Thursday, April 29, 2010

Can Dallas Elect a Gay Man to the Texas House Part II

Be sure to read Part I

Democrat Pete Schulte, an out Gay man, is running against Republican Dan Branch in House District 108. The District has been held by the Republicans since 1991 and Branch has won every race by 16% or better. Does Schulte have a chance?

Yes, but it’s a long shot. Branch’s advantage is that the entire “Park Cities” area is in District 108, he has consistently won the District by winning the Park Cities. Any opponent must put together a broad coalition of hipsters, yuppies, ageing hippies, African-Americans and Latin Americans to win. Not an easy task.

The good news is that Schulte and Branch are not alone in this race; Libertarian Candidate Jarrett Woods is also running, if he appears on the ballot it should draw 4-5% of Branch’s vote leaving Schulte with a 5,000 or so vote difference to catch up.

How can he do it?

Run AGAINST Branch – Schulte can talk until he’s blue in the face about all the good he’s going to do in the House, but unless he’s willing to talk about the bad that Branch has done he will lose. I am hopeful that Schulte will be willing to do this. When he ran for the Democratic Nomination for Sheriff two years ago he was not shy about discussing the incumbent’s short comings (Full disclosure – I volunteered for the incumbent’s campaign.)

Branch, as chair of the House Higher Education Committee, fought against Texas’ “Robin Hood” school funding system, which redistributed money from wealthy school districts, like the Park Cities (Branch’s base), to poorer districts like the Dallas Independent School District. Voters whose children go to DISD need to know that Branch doesn’t think that their children deserve the same quality education as the children of rich people.

Branch Authored legislation (HB 52) last year that would have allowed Texas universities to limit the number of students they admit under the “Top 10 percent” rule (“Top 10 percent” requires state universities to admit Texas high school students who graduate in the top 10% of their class. Since its inception it has dramatically increased the number of students admitted to top universities like UT and A&M from poorer inner cities schools). So not only does Dan Branch think that children who go to DISD shouldn’t receive the same quality high school education that rich children get, he doesn’t think they should receive the same quality college education.

Schulte also needs to link Branch to the State Board of Education (the controversial state body that has made national headlines lately for trying to remove African-American and Hispanic historical figures from text books and removing Thomas Jefferson from parts of the curriculum). Branch has been praised by Coalition for American Traditions and Ethics, the same people who have been pushing the SBOE changes, because the committee he chairs (the House Committee on Higher Education) is conducting a study on offering college courses on “Western civilization and American traditions”, code for eliminating the role of people of color in history. Schulte needs to corner Branch into speaking out against the SBOE, which will cut his hard right base and drive more voters to the libertarian candidate.

(One note on running against Branch on education issues: “the price of a successful attack is a constructive alternative”, Schulte needs to formulate his own plan for addressing school funding, I suggest he have a conversation with Rep. Scott Hochberg to figure out what to say.)

Don’t avoid the Gay issue – Branch has run in the past on the “Sanctity of Marriage”. Schulte is not only a gay man, but he is also one of the attorneys in the Dallas Gay Divorce Case. You better believe that gay marriage is going to become an issue in this race. If Branch is smart he will wait until mid October to bring it up, and he’ll do it via proxy by getting someone else to bring it up. Schulte needs to control the conversation. He should figure out what he is going to say and say it early in the race so he has time to make his position clear.

Get Web Savvy – Schulte finally set up a Facebook fan page this week, he still doesn’t have a twitter account and his webpage is static and bland with very little information on issues. Branch is way out ahead of him on this front, Schulte needs to catch up.

Use the Independent Press – The Dallas Morning News editorial page loves Branch. Fortunately the people Schulte needs to reach don’t read the Dallas Morning News. He needs to start writing op-eds for the many small African-American papers that are based in South Dallas. He should call Univision and set up interviews and have an open door policy with the Dallas Observer and Dallas Voice. These smaller venues will let him get his message out and stretch his campaign dollar.

Speak Spanish – or hire someone who does. House District 108 is almost a third Hispanic. Every single piece of literature and every piece of web communication that the Schulte campaign puts out needs to be translated into Spanish. Schulte should also court the Spanish speaking press. One of the biggest national news items right now is the Arizona “Show me your papers” immigration law, which several Texas lawmakers are vowing to duplicate. Schulte should come out strongly against the law and challenge Branch to do the same. This will help him not only in the Hispanic community but also with the hipsters and ageing hippies in his battleground precincts.

Talk to Rep. Senfronia Thompson – Rep. Thompson is the longest serving Democrat in the House, and arguably one of the most powerful, she is also a strong ally of the queer community. More than that, she knows how to run a campaign in diverse urban districts. Schulte should drive to Houston, buy Rep. Thompson dinner, and soak up whatever advice she has to offer.

