In April, I observed how opponents of marriage equality were trying to use the courts to paint themselves as victims of violence and discrimination. In Washington state, Protect Marriage Washington (PMW) — a group opposing marriage equality — successfully put to a vote a law that granted “same-sex (and older opposite-sex) domestic partners virtually all of the same rights that straight married couples receive from the state.” The referendum failed “by a margin of 53% to 47% in November” but the group refused to comply with the state’s Public Records Act (PRA) and release the names of the petitioners. PMW claimed that publicizing the names of the petitioners violated their First Amendment rights and would have “subject the signatories to harassment, injury, or property damage.”

Today, in a vote of 8-1, the Supreme Court ruled that generally, disclosing the names of the individuals who sign referendum petition does not violate the First Amendment, but said that the plaintiffs may still ask the District Court to rule as to whether or not this specific act infringes their First Amendment. Generally, the states have a “sufficiently important’ governmental interest” in requiring disclosure, the Court found:

The State’s interest in preserving the integrity of the electoral process suffices to defeat the argument that the PRA is unconstitutional with respect to referendum petitions in general. That interest is particularly strong with respect to efforts to root out fraud. But the State’s interest is not limited to combating fraud; it extends to ef-forts to ferret out invalid signatures caused not by fraud but by sim-ple mistake, such as duplicate signatures or signatures of individuals who are not registered to vote in the State. The State’s interest also extends more generally to promoting transparency and accountability in the electoral process. [...]

According to plaintiffs, the objective of those seeking disclosure is not to prevent fraud, but to publicly identify signatories and broadcast their political views on the subject of the petition. Plaintiffs allege, for example, that several groups plan to post the petitions in searchable form on the Internet, and then encourage other citizens to seek out R–71 petition signers. That, plaintiffs argue, would subject them to threats,harassment, and reprisals.

The problem for plaintiffs is that their argument rests almost entirely on the specific harm that would attend the disclosure of information on the R–71 petition. But the question before the Court at this stage of the litigation is whether disclosure of referendum petitions in general violates the First Amendment. Faced with the State’s unrebutted arguments that only modest burdens attend the disclosure of a typical petition, plaintiffs’ broad challenge to the PRA must be rejected. [...]

We leave it to the lower courts to consider in the first instance the signers’ more focused claim concerning disclosure of the information on this particular petition, which is pend-ing before the District Court

This decision will make it harder for same sex marriage opponents to put LGBT rights to a vote, but what’s annoying is the Court’s tacit acceptance of the plantiff’s victimization argument. Here is how Chief Justice Roberts put it: “we have explained that those resisting disclosure can prevail under the First Amendment if they can show ‘a reasonable probability that the compelled disclosure [of personal information] will sub-jct them to threats, harassment, or reprisals from either Government officials or private parties.’” “The question before us, however, is not whether PRA disclosure violates the First Amendment with respect to those who signed the R–71 petition, or other particularly controversial petitions. The question instead is whether such disclosure in general violates the First Amendment rights of those who sign referendum petitions.” Ok, fair enough, but then Roberts goes on to describes this petition as different from a “typical” referendum:

The problem for plaintiffs is that their argument rests almost entirely on the specific harm they say would attend disclosure of the information on the R–71 petition, or on similarly controversial ones….But typical referendum petitions “concern tax policy, revenue, budget, or other state law issues.”…(stating that in recent years the State has received PRA requests for petitions supporting initiatives concerning limiting motor vehicle charges; government regulation of private property; energy resource use by certain electric utilities; long-term care services for the elderly and persons with disabilities; and state, county, and city revenue)…. Voters care about such issues, some quite deeply—but there is no reason to assume that any burdens imposed by disclosure of typical referendum petitions would be remotely like the burdens plaintiffs fear in this case.….Several other petitions in the State “have been subject to release in recent years,” plaintiffs tell us, Brief for Petitioners 50, but apparently that release has come without incident.

Same-sex marriage may be “controversial,” but there is actually very little evidence to suggest that releasing the names for this particular petition will be any different than those that have been released “without incident.” As Jeff Krehely notes in this piece, the LGBT community received much more harassment and intimidation than any of the opponents of marriage equality.

