Get Used to It: Ep. 33, "Current Legal Challenges"

this is [Applause] [Music] hi welcome to get used to it i'm your host sheila james kewell and today we have a wonderful panel to discuss issues that i think people are talking about all over the country and that is the panoply of legal issues that are facing our community for better or for worse and you'll see why for better or for worse is actually one of the legal issues that's facing our community we're talking about marriage we're talking about discrimination we're talking about employment and just a number of harassment issues current issues for our community i have a wonderful panel as i said i'd like you to meet them first taylor flynn who is the attorney at the southern california aclu who works on our lesbian and gay issues welcome taylor thanks the mayor of west hollywood john heilman who is also a law professor at the whittier law school here in los angeles welcome john and carmel sella who is the new co-president of lawyers for human rights the gay and lesbian bar association of los angeles the bar association with the longest name of any of our bar associations and uh carmel is also the legislative deputy for los angeles city council member mike fuhrer welcome carlos i'm john i want to talk to you first there have been fora all over the country about the issue of gay marriage and the reason i think this is happening is because as we've all heard something is happening in hawaii about this could you tell us kind of what what's going on well in a case in hawaii the hawaii supreme court decided that not allowing gays and lesbians to marry constituted sex discrimination under the state constitution and they said that the state had to show a compelling state interest in order to justify this kind of discrimination now that's really different in a way because i'm sure that most people think if they don't allow us to marry it's discrimination based on sexual orientation how did they come to the conclusion that it was sex discrimination which is already unconstitutional in every state well the reasoning of the court was that if a woman can marry a man why can't a man marry a man and by differentiating in that way you're discriminating based on the sex of the person who wants to marry and that is the reasoning that the court has agreed with and it now has gone back to the trial court level for the state to try to develop some kind of compelling state interest which most observers are saying the state's not going to be able to do now the legislature tried to pass something in the interim once the supreme court said you know we think this via we declare that this uh not giving marriage licenses to same-sex couples violates gender discrimination now you have to find a compelling reason for the state with the very highest level so the legislature got quite panicked in hawaii didn't they and and tried to do something yeah but this is a constitutional issue if the legislature would not be able to just pass a bill they would have to do something that would amend the constitution of the state of california of hawaii i'm sorry we'll get to california hawaii i'm thinking about what the legislature is trying to do here in california and i don't think there's support for that in fact the governor just appointed a commission in hawaii to study this issue the commission came back with a report that said the best thing to do here is to recognize that gays and lesbians have the right to marry as well and that commission report is going to be very powerful evidence when this does go back to trial that there is no compelling state interest involved in discriminating against our community but there's such moral certainty in the in the voices of people saying that this is you know such an abomination and such an a historical and amoral thing but it to me it sounded very familiar um not that i was alive around the time of the civil war but it seems as though in every generation there has been some disfavored class that has been not allowed to marry why is this such a powerful tool and that's that's being used well i think it has to do with us as human beings if you can prohibit us from marrying and having loving relationships if you can trivialize the relationships we have and not give them legal sanction then you're you're saying that we're somehow less than everyone else and i think that's why this is very important issue for many people in the community who don't themselves want to get married but they feel that there is a some kind of discrimination that really diminishes us as human beings by saying that our relationships don't count and you're right it you don't even have to go back to the civil war you can see during this century restrictions on immigrants being allowed to marry restrictions on african-americans being allowed to marry whites i mean that we now look back at that and think that's so silly how could we have ever have thought that but in fact that was the the argument that was made that somehow this was going to taint the the blood supply and what about the children and all those arguments that were made back then uh now seems so so foolish i think the arguments being made against us are going to seem pretty foolish in about 20 or 30 years as well well i think that's it's optimistic but i i believe the same because slaves weren't allowed to marry and then as you said all the way up into the 1960s in some states african-americans weren't allowed to marry whites and the the ringing declarations about how this would just bring civilization down around our ears i mean the word ridiculous or silly it's true but the power of it and the destructive nature of it and the the attempt to render our our own relationships invisible because it's so circular you can't get married therefore you are unstable in your relationships because you can't get married i mean it's the imposition of it it seems to me is very powerful well it does destabilize the relationships that people have in the community it um there are a lot of uh pressures that are brought to bear on heterosexual couples who are married you know you hear the arguments they should stay together for the children and there's a lot of family pressure both families sort of come together to to sort of encourage the marital relationship our relationships