There are two events happening in Columbus, Ohio, this Friday, March 30, that offer a slate of both educational and entertainment activities.

Columbus Blue Jackets “Pride Night”

The latter of the day, which I’ll start with first since there is less to be said, is the Columbus Blue Jackets “Pride Night” game against the Florida Panthers.  The game starts at 7:05 p.m. with a pre-game happy hour at 5:30 p.m. in the Founders Club of Nationwide Arena.

If you are interested, Contact Erica Ganyard at (614) 246-7675 to order tickets or with questions.  Tickets are available at four prices: $34, $50, $62, or $85.

A portion of the ticket sales benefit ARC Ohio, Bravo, Equality Ohio, Kaleidoscope Youth Center, and TransOhio.  Being that I go to ARC Ohio for HIV testing; consider Ed Mullen, executive director of Equality Ohio, a friend; volunteered for a year at KYC; and know that Bravo and TransOhio do tremendous work; that these great organization will be beneficiaries in some capacity is reason to attend.  For a portion of your ticket price to go these organizations, you need to purchase your tickets from Ms. Ganyard.

I am slightly disappointed with the slate of the programming this year, however.  Compared with last year, which had the entire group sitting together in the sky terrace (a more private and intimate setting which was great for those that may not feel the most comfortable holding their partner’s hand, etc. while sitting in the normal seating areas) and had a post-game game between two gay hockey teams, Ohio Mayhem and Chicago Black Wolves), the agenda leaves me wanting more.  Basically, there is a pre-game happy hour (cool), but the tickets are scattered all over (boo) and there is no other programming advertised (double boo).  (For an example of how it should be done, check out the programming for the Washington Nationals game last season.)

I’m hoping that since Blue Jacket Rick Nash recently joined the You Can Play campaign, that there is a chance the PSA will air during the game.  But I’m not counting on it.

“Humanistic Foundations: Historical, Philosophical and Sociocultural Studies of Sport”

The Ohio State University, joined by Pennsylvania State University and University of Western Ontario, is hosting an all-day conference for the cross-disciplinary study of sport at the Ohio Union, Barbie Tootle Room, 1739 N. High Street.

The event lasts all day and includes a number of topics that look to be interesting, including cross-studies of race, sexuality, gender, and more.

I am particularly interested in those in Session I, “Mediated Differences: Representations of Gender and Sexuality.”  This session includes topics such as:

- 8:00-8:20 “Identifying Typologies: Women Bloggers and the Concept of ‘Sports’”

- 9:00-9:20 “‘What Kind of Respectable, Straight Male’: Paulie Malignaggi, Homophobia and Professional Boxing”

Session II also includes: “Controlling Sex in Sport: The Initial Days of Sex Testing by the IOC” from 9:50-10:10.

Other topics for the day will cover sociological implications in physical education, globalization of the NBA affecting the player’s union, ethical dimensions with parents coaching youth sports, and more.  You can view a complete schedule of all the topics here.  (There is also a welcome gathering on Thursday evening and a closing reception on Friday evening.)

Materials prepared for the event also include abstracts for the topics, so you can get a glimpse of the content before attending.

The abstract for the discussion on homophobia in sport is on page 15, and pasted below:

“What Kind of Respectable, Straight Male”: Paulie Malignaggi, Homophobia and Professional Boxing

MacIntosh Ross, University of Western Ontario; Daniel Taradash, University of Iowa

In the twenty-first century, internet forums, article responses and blogs have made the World Wide Web an unprecedented repository for often overlooked opinions of sports fans. Since many of these opinions are uncensored, readers are often presented with harsh, stereotyped views regarding class, race and gender. This paper will focus on perceptions of gender in online boxing fan forums, using R.W. Connell’s theory of hegemonic masculinity to explain homophobic reactions to American boxer Paulie Malignaggi on various boxing websites.

In 2007, Paulie Malignaggi won the International Boxing Federation world light welterweight championship by defeating title-holder Lovemore N’dou. Malignaggi defended his title twice before vacating the championship to fight Ricky Hatton in 2008. Unlike other champions, Malignaggi’s sexuality was routinely discussed and/or attacked online. Although his skills elevated him to the rank of champion, Malignaggi’s appearance – bright colored ring attire and thoroughly groomed look – did not align with hegemonic notions of masculinity. Furthermore, Malignaggi’s reliance on speed and technique, rather than power, was routinely pointed out, criticized and linked to his lack of ‘manliness.’

