Brent Nyitray
Fairlington Blade
Let the mutherfuker burn!
jnc4p
Kevin S. Willis
Michigoose
lmsinca
markinaustin
Arcanaut
novahockey
quarterback
ScottC
yellojktRuth Marcus tells us that gay marriage is good politics. William Baude, in his maiden voyage at Volokh, gives us some insight into the complexity of purely legal issues regarding marriage, gay marriage, and DOMA. Baude continues tomorrow for those inclined to follow legal arguments, as I am.
Were I a state legislator, I would vote to legalize gay marriage in my state. As a federal constitutional issue, despite my idea of what good politics is, I would be very hesitant to impose an “equal rights” argument. Not because that argument has no appeal for me, but because marriage itself is not a constitutional issue. I full well know that Loving made it one in the case of race, and I think that was justified on 14th A grounds, from the historical perspective. But that does not necessarily apply to all other conditions of distinction.
So now I will tell a funny story about an old war I lost in Austin.
In the late 70s and early 80s I represented Braniff’s then wholly owned Driskill Hotel. Did their employment stuff, mainly. Well, gay activists began dancing mano a mano and femme a femme in the 1886 Club, and Braniff wanted it stopped, because it pissed off the pilots who always frequented the club.
The hotel’s manager, to whom I directly answered, was gay, and had not thought about it until the big cheeses in Dallas came down on him.
Austin had just passed its first anti-discrimination law based on sexual orientation or preference. I advised my client to quietly break up all same sex dancing couples and offer them a free drink or an escort out of the club, setting up the confrontation.
The City prosecuted. We went to trial before a jury of 6. The City was represented by its own attorneys and a volunteer from a SF, CA Gay Rights organization.
On cross examination, I elicited testimony from the dancing gays that each could have physically chosen to dance with someone of a different gender. Some had done so – mano a femme gay dancing. Thus I was able to obtain the admission that it was not their sexual orientation that kept them off the dance floor.
On my defensive case, I put on a gay dance instructor from Arthur Murray who explained that he was gay, but that he taught traditional dance, with steps, patterns, and a lead and follower role. He said that in traditional ballroom dancing, a male and a female were the dancers. I had set up the prosecution to ask more questions, and they did. They crossed my “expert” by asking him to admit he would prefer to dance with a man. He answered that he preferred sex with men, but formal ballroom dancing was not about sex, it had rules. He preferred to dance with women, otherwise it was not dancing. He persisted in saying that same sex dancing was not about dancing, but about sex. He allowed as how PDA is offensive. The more he spoke, the more the jury giggled. I thought that was a good sign – they obviously liked the guy. The prosecutors asked about Middle Eastern formal dancing, with men only. My expert brightened up and said if that was what 1886 Club had prohibited they would be wrong, because that was traditional dancing.
They had no experts on dance.
Lost 6-0. Liberal Austin jurors were not buying. Politically, same sex dancing had come to Austin. I thought I had made a record for appeal, however, and told the manager. He said he was happy to have put up a good fight but happy to have lost [not to tell that to Braniff, however]. And so it went.
Filed under: Uncategorized |
All Things in Moderation 
I have a hard time picturing the 1886 Club as a gay night spot but perhaps times were different. Was it where the 1886 Cafe and Bakery is now or was it back in the lounge area of the Driskill Grill?Also interesting is that it was pilots complaining but not flight attendants. If Braniff was putting up entire flight crews at the Driskill, same-sex dancing was to be expected.My dad was a TWA pilot for ten years and claims to have never met a straight male flight attendant. Contrariwise, most of the pilots were on at least their third wife including at least one female flight attendant in the mix.
LikeLike
"Not because that argument has no appeal for me, but because marriage itself is not a constitutional issue"I tend to be with NoVA here:The government should get out of the "marriage" recognition business entirely and just have civil unions for everyone.Legally a religious marriage should have no more standing than a bar mitzvah does in determining whether or not one is charged as an adult for a crime committed while under 18.That's an interesting story about the Driskill Hotel. Some friends and I went by the hotel while we were in Austin in September for the Austin City Limits music festival.
LikeLike
“Dancing: The vertical expression of a horizontal desire legalized by music.”-George Bernard Shaw
LikeLike
jnc:The government should get out of the "marriage" recognition business entirely and just have civil unions for everyone.Why even civil unions?