don't have that kind of encouragement a lot of time and they certainly don't have the legal sanction so it's much easier for people to break up in our community and i don't think that's necessarily a good thing i think that relationships are good i think that's why so many people in our community want to get involved and get married they want to have that that permanence and that sense of really belonging to one another for life and we do it against all the odds too i mean against more odds because our relationships are not encouraged and as a matter of fact many of our families just totally freak out we're we're asked to hide them we can't have the picture on the desk we can't bring them home for thanksgiving a lot of pressure on us not to be in those relationships and it seems to me that this lack of the ability to marry is yet another way to say you must not be in those relationships you will never be happy which is what a lot of parents say and the use of the law in other states like now california where an attempt is being made to declare that if and when marriage between same-sex couples may be legal in hawaii one of my colleagues across the aisle pete knight has a bill that would declare for california that those marriages would not be valid in california can they do that yeah i mean there's a legal question about whether they can do it but historically states have had the power to determine whether or not to recognize marriages in other states if those marriages are against the public policy of the present state so california might say we're not going to recognize marriages that are entered into um in a foreign country where you could have a polygamous marriage california might say that's against the public policy of the state of california and we're not going to recognize it and in fact during the the days when interracial marriages were being prohibited in certain states there were states that said you go to another state to get married um if it's against the public policy we're not going to recognize it when it comes back here they're going to be some big legal battles and and law professors all over the country are already looking at where the test cases are going to be just came back from a law professors conference and it's not just members of our gay community that are interested in this is the hot topic for family law professors con law professors throughout the country this is this is the cutting edge issue in terms of civil rights and well it's because it takes full faith and credit which i which requires that all states recognize the laws of other states and carves out a very specific exception in california i mean we don't allow first cousins to marry but if they do marry in georgia where it is allowed we recognize those marriages and there are a number of other instances of marriages we would not allow here of people who are underage without parental permission for instance but when they happen in other states their valid marriage is here and the chaos that would be created you know i i go to hawaii to work for ex-corporation and i'm married in hawaii uh ex-corporation transfers me to los angeles to their other office i have medical benefits under the law in hawaii i don't hear it's it's quite chaotic and frankly it's only i think homophobic oh absolutely i mean this isn't anything to do with marriage in general or recognizing marriage this is clearly directed at our community and it's not just in california other state legislators are trying to do the same thing where they they will affirmatively prohibit gay and lesbian marriage in their state and furthermore they won't even recognize it if they enter into it in a state where it is lawful that's why law professors are looking at states where there is no express prohibition on same-sex marriage and where the the laws with respect to marriages from other states are are fairly liberal and are willing to recognize out-of-state marriages so those are the those are the sort of places where the challenges are likely to be made in in surprising the states it's not always what you would perceive as the most liberal or the most gay friendly states that have at least marital laws that are fairly supportive of recognizing marriages from other states well taylor you've got an interesting case right here in los angeles it's it's really an employment case in a way but it seemed like it had really far-ranging effects can you tell us yeah well it does have far-ranging effects there is an openly lesbian police officer at virginia acevedo who had filed a suit against the lapd for sexual harassment and for discrimination based on sexual orientation and when she was deposed by the city attorney he asked her an astonishingly broad and intrusive question he wanted to know he wanted her to name every single person she had ever had a sexual relationship with during the entire course of her life and when she refused to answer on privacy grounds they filed a motion to terminate her benefits so effectively the city of los angeles was holding her benefits hostage on the condition that she out other people the city attorney and the lapd had reason to believe that she had been in relationships with other people in the lapd and my sense is that they were trying to not only harass ms acevedo but to nose around and get embarrassing information on other officers and so we stepped in and filed an amicus brief on behalf of the unnamed individuals and uh basically saying this is blatantly unconstitutional it violates their first amendment right to of freedom of association um as well as the right to privacy now do they do this with straight people too you know it's a problem only for lesbians gay men when they're plaintiffs and women women when they file sexual harassment claims sexual assault claims and it's really a case of victimizing the victim when you have someone who comes forward and says i was sexually harassed sexually assaulted then suddenly the door is flung wide open and questions about your personal life and back you know yes so many years suddenly appear and i do not know of cases where this sort of questioning occurs for straight men and it occurs routinely by the city and also by private corporations uh when lesbian and gay men are plaintiffs well it's interesting to me because the character