Richard Kim | The Nation

Via ABC News

In an interview today with GMA’s Robin Roberts, President Obama announced his support for same-sex marriage. Coming off days of intense speculation and pressure on the White House to clarify the president’s position and explain how it squares with recent comments by Vice President Joe Biden and Education Secretary Arne Duncan apparently indicating support for same-sex marriage, the announcement has already been widely praised by progressives and gay rights advocates.

“President Obama’s ‘evolution’ is now complete. Congratulations, Mr. President, for making history today by becoming the first sitting president to explicitly support marriage for same-sex couples,” said NGLTF executive director Rea Carey in a press release. “This is a great day for America.”

In the interview, Obama continued with the theme of his “evolving” thinking on same-sex marriage, telling Roberts:

I have to tell you that over the course of several years as I have talked to friends and family and neighbors when I think about members of my own staff who are in incredibly committed monogamous relationships, same-sex relationships, who are raising kids together, when I think about those soldiers or airmen or marines or sailors who are out there fighting on my behalf and yet feel constrained, even now that Don’t Ask Don’t Tell is gone, because they are not able to commit themselves in a marriage, at a certain point I’ve just concluded that for me personally it is important for me to go ahead and affirm that I think same sex couples should be able to get married.

Obama, however, stopped short of lending full support to the multi-state legal and political campaign for marriage equality. According to ABC News, the president stressed that his is a “personal position,” and that he continues to think that states should decide the issue independently.

In at least one crucial way then, Obama’s announcement stops short of a full reversal of policy. In the past, Obama has said that he thinks that “gay and lesbian couples deserve the same rights and legal protections that straight couples already enjoy,” but does not endorse same-sex marriage per se. This is not a coherent position. There simply is no legal category outside of marriage that grants same-sex couples all the rights and legal protections that straight couples enjoy—not civil unions, not domestic partnership arrangements. Only marriage recognized at the federal level and in all fifty states would do that.

Today, by endorsing a “states’ rights” approach to same-sex marriage, Obama essentially preserves the current status quo in which a handful of states recognize same-sex marriage and many states have constitutional bans against them. That is not marriage equality, and does not even reach the standard Obama previously embraced of equal rights and recognitions. Significantly, in the clip released by ABC News, Obama does not mention overturning the Defense of Marriage Act, the law currently under legal challenge that permits states to refuse to recognize marriages performed in other states and defines marriage as between one man and one woman. The Obama Justice Department recently declined to defend the latter part of DOMA in federal court, and the Obama administration has said they support repealing DOMA, supporting Senator Feinstein's Respect for Marriage Act.

Now the conversation shifts to the political consequences of his endorsement, and there’s already lots of chatter about how this might cost him the election or at least damage his chances in a few swing states, like North Carolina, which overwhelmingly passed an anti–gay marriage amendment yesterday.

I never say this, but: don’t worry. It won’t matter either way.

In a recent PEW poll, gay marriage polled eighteenth on a list of issues, with just 28 percent of voters saying that it is a “very important” issue. This trails obvious election setters like the economy (86 percent), jobs (84 percent), healthcare (74 percent) and other issues down the line like Iran (47 percent), gun control (47 percent) and even the GOP’s cause of the day, birth control (34 percent).

****

A few updates:

First, I’ve been criticized for being a negative Nelly—and it’s true, I am! While I stand by my analysis of Obama’s “states’ rights” approach, let me just say for the record that I applaud the president for saying what he said. He didn’t need to, and it’s not clear it will have political benefits. It took a measure of principle and guts. His remarks will have far-reaching and important cultural and political implications, and while it is overdue and more tepid than I would have liked, it moves him along the arc of justice. So thank you, Mr. President.

Now for more negativity: I’ve always held the view that the state should recognize a range of family formations and dependencies. See my article with Lisa Duggan for a summary. While I’m for full legal equality—whatever straights can have, gays should have too—the current marriage debate doesn’t really open a great window into the range of care-giving relations people have on the ground and the need to expand the recognition of those.