LikeLike
Why even civil unions?Parental rights.Avoiding probate.Medical permissions.Tax benefits (such as they are).All things that can be done with various legal documents and similar proxies but are much easier relying on the common law traditions of civil marriage.
LikeLike
jnc, as Baude points out a thousand different statutes rely on marital status. The complexity is in the legal end. Take SS survivor bennies, or VA survivor bennies – does state law definition control? A certificate from the Church of the Gay Blade? The definition of "common law" marriage in your state? Take the joint return, which equalizes treatment of common law states with those of civil law states – in other words, before we had joint returns, married Texans paid less in income tax than married Virginians. How we prove we are married is important to federal law.Theoretically, I am close to NoVAH, too. States should register domestic partnerships, if they register anything, and houses of worship should register marriages. However, that may just turn the problem for federal purposes into "who is a domestic partner"? Not having been in the Driskill in 20 years, I think the bakery is where the Club was. The lounge used to be in the big foyer.When Braniff went bankrupt I lost all client contact with the Driskill.
LikeLike
Tax benefits (such as they are).I presume that anyone who holds that the government ought not be in the marriage business probably also holds that it ought not be in the preferential-tax treatment business either.
LikeLike
YJ, I suppose the point is that it was not a gay club, and I do not think the activists were trying to make it one – they were making us test the new statute. A gay club would not have tested the statute, obviously.
LikeLike
government ought not be … in the preferential-tax treatment business either. Don't get me started on the Marriage Tax which is a classic case of unintended consequences. That one issue made me a supporter of Dan Quayle back in the day. Unfortunately the wrong moron won the nomination.Because my wife made the mistake of legally marrying me, we cannot deduct the interest on the student loans she took out to enter the highly lucrative public school teacher profession. Like I said, don't get me started…
LikeLike
I'm with jnc4p & Nova here.Tax policy is a separate discussion.
LikeLike
Tax policy is one of the issues. Without a legally valid marriage, you can't file a joint return. Either get rid of marriages or let anybody partner up for tax (and companionship) purposes.When DC allowed gay marriage, the Post had a very touching story of a gay couple where one had legally 'adopted' the other for legal reasons.
LikeLike
I check out for a couple of hours and return to "yeah, NoVA is right"delusions of grandeur.the other issue of is spousal privilege.
LikeLike
but you get around the other issues by not offering those other benefits. Q: is my gay spouse on my employer health plan?A: no, because we broke the bond between employment and health insurance. there no employer sponsored plan.
LikeLike
NoVA:How about A: That is entirely between you and your employer.
LikeLike
again with the crazy talk. but yes, that's also an option I suppose. (and sorry about the typos)
LikeLike
" because we broke the bond between employment and health insurance. there no employer sponsored plan."Now you're on a roll.
LikeLike
Q: is my gay spouse on my employer health plan?I didn't know you had a gay spouse.
LikeLike
"I presume that anyone who holds that the government ought not be in the marriage business probably also holds that it ought not be in the preferential-tax treatment business either. "You assume correctly in my case.
LikeLike
yellojkt: the student loans she took out to enter the highly lucrative public school teacher professionIf she ever ends up in administration, it's a worthwhile investment. I work in technology in a school system, and I'd be making significantly more if I were (a) a phD and (b) a credentialed teacher. Most systems are like that–it's a smart investment if she ever plans to to move into technology instruction or curriculum coordination or higher-up positions. In most systems, assistant principle or principal are high paying positions–and you can't get to them without being a credentialed teacher.
LikeLike
Which, BTW, doesn't justify preferential tax policy for people because they are married, or unmarried (or have a mortgage, if you ask me, but I take that deduction, you had better believe it).
LikeLike
I agree with kW @ 4:16, but am OK with preferential tax policy based on income.
LikeLike
Marcus is probably right on the political ramifications, and Romney just helped: http://www.google.com/hostednews/ap/article/ALeqM5hp5TkxIilNV6554L_YiE6RIbU97w?docId=e28e1fc200e2477bb8b3c6155fdcea1c
LikeLike
A: That is entirely between you and your employer.And if your employer is the federal government or the Department of Defense?
LikeLike
A2 – Then the answer is no.A mild open season comment. I was checking through my various options, today being the last day of open season. Turns out that I can't change my life insurance unless there's a change of status. I wanted to move from 2X income to 3X income. Guess I should have done that when my sons were born.Sigh…BB
LikeLike
"I didn't know you had a gay spouse"she's a very cheerful person.
LikeLike