characterization of women always has some connotation about their their your usefulness as sex objects or partners or whatever certainly when people talk about our community since the only thing that distinguishes us essentially i guess is the the gender of the person with whom we have sex at least that's what most people think our gender our community is sort of all about to other people sex so all the questions about that are about sex but with straight men when they have employment complaints or whatever i guess it's not an issue it's not a way of harassing them it's not supposed to be something they're doing wrong whereas of course women are doing this wrong and gay people are doing this wrong right and i think the problem was so extreme that the federal rules of evidence and the california rules of evidence specifically addressed this issue and said you cannot ask for the in the past sexual history of someone in these kind of cases sexual harassment and assault cases except within very narrow exceptions um and in this case the los angeles city council reacted very quickly we got a very positive result the city attorney came to an agreement with the city council agreed that the questioning was overbroad as he basically was forced to agreed to not terminate ms acevedo's benefits and to do training for all city attorneys in the workers compensation area so was this an overly enthusiastic deputy city attorney or highly homophobic or i would say if you read the deposition transcripts that the city attorney who asked the questions uh seemed to me to be homophobic and the reason i say that is that when ms acevedo objected and her lawyer objected he constantly said well you're you're suing the city because you're you're claiming that people called you a dyke and a and and he kept repeating all sorts of offensive terms um and it seems to me that when he did that repeatedly rather than try to find another way of stating the matter and saying well this claim is based on a sexual orientation discrimination claim that there seemed to be a real edge to his questioning and i can't get into somebody else's mind but it definitely seemed like ms acevedo was being targeted because she was a lesbian so do you think this is this is going to go away or have you seen this sort of line of questioning notion i mean there was something in the paper about how there was a stress claim and i don't know whether this is accurate or not but that they were trying to justify these questions on the basis of the uh that this fishing expedition right uh that well maybe somewhere out in her history there was some lover who had made her feel stressful right although you know in family law we're not allowed to bring that in because they assume they're going to make you feel stressful um that is their claim and they can ask her certain limited questions instead of saying go back and name every single person that you'd ever had sex with you could say ask the very limited question of have you ever been in a relationship that caused you stress outside of work and then go from there so it would be a slightly shorter list it would be a much shorter list i would hope i would hope because you have to be really serious with someone before it's stressful right right right well so have you seen any any evidence that there's going to be a change in terms of how the the city attorney at least in la is going to handle this stuff well it's too soon to tell right now i certainly hope that there will be a change and now that we have the city attorney's office on record agreeing to change their policy if there are further problems it will be easy enough for us to bring any complaints to the city attorney's office without having to litigate i hope there's an extra problem i think where this impacts our community it's insulting enough to say to a woman well you you claim you've been sexually harassed uh why don't you tell us everyone you've ever been sexual with because then we can see if you're so promiscuous that you've opened yourself to harassment that's supposed to be the theory at least if you're if you're forced to name your you know if you're a woman you're male lovers it it doesn't necessarily name them as anything except i suppose desirable males problem for our community of course is that in addition to the insult of having to name people for no relevant reason you're outing them which you mentioned before right and that's a a big problem because there's so much harassment and discrimination that goes on even though that's illegal in california by naming these individuals ms acevedo would have been putting them at risk for being harassed for possibly being fired from their job for being subject to physical violence and there's a whole host of of horrible things that could happen that are specific to being a member of our community that makes it particularly egregious that the city was asking these questions well we're usually kind of at the mercy of the chief prosecutors in any particular political entity and i carmel i want to talk for a minute about the chief prosecutor in the state of california dan lundgren who has been responsible for a number of cases that our community's been concerned about reminded me when taylor was talking about this over-enthusiastic deputy of uh one of the cases which was also in essence an employment discrimination case can you tell us a little about it here is an example of the power of the written word as opposed to a deposition where you had a kind of low-level staff attorney apparently who wrote a brief in a military case a lieutenant in the national guard had come out to his commander and he was terminated and he sued saying that don't ask don't tell was unconstitutional so the attorney had straightforward arguments there's no liberty interest there's no violation but he took the opportunity to say and by the way there's no protected class there's only homosexual desire there was a subtitle saying you can itch but you can't scratch in the brief in the brief and it is so extraordinary to have language like this in a brief and at one point said it's still okay to discriminate against criminals child molesters pedophiles and it's still okay to fire them and the state attorney general kind of had it two ways he said i didn't see the brief i didn't write the