Marc Ambinder has some interesting observations about the military’s level of tolerance towards gay soldiers. I was arguing here that McChrystal’s aide should be fired for describing something as “gay,” but Ambinder suggests that this kind of language does not necessarily denote homophobia; it simply confirms the stereotype about military machismo.

Soldiers don’t care if their colleague is gay as long as he can shoot straight, but don’t expect him to abandon their locker room colloquialisms. He recalls this encounter:

One soldier — call him Ben — checks his e-mail. “Fuck,” he says. He opens his cell phone and makes a call. … A beat. … “Heeeey cock breath, how are you?” … “Yeah, that sucks.” “Yeah, why is he doing this to us again?” “No, he told me his partner was in town for the weekend and he really needed to see him.” … “Dude, why can’t he break way for one weekend!”

The conversation continues.

“Yeah, well, you know I’m just going to come over and [perform an obscene act involving testicles -- this IS The Atlantic, after all, and I already typed 'cock breath'].”

He hangs up.

What was that about, I asked?

“Oh, this guy we haven’t seen for a while is in town, a really good buddy, but his partner is also in town and he wants to see him. So we were just complaining that he wanted to see his partner rather than hang with us.”

“A lot of the outside discussion of Don’t Ask, Don’t Tell assumes that the integration of gays in the military will require the imposition of a new code of political correctness, one that dissolves the rough, often profane, often exaggeratedly anti-gay banter that serves as a gateway into conversation between buddies,” Ambidner writes. “But the two cultures can co-exist. It seems as if they already do, informally. People who are gay, and who are competent, and who have been tabbed, are accepted. And no one is toning down their language; discipline and morale aren’t suffering. It’s the lesson from South Park: there’s “gay,” and then there’s gay.”

There is probably a lot of truth in this, but I don’t see the harm in using the McChrystal saga as an opportunity to expose this kind of rhetoric to a healthy dose of public condemnation. The “two cultures can co-exist,” but it doesn’t mean they should, at least not for much longer.

A new study published today in Health Affairs examines how “inequalities in marriage laws and domestic partnership benefits” have implications on health care costs and the lives of LGBT Americans.

The analysis looks at access to health insurance for same sex couples in California and concludes that the federal income tax burden on dependent employer-sponsored coverage for same-sex couples (as well as other factors) results in lower levels of insurance for partnered gay and lesbian men as compared to their heterosexual counterparts:

Partnered gay men are less than half as likely (42 percent) as married heterosexual men to get employer-sponsored dependent coverage, and partnered lesbians have an even slimmer chance (28 percent) of getting dependent coverage compared to married heterosexual women….We found no strong evidence to suggest that employers in California are discriminating in providing health insurance to gay and lesbian workers. However, our results on the dependent coverage disadvantage in the partnered or married population provide strong evidence of compensation discrimination, in which employers setting coverage rules for dependents favor legally and heterosexually married employees.

Moreover, we suspect that the dependent disadvantage we observed is a consequence of not just compensation discrimination, but also the unequal federal tax burden that influences employees to enroll their dependent spouse or partner for health insurance at different rates. Another possible factor is that enrolling a same-sex partner or spouse as a dependent frequently requires that an employee “come out” as lesbian or gay if the employee has not done so already. Some employees are likely to find this a deterrent.

Indeed, the taxation of employer-provided domestic partner health benefits costs couples some $1,069 per year more in taxes than would a married employee with the same coverage. Employers also pay a total of $57 million per year in additional payroll taxes because of this unequal tax treatment.

The new health care law, will certainly increase the rate of insurance among LGBT Americans, but these kinds of inequalities may present serious impediments to achieving the goal of universal health coverage. If same sex partners who are not offered dependent coverage see the exchanges as an expensive option and opt to remain uninsured, this will certainly lead to increased health care costs down the road. The House version of the health care bill, of course, extended the ESI tax exclusion to domestic partnership benefits, but it was not included in the final version of the bill.