first attorneys in California to litigate a marriage case, back two decades ago when he was slimmer and better looking than he is now.  The matters discussed herein represent his own views, and are not intended as legal advice.

BENDING OUR AMERICAN ARC TOWARD JUSTICE

 A Meditation for Memorial Day

SUMMARY: Memorial Day began after the Civil War as a commemoration of those who had fallen in America’s greatest struggle for social justice.  Though we have engrafted additional layers of meaning onto Memorial Day, that original subtext is still very much at the heart of our commemoration of those who have died in this country’s service.  If we are to do right by those who have laid the costliest of sacrifice on the altar of freedom, we must ensure that the arc of America’s moral universe continues to bend toward justice and toward a more perfect and inclusive Union, and those who have borne the burden of battle are not treated as a disposable commodity (and left to take their own lives at a frightening rate) by a society that has become as habituated to endless war as the residents of some of our inner cities have become habituated to gang violence.

By: Paul S. Marchand

Of all the various holidays that festoon our American calendar, two specifically force us to confront the reality of war and sacrifice.  Veterans Day (or Armistice Day as it is still called in some quarters) should rightly turn our minds toward those who have fought in our wars, facing foreign shot, foreign shell, and foreign steel on our behalf.  Veterans Day is a time to think about the moral and social debt we owe to those who have gone to war and returned.

By contrast, Memorial Day is a time to commemorate those who have fallen in this country’s service.  It is time to give thanks for their service, but also a time to think carefully and critically about larger questions of war, peace, and the limbo in which societies often find themselves between the two, as we have found ourselves since the end of World War II.

On Memorial Day, I find myself ineluctably drawn back to words spoken more than half a century ago at West Point by Douglas MacArthur as he accepted the Sylvanus Thayer award.  Addressing the Corps of Cadets, MacArthur spoke of hearing in his dreams “the crash of guns, the rattle of musketry, the strange, mournful mutter of the battlefield.”

For most of us now living, America has been at war or involved in military operations for more years than she has been at peace.  The soundtrack of the greater part of our lives has been “that strange, mournful mutter of the battlefield.”

Now Memorial Day began as Decoration Day, a commemoration of the Union’s Civil War dead.  Though the passage of nearly a century and a half has led to considerable accretions of symbolism and meaning onto Memorial Day, it began, and remains still, a commemoration of the greatest struggle for social justice in American history.

For if the Civil War began as merely a fight to preserve the Union, it ineluctably evolved into a far larger moral confrontation as Americans realized that the Union could not be saved except by overthrowing once and for all the Peculiar Institution of chattel slavery.  If the Union were to be saved, it could have no more truck with the proposition that it is ever permissible for one human being to own another.

Since then, the arc of our moral universe, however long, has bent, however slowly, toward justice.  Starting with the abolition of slavery itself, America has engaged, over and over again, in a series of often agonizing internal struggles over who and who is not a part of our American body politic. 

 It has taken more than a century to rid ourselves of the grosser inequities and iniquities of the Peculiar Institution.  Even now, with an African-American president in the White House, racial insecurities continue to bedevil our political discourse.

 It has taken more than a century to accept the basic proposition that women ought to be entitled to all of the badges and incidents of first-class citizenship.  Women’s suffrage means little if women can legitimately discriminated against in hiring and compensation or be denied access to basic reproductive autonomy or contraception.

We are still involved today in a great struggle over whether America’s queerfolk should even be allowed to exist, let alone enjoy first-class citizenship as out people in the Commonwealth.

Yet, the arc continues to bend toward justice; it continues to bend toward a more perfect Union and a more inclusive commonwealth, even if some in our society find themselves apoplectic at such a prospect.  But a society that cannot find room for people of color, for women, for the queer, and for all who are in some way Other, is a society that has yet to do right by those whose final resting places are to be found in our national cemeteries, who in this country’s service laid down what Abraham Lincoln so movingly called “so costly a sacrifice on the altar of freedom.”  We must make it right, especially for those whose sacrifice winds up being long deferred, whose fatal forfeit comes up for payment long after the battle is over.

Still, making it right has to involve more than trite, anodyne, talismanic invocations of “thank you for your service.”  Every time I hear such an expression, I think I want to scream.  “Thank you for your service” is emotional kitsch; it sounds like something we might say to a doorman or a skycap, while proffering some sort of miniscule gratuity.  “Thank you for your service” reflects a dangerous societal view of our service members as being in some way a disposable commodity.  Perhaps the sheer length of our military operations in Iraq and Afghanistan has deadened us to the reality of war.  We have forgotten General Sherman’s warning that “war is hell... its glory is all moonshine.”

Indeed, our tendency to treat those who have borne the battle as disposable commodities in a grimly reductionist economic analysis may be at least partly responsible for the epidemic of suicides among Iraq and Afghanistan veterans.  A 2010 study by the Department of Veterans Affairs, released earlier this year, indicated that veterans were taking their own lives at the staggering rate of 22 a day.  Such a number ought to shock us.  For these are the casualties of the invisible wounds of war, the emotional wounds that kill slowly.  If we were to consider death by suicide as combat related, the number of Iraq and Afghanistan war dead would easily double.  Yet what can we say to the returning veteran who comes home feeling an anguish so deep no tears will come, a pain so overwhelming that there are no words to describe it?