brief but i'm not going to take the lawyer off the case it was only when it made the press and our community kind of was focused on it that he did finally decide to do that well i understand even this was a uh if i'm not mistaken this was a federal case they say they used to say don't make a federal case out of it but actually it's good to make a federal case out of it and the district court judge was so offended by the language in the brief that had been filed because you know when you file a brief you're supposed to be briefing the legal issues you're not so wasn't there there was something else in it where he said uh you know that the the national guard doesn't exist in order to protect um this lieutenant's nasty little habit right his uncontrollable habits and that rather than be someone with a legitimate claim he was just irked that the state didn't recognize his uncontrollable desires so at the same time this deputy attorney general was sort of castigating our community and trivializing the whole notion of discrimination against us but it did have a very smarmy nasty tone to it and as i understand it the judge was so incensed that attorney general lundgren was forced to a take the guy off the case and b write a letter of apology to the judge which it was nice to see that you're happy to do that's right well it's it was interesting to me that he said well i haven't seen the brief and i you know maybe it went a little far but not so far i suppose we could uh cast that off in terms of whether we feel mr lundgren is with us or against us but there have been a couple of other examples that have sort of mounted a record for his office absolutely it's a real pattern of the state going out of its way to really persecute our community there was a case of entrapment at an adult bookstore and i understand that it wasn't a gay bookstore but they only went after gay men and according to the court the the police department put in very attractive young police officers who would kind of walk around making eye contact and really pulling people in and then they would be charged with solicitation of a lewd act whatever that is and the court threw out the convictions saying hey you didn't target other people you just went after gay men you can't do that and on its face it's discriminatory uh the attorney general said oh no you know we had no intent to discriminate and even if we did it wasn't arbitrary there are legitimate reasons to go after these people and now the attorney general has gone so far as to appeal to the california supreme court and not only that went to the appellate court and said in case we don't get granted review this case should be depublished meaning it shouldn't have presidential value because the court said that the prosecution was in the wrong i mean the basic notion of prosecution and i think you if you walk down the street any street stop 10 people and say if 10 people commit the same crime do you think they ought to be prosecuted the same way for the crime and they would say exactly the same crime and you would say yes and they would say yes so selective prosecution has always been one of those things that we don't want police department i mean uh prosecutors to do and one of the ways that we get them not to do it is we throw out the conviction if they do it that's that's sort of the basic tenet i think right of the selective prosecution and so the court said hey this is this is the law it's been the law for a long time you did this conviction goes out so now dan lundgren is appealing that to the state supreme court and saying and if i lose i don't want you to publish the opinion from the lower court because then there'll be some precedent about selective prosecution in these matters and i don't want that to appear and what's really troubling is that you know you always hear about scarce resources the state doesn't have money to do this doesn't have money to do this and and then they're spending all this effort and money on these cases and it just shows what their values are well that's two but the best is the last is um in the colorado case amendment two and some people are very familiar with that but that was a state initiative in colorado that was passed by a narrow margin about 53 percent and it's said that all protections for gays and lesbians are void because um just because i'm not even sure why um because they shouldn't have special rights i remember that when really all it was was protections having everyone on a level playing field there they're saying that it's special rights um the colorado supreme court invalidated the state initiative saying you can't just go after one group and it said that the equal protection clause protects that group um that so wait let me let me understand the basis of it just because there are people all over the country fortunately that watch us and may or may not know some of the cities in colorado like cities here what cities for instance in was california to have los angeles west hollywood san francisco all have essentially say you cannot discriminate against people on the basis of their sexual orientation as well as a lot of other categories and i guess aspen had this in denver denver um and the state initiative that was passed by the people by a very small percentage said you can't have those kinds of protections in your cities or counties right you cannot pass a law barring discrimination against gay and lesbian people that was okay so that was sort of like our that we had a fair housing thing in california a while ago it was called fair housing but it was anti-fair housing that said you cannot have fair housing laws in california that we had an initiative and that was thrown out and in the same way this is sort of an anti-equality initiative and the colorado supreme court said you can't do that but they use some very general language in their opinion any identifiable group and people have really taken that to an absurd degree and said well that means that blue eyed people have special rights or or that you could not fire someone because of their hairstyle or anything and that well and it created apparently at least in his mind a serious problem for dan lundgren who then joined an amicus brief on behalf of all the people of california asking that amendment to be upheld in the united states