Within hegemony, a dominant cultural form does not extinguish all competitors. As Connell argues, other forms of masculinity continue to occur throughout society, constituting alternative, albeit subordinate, ways of being a man. We will argue that Malignaggi represents a subordinate masculinity, outside the boundaries of the dominant, hegemonic masculine culture exalted in boxing and other sports. Since hegemonic masculinity is heterosexual, many boxing fans framed Mailgnaggi as homosexual when discussing the fighter online. Fans typically approached Malignaggi’s sexuality in one of two ways. First of all, fans create posts asking for verification of Malignaggi’s sexuality. Secondly, some fans attack Malignaggi’s ability as a boxer by labeling him with homophobic pejoratives, suggesting that a homosexual man cannot box successfully. Ultimately, both types of forum entry reinforce existing notions of masculinity, marginalizing not only Malignaggi, but boxers who actually are homosexual.

If you attend either event, look for me and say hello!  I’ll try to take notes to document the various panels I attend and of course I will be reporting on anything notable that happens at the Blue Jackets game.

ARC Ohio, Bravo, Columbus Blue Jackets, Equality Ohio, Florida Panthers, Kaleidoscope Youth Center, Ohio State University, Outlook Media, Pennsylvania State University, Pride Night, Stonewall Columbus, TransOhio, University of Western Ontario Hide

Columbus Blue Jackets captain Rick Nash has joined seven other NHL stars in a video promoting the message of a new non-profit organization: the “You Can Play Project.”

You Can Play is co-founded by Philadelphia Flyers scout Patrick Burke who, along with his father Brian Burke (GM of the Toronto Maple Leafs), is carrying on the commitment to fight for equality of LGBT athletes after the death of his younger brother Brendan.

You Can Play’s mission:

You Can Play is dedicated to ensuring equality, respect and safety for all athletes, without regard to sexual orientation.

You Can Play works to guarantee that athletes are given a fair opportunity to compete, judged by other athletes and fans alike, only by what they contribute to the sport or their team’s success.

You Can Play seeks to challenge the culture of locker rooms and spectator areas by focusing only on an athlete’s skills, work ethic and competitive spirit.

The organization’s website includes numerous other resources, including an ally pledge and a captain’s challenge.  The Project is also going to do something similar to the “It Gets Better” project—finding athletes, coaches, etc. to record promotional videos—except the focus will be narrowed to the simple message that sexual orientation will not be considered in evaluating your capacity to play sports.

In an interview with Outsports, Burke explains that the athletes he has worked with have been more supportive of this narrow message: “Some athletes who might support a gay teammate might not be on board with gay marriage or don’t want to deal with those issues.  We’re just getting athletes to say they want the best teammates and the other stuff doesn’t matter. And they know they’ll never have to take a position on gay marriage or march in a pride parade. They can just say they want a safe locker room and not have to do anything else.”

A 30-second initial video (shot and produced by HBO, a partner of You Can Play) will air on national television during the 1st intermission of the NBC telecast of the NY Rangers v. Boston Bruins today, March 4.

You can watch the full-length, 60-second video here:

Like the “Don’t Say Gay” PSA that aired during the NBA Finals, it is absolutely incredible to have a video with this message airing during a national telecast.  It actually leaves me speechless.

Aside from Nash, the video also features Patrick and Brian Burke, Duncan Keith (Chicago Blackhawks), Brian Boyle (New York Rangers), Matt Moulson (New York Islanders), Joffrey Lupul (Toronto Maple Leafs), Claude Giroux (Philadelphia Flyers), Daniel Alfredsson (Ottawa Senators), Scott Hartnell (Philadelphia), Corey Perry (Anaheim), Andy Greene (New Jersey Devils), Dion Phaneuf (Toronto Maple Leafs), and Henrik Lundqvist (New York Rangers).

You Can Play’s advisory board also includes some notable names: John Buccigross (ESPN Sportscenter anchor), LZ Granderson (CNN/ESPN columnist), David Testo (recently out professional soccer player), Rick Welts (out President of the Golden State Warriors), among others.

Read more at Outsports, follow You Can Play on Twitter, or ‘like’ You Can Play on Facebook.

