William B. Rubinstein

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I’ve found a beautifully moving personal essay [PDF] by gay law professor William B. Rubenstein about his experience attending Harvard Law School and discovering himself as a gay man. (I didn’t realize he was so cute!) Rubenstein is the author of a major casebook on sexual orientation and the law, which is coming out in a new edition next year.

I chose Harvard so I could come out, or, more precisely, I chose Harvard because it was in Boston, a large anonymous city that enabled me to come out at my own pace. I looked forward to the education, but Harvard promised something Yale could not: not just law, but sex and reason, flesh and the word, beauty and truth.

Law School Shouldas

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Lately I’ve wished that I’d taken better advantage of being in law school when I was there. I floated through those three years like a ghost. I didn’t make any good friends among my classmates; I didn’t become close to any of my professors; I didn’t join any extracurricular groups, except for the lesbian and gay law student group during my final year, the only year of law school that I was out of the closet, and that group didn’t do much. I managed to graduate without leaving any impression on anyone. I didn’t do a judicial clerkship (although I did intern with a federal judge after my first year), and I didn’t work as a summer associate with a law firm. I had no idea why I was there.

I didn’t particularly like my first-semester classes, which were all mandatory: torts, contracts, civil procedure, criminal law, and legal writing. My torts professor was a joke; my contracts professor taught the concepts in the reverse order (we didn’t even learn the definition of a contract until the end of the semester); civ pro and criminal law were manageable, or at least they would have been without the monkeywrench thrown into the works: my legal writing class. On top of that, the law school was undergoing renovations during that first semester; there was lots of plywood. Every day I had lunch with a group of male classmates in my section, but I was the odd man out, because they insisted on talking about concepts from class, which I had no desire to discuss, or sports, in which I had zero interest. Plus, several of them were married and a few years older than me, while I was only 22 and a closeted homosexual with nobody to confide in.

I asked myself why I’d been foolish enough to go to law school. The reason I went was because I spent the year after college remaining at UVa, working for the university as a temp, with no idea what to do with my life. That Thanksgiving, I went home to visit my parents, and I saw their beautiful, stable house filled with beautiful, stable furniture and their beautiful, stable marriage, while my life felt totally slapdash and directionless. I needed direction. I’d taken the LSAT during my last year of college at the prodding of my parents and I’d done well, and my mom had continued to suggest law school even after I’d graduated college. It finally seemed like the answer, so when I got back to Virginia after Thanksgiving I applied to UVa Law and nowhere else. If I got in, great; if not, no big loss.

I got in, and from the first day it seemed like a mistake.

In November, people started outlining their notes for December’s final exams. Outlining? I had no idea what that was – it seemed like everyone knew so much about law school before they’d even started, except for me. I balked at outlining my course notes; I wasn’t about to do something I’d never heard of just because everyone else was doing it. Instead I studied in my own traditional way. I wound up getting the mean grade in two classes and below the mean in two others. (Legal writing was pass/fail; fortunately I passed.)

It wasn’t until my second semester that I truly enjoyed a couple of classes: constitutional law and a course that profiled particular Supreme Court justices over the course of American history. I got an above-average grade in the latter.

I tried out for the Law Review and one other law journal that spring. I didn’t really want to, but all the other first years were doing it, and I figured that I should probably do it too. The tryout consisted of a writing assignment that was handed out on a Friday and due the following Monday. We received a packet of materials – cases, commentaries, et cetera – involving the existence or lack thereof of a constitutional right to die, and we had to turn in a sample judicial opinion resolving a made-up set of facts. Apparently I didn’t do so well, because I didn’t make it onto the law review or the other journal, even though it seemed like lots of people made it onto a journal.

It wasn’t until my final year of law school, year number three, that I enjoyed a majority of my classes: U.S. constitutional history, voting rights, federal courts, family law (mostly), and “Schools, Race and Money,” about school desegregation and school financing. I received my one law school “A” in U.S. Constitutional History to the Civil War.