supreme court and what's interesting is that 44 states didn't have a problem with what was happening and we're going to wait for the supreme court to rule only states like idaho nevada south dakota virginia not really a consensus of states and not states like california so again it's very aggressive on the part of our attorney general to make this action and he was saying well i need to because i need to enforce anti-immigration laws which is not something we want yeah let's explore that for a minute because i actually was um angry enough to call dan landren and was patched through to his car phone which is one of the wonderful things about being a state assembly member just a moment i have the attorney general on the phone for you and he did say to me no no no this is not homophobic it's because i'm required to as the state attorney general uphold prop 187 and the anti-smoking laws and that the language of the colorado supreme court saying you cannot single out an identifiable group to deny civil rights is a threat to those laws what do you think um well i think that one prophet 187 has basically just been thrown out as unconstitutional so he's right it might actually interfere pretty directly with his ability to enforce 187. i think it does enter i think it would interfere with 187 because that was blatantly unconstitutional picking out an identifiable group of people and saying they don't have health care benefits they don't have a right to an education but things like anti-smoking laws those wouldn't be affected um what it seemed to me that the attorney general was saying oh well this is about states rights and it's not about states rights it's about equal rights and what the amendment two case did was create make lesbians and gay men second class citizens and that's what prop 187 did it made immigrants second-class citizens so to that extent he's right but that's something that's unconstitutional and that the supreme court has said you can't do what about smokers though john well what do you think i i just think that i mean whatever we think about dan lundgren's political position he's not a stupid guy he knew that weighing in from california on this issue was going to influence the supreme court and he knew that it was going to cause a negative reaction in our community a strong negative reaction so why did he do it i mean you have to think about why would he as a political person do that i think the reason he did it is because he doesn't care about our community and and this is part of a pattern and practice not only against our community but these are really are linked he's right to the to acknowledge that there's a linkage here but it i mean it's a linkage in in terms of being not only against our community but against the immigrant community this is part of something bigger than just a single case and he knows it and i think we know it too this is about him advancing a political agenda that is an attack on minority communities but as our attorney general he doesn't have that discretion not to care i mean his job is to enforce laws that already on the books anti-discrimination laws and employment and housing and he's just saying oh no i'm going to focus on something else and and i don't see how he can do that well it's even worse than focusing on something else i mean not that three cases out of all the hundreds that there are builds a great record but it was really interesting to me after the first one then the second one and amendment two there seems to be it's not that he's ignoring us it's quite the opposite it's that there's a focus in that office on making certain that no matter what kind of legal issue comes up that affects our community we shall be kept in our place we will be second-class citizens we will not be protected from discrimination and it seems like a sort of an affirmative agenda which makes it political uh i guess but it's also it's also interesting to me and one of the things i wanted to ask the three of you to to talk about a little bit is we've chosen all four of us to be lawyers because we think that the law itself is some important thing in the larger context of things i mean all of us are activists in our own way activists for the community and with it why is the law such an important thing that everyone is struggling over it we we want to own it they want to own it i mean what is it about the law that is so powerful i'd say that some of it is the power of the law to enforce things that are clearly that clearly protect individuals rights at a time when the general population doesn't want to protect their rights it was the supreme court that decided that interracial marriage was illegal there wasn't was not right i'm sorry was not legal um there wasn't that sort of grassroots support in various states that had made interracial marriage illegal to overturn that and the law is very powerful because you have some sort of combination of i think a real moral force and the power to protect groups minority groups in particular when the majorities would just walk right over them so it's a way in other words the law gets in the way of keeping people in a second class place i know that in the stories that i've heard about nazi germany was very important to dismantle the courts dismantle the use of the law take over the law so that discrimination would be more legal and there wouldn't be any any protections so that's one aspect where the law is powerful but i think that some of that is what you're describing is going on now the tremendous attacks on lawyers and the legal system in general the tremendous attack on government that we've been living through for the last 15 or 20 years as if government was the problem that is is creating poverty and discrimination and and creating economic problems that government is the solution i think in a lot of ways but there are very powerful forces in the country that are trying to attack the whole system of government and attack the legal system as well and those are the people who stand to gain for when you don't have a legal system when you don't have any ability to get into the court or you don't have a court that is able to hear your claim the people who are going to be benefiting are a select group generally going to be wealthy i mean the tax on the legal system a lot of it is