On the subject of any political fallout, beyond the Pew poll that shows that voters rank same-sex marriage very low on the list of priorities, there are a few other reasons to think Obama’s statement will either be a small boon or a wash. Independents have moved dramatically to embrace same-sex marriage to the point where over half of them support it. Young voters in particular favor same-sex marriage, and it’s possible today’s announcement energizes portions of Obama’s base. It will also almost certainly avoid a food fight at the DNC about the Democratic Party platform. Twenty-two Democratic senators, along with Elizabeth Warren and Caroline Kennedy, have called for a pro-gay marriage plank—and so Obama’s decision dodges one potential bad optic.

Don’t read too much into North Carolina’s passage of an anti-gay amendment yesterday. Yes, the vote was lopsided (61 percent in favor). But the turnout was low and concentrated among conservatives. In some polls, 53 percent of North Carolina voters support either same-sex marriage or civil unions, and yesterday’s vote didn’t reflect that. In a high-turnout election, the demographics will tilt in the right direction for Obama.

Yes, it’s true that the right-wing has already started frothing at the mouth. But they already think he’s a Muslim, communist traitor. It’s hard to see just how much more motivated they can get. What the right needs to grease the conservative turnout is not just a stark contrast in presidential candidates (which they now have in Obama and Romney), but state-ballot initiatives that motivate the grassroots, especially when the top of the GOP ticket is so meh.

They won’t have those this time around. In 2004, eleven states had anti-gay marriage amendments on the books, and there’s some speculation that it boosted Bush’s turnout (others disagree). Since then, some states have legalized same-sex marriage (like New York). Others have passed constitutional bans (like North Carolina, Florida, Virginia, Arizona and Colorado—all swing states). This leaves few states on the map where the right-wing can get an initiative on the ballot in November; the only one scheduled right now is Minnesota, where Obama leads Romney by 10-13 percentage points. No swell in right-wing turnout motivated solely by gay marriage is going to erase that lead.

Dharun Ravi, a former Rutgers University student charged with bias intimidation, wipes his brow as he departs the courtroom inside of the Superior Court of New Jersey in Middlesex County, New Brunswick, New Jersey March 15, 2012. REUTERS/Lucas Jackson 

The verdict in the Dharun Ravi trial came down on Friday. As I wrote back in September 2010, Tyler Clementi’s suicide shatters that part of me that remembers what it was like to be 18 and in the nerve-wracking process of coming out—at once both bold and shy, alight with a sense of possibility one minute, jaded and world-weary the next. I survived, as most gay people do; Tyler did not. Why? Nothing that has been revealed in the trial and subsequent reports has satisfyingly answered that question for me. And nothing about the verdict gives me an ounce of comfort.

After turning down a plea deal that would have spared him jail time, Ravi was tried on thirty-five charges related to fifteen separate counts and was found guilty on twenty-four of them. Seven of these are for tampering with evidence or hindering the prosecution; eight are for invading or attempting to invade the privacy of Clementi and his sexual partner, identified in court only as “M.B.”

If Clementi hadn’t committed suicide, it’s quite likely that these charges would never have been brought against Ravi, and the whole matter might have been resolved by Rutgers authorities. But Clementi jumped from the George Washington Bridge just days after Ravi, his freshman year roommate for all of three weeks, saw him making out with M.B. on his web cam, tweeted about it and then hatched a foiled plot to broadcast a second encounter. As Ian Parker’s excellent New Yorker anatomy documents, a firestorm erupted, fueled by misinformation and speculation about what actually happened. People assumed that Clementi was closeted (he was not), that Ravi and his accomplice Molly Wei had watched entire sexual episodes (they only saw a few seconds of making out), that Ravi had recorded the incidents (he did not), that he successfully broadcast them online (he did not) and that Clementi was the victim of widespread homophobic bullying (he was not). Gay rights advocates recklessly called for manslaughter and hate crimes charges to be brought against Ravi and Wei. Facing intense public pressure, the Middlesex county prosecutor relented, in part. Wei struck a plea deal and testified against Ravi, who was convicted not just of invasion of privacy but on nine additional charges of bias intimidation, turning the conviction into a hate crime and creating the very real possibility that he could be sent to jail for ten years. His sentencing is on May 21. Because he is an immigrant, there is also a chance that Ravi could be deported to India.