Brendan Burke, Brian Burke, Columbus Blue Jackets, HBO, NBC, NHL, OutSports, Patrick Burke, Philadelphia Flyers, Rick Nash, You Can Play Project Hide

Just over a week ago, the Columbus Dispatch ran a story highlighting (celebrating?) Ohio State football’s new approach to conditioning and training motivation in the Urban Meyer regime: avoid the lavender jersey.

The Dispatch’s Tim May describes Ohio State’s new director of performance, Mickey Marrioti, as “a colorful motivator,” and that “In a scarlet and gray world, a lavender shirt sticks out.”

How it works: you loaf on the field and Mariotti makes you wear a lavender shirt—something the Dispatch describes as “a stain that takes at least a week of renewed gusto to erase.”

Senior linebacker Etienne Sabino acknowledges the purpose of the program, “You don’t want to wear those.”

So what’s wrong with it?

First, and the focus of my concern, while being masked as a tool to build a competitive team environment, forcing a player to wear a lavender jersey as punishment is patently homophobic, sexist, misogynistic, etc.  It takes a color that is feminine—and regularly associated with either women or the gay community—and assigns it to weakness, lack of commitment, or failure to work hard.  It is then used to demean and humiliate, you know, because the color is capable of emasculating even the manliest of men.

A former professor of mine, Douglas Whaley, blogged on the subject as well.  (It is actually how I found out about this.)  Whaley writes: “It never occurs to Marotti, of course, that some of his players might actually be gay.”

That is the biggest problem I have with the lavender jersey.  If there is a single gay player on that team (the roster lists 86 young men, so odds are, there is at least one) or even an assistant coach or other team personnel, that person is now pushed further in to the closet and feels even more unwelcome and ostracized by the team.  Isn’t that rather contrary to the purpose of building a cohesive football team?

Professor Whaley submitted a letter to the Dispatch editors much to that effect:

“So Ohio State football’s new director of performance makes players who are loafers on the field, in the weight room, etc., wear a lavender shirt to embarrass them ["New strength coach a colorful motivator," Feb. 13, 2012]. Does he also use anti-gay slurs when referring to these slackers or is the shirt’s color enough to send the same homophobic message?”

Sheesh, such a contrast from Jim Tressel (who, by the way, is as outspokenly Christian as Urban Meyer) who, as you may have forgotten, was the first Division I NCAA football coach to be interviewed by a GLBT publication.

The second problem—beyond that first point that I’m sure many folks would roll their eyes at, suggesting it is just some over-sensitive, liberal agenda mumbo-jumbo—at best, the program violates numerous NCAA and Ohio state policies, and at worst, the program violates Ohio law and Title IX.

Where to start?

How about Ohio State Athletics’ “Our Values” statement?  Most pertinent:

People. We will keep the well-being of our student-athletes, coaches and staff at the core of every decision.

I’m pretty sure the well-being of any gay athletes, coaches, or staffs have been ignored on this one.

Respect. We will celebrate a climate of mutual respect and diversity by recognizing each individual’s contribution to the team.

Violates this too.

What about the NCAA’s anti-hazing campaigns?

It turns out there is not an explicit hazing rule promulgated by the NCAA, but there are countless programs and initiatives the NCAA has initiated to prevent hazing.  While most are directed at student-on-student hazing, it is much worse that hazing at issue here is coming directly from the institution—the entity usually charged with protecting the student-athletes from this type of conduct.

One initiative, NCAA’s hazing handbook, titled, “Building New Traditions: Hazing Prevention in College Athletics,” is illustrative.

Page 3. Comparing what is hazing versus team building.

Hazing: humiliates and degrades, tears down individuals, creates division, lifelong nightmares, shame and secrecy, and is a power trip.

This lavender jersey idea hits every single one of those…

Team building: promotes respect and dignity, supports and empowers, creates real teamwork, lifelong memories, pride and integrity, and is a shares positive experience.

… And none of these.

Page 4.  What should athletic administrators be responsible for?

Well, crap, the athletic administrators are the ones doing the hazing here, so thinking they’d would act accordingly to prevent others from doing so is asking too much at Ohio State.

No need to keep going through the document; there is plenty there if you want to read further.

How about the “Hazing Fact Sheet” promulgated by the Ohio State Union?

While more directed at student organizations and fraternities, I presume the rules also apply to athletic teams (and if they don’t officially, they should).  The Student Code of Conduct definition of hazing: “Doing, requiring or encouraging any act . . . that causes or creates a substantial risk of causing mental or physical harm or humiliation.”