coming not from conservative not necessarily from conservative religious right people a lot of it is coming from corporations that don't like the product's liability laws and don't like being held accountable for pollution and other sort of things so i i wish that people could see through it more frequently i mean i think we all fall into the trap of blaming government for everything and the law really has a a powerful role to play not only in protecting groups that are discriminated against but in protecting individuals who are harmed by products or harmed by pollution those are the sort of things where if you didn't have a legal system where would you turn to i mean you'd have anarchy well it's also a statement i guess it always has been i mean from the bible itself is a statement of law both the old testament and the new testament it was it's like rules to live by but why do we have this body of rules because it's an expression of really of ethic or moral that is the good society is the society that obeys these rules so the struggle over the law is like a struggle over a declaration about what is moral and that's i mean i'll tell you when i was testifying against mr knight's bill the anti-gay marriage recognition bill or whatever you want to call it you could see that it was all about a struggle for the the high moral ground on whether there will be fairness and equality or whether there will be a demonization of those people meaning us who are not like us and i think the law has always been in the midst of sort of that struggle i mean that's why i wanted to go to law school it just seemed like being in the middle of it but maybe when we all started in law school we had aspirations about justice and a sense of the purity of law and thurgood marshall and all these really fighters do-gooders and and now i think i hope our community doesn't abdicate our role here and that we hang on to these tools and really learn to use them because if we give up then they win but it's hard when you see all these cases and law really oppressing and really being so used as a sword against us in a very real way we're not going to win every case i mean when you look at history i think the african-american community had to go through a lot of cases that were not winners and where the law and the legal system was used as a source of oppression not as a source of liberation and freedom but i think time is really on our side when you know i think back to when i was in law school and the very few numbers of openly gay students and very few openly gay faculty members and many of them wouldn't even teach issues involving gay rights now in law school i see very open active gay and lesbian students and professors who are teaching issues that are of a concern and it's not just gays and lesbians who are interests there's a lot of even conservative straight students who think discrimination against gays and lesbians is silly it's outdated and are willing to weigh in on our issues i think the trend is only going to be in favor of us well in the connection too between the issues that we face now one of the leaders of the naacp here in la said to me well your community is in the middle of the griddle now and and we are and i don't think we're just sort of the flavor of the decade i think it is that moment in our struggle when we are kind of in the spotlight you know and so many movements pass through a kind of a spotlight period and we're definitely in it but there when you mention thurgood marshall there are two books that i thought were it you know among thousands that are very were very helpful to me one is the biography of thurgood marshall which is called dream makers dream breakers that documented the work that he did early early early on people always think brown versus board of education you know they filed a case and boom you know discrimination was over but 35 years before that case he was traveling around to various states to file suit against school boards and having to hide out from lynch mobs and you know didn't staying with families that were in danger of having their houses fire bombed because he was staying there because they knew if the law was going to be used that was going to be real dangerous to discrimination to use that tool and there's another book called liberal liberty and sexuality which is a uh by the same guy that wrote the biography of dr martin luther king which is a documentation of the anti-contraception pro-contraception anti-abortion pro-choice movement sort of through the law from the late 19th century and it really does show really the the power of living in a country like this where the law is a double-edged sword they try to use it against us we come out and use it against them and i think that the the visibility of our community in in these issues is is important i mean you must know many many more groups organizations people who are working on these issues who are out as members of our community um lambda for instance no i think i think it makes a big difference to having putting forth arguments when as an openly gay lesbian or gay man as a lawyer because it really makes people confronts people with the reality of who you are i'm like you we're having a conversation about these issues and when you're saying things that are discriminatory they're affecting me personally and i think that the fact of having people come out especially in the past decade has made an enormous change in people's awareness does it make a difference to you in court i mean can you it your sexual orientation follows you into the courtroom um it does and you in almost any case where somebody's sexual orientation is at issue you have to file friend of the court briefs that um debunk all of the myths about homosexuality we're not child molesters we're not unstable emotionally unstable we're not this we're not that um and you have to affirmatively take all the stereotypes by the hand and go through them one by one and put them in front of every judge in every single case so there is no escaping it but i think that as we educate people that's going to become less and less necessary yeah i think there's going to be fewer in the future you're not going to have to do that as often because i think there are more and more people as you were saying who are out and so judges and