On civil liberties grounds, I’m opposed to all forms of hate crimes legislation—punish the crime, not the thought, I say. But since hate crimes laws are on the books, it’s worth reviewing whether or not they were appropriately applied to this case. When hate crimes were expanded to include sexual orientation in the wake of Matthew Shepard’s murder, the argument for them was that they were necessary to prosecute violent crimes perpetrated by extremist agents of hate who were terrorizing whole communities. (Whether or not that description applies to Shepard’s killers, Aaron McKinney and Russell Henderson, is subject to debate. Whether or not hate crimes statutes were necessary to throw the book at them is not. Wyoming had no hate crimes statute, but McKinney and Henderson will both die in jail.) Dharun Ravi may have been, as one friend described him, “so much of a jerk,” but no one has alleged that he is a violent criminal. But is he a hater?

The cell phone and social media evidence that Parker combs through for his article suggests a more complicated picture than the initial caricature of Ravi as a cyber-armed, homophobic bully. Decode and contextualize the teen-text speak, and what emerges is a story of two boys, one more vulnerable than the other, trying to navigate—badly and without much guidance—the vicissitudes of close encounters of the freshman kind. Ravi expresses horror when he discovers online that his new roommate is gay (“FUCK MY LIFE/He’s gay”), but he later texts “I don’t care” and characterizes Clementi as “gay but regular gay”—a term he also used to refer to the month of January (“what a gay month”). He was also upset with what he believed to be the Clementi family’s poverty (“dude I hate poor people”). Clementi, for his part, expresses some alarm that his new roommate’s parents are “soo Indian first gen americanish” and so “defs owna dunkin’ [donuts].” Had the roles been reversed, it’s not impossible to imagine a scenario in which that text would be used in court as evidence of Clementi’s racism. Class, race, sex—the stuff that grips the grown-up world is all there in grammatically challenged, condensed crudeness, because teenage boys are the unadulterated personification of the collective social id.

Don’t mistake me. This isn’t a “boys will be boys and so it’s all okay” argument. Pace Christina Hoff Sommers, the piggish culture of teenage masculinity to which Ravi bowed all too obsequiously is not all right. Boys will be boys—and that’s why they need to change. What the record shows, however, is that that too was a possibility. Clementi requested a room change and reported the incident to an RA, who took it seriously and spoke to Ravi about it. Perhaps that would have ended the matter, or perhaps the two would have learned to live with each other. They might even have become friends. We’ll never know.

What we do know is that minutes after Clementi posted on Facebook “Jumping off the gw bridge sorry,” Ravi texted him two apologies. The latter read, “I’ve known you were gay and I have no problem with it…. I don’t want your freshman year to be ruined because of a petty misunderstanding, it’s adding to my guilt. You have a right to move if you wish but I don’t want you to feel pressured to without fully understanding the situation.” Ravi says that he did not see Clementi’s suicide post when he apologized. If this is true, it demonstrates Ravi’s capacity—however stunted and late—for moral reasoning and maturation. And maybe he will still grow up to be better man, but it’s hard to see how ten years in prison makes that process any easier.

Clementi, of course, will never have the opportunity to grow up. In the media’s gaze and in the court records, he is frozen as the ultimate victim, a symbol instead of the person he was and the potential person he might have become. For those close to him, this martyrdom adds another complicating layer to the grief. Tyler’s brother James, who is also gay, recently published some heartbreaking posthumous letters to his kid brother. In them, he writes:

“I wonder what you would think, seeing all the commotion you’ve caused. It is surreal and meaningless to see you as a mere story on The New York Times, a brief glimpse at a life with none of the detail. You were a typical college freshman, trying to adjust to a dorm room, make some friends, meet a cute guy, and enjoy your independence, and no one noticed. The headlines tell of how you were violated and ridiculed; your last moments are a cautionary tale, a scandal, something to sell and entertain.”