Get good proxies – Schulte is a white gay lawyer, classifications that are going to make him suspect in some of his lower income precincts, if he wants more than just the party faithful to vote he needs to have people who are trusted in those areas vouch for him. He can start by turning to his neighboring House District Members, Rep. Anchia and Rep. Johnson , who can help with his Hispanic and African American neighborhoods. He should also seek the support of State Sen. Royce West, a major power broker in Dallas Politics, and Rep. Lon Burnam, the sweetheart of aging hippies throughout Texas. It’s important that he gets these people to campaign for him, not just endorse but to show up at campaign events and vouch for him.

Register Voters – The south eastern half of district 108 has very low voter turnout, and lower voter registration rates. Schulte needs to partner with community organizations like the People Empowerment Project and Organizing for America to register voters, and not just by setting up a table in front of the local gay coffee shop. He needs to organize his volunteers to go door to door, particularly in battleground precincts in the Lower Greenville and Uptown neighborhoods which have younger, more transient populations.

Court precinct chairs – Every voting precinct has a Democratic precinct chair. This person is supposed to work to get out the vote in the precinct. Schulte needs to remind them of that. Precinct chairs know the neighborhood better than anyone else and have tremendous potential to help Schulte, but only if someone stays on them to do their job.

Ask for help - Schulte needs money, and he needs volunteers – which means he needs to ask for them. Schulte has already attended the Victory Fund training, which is a step in the right direction, but he will need to outspend Branch considerably to win this district, and his January Ethics Commission filing shows almost no fundraising.

He is also going to need an army of on-the-ground volunteers who can go door to door and stand on street corners. Fortunately Dallas is home to a huge queer activist community that is ripe for recruitment. Schulte needs to attend the next several meetings of Equality March Texas and ask for volunteers. He then needs to find a donor who will pay to send them to Rep. Mark Strama’s “Campaign Academy” (and again there are donors in the queer activist community who will do this) so they can learn how political campaigns differ from activist campaigns.

The challenge in recruiting from this base is that they tend to be suspicious of the political system; Schulte can capitalize on his prestige as one of the lawyers in the Dallas Divorce Case to convince them that he is not just another establishment politician.

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In short Schulte will need to run an aggressive campaign if he has any hope of finding the 5,000 or so extra votes he needs to win. Let’s see if he’ll do it.

Tuesday, April 27, 2010

Can Dallas Elect a Gay Man to the Texas House? Part I

The Dallas Voice broke the story last month that the Democratic nominee for Texas House District 108, Pete Shulte, is a gay man (Shulte is also one of the lawyers in the Dallas Gay Divorce Case). He will face incumbent Dan Branch in November.

If elected Shulte would be only the second out queer legislator in Texas history (the first being Glenn Maxey of Travis County who left the house almost a decade ago). I’ve written before about how the Texas House Districts are drawn to disenfranchise the queer community, splitting up the historic “gayborhoods” into multiple districts. District 108 contains about half of the historically queer Oaklawn neighborhood of Dallas, but has consistently elected Conservative Republicans since 1991. Given the history of the District Can Shulte win?

Shulte has maintained that this is a Democratic district, so I wanted to take a look at the 2008 elections and see how the District voted in State wide and national elections:


As you can see, every single statewide republican candidate won this district in 2008 (by an average of 17%). Even Barack Obama, who won Dallas County, lost house district 108. This in the strongest Democratic year in a decade. I think we can stop pretending that 108 is a Democratic district.

But is it winnable? A lot of that comes down to geography, let’s look at District 108.

View House District 108 in a larger map
The northwest corner of the District contains the “Park Cities” of Highland Park and University Park. These are two separately incorporating cities that are completely surrounded by the City of Dallas. They are also contain the most prestigious and costly addresses in the Dallas area. The Park Cities are solidly Republican.

The South Western quarter of the District contains about half of the historically Gay Oaklawn neighborhood, the yuppie haven of up-town and the increasingly hip downtown.

On the South Central side of the District we have Near East Dallas, a historically poor African-American neighborhood that is becoming increasingly gentrified.

The eastside includes the once hip “Deep Ellum” entertainment district, which still retains it’s primarily African-American roots, but which has an increasingly Spanish speaking population

The North East part of the district includes the hipster haven of Lower Greenville Avenue, which also has a large Spanish speaking population and the “M streets” a former hippie haven that is becoming a high rent desirable address.