Okay, I’ve provided enough of the “soft” policies; how about some “hard” law now?

Civil liability for hazing is set forth in Ohio Revised Code § 2307.44: “Any person who is subject to hazing . . . may commence a civil action for injury or damages, including mental and physical pain and suffering, that result from the hazing.”

“If the hazing involves students in a . . . university . . . , an action may also be brought against any administrator, employee, or faculty member of the . . . university . . . who knew or reasonably should have known of the hazing and who did not make reasonable attempts to prevent it and against the . . .  university . . . .”

That language looks really bad for Ohio State.

Now, the definition for hazing is written rather narrowly in § 2903.31, which could be a defense for Ohio State, in the event a player tried to sue about this.

A quick aside: I doubt any player—probably the only party that would have standing to actually sue about this—would ever bring a civil action about this.  But, I think it’s generally a good idea to avoid violating laws whether or not you will actually be sued.  (And you never know, maybe there is a gay player on the team or maybe one of those “loafers” doesn’t get their scholarship extended for next year and has a reason to sue.)

Anyway, the definition: “‘hazing’ means doing any act or coercing another, including the victim, to do any act of initiation into any student or other organization that causes or creates a substantial risk of causing mental or physical harm to any person.”

Arguably, the lavender jersey is not an “act of initiation.”  If faced with a suit, I’m sure the school would say that the conditioning program is not an initiation to the team.  The contrary argument is that especially during the early stages of team formation and conditioning, the norms and culture are being formed, and those are the team are being initiated to it.  No knowing which argument would prevail, I would still go to the default perspective that a school—particularly one that hasn’t had the most pristine image as of late—should not test a gray area of the law.

Then there is Title IX.

Many only view Title IX as an equalizing device, providing more opportunities for women in sport.  But the law is much more broad and can be used against gender stereotyping.  The Women’s Sports Foundation provides a great synopsis of some cases that have addressed harassment based on gender expectations.  The courts have ruled that “harassment based on gender non-conformity is a form of sex discrimination and, therefore, Title IX applies.”

Whether the conduct of the team (assigning the lavender jersey) or the conduct of the player (being the “loafer” leading to receiving the jersey) would trigger Title IX protection, again is debatable, but again, it seems like it would be risky for a school to continue conduct in such a gray area.

In sum, the lavender jersey motivation bothers me mostly for contributing to the homophobic culture of sports.  But knowing that few athletic institutions will change their conduct because of that, hopefully all the violations of NCAA program, Ohio State University policies, and Ohio and federal laws may do the trick.

I’ve been in the works of planning a “homophobia in sports” type of event to be hosted at the Ohio State law school in mid-April.  This issue will definitely have to be discussed, and I’ll be calling in the big shots to do the talking (and hopefully will be able to line up some meetings with athletic administrators as well).

A few hat-tips to send out: Professor Whaley for his original blog post, Andy Gammill for directing my attention to it, and Paul Alderete for creating the Ohio lavender jersey used as a thumbnail for this post (I have no idea what the actual lavender jersey looks like).

Columbus Dispatch, Douglas Whaley, Etienne Sabino, Jim Tressel, Mickey Marotti, Ohio State Buckeyes, Ohio State football, Ohio State University, Tim May, Title IX, Urban Meyer, Women’s Sports Foundation Hide

I had to put some generic title on this post because of …

SPOILER ALERT: if you have not seen the Glee episode from last night (Season 3, Episode 14) titled “On My Way” and if you do not want to be spoiled, stop reading.

In making the usual rounds through my Facebook and Twitter feeds this morning, I quickly found out that I had missed something big on Glee yesterday—and it involved Dave Karofsky, the former football bully that we all discovered was gay in the early part of season 2.

I have not kept up with the show, but I do know the Karofsky character, played by Max Adler, has had a recurring (though, not consistent) role on the show and that he has gone through quite an evolution since his days of being a slushy-throwing bully.  He had apologized to Kurt, tried to reform, faced the pressures of being in the closet, transferred schools (I think), and was started to get comfortable in his skin (at one point he discovered and announced that he was a “bear cub”).  [If any Gleek wants to correct and/or fill in those details for me, let me know.]

Fast forward to this week’s episode.  Knowing a bit of the background and that something worthy of blowing up my timelines involved Karofsky, I had to check it out.