Among the things blotted out by the trial and media circus is the enduring mystery of why Tyler Clementi committed suicide. He had an older, gay brother with whom he had a close and supportive relationship. His parents' reaction to his sexual orientation was mixed; his father was cool, his mother not so much, but they were still in regular and civil communication. He was clearly vexed about what Dharun Ravi had done, but was discussing what to do about it with a friend, the RA and online message boards. There’s nothing in these records that indicated he was suicidal or even beyond appropriately anxious about a situation to which he himself saw a resolution within reach (a new room). He wasn’t the victim of bullying across campus, and although he was socially shy, he was also somewhat sexually daring. He had four years of college, and a life, to look forward to—and indeed, until his Facebook post announcing his suicide, he was doing just that.

There are all too many cases of gay teenagers whose lives have been made intolerably miserable and who are driven to suicide by the harassment and violence of parents, family, fellow students, teachers and other authority figures. This is not transparently one of them. And the trial and verdict to one side, there is another kind of injustice done when a life is crudely forced into becoming a symbol of social wrongs, when it is made to carry the burden of a composite reality—anti-gay hate crimes—to which it bears but a schematic and hasty relation.

11:08 pm: Time of death for Troy Anthony Davis, 42.

Donate $11.08—or more—in his name to the Innocence Project or to the National Coalition to Abolish the Death Penalty or to Amnesty International.

10:43 pm: The Supreme Court issued a one-sentence statement denying Troy Davis’s stay of execution. It read, “The application for stay of execution of death presented to Justice Thomas and by him referred to the Court is denied.”

Earlier today, Troy Davis issued this statement:

“The struggle for justice doesn’t end with me. This struggle is for all the Troy Davises who came before me and all the ones who will come after me. I’m in good spirits and I’m prayerful and at peace. But I will not stop fighting until I’ve taken my last breath. Georgia is prepared to snuff out the life of an innocent man.”

10:21 pm: Democracy Now! is reporting that the Supreme Court has refused to stay the execution of Troy Davis. They also report that there were no dissents on this decision.

There is silence and great sadness outside of the prison where Davis is set to be killed for a crime witnesses now say he did not commit. There is great sadness across the world.

10:12 pm: Liliana Segura wrote about Georgia's cruel and unusual use of sodium thiopental to kill Emmanuel Hammond in January of this year. Hammond received a brief reprieve from Justice Thomas, just like Troy Davis has tonight. Nonetheless, he was executed four hours and thirty-nine minutes after his scheduled 7 pm execution. Her article is a must-read now. 

In July on her blog, Segura wrote about why Georgia videotaped the execution of Andrew DeYoung, the last person executed by the state of Georgia and the first person whose execution was captured on videotape since a gas chamber killing in California in 1992. Georgia switched to using pentobarbitol with DeYoung, and the video was intended to determine if there was evidence of "pain and suffering." Pentobarbitol is one of the drugs that would be used to execute Troy Davis. 

9:35 pm: As we wait for more news on what's happening inside the Supreme Court, here’s the last report on what we know about Justice John Roberts from Nation web editor Emily Douglas:

In confirmation hearings, Chief Justice Roberts suggested that capital cases require utmost scrutiny, and that any new DNA evidence that emerges requires close attention.  “No one wants an innocent person executed, period. And the availability of that type of evidence, that opportunity in some cases I think is something that's a very significant development in the law,” he told Senator Dick Durbin. (There is no physical evidence tying Troy Davis to the murder of Mark MacPhail.)  However, as chief justice, Roberts wrote in an opinion upholding lethal injection as constitutional. During Roberts’s years as chief justice, writes Kenneth Haas in the Pierce Law Review, the Court “has loosened the standards for evaluating the competence of capital defense attorneys, strengthened the hands of capital prosecutors, and upheld strict and constitutionally vulnerable statutory and procedural roadblocks to the appellate review of capital sentences.”