Dan Branch has been able to hold this district largely on the voting power of the Park Cities, and the voter apathy of the low income and trendy parts of the district. Let’s map out the 2008 race and see how Democratic nominee Emil Reichstadt did against Branch (The map looks at the ratio of Branch voters to Reichstadt voters in each precinct)

The Dark Red section in the upper left corner is the park cities, Branch’s power base. The light pink stripe that cuts from the upper right to the lower left is the hip areas of ‘Lower Greenville’ and Uptown. Most of the blue areas, the areas that Reichstadt won, are low income.

So what did Reichstadt do wrong?

He was virtually absent from social media like facebook and twitter, hipsters and yuppies don’t pay attention to yard signs and bumper stickers, if a politician doesn’t have a facebook page and an exhaustive interactive website, they don’t exist. In a race that the media didn’t pay attention to the hipsters and yuppies didn’t know who he was so they just didn’t vote in the House race.

He ran a “values” campaign in a change year. Reichstadt’s campaign focused on his support for the boy scouts and the importance of family. People who are disenfranchised (low income) or dissatisfied (hipsters) are not going to vote for mom and apple pie. There is a reason that “Change” and “Hope” were the buzzwords of the Obama campaign (Obama, by the way, won Lower Greenville and most of uptown).

He refused to run AGAINST Branch. Rather than go after his opponent's record of voting against the best interest of his constituents Reichstadt talked about fluffy ideas of patriotism and state pride, causing him to appear under informed and unqualified. The only way a Democrat is going to be able to win this district is by persuading people who don’t vote in House races to vote. One of the best ways to do that is to point out how they current representative is screwing them over.

He didn’t go bilingual. House District 108 has a large Spanish speaking population (It's 31.2% Hispanic), unfortunately few of them are registered to vote and even fewer of them are going to take the time to research candidates who don’t make a point of reaching out to them.

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So what lessons can Shulte learn from 2008? Is there anyway he can win a district that’s been held by republicans for almost 20 years?

Read Part II to find out.

Equality Project Comes to Houston

Equality Texas’s Equality Project is coming to Houston! This is a one day FREE training on how to contact and maintain relationships with elected officials, or, if nothing else, it’s a free lunch. This program is very well put together and I encourage anyone who has the least bit of interest in achieving equality to attend.

Preregistration is required HERE.

Friday, April 23, 2010

Equality Texas Seeks Help Resettling Iraqi Refugees

I’ve tried to keep this blog restricted to strictly political and policy issues, but I just got this message from Equality Texas and it’s too important to ignore.

“We just met two gay men who escaped from Iraq and are resettling in Austin. Seeking referral services for refugee settlement, employment, ESL, & community building. Contact chuck@equalitytexas.org with service referrals.”

If you are in Austin and can help in anyway, please do.

The plight of queer people in Iraq is reaching genocide levels and is not receiving enough attention in the straight press. There is an excellent article in the spring issue of Winq Magazine if you are looking for more information. Unfortunately, it’s not online but you should be able to find it at the bookstore.

Gilbert Blasts Staples Over Involvement In Dallas Gay Divorce Case

The Democratic nominee for Agriculture Commissioner has come out swinging against the incumbent, Todd Staples, for meddling in the Dallas Gay Divorce Case.

“While Todd Staples worries about gay marriage, Texas food security is at stake. When Texas produces less crops, that means we have to import them from other states or even other countries,” Gilbert noted. “Staples needs to be doing something about shrinking agricultural production and what that means for food safety, not filing briefs in a bunch of lawsuits that don’t involve him or his department,” he continued. “Finally, there’s the basic issue of human decency. It’s time Todd Staples stop bashing LGBT Texans. Todd’s already been a critical player in denying equality to LGBT Texans, why continue to demonize them?”

I’ve been a fan of Gilbert’s since he was running for Governor and put a comprehensive statement of LGBT issues (Something current Dem Nominee Bill White has refused to do). Agriculture Commissioner is one of those statewide elected offices that most Texans have no idea what it does so they either vote the party line or don’t vote in the race. Gilbert is one of those rare opportunities to vote FOR someone, and not just against the other guy or for a party.

Thursday, April 22, 2010

Hotze: Gov. Perry cancelled Tarleton State Gay Themed Play

The FW Weekly must have its Google alerts set very carefully because they caught one hell of a post on a GOP Blog. The post on TexasGOPVote.com contains a thank you letter from Houston bigot provocateur Steven Hotze. In the letter Hotze says:

“We also owe a debt of gratitude to Governor Perry for his behind the scenes work to stop the play at Tarleton State. Ray Sullivan, the Governor’s Chief of Staff, was notified of the play on Thursday and after discussing it with the Governor, the necessary steps were taken to ensure that its performance was canceled.”