I was treated to one of the most intense few minutes of a television show that I’ve ever witnessed.  Juxtaposed against Blaine, played by Darren Criss, belting out a version of “Cough Syrup,” originally performed by Young the Giant, Karofsky is outed, confronted by his entire football team, and then, well, just watch.

Watch the segment [you may need to authorize a Windows Media plug-in to do so, and if that doesn’t work, you can download the clip]:

The looks on his teammates faces.  The shoulder check into the lockers.  The proverbial option of fight or flight.  Cyberbullying.  Depression.  Feeling helpless.  Attempted suicide.

All of that packaged into just over 3 minutes of the show.

And all of it being the consequence of a homophobic athletic culture (in this context) and repeated in so many others throughout society.

I believe the show did a masterful job handling the discussions following the attempt.  In fact, I do not know how they could have done this any better.

The brief scene of his dad finding him, and as Sue describes, “the helplessness of that feeling.”  Too often, the discussion around bullying and gay suicide is in statistics or religious freedoms.  I bet that not a single legislator or advocate that promotes things like the religious exemption to allow bullying has ever imagined that sort of emotion or truly tried to sympathize with the struggle.  Real people (or actors portraying issues that I promise you are real) need to become the issue more than any statistic or nuanced interpretation of some legal statute.  Real emotions, real pain, real struggle, real inequality.

Continuing on, to presumably ease a bit of the guilt for the faculty, the principal suggests, “it wasn’t our job to know.”  But the response is the better one: “then whose job was it?”

That “job”—the one that asks us to be there for our peers, for the youth, for anyone—belongs to everyone.  I will be the first to admit that I need to do a better job of it.  We all need to do a better job of it.  How many have witnessed bullying and stood idly by?  How often have we not leant an ear to someone that just needs to talk?  We all get caught up in our agendas or obligations; we are scared to open up to others or to allow others to open up to us.

I love how the episode had a group of faculty meeting followed by a group of students.  The issue affects both, and the perspective offered by each is incredible.  The guilt that Kurt feels is something that everyone who knows anyone that has attempted suicide feels.  Could I have reached out to them?  Did I ignore them once recently?  It is so, so tough.

After much song and dance—of course, it is Glee after all, and it was the “regionals” episode—there was another particularly powerful scene near the end of the episode where Kurt goes to visit Karofsky in the hospital [or download]:

Okay, this scene probably tore me up more than the average person because that scene that Kurt describes and Karofsky envisions—the one being an openly gay sports agent with the partner and the adorable boy—was, for a time, my dream.  While I worked for Leigh Steinberg, I would ask myself two competing questions: (1) could I stay in the closet to pursue being an agent or (2) could I be out and still work in sports.  While my career path has changed somewhat (not that I’d turn down option #2!) and needless to say, this scene affected me quite a bit.

I also heard that this PSA from Daniel Radcliffe and The Trevor Project aired during the episode (and of course it is awesome):

And continuing with the theme of how great a job Glee, and its characters, are doing on the subject of bullying, here are the “It Gets Better” videos from Max Adler and Chris Colfer:

Whew.

Chris Colfer, Daniel Radcliffe, Darren Criss, Dave Karofsky, Fox, It Gets Better, Max Adler, The Trevor Project, Young the Giant Hide

[Editor's Note: With the Prop 8 ruling today from the Ninth Circuit, there have been numerous media reports that are not entirely accurate.  My roommate, Richard Muniz, repeatedly pointed out some of the nuances of the ruling (and inaccurate reports).  I suggested he write a guest blog to clarify some of the matters.  And since he is far more savvy in understanding constitutional law issues, I defer to him.]

Today’s much celebrated decision in Perry v. Brown, affirming the unconstitutionality of Prop. 8, is laudable for many reasons. For one, it confirms that discrimination against LGBT folks solely because of their/our sexual orientation is not a legitimate governmental objective and hence unconstitutional. Second, and mostly ignored by today’s media coverage, the panel unanimously agreed that the sexual orientation of Chief Judge Walker was not a basis for recusal (and therefore denial of a motion to toss out his August 4, 2010, ruling was appropriate), a first for an appellate court. So, what else did today’s decision say and what did it omit?

What the decision says

The court, 2–1, concluded Prop. 8 violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.

Why you may ask? Because Prop. 8 “takes away” rights previously granted to people for no other reason than animus.