9:24  pm:  Here's what we know about Justices Alito, Scalia and Thomas—the conservative faction of the Supreme Court. While Thomas did recently intervene in a death penalty case, granting a brief reprieve to Emmanuel Hammond, on the whole Thomas supports the capital punishment, even in the case of a mentally retarded person (he joined Rehnquist and Scalia in their dissent in Atkins v. Virginia, which found that executing a mentally retarded person violates the Eighth Amendment). 

Alito’s opinions in capital cases, wrote Goodwin Liu and Lynsay Skiba in an American Constitution Society report prior to Alito’s confirmation, “show a disturbing tendency to tolerate serious errors in capital proceedings.” During his confirmation hearings, Senator Diane Feinstein questioned him on a death penalty case in which he ruled against a defendant who claimed that “his attorneys had failed to do an adequate investigation to prepared for his sentencing hearing.” The Supreme Court overruled Alito’s decision. Once on the Court, he joined Clarence Thomas and Antonin Scalia in overruling a Kansas Supreme Court decision that found that a Kansas law saying that “juries should impose death sentences if aggravating evidence of a crime's brutality and mitigating factors explaining a defendant's actions are equal in weight” unconstitutional.

As for Justice Scalia—this headline says it all. 

Nation web editor Emily Douglas and Nation interns are here contributing to these updates. So hats off to them.

9:19 pm:  According to Twitter accounts, there are crowds gathering outside the Supreme Court to demonstrate against the death penalty and plead for Troy Davis's life. The Court is not immune to public opinion, as the swing it has taken on gay rights issues demonstrates. If you are in Washington, please add your voice to those already outside the Supreme Court.

9:03 pm : If the whole court is reviewing the case, Justice Kennedy may be holding Troy Davis' life in his hands. His record on the death penalty is mixed. In 2005, Kennedy joined a 5-4 majority in banning the use of the death penalty on minors—making the United States the last country on earth to ban the state killing of children. In 1989, Justice Kennedy voted with a 5-4 majority (Stanford v. Kentucky) to uphold the death penalty for minors in his first year on the court. Sixteen years later, he changed his mind in Roper v. Simmons. As of 2005, Kennedy still appeared to be pro–death penalty. In his opinion, Kennedy wrote that "It [18] is, we conclude, the age at which the line for death eligibility ought to rest." 

Nonetheless, his opinion is evolving. We hope.

8:43 pm: Interesting background—in January 26, 2011, Emmanuel Hammond, also a prisoner in Georgia’s Jackson prison, was granted a temporary reprieve by Justice Thomas, who has issued the reprieve in Troy Davis’s case. Hammond was scheduled to be executed at 7 pm. He was put to death a little over four hours later at 11:39 pm. This is sobering news, and we should not necessarily expect Davis to live through the night.

8:40 pm: The mother of officer Mark MacPhail has told media outlets that she has been told that Troy Davis will not be executed until 8:30 pm at the soonest, pending an appeal to the Supreme Court. It’s 8:40.

8:35 pm: Troy Davis is still alive, and Democracy Now! is still reporting live from outside Jackson, Georgia. 

Another Obama appointee, Justice Sonia Sotomayor, has a mixed and indeterminate record on the death penalty. In the one DP case she heard before becoming a Supreme Court justice, according to the NYT, she “never ruled on the merits of the death penalty, even though her remarks made clear that she was unlikely to find it unconstitutional.”

That said, Sotomoyor’s first vote on the Supreme Court was to vote with Justices Ginsburg, Breyer and Stevens in an unsuccessful attempt to grant a stay of execution in the case of Jason Getsy, condemned to die by Ohio. Jason Getsy was killed by Ohio on August 18, 2009.

8:20 pm: Ben Jealous now is also reporting to Amy Goodman that Justice Thomas brought the appeal before the court and could be trying to craft a consensus of 4-5 justices to stay Davis’s execution.