Hotze's talking about the cancellation of the gay themed play "Corpus Christi" at Tarleton State University last month. If you haven’t been following the story, a Tarleton State University (which is part of the Texas A&M system) theater major choose to produce the play, by Texas Native Terrence McNally, as part of a class assignment. Corpus Christi tells the story of a modern day gay man whose life closely parallels that of Jesus Christ.



You may remember Hotze from the anti-gay flyers he distributed around Houston during Annise Parker’s campaign, or you may remember him from his successful efforts in the 80’s to repeal Houston’s anti-discrimination ordinance. In Houston political circles his endorsement is considered the kiss of death. Let’s hope he’ll hang around Perry’s neck through November.

Friday, April 16, 2010

Live Blogging the 'State of the State' conference

I will be live blogging the Equality Texas 'State of the State" conference tomorrow, follow me on Twitter http://twitter.com/legqueery.

Thursday, April 15, 2010

National Day of Silence: a Legislative History

Tomorrow is the National Day of Silence, an annual day of protest where High School and College Students pledge to be silent for a day to draw attention to the persecution of LGBT students.

Every year the Texas House and Senate pass resolutions recognizing events in Texas, from Rose Festivals to Pharmacy Day. The resolutions don’t do anything; they’re just a nice way for lawmakers to recognize events in the community.

In 2005 (The same year that the Texas version of the “Defense of Marriage Act” passed) State Rep. Garnett Coleman introduced House Resolution 1162, recognizing the National Day of Silence. The bill was referred to the House Committee on Rules and Resolutions and was never heard from again, effectively silencing the Day of Silence resolution.

No word on when the Legislature will recognize “Irony Day”.

Tuesday, April 13, 2010

Texas House Districts Divide Queer Main Street

There’s been a lot of media attention on the census lately, most of it focused on how the census helps determine funding levels for things like roads and schools. The census is also used as an excuse for the Texas legislature to redraw the borders of House and Senate districts every ten years, in the year after the census (Technically Texas can redraw its districts borders whenever it feels like it according to the Supreme Court in LULAC v. Perry).

The State Constitution requires that in drawing lines the legislature attempt to create districts that have about the same number of people in them. It also requires that districts include entire counties, unless the population of those counties is large enough that they have to contain multiple districts.

In addition the Voting Rights Act (signed into law by Texan Lyndon B. Johnson!) has provisions that require the district lines to be reviewed to insure that they are not drawn in ways that divide geographic areas with populations that are primarily made up of ethnic minorities. (Although the Supreme Court weakened this provision last year in Bartlett v. Strickland).

It has also been the practice of the legislature in drawing district borders to not split up cities, unless the city’s population is so large that it can’t be placed into only one district.

Unfortunately, no such rule or practice exists to keep the legislature from splitting up the “Gayborhood”.

(The maps are taken from the Legislative Council Website (the Legislative Council are the Legislature's lawyers) )

This is Dallas’s historic GLBT neighborhood: Oaklawn, which is centered around the entertainment strip on Cedar Springs:


Cedar Springs is also the dividing line between House Districts 108 and 100 until the Toll Road, where a peninsula of District 103 intersects, dividing not only the population into three house districts, put placing important community organizations such as the John Thomas Community Center, The Cathedral of Hope and the Nelson-Tebido Health Center into three different districts. The average Friday night Oaklawn reveler will cross between these lines dozens of times a night without ever realizing it.

This is Houston’s historic GLBT neighborhood: Montrose, which is centered around the intersection of Montrose Blvd and Westheimer Rd.



Again the border between House districts 134 and 147 perfectly bifurcates the neighborhood, placing neighbors and important community organizations in different districts.

If this was only happening once, I might think it was a coincidence, but when the two largest concentrations of GLBT people in the state are both carefully split down the middle it’s hard not to think that there has been an effort to dilute our political voice.

Houston is lucky; the two house members (Garnett Coleman and Ellen Cohen) who represent Montrose are allies of the community. Dallas is less lucky; of the three Oaklawn reps, one is an ally (Rafael Anchia) who will come through when it’s important but does not historically fight for GLBT rights; one has only been on the job for 6 weeks (Eric Johnson) and did not campaign on any queer issues; and one is a rabid homophobe (Dan Branch) who is fortunately being opposed by a gay man, Pete Shulte (more on this race soon).

Texas has only ever elected one out queer person to the legislature, Rep. Glenn Maxey. Currently there is no queer voice in elected office at the capitol. While allies are wonderful things to have, we cannot expect them to understand what it means to be GLBT in Texas, and they will never fight for us as hard as we would fight for ourselves.