other lawyers they know we're not child molesters they know that we're not emotionally stable or at least no more emotionally stable than anyone right um so i think that that's those kind of myths out there ultimately because of the large numbers of us who are out and open that's going away i think already as i said even conservative students who i have who are very conservative on political issues think sexual orientation discrimination is just foolish because they've had too many friends and colleagues who are i know there was a survey i think of students i can't remember if it was at ucla or a number of university uh here in southern california that asked them about the gay marriage issue and 72 said they thought it was fine that's a major difference you know from just a generation before and that's a matter it's just a matter of familiarity when you say it i think it's just a matter of time still though mythology is another powerful tool you create mythologies about the demonized subclass that have to and then you have to actually file a brief going no you know we're not like that and we're not like that and we're not like that and here's documented proof you know that straight men are actually child molesters much more than we are we had great testimony from laurie mcbride who is the executive director of life aids lobby in sacramento on this pete night bill where she said actually the the community with the lowest or the group with the lowest percentage of stds of sexually transmitted disease lower even than newborn babies are lesbians therefore she said if we really want to eradicate these diseases we should all become lesbians you should have seen the faces on katana they were like i don't think so but it was a good point you know you talked about myths but i wonder if our community also collides against kind of american old-fashioned myths when we were in the military debate you had the myths associated with the military and now with marriage it's the myth of the family and and i i don't know if we've figured out how to reconcile that you know it's kind of clashing myths now when you say the myth of the family do you mean the the the myth that there is such a thing as a traditional nuclear family and that that's traditionally what everybody is but us exactly and that we're on the outside and once we're in that wonderful zone we'll be in whatever one wants and somehow that becomes magnified so that our struggle to get inside becomes all the harder and so i wonder if if our task isn't also to say let's look at what the family is what is american family in 1996 and how many people actually have two parents living together and i just think it's something we might want to think about there's two things in that one is the attempted invisibility the the attempt to make invisible our own families when they say well marriage ought to be for raising children well i was stunned by that that there was a conception that that mr knight put out there in support of his bill that the reason for marriage is to raise children and the logical conclusion from his explanation about why he supported this amendment is that infertile straight couples can't get married um or elderly couples or elders right you know if women have reached the age of menopause they don't have a right to marry if men are infertile they don't have a right to marry um and i think it really is this mythology of what marriage is about and the flip side of it that we don't have children exactly and the the whole marriage issue i had just a heart-wrenching case a woman called me fairly recently had raised two children she's a non-biological parent she and her lover broke up and now she doesn't even have visitation rights and under california law there is very little that she can do because she was the one who actually did most of the child raising we might be able to make some sort of argument but it's just heart-wrenching these kids have called her mom for 10 years and now she has no rights whatsoever so you know marriage is about a lot more than than just the marriage benefits of you know tax breaks and it really affects people's lives it serves the opposition well to demonize us as you know not as child molesters not child raisers but so many lesbians have been married or have you know have been in heterosexual relationships and have children um or they choose to have children now by alternative insemination or i mean there's such a variety of families which seems to be very threatening to a small group of people as though it's what you said really carmel we're going to draw a little circle around the word marriage and then we're going to say if they get in the circle it somehow diminishes the the wonderfulness of this why because it's not just kept to us and we'll have one less tool to demonize them with i think it's also the trivialization of our relationships that our relationships are not as as long-lasting or as meaningful or we as as couples do not have to go through the same things that heterosexual couples go through and i it really is a vicious circle because that's how we're viewed we're not allowed to get married and because we're not allowed to get married our relationships are not viewed as seriously as they should be but i think carmella is right in terms of the mythology here i think there are certain areas that for people it's much more threatening and the the surveys you've talked about show that when it comes to employment discrimination large numbers of people are opposed to that they don't like employment discrimination when it comes to gays and lesbians marrying or being allowed to serve in the military or have children or raise children that becomes much more threatening for some reason to people somehow it seems to either diminish what they're doing or it intrudes in some way at least in their minds with some protected right they have and i really can't get a handle on it i don't know if you've encountered that in any litigation around child custody yeah well i'd say the state of california is a perfect example we're one of only nine states that have protection against discrimination based on being lesbian or gay and yet there are no visitation rights that this woman has a legal right to for her children and somehow once it gets into the area of marriage and family