Meanwhile, here’s Obama appointee Justice Elena Kagan on the death penalty:

“I am fully prepared to argue, consistent with Supreme Court precedents, that the death penalty is constitutional. As Solicitor General, I would represent the interests of the United States, as expressed in legislation and executive policy. Like other nominees to the Solicitor General position, I have refrained from providing my personal opinions (except where I previously have disclosed them), both because these opinions will play no part in my official decisions and because such statements of opinion might be used to undermine the interests of the United States in litigation. But I can say that nothing about my personal views regarding the death penalty (relating either to policy or law) would make it difficult for me to carry out the Solicitor General’s responsibilities in this area.”

8:12 pm: Interesting quote from Justice Ginsburg from a September 19, 2011, interview with ABC News. One might expect Ginsburg to argue with the Court’s right wing as they take up Davis’s application. Could this case actually bring forward the constitutionality of the death penalty as a whole? 

Death penalty decisions, she said, are a “dreadful part of the business.”

Asked by the moderator if she had one thing she’d like to accomplish before leaving the bench, she said, “I probably would go back to the day when the Supreme Court said that the death penalty cannot be administered with an even hand,” noting that such an opportunity is unlikely to arrive.

8:08 pm: And the hateful Ann Coulter weighs in on Twitter. This is what it looks like to be “pro-life without exception”: “@AnnCoulter: ONE TROY DAVIS FLAME-BROILED, PLEASE -http://bit.ly/qPQnV7”

8:02 pm: Andrew Cohen, chief legal analyst for CBS News, just tweeted this: “What’s happened. Justice Thomas (11th Circuit justice) got #TroyDavis appeal and sent it to his 8 colleagues. They are now discussing.”

7:56 pm: While we’re waiting for more information on what a reprieve means and what the basis of Davis’s application for a stay is—read David Grann’s extraordinary account of the case of Cameron Todd Willingham, a man executed by Rick Perry’s Texas. 

7:38 pm: Sad news, Lawrence Brewer was executed by Texas at 7:21 pm, just minutes after Troy Davis heard of his reprieve. Brewer was the white supremecist who dragged James Byrd to his death in 1998. You can read Greg Mitchell’s account of the case here. One of the moving things about this case is that Byrd’s only son Ross pleaded to save Brewer’s life, even though Brewer was unrepentent about the crime.

7:35 pm: According to ABC News, the Supreme Court could decide anytime from between tonight to seven days from now whether or not to allow the execution of Davis. The Court posts its orders here. The Democracy Now! coverage is remarkable, and it’s just as remarkable—and appalling—that other news media aren’t there. Watch the DN coverage below or at this link. 

7:23 pm: Troy Davis, sentenced to die by lethal injection at 7 pm tonight, has apparently been granted a temporary reprieve by the US Supreme Court. According to the AP, Davis filed an eleventh-hour plea to the Court today.

Democracy Now!’s Amy Goodman is reporting live outside of the prison where Davis was scheduled to be killed. Ben Jealous, head of the NAACP, reported that Davis was granted a last-minute reprieve, not a stay. “It’s twenty-three more minutes longer than the state of Georgia intended Troy Davis to live,” Jealous just said.

We’ll keep you posted with rolling updates from Democracy Now! and others in the field. Keep refreshing this link for news.

Over two years ago, Nation writer Shane Bauer and his friends Josh Fattal and Sarah Shourd were arrested by Iranian soldiers while hiking along the Iran-Iraq border and accused of trespassing and espionage. Eventually, Shourd was released on bail, but Fattal and Bauer were convicted in late August and sentenced to ten years in prison. Now, finally, it appears that their ordeal is approaching an end. 

While speaking to NBC’s Ann Curry in Tehran, Iranian President Mahmoud Ahmadinejad said that he would pardon Fattal and Bauer, freeing them in two days. The FARS state news agency also reports that Bauer and Fattal will be released on $500,000 bail each. Of course, we can't really celebrate until Bauer and Fattal are back with their families--but here at The Nation, we’re cautiously optimistic.

I’ll update this post as news develops. I’ve been thinking a lot about Shane throughout the Arab Spring