Anyone who has seen the movie MILK knows that Harvey Milk ran for office almost continuously for a decade before being elected. It wasn’t until the city changed the way it elected city council members and drew the district lines so as to include the entire Castro neighborhood of San Francisco in one district that he was able to be elected.

So long as the legislature continues to draw House lines in a way that divides the community it will be difficult for us to elect OUR representatives to state government. What’s more it weakens our voice with our allies.

Unfortunately there is currently not a good solution to this problem. In 1974 there was an effort to get Sexual Orientation added to the Civil Rights Act, but that effort has been abandoned. We’re not covered by the Voting Rights Act and have no legal grounds to sue to stop the legislature from gerrymandering districts to split up our community.

The new boundaries will be drafted next spring by the House and Senate Redistricting Committees, who will be appointed by the Speaker of the House and the Lieutenant Governor. Our best hope of ending this disenfranchisement is to have a sympathetic person in charge of appointing those committees.

The current Speaker of the House is Joe Straus, a moderate Republican, but it seems like the former speaker, Tom Craddick, is trying to regain the position. Straus won’t care if queer people don’t have political power, Craddick will actively work to prevent it. The Speaker is elected by the House members and is generally a member of whatever political party has the most members in the House.

Currently the House is split with 77 Republicans and 73 Democrats, so if we have any hope of getting a sympathetic speaker the Democrats will need to hold all of their current seats and defeat 3 Republicans. The truth is that even if the Dems get a majority in the House we aren’t likely to get a speaker who cares about the disenfranchisement of queer people, because frankly it’s not a priority for the Democratic Party as a whole (see how the Dallas County Dems treated the Oaklawn neighborhood in today’s primary runoffs).

The Senate’s Committees are appointed by the Lieutenant Governor. The current Lieutenant Governor, David Dewhurst, is a first class homophobe. His Democratic opponent in this election is Linda Chavez-Thompson, a labor leader and longtime hispanic activist. I can’t claim to be incredibly familiar with Ms. Chavez-Thompson, but from what I’ve seen she seems to actually care about fairness and equality. It will be very difficult for her to beat Dewhurst, but she is our best hope of moving these district lines so that our community can vote together.

Otherwise, we’ll have to continue to try to change state government from across house lines.

Dallas County Dems Send Queer Voters to Baptist Church

I was in the process or writing an article on how electoral districts are drawn to disenfranchise queer voters when I got this alert from the Dallas Voice.

RUNOFF VOTING ALERT: Oak Lawn Library polling location moved to East Dallas

It seems that to save a little money on today's primary runoff the Dallas County Democratic Party thought it would be a good idea to merge the polling location at the Oak Lawn Library (In the heart of Dallas’s “Gayborhood”) with the polling location at Wilshire Baptist Church on Abrams.

I’m sure it was unintentional.

Sunday, April 11, 2010

Strama’s Campaign Academy, the Reality Show Bravo should be airing

Rep. Mark Strama is currently accepting applications for his “Campaign Academy” (More information on Strama's website) The academy will be held June 14 – 16 and is an excellent opportunity for high school and college students (and recent grads) to learn the nuts and bolts of political campaigns.

This is not specifically a queer event, and goodness knows that personally I find the legislative process infinitely more interesting than campaign politics; but Strama is a strong ally of the queer community and If you are a student and are interested in political campaigns this is a fantastic educational opportunity.

Saturday, April 10, 2010

The Dallas Gay Divorce Case, Part III – Attack of the Confusing Legal Terms

Be sure to read Parts I and II.

So a Gay couple who was married in Massachusetts moved to Texas and asked for a divorce. Dallas Judge Tena Callahan granted them the divorce and the State Attorney General, along with a State Rep. and the State Agriculture Commissioner asked the State’s 5th Appeals court to overrule the divorce and void the marriage instead.

All of this based on questions of how exactly how to apply the 14th amendment's guarantee of “equal protection”.

As previously discussed the Supreme Court has decided that there are three different standards for scrutinizing discrimination claims based on the equal protection clause: strict, intermediate and rational basis; and the Supreme Court has been very clear that in federal courts discrimination claims rising from sexual orientation are to be analyzed under the “rational basis scrutiny” standard. Chisum and Staples have argued that by using the “strict scrutiny” standard Judge Callahan has misapplied the law.

Here’s the weak point in their argument - the Supreme Court's application of the rational basis standard to questions of discrimination based on sexual orientation is based on FEDERAL law and precedent, not STATE. So while a state may not consider a group of people who are federally considered under the strict scrutiny standard under less stringent scrutiny, it is not precluded from elevating a group of people to a higher standard of scrutiny IF the law and precedent of that state warrants.