(When I got that grade I was thrilled and stunned. I wanted to talk to my professor to find out what I’d done right – and also to get some praise, perhaps, which I’d ached to get from anyone for more than two years. I passed him in the hallway one afternoon and asked, “Professor H—-, are you on your way to your office?” He responded, very coldly, “No, I’m on my way to class.” I was so intimidated that I never followed up with him. He had no idea who I was; I’d never spoken to him before, and that was my one and only conversation with the professor who gave me an A.)

There are some things I truly enjoy about the law. I love constitutional law and constitutional history. I like scholarship. I like reading law review articles about it; I have a few downloaded on my computer that I want to read. I wish I could write one, even though I’m not a professor. I wish I’d had this book in law school.

Sometimes lately I think it would be fun to be a law professor, even if I’d like the research and writing aspects more than the actual teaching aspects. I don’t know if I’m a quick enough thinker to teach law, although it’s always possible that I am and I just don’t know it. And becoming a law professor is hard, I think, although I haven’t fully researched it. I didn’t have a good judicial clerkship or get great grades or anything like that.

I don’t necessarily think law school was a mistake for me, like I used to think. It’s just that I should have waited longer before going; I should have waited until I was out of the closet, and had a better idea of my interests and focus; and I should have applied to schools that might have been better suited to me socially.

Ah, well.

Lithwick on Andersen

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One more reason I love Dahlia Lithwick:

Even the most deferential review should grapple with whether banning gay marriage really encourages straight marriage; whether there is something about marriage that magically lures heterosexual parents into its grasp—something that would evaporate if it were also extended to gay parents. Even deferential review that was also deaf, dumb, and blind would do more than just assert that gay marriage is illegal because kids “thrive” in straight homes. That claim is not just slightly over- or underinclusive, as the majority would have it. It’s nonresponsive.

Life on Mars

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If you like sci-fi TV shows, I have a recommendation: Life on Mars, a British show that debuted in the U.S. this week on BBC America. The premiere repeats this Sunday night at 9:00 p.m. and again at midnight. It’s about a Manchester detective in 2006 who’s in the middle of trying to solve a crime when he gets hit by a car and is suddenly transported back to 1973. He has no idea how he got there or why; even weirder, he can’t tell whether everything around him is real or whether he’s just in a coma and imagining everything. It’s really eerie and unusually emotionally resonant. I watched the first episode the other day and I highly recommend it.

Andersen v. King County

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Well, I’ve read the main opinion by the Washington Supreme Court stating that the legislature is empowered to limit marriage to opposite-sex couples. I have to say – although I disagree with the ruling (primarily on the issue of fundamental rights), the three justices who signed onto the main opinion go out of their way to be respectful of gay relationships. (Except for granting them any rights, of course.) This decision is much better written than the recent New York decision, which came out a mere month after oral arguments and appeared to have been a rush job. This decision took 17 months.

Basically, the decision says, “Gay marriage would probably be a good thing, but as judges our hands our tied.” For instance, the court acknowledges that the lack of the marriage option for gay couples can be harmful to them:

We do not dispute that same-sex couples raise children or that the demographics of “family” have changed significantly over the past decades. We recognize that same-sex couples enter significant, committed relationships that include children, whether adopted, conceived through assisted reproduction, or brought within the family of the same-sex couple after the end of a heterosexual relationship. We do not doubt that times have changed and are changing, and that courts and legislatures are increasingly faced with the need to answer significant legal questions regarding the families and property of same-sex couples. …

We are also acutely aware, from the records in these cases and the briefing by the plaintiffs and the amici supporting them, that many day-to-day decisions that are routine for married couples are more complex, more agonizing, and more costly for same-sex couples. A married person may be entitled to health care and other benefits through a spouse. A married person’s property may pass to the other upon death through intestacy laws or under community property laws or agreements. Married couples may execute community property agreements and durable powers of attorney for medical emergencies without fear they will not be honored on the basis the couple is of the same sex and unmarried. Unlike heterosexual couples who automatically have the advantages of such laws upon marriage, whether they have children or not, same-sex couples do not have the same rights with regard to their life partners that facilitate practical day-to-day living, involving such things as medical conditions and emergencies (which may become of more concern with aging), basic property transactions, and devolution of property upon death.