Doing right by those who have borne the battle must involve more than trite forms of words.  If Dostoyevsky was right to observe that we can judge a society by entering its prisons, we may equally judge a society by the extent of its compassion toward those who fight its wars.  By that measure, we are still falling short.  We have become inured to the idea of a constant state of military hostilities, and we have built around our civilian souls a Chinese wall by which we may hope to insulate ourselves from those equally ongoing realities of war, injury, and death.

Yet the more strongly we build that Chinese wall, the more we harden ourselves and wall ourselves off from the capacity for compassion and empathy.  Sadly, many of us appear to have become as hardened and indifferent to the sufferings of our servicemembers as residents of high crime inner-city neighborhoods become habituated to gang violence.  Our wars are bereaving us of some important part of our humanity, if only we knew exactly of what we were being bereft.

On this Memorial Day, as we recall the sacrifice of those who fell for us, we should remember two things.  First, let us remember that America is always at her greatest when she seeks purposely after justice.  Second, let us remember that from the earliest days of our history, those who have died for America have been of every sort and condition of human being.
 
Male and female they died for us. 
Old and young they died for us.
Straight and queer they died for us.
From every creed and confession they died for us.
From every tongue and nation they died for us.
From every race and region they died for us.
And in the equality of their resting place, we have only one word for them: American.

Requiescant omnes in pace, et lux aeternam luceat super omnes.  Amen.

-xxx-

PAUL S. MARCHAND is an attorney who lives and works in Cathedral City, California, where he served for two terms as a member of the city council.  The views contained herein are his own, and not necessarily those of any entity or organization with which he is associated.  They are not intended to constitute, and should not be construed as, legal advice, though effective Monday, white shoes may be worn without risk of committing a fashion felony.  This post is an adapted republication of one published at Memorial Day, 2012.

A VACATION FROM FACEBOOK:

  SOME SPIRITUAL PROPHYLAXIS

 Summary: “While Eeyore frets ...
... and Piglet hesitates
... and Rabbit calculates
... and Owl pontificates
...Pooh just is.”
-- Benjamin Hoff, the Tao of Pooh
Undertaking the spiritual prophylaxis of temporarily deactivating a Facebook account represents an effort to try to reconnect with the Divine Tao of a universe that has a kind of order to it which passeth all understanding.  Retreating from the digital noise of Facebook offers a kind of Benedictine/Cistercian vehicle for reconnecting, for getting away from so much of the sadness I detect in Facebook, the sadness so deep that no tears will come.  Among the fretting, the hesitating, the calculating, and the pontificating, perhaps this is an opportunity just to be.

By: Paul S. Marchand

I deactivated my Facebook account today, hopefully as a spiritual prophylaxis.  I have not decided when to reactivate it, if ever.  Sometimes, the temptation to engage in sterile, often testy exchanges on Facebook becomes a positive danger as we find ourselves drawn into what Buddhist thought sometimes calls the Vortex of Becoming, a place where sometimes the sadness is so deep that no tears will come.

Sadly, Facebook tends to facilitate a conversational culture in which thought takes a backseat to visceral reaction, and in which fact gives way to unconsidered opinion.  Of course, Facebook does have its upsides; I find it possible to be in touch with old friends with whom I had fallen out of touch, or to make rich and fruitful new friendships with people I have never actually met.

Nonetheless, there are times when the back-and-forth on Facebook reminds me how useful it is sometimes just to be.  My mind goes back to a marvelous quotation from Benjamin Hoff’s the Tao of Pooh: ““While Eeyore frets ... and Piglet hesitates ... and Rabbit calculates ... and Owl pontificates ...Pooh just is.”  Sometimes it is important that we just are.  At the risk of seeming to traffic in heresy, it seems to me that the universe has a Tao, a way of being, in balance with God’s divine economy, a kind of order to it which passeth all understanding.

Yet, watching --- and sometimes being drawn deeply myself --- into the squabbling of my Facebook friends, gleefully shredding the Tao of the universe, I can’t help but feel a certain sense of appeal in the Benedictine and Cistercian ideal of the spiritual retreat.  In the face of Facebook noise, I find myself hauntingly attracted to the more ancient Christian ideal of holy silence.

It may very well be a good thing in this season of Pentecost to attend silently upon what the Holy Spirit may be trying to impart to us, to make a more meaningful effort to be in better harmony with the Divine Tao.  So, I’ve turned off Facebook for a while.  At some point I will no doubt return, but when I do, hopefully I will be in a better position to confine the temptations of Facebook in carefully locked little box, to be opened only with care and under very careful conditions.

 "Acquire a peaceful spirit, and around you thousands will be saved." -St. Seraphim Sarovskiy

Ideally, as some fret and others hesitate and others calculate and others pontificate, I can just be.  Lord, in your mercy, hear my prayer.

-xxx-

Paul S. Marchand is an attorney who lives and practices in Cathedral City, California.  The views contained herein are his own, and are not intended as, and should not be construed as, legal advice.