Those groups that are considered under strict scrutiny are referred to as “suspect classes”, which means exactly the opposite of what it sounds like it means. “Suspect classes” are groups of people who are automatically suspected of facing discrimination.

So how does a group qualify as “suspect”? The basic criteria were set by the Supreme Court in United States v. Carolene Products Co.:

1. The group has historically been discriminated against, and/or have been subject to prejudice, hostility, and/or stigma, perhaps due, at least in part, to stereotypes.
2. The group is a "discrete" or "insular" minority.
3. They possess an immutable and/or highly visible trait.
4. They are powerless to protect themselves via the political process.

As stated the U.S. Supreme Court has not found that Gay, Lesbian and Bisexual people meet these guidelines based on federal law and precedent. However the state courts of California, Connecticut and Iowa have looked at the specific situations in their states and decided that GLB people do qualify as a “suspect group”.

So if it could be provided that, according to the laws and precedents of the State of Texas, GLB people meet these criteria, then a strict scrutiny standard would be appropriate, in Texas, when analyzing discrimination claims based on sexual orientation.

I think any queer activist who looked at those four criteria will immediately jump to the conclusion of “of course”, and they would be wrong. It is not enough to claim that those criteria are met, we have to prove that the State of Texas recognizes that they have been met. So let's go down the list:


1. The group has historically been discriminated against, and/or have been subject to prejudice, hostility, and/or stigma, perhaps due, at least in part, to stereotypes.

The Texas Code of Criminal Procedure Chapter 42.014 covers bias crimes (or hate crimes). It states that a person may be charged with a bias crime if they have chosen the target of their crime based on the “sexual preference” of the victim. By acknowledging that “sexual preference” is a category by which people are targeted as victims of crimes, the State of Texas has acknowledged that Gay, Lesbian and Bisexual people face hostility, and therefore meet this criteria.

In addition, the 74th Texas House passed House Resolution 1225 in regular session. HR 1225 congratulates Houston area teacher Kelly Martin for his retirement, and lists among his many accomplishments organizing a neighborhood watch to protect gay patrons of Houston area nightclubs from attack. Another example of a state body recognizing the hostility faced by GLB folk.


2. The group is a "discrete" or "insular" minority.

Since 1993 the Texas House or Senate has passed 10 resolutions that recognize individuals or institutions for their contributions to the Gay and Lesbian or GLBT community (74(R): HR 308, HR 607, HR 1225, SR 777; 77(R) HR 1397; 78(3) HR 144; 79(1) HR 281, 80(R) HR 1311, HR 2075; 81(R) HR750). These resolutions acknowledge not only the existence of a community, but that the community has its own media, churches, organizations and business, thus constituting a “’discrete’ and ‘insular’ minority” recognized by the State of Texas.

A quick search of the Governor’s website turns up half a dozen events at any time celebrating the “Gay and Lesbian” community on a calendar of state cultural events. Thus the Governor’s office also recognizes the existence of a “discrete” gay and lesbian community.

3. They possess an immutable and/or highly visible trait.

In Heyden v. Texas the Texas Court of Criminal Appeals (TCCA) was considering a capitol case in which the defense wished to introduce evidence during the trial phase that the murder victim was a sex offender, and therefore the impact of murdering him was less severe. The trial judge refused to hear the evidence and the defense appealed to the TCCA.

In finding for the State the TCCA quoted its opinion in Goff v. Texas, in which a capitol defendant had attempted to admit evidence during the sentencing phase that the victim was homosexual. The TCCA refers to the victim in Goff as “a homosexual” rather than as a person who engaged in homosexual activities. The use of “homosexual” as a noun suggests the court's acknowledgement of homosexuality as an innate trait, rather than a behavior.

4. They are powerless to protect themselves via the political process.

Since the 2003 Lawrence v. Texas Supreme Court decision declared Texas’s sodomy laws unconstitutional, multiple efforts have been made to remove those laws from the books. All have failed. Not only that, Texas laws are riddled with references to the, now unenforceable, law.

Penal Code Sec. 21.06. HOMOSEXUAL CONDUCT. (a) "A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex."

Health and Safety Code 163.002 (8) " …homosexuality is not a lifestyle acceptable to the general public and that homosexual conduct is a criminal offense under Section 21.06, Penal Code."

Health and Safety Code 85.007 (2) "…homosexual conduct is not an acceptable lifestyle and is a criminal offense under Section 21.06, Penal Code."

The inability of the GLB community to remove these laws, despite the Supreme Court ruling that they are unconstitutional, clearly demonstrates a lack of political power at the state level.