In its conclusion, the court states that “given the clear hardship faced by same sex couples evidenced in this lawsuit, the legislature may want to reexamine the impact of the marriage laws on all citizens of this state.”

Some other points:

Washington Supreme Court justices are elected, not appointed. That might have had a bearing on the outcome.

Interestingly, the court states that the plaintiffs didn’t ask the court to consider civil unions or the rights inherent in marriage, but merely to consider marriage or nothing. If that’s true, one can ask whether that strategy was a good one. Still, I’m pretty sure that courts aren’t limited to considering the narrow issue before them, and this court could have ruled for civil unions if it was so inclined. Instead, it appears to have been very cautious.

The opinion singles out the author of the concurrence, Judge James Johnson, four times for criticism. The concurrence is somewhat more hostile in style, and the concurring judge refers to one of the dissenters as “paranoid.” (Judge Johnson also cited a discredited study finding that same-sex relationships don’t last as long as heterosexual relationships; it’s been pointed out that such studies don’t take into account the fact that marriage is not available to same-sex couples.)

In sum: while I’m not happy with the main opinion, at least it’s not mean.

What’s next? The forthcoming New Jersey opinion. Things are not looking good this summer for court-granted gay marriage. Legal strategies are bound to change and focus more on state legislatures, which haven’t been accepting of gay marriage.

At least the decisions of the Washington and New York courts show strongly why a Federal Marriage Amendment is unnecessary.

Gerstmann Book

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I just finished a terrific book: Same-Sex Marriage and the Constitution, by Evan Gerstmann. It’s oriented toward legal scholars, but it’s only a bit over 200 pages and intelligent people should be able to understand it. Gerstmann’s position is that courts should find same-sex marriage constitutional because there is a fundamental right to marry. He opposes characterizing the issue as one of “gay rights,” because (1) that terminology tends to place gays in the role of victims, (2) it allows opponents to claim that gay people are seeking “special rights,” and (3) it divides instead of unifying. He prefers to see the issue as one of equality for all. Ultimately, rather than go via the route of equal protection or of fundamental rights, Gerstmann propose a hybrid theory: that certain rights are so fundamental that they should be granted equally. He says that government can grant equal marriage rights without making a moral pronouncement on the rightness or wrongness of homosexuality; after all, he states, courts grant gays the same free speech rights as anyone else, but it does so without making a moral judgment one way or another. The same is true of marriage.

It’s a slim book, but he covers lots of ground: whether courts should rule on the basis of unenumerated rights, how to decide what these are and aren’t, and whether it is pragmatic for courts to do so when there is great public opposition. He discusses the fundamental right to marry as it relates to polygamy and incest and makes some very interesting points; he states that we should not outlaw practices just because they seem disturbing to us, but rather that we should decide what our policy goals are and then make laws that further those goals.

I’m not really doing the book justice. It’s very clearly thought out. A good read.

Me Get Angry

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Whenever I finish my weight routine at the gym lately, I have this urge to punch something. I don’t know whether it’s the endorphins or my frustration at rarely being able to make progress over my previous session. Seriously, I keep written records of every set of weights I lift, and sometimes I even see regression in my ability. I give myself a few days between each session and I drink lots of protein powder and eat lots of chicken and other protein-laden meats. And yet little progress. I feel like I plateaued in March after two months of weights and have made very little headway since.

Oh, the other annoyance: people who set up weights on two different machines at once, when I want to use one of them. And these people are often staff members.

Grrrr. Angry.

New Pynchon

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There’s a new Thomas Pynchon novel coming out in December! His first in almost 10 years. I can’t wait. No announced title yet. The news has apparently been floating around since last month, but Amazon posted the above listing for it a few days ago, along with a news release. There’s a book description that may or may not be true; it was posted on the book’s Amazon page but now it’s gone.