all bets are off well it i always envision it kind of like though i was working too young to become a girl scout it's sort of like you you have to you can have all these badges and we're going to tell you that you don't qualify for those badges just by virtue of who you are so that i'm going to be the one and i get to say who gets the badges you know i can get married i have a preference in in custody i have a preference in this job etc etc and somehow society as it moves along on a more progressive track and it always does says first i don't i don't think it's fair if somebody can do the job that they don't get it now there's still a lot of people you create a mythology about who can't do the job i mean every disfavored minority is referred to either as stupid or lazy or some characterization shiftless and with our with us they don't say we're stupid lazy or shiftless we they say we're disruptive in the workplace when we come out why are we disruptive because they're gonna be beat us up and it just takes too much time away from work i guess i mean it's just what happened to your to your police officer right it's uh it's so oppressive well it is disruptive but it's homophobia that's disruptive not necessarily the fact that we are there but people reacting to us who are uncomfortable being around openly gay and lesbian people who are threatened by us those are the ones who cause the disruption well and that's really what has happened i think with all minorities i mean we've blamed all our problems on illegal immigrants this year in other years we blame all our problems now it's affirmative action now we're going to blame all of our problems on affirmative action reminds me of a sort of a magician who's doing all this chicanery over here and says you know don't look at that hand i mean look at this hand these are the people to blame and we're certainly one of the um one of the groups so what do you see for the future in terms of our community and and the law any prognostications well i guess it's the law professor i'll take it and i i just re-emphasize what i've said before i think one thing is definitely clear in terms of our numbers in the gay and lesbian community our visibility in the gay lesbian community it's just going to continue to grow i mean based on the students i see and the faculty members who are teaching our issues in their classes even if they're not gay and lesbian themselves our issues are in the forefront of their classes and they're talking about our issues which wasn't the case as much when i was in law school and i'm sure when you were in law school as well um and i i think in terms of the legal battles we're going to continue to to lose some we're going to also win them i think the colorado case what has been reported about the oral argument is very optimistic although i wasn't optimistic just based on the the written material the questions seem to be such that it appears the the justices really get it and understand that what amendment two does what would allow us to be excluded from emergency rooms there'd be nothing we could do about it we couldn't even go to our local city council and say protect us from this discrimination so i think that there are going to be some some significant significant victories and i think hawaii is going to be a victory i think we're going to see the hawaii court say you're right there is no justification for this discrimination what happens in other states that's going to be a big political battle for many years to come well it was big political battle based on race too i mean just every single state had to make its own decision for itself uh it looks pretty good in terms of employment discrimination though don't you think i guess it's called enda employment something something it the good news discrimination act um the good news is that it did move this this session despite the republican majority the bad news is god only knows when it'll actually be passed so i think we really need to focus continue to focus on that issue and that it's not a sure thing even even that issue is not a sure thing do you see any new or different areas sort of coming along i mean i think people think about employment we're now talking a lot about marriage though we weren't we were willing to settle for domestic partnerships you know just a year ago and now we think well maybe not you know maybe maybe we should go for what other people might call the real thing do you see any other issues well marriage entails a lot of other a lot of other responsibilities and i think our community has to get up to speed on that as well if marriage goes forward then what are you going to do when there are separations what are you going to do with child custody issues what are you going to do about we as a community are going to be having to face all the issues that are currently faced in heterosexual marriages and certainly we're already facing them to some degree with the split up of relationships and how do you divide the property it's going to raise i think some unique issues legally and it's going to i think raise some questions in our own community about maybe we need to modify the current rules with respect to dividing property maybe we need to weigh in and say these rules aren't really fair for the partner who is the breadwinner or who isn't the breadwinner in the relationship well we might have to grow up a little more too it's a little scary for our community well this has been wonderful i know it doesn't seem like we've been talking for an hour but we have and we've just about run out of time so i want to thank you taylor and john and carmel very very much the lambda legal defense and education fund which is based in new york city is doing sort of the yeoman's job on the the marriage issue and information uh is available from them uh taylor's at the aclu here in southern california but don't call her directly with your thousands of cases there are lots of other places that you can call but certainly you'll get information on anything you need most important be politically aware when you vote make sure you're voting for someone who's already demonstrated that they're on the side of our community whatever you do get used to it [Music] [Applause] [Music] [Applause] [Music] [Applause] [Music] [Applause] [Music] [Applause] you