So…

Criteria 1 has been recognized by the Texas Legislature, Governor and the Texas House;

Criteria 2 has been recognized by the Texas House, Senate and Governor;

Criteria 3 has been recognized by the Texas Court of Criminal Appeals; and

Criteria 4 is readily apparent.

Therefore, Texas law and precedent contain sufficient grounds to consider GLB people as a “suspect class”.

I recognize that I am not a lawyer, just some guy with a blog, and I am very curious what a constitutional law expert would have to say about my interpretation. That said, I am confident that Judge Callahan did not overstep her authority in applying a strict standard to the Dallas Gay Divorce Case.

It will be interesting to see what the Texas 5th Court of Appeals decides when they hear this case (the first hearing is scheduled for April 21). I suspect that they will reverse the ruling, and there are any number of next steps, both judicial and legislative, that are likely to follow. The only thing I’m certain of is that we will be talking about this case for some time.

Friday, April 9, 2010

The Dallas Gay Divorce Case, Part II – The State Strikes Back

Be sure to read Part I

We left our story as the Attorney General had asked the Texas State 5th Court of Appeals to overturn the ruling of Judge Callahan granting a gay couple a divorce. This is where State Rep. Warren Chisum and former State Sen. Todd Staples get involved.

Back in 2005 Chisum authored HJR 6 in the Texas House and Staples carried it in the Senate. HRJ 6 is the Texas version of the “Defense of Marriage Act” and would later be approved by the voters and added to the Texas Constitution in Article 1 Sec 32, so they are very keen to protect their work.

Chisum and Abbott have filed an 43 page document, known as an amicus brief, with the 5th Court of Appeals arguing that the divorce decree should be overturned (Chisum isn’t a fan of divorce in general, in 2007 he tried to increase the waiting period for a divorce).

The Chisum/Staples brief is an interesting read (although they spend about 10 pages calling Judge Callahan names). The crux of their argument comes down to exactly how the 14th amendment to the U.S. Constitution should be applied to GLB folk.

The 14th amendment was passed after the civil war in an attempt to remove some of the systemic prejudices built into the U.S. government against African Americans. Section one of the amendment states:

“…No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

But how to interpret the idea of “equal protection of the laws”? Are there situations where government has a compelling interest in limiting the rights of some people because of innate characteristics? For instance, children are prevented from driving, voting and buying certain products; the blind are prevented from driving; the severely mentally handicapped aren’t allowed to vote. These are all cases where there is a rational basis for the law to be unequally applied to citizens.

To address this conflict the Supreme Court, starting in 1944 with Korematsu v. United States, created a system for analyzing claims under the equal protection clause of the 14th amendment. It developed into a three tier system that places different levels of scrutiny on discriminatory laws based on the population that is affected. The greater the scrutiny the more evidence the state must present that the discriminatory law is necessary for the public good

The levels are:
Strict Scrutiny
Intermediate Scrutiny
Rational Basis

Strict scrutiny requires that the State has a VERY, VERY good reason for putting the law in place. Generally discriminatory laws cannot pass strict scrutiny unless they are very narrowly tailored, are temporary and are dealing with issues of national security or affirmative action (for instance a law which, for a set period of time, gives preference to ethnic minorities in college admissions would pass strict scrutiny).

Intermediate scrutiny is applied when the law is designed to address real differences between populations, such as issues of physical strength.

Rational basis scrutiny is applied to all other claims of discrimination under the 14th amendment. In order for a law to pass rational basis scrutiny the state has to have a reason for the law, but the law can be broad and far reaching.

The Supreme Court has not strictly defined which groups receive which level of scrutiny but generally issues of race, religion and national origin are covered under strict scrutiny, sexual discrimination under intermediate scrutiny and everything else under rational basis.

The Chisum/Staples brief argues that Judge Callahan applied strict scrutiny to the Divorce Case instead of rational basis. In other words she said that the state didn’t have a VERY VERY good reason for banning same-sex marriage, but only a sort of broad and general reason, and that wasn’t good enough.

To back up their claim of misapplied scrutiny Chisum and Staples cite Baker v. Nelson, a 1972 Supreme Court Case that is the federal precedent on same-sex marriage cases. Baker and his boyfriend had applied for a marriage license in Minnesota; they were denied and sued that state, citing, among other things, the 14th amendment guarantee of equal protection, the state denied their claim.

They eventually appealed to the U.S. Supreme Court which issued a one sentence ruling that the court did not have jurisdiction to intervene in a state marriage issue. This set a narrow precedent in federal courts that sexual orientation does not receive strict scrutiny in questions of marriage.