This is important and the core of the Ninth Circuit’s decision. It is very narrow and unique to California. The idea here is that California constitutionally guaranteed same-sex couples the right to marry (See In re Marriage Cases, 183 P.3d 384 (2008)), and 143 days later, California voters amended their Constitution to “take away” the right to marry for only same-sex couples. And, once the government giveth, it can only taketh away for rational, legitimate reasons.

The reasons offered by the proponents of Prop. 8 (and their supporters)—furthering responsible procreation and childrearing, protecting religious freedom, taking it slow when making significant changes, and “preventing children from being taught about same-sex marriage in schools”—were all rejected by a majority of the panel. So, what remains is an inference of animus. Basically, if no rational reason remains to explain Prop. 8, then all that could remain is hate, which is the antithesis of reason/rationality. That notion follows earlier Supreme Court cases, including and most notably Romer v. Evans, 517 U.S. 620 (1996), which said that Colorado Amendment 2 was unconstitutional. (Amendment 2 was a voter-enacted measure that nullified existing and prevented future anti-discrimination laws enacted for the protection of LGBT individuals.)

Importantly, this argument is not present in the district court’s 2010 decision initially striking down Prop. 8. Indeed, Chief Judge Walker concluded that Prop. 8 violated the Due Process Clause of the Fourteenth Amendment because it denied lesbians and gays access to marriage, which is a fundamental right guaranteed by the Federal Constitution, and violated the Equal Protection Clause because it discriminated against them because of their sexes and sexual orientations. The Ninth Circuit today avoided both of those arguments, opting to chart a new course.

In other words, the 2010 lower court decision and today’s Ninth Circuit decision are similar only in that they both conclude Prop. 8 violated the equal protection rights of lesbian and gays. They are dissimilar on how they reached that conclusion.

What it doesn’t say?

First, as noted above, it is very narrow and unique to California. The decision does not affirm Chief Judge Walker’s conclusion that individuals have a federal constitutional right to marry another of the same sex. Today’s decision also does not quite say that Prop. 8 unconstitutionally discriminates against lesbians and gays because of their sexual orientations. (Indeed, there is nothing in the opinion about whether lesbians and gays get the same constitutional review as those given to race- or sex-based laws, i.e, whether sexual orientation is a suspect or quasi-suspect class.) Rather, it focuses in on another form of discrimination: the taking away of rights because of a majority’s disfavor of a minority group.

Also worth noting was the court’s willingness to ignore the majority of Chief Judge Walker’s findings. Judge Walker made over 80 findings of fact, including “46. Individuals do not generally choose their sexual orientation. No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.” and “51. Marrying a person of the opposite sex is an unrealistic option for gay and lesbian individuals.”

Weaknesses

What are the ruling’s weaknesses? The first is the distinction between “taking away” rights already granted and not giving it in the first instance. The court, as I have said, relies on the “taking-away” argument by saying that taking away rights is somehow different than not giving the right in the first place. But, is that really true? Consider: you were given the right to marry, but before you could take advantage of it, the right was revoked. Now consider this: you were never given the right to marry. Is there really a difference? In both cases, you cannot get married. Although, I admit the first example seems more pernicious than the second, but the question really is whether that distinction has constitutional significance.

The second weakness is the court’s rejection of tradition as a legitimate objective for lawmaking. Meaning, the purpose underlying a law cannot be “that’s how we have always done things and so that’s how we should continue to do things.” But, of course, if we have done things for a really long time, then maybe we have been doing it right for all that time, so why should we change our practice? I hate to do this, but an example is a law against polygamy. Why do we outlaw polygamy? Because we think it is wrong? Well, that is not a constitutionally acceptable reason for the same reason as a law targeting lesbians and gays for unequal treatment because of a disapproval of their/our relationships is unconstitutional. Is it because we have always outlawed the practice? Sure, but the court today said that is not enough either.

The third weakness is the court’s (over)reliance on Romer v. Evans. Prop. 8 deprives same-sex couples of the designation of “marriage,” nothing more. Colorado Amendment 2, on the other hand, was “far reaching” in that it singled out lesbians and gays and placed on them/us a unique disability experienced by no other group (e.g., only lesbians and gays could not receive the protections of anti-discrimination laws, but racial minorities and women could still obtain those protections). Judge Smith noted this difference between Prop. 8 and Amendment 2 and others in his concurring and dissenting opinion. He also discussed the first weakness above in his opinion.

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