I’m not sure how I feel about Pynchon. I don’t get into the childish bathroom humor or the pointless songs, but his plots are wild, even though half the time you have no idea what’s going on. I’ve read Mason & Dixon and Gravity’s Rainbow. I liked M&D better. I’ll definitely have to read the new one, just because.

(Also found: Pynchonoid, a blog about Pynchon.)

Optimism on NJ Gay Marriages

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From Gay City News: Optimism as Jersey Awaits Marriage Ruling. The ruling will likely come by mid-October, when the current chief justice reaches the mandatory retirement age. In support of a prediction of a favorable marriage ruling, the head of Garden State Equality cites the leanings of its Supreme Court (which issued a pro-gay ruling in Boy Scouts of America v. Dale before it was overturned by the U.S. Supreme Court), prior case law (a New Jersey court was the first in the U.S. to find a right to joint adoption by same-sex couples), and the strength of the state constitution’s equal protection clause. It’s a really interesting article that gives one (cautious) hope.

Marriage v. Civil Unions in CT

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On Wednesday, a Connecticut judge ruled that the state’s denial of marriage rights to same-sex couples does not violate the state constitution, because Connecticut’s civil unions law already provides all the rights and protections of marriage. The decision is here (it’s a PDF of a fax, but it’s the only copy I could find).

The plaintiffs made five arguments why civil unions are not good enough under the state constitution:

(1) marriage is a fundamental right,
(2) civil unions are a lesser status than marriage,
(3) civil unions are a form of “separate-but-equal” segregation,
(4) the term “civil union” lacks recognition and acceptance in common parlance, and
(5) civil unions are not recognized by other states.

Regarding these arguments, the judge found that

(1) it is the set of legal rights, not the traditional title of “marriage,” that is important, and “[n]ostalgia for past traditions ought not be an impediment to the current acknowledgment of basic civil rights”;

(2) there is nothing inherently insulting about the term “civil unions,” the term is “properly descriptive of the type of legal institution to which it applies,” and “offensiveness is largely in the eye of the beholder”;

(3) the “separate-but-equal” cases do not apply, because, unlike here, the separation in those cases was tangible and observable, and the “rhetorical separation of marriage vs. civil union” is not enough to invoke an equal protection or due process analysis;

(4) the fact that people may be ignorant of the civil-union law does not amount to a constitutional harm, and the plaintiffs would have to explain their status to people whether they were in a same-sex civil union or a same-sex marriage;

(5) while it’s true that other states don’t recognize civil unions, they don’t recognize same-sex marriage, either, and anyway, that’s the fault of those states, not the fault of Connecticut.

The parties are going to appeal.

Jack Larson

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Jimmy Olsen’s gay. No, not the one from the movie, but Jack Larson, the actor who played him in the original Superman TV series starring George Reeves.

After a particularly humiliating encounter with the producer Mervyn LeRoy in 1961 — “He started castigating the casting director right in front of me, saying, ‘I can’t have him in my film! He’s Jimmy Olsen!’ ” — Mr. Larson sought advice from his onetime lover, the actor Montgomery Clift. He remembers the meeting at the Bel Air Hotel.

“Monty said, ‘This is going to continue,’ ” Mr. Larson recalled. “ ‘Don’t put yourself in these situations anymore. You need to leave this behind.’ And that’s when I decided to quit acting.”

He focused instead on his writing, becoming an award-winning playwright and librettist, receiving the first Rockefeller Foundation grant ever awarded to a playwright. He collaborated with composers including Virgil Thomson, Irving Fine and Ned Rorem, and his rhymed verse plays were performed all over the world. He was also a producer on films like “The Paper Chase,” “Urban Cowboy” and “Bright Lights, Big City,” often working with his domestic partner, the director James Bridges, with whom he lived for 35 years before Mr. Bridges’s death in 1993.