In addition, in overturning Texas’s sodomy laws in Lawrence v. Texas, the court was very careful to clearly say that they were overturning the law based on rational basis scrutiny NOT strict scrutiny. So the Supreme Court has jealously preserved the application of rational basis scrutiny to any equal protection claims under the 14th amendment based on sexual orientation.

But in order to pass even rational basis scrutiny the state would still have to have a reason for the discriminatory law. What reason do Chisum and Staples give in their brief? Why to protect the children of course! The brief argues that statistically children raised in households with same-sex parents do only as well as children raised by single parents, but not as well as children raised by straight couples.

([climbing on soap box] First off, I hope that anyone reading this who was raised by a single parent, or is a single parent is appropriately offended. Second, I would like to remind everyone that 2 of the last 3 presidents of the United States were raised by single parents, so clearly it’s not impossible to raise successful children under such circumstances. Thirdly, is marriage really about children? ‘Cause if so I know a bunch of childless straight couples out there who will be shocked [climbing off soap box])

Chisum and Staples also argue that Texas Law allows for the marriage to be voided, a legal maneuver usually reserved for cases of bigamy and incest, which would allow for legal protections such as division of common property and name changes. Therefore, since there is a separate legal maneuver that would create an equal result, there is no need to go into all this nasty “equal protection” nonsense.

It’s a very tidy legal argument, and one that has been made before with great success. Find out why I think it’s wrong in Part III…

The Dallas Gay Divorce Case, Part I – A New Hope

State Rep. Warren Chisum and former State Sen. and current Agriculture Commissioner Todd Staples, the people who brought you the Texas version of the Defense of Marriage Act, have weighed in on the Dallas Gay Divorce Case that made headlines last fall. The two have filed what’s called an amicus brief with the state appeals court that is hearing the case. An amicus brief is a way for people who are indirectly connected to a civil case to express their opinion to the court.

There is a lot involved with this case, and it gets a little complicated so I’m going to break my posts on this issue into three parts. We’ll get back to the honorable misters Chisum and Staples in our next installment, but let's start with the case itself.

According to the Dallas Morning News State District Judge Tena Callahan granted a divorce to two gay men (identified as JB and HB) who had been married in Massachusetts, moved to Texas and then broke up. In granting the divorce the judge cited the 14th amendment guarantee of equal protection under the law (the 14th amendment is where this gets fun, more on that in parts II and III).

Texas Attorney General Greg Abbott attempted to intervene in the ruling, arguing that the state constitution does not permit a state court to recognize a same-sex marriage and therefore it cannot dissolve that marriage.

(That would be Article I, sec 32 of the Texas State Constitution, known as the Texas Defense of Marriage Act:
“MARRIAGE. (a) Marriage in this state shall consist only of the union of one man and one woman. (b) This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.")

Judge Callahan claimed that her court had jurisdiction and that she didn’t need the Attorney General's permission to hear a divorce case. So Abbott has sued on behalf of the state (the state, that’s you and me), and has asked the Texas State 5th Appeals Court to overturn the ruling.

The Appeals Court will hear the case on April 21 (ironically my 10th anniversary), which is where Warren “The Bigot of Pampa” Chisum and Todd “What the hell does this have to do with Agriculture” Staples come in with their amicus brief, which was prepared, pro bono no less, by the radical right think tank The Liberty Institute.

But more on that in Part II…

Monday, April 5, 2010

The Pot Calling the Kettle Butch

Desperation often brings out people’s true nature, it certainly has brought out Democrat Rep. Norma Chavez’s inner Homophobe. Chavez, the El-Paso area Rep, is in a tight primary runoff with Naomi Gonzalez.

According to the El Paso Times, at a recent Candidate forum the topic of Chavez’s support of pro-biker legislation came up (Chavez is a biker and regularly carries pro-biker legislation (yes there is such a thing as pro-biker legislation)). Apropos of nothing, Chavez attacked Gonzalez for being “A Lesbian Gay Woman”, going on to say “"I have accepted my biker community. She needs to accept her gay community."

Until now I’ve always considered Chavez a moderate ally. She voted against the Texas version of the Defense of Marriage Act, but she put a note in the record saying “I strongly support the institution of marriage and believe that our government should support efforts to strengthen this important bond between a man and a woman.” She doesn’t tend to file any good GLBT legislation, but she will occasionally co-author good legislation (such as last session’s HB 1323 – Anti-bullying legislation).

With a tight run-off it’s clear that Chavez is running scared, and bringing up sexuality as a way to attack her opponent CLEARLY shows who she is and where she stands. Insinuating that her opponent is a lesbian, and therefore unfit to serve in public office, is unforgivable. Let’s hope the people of El Paso don’t see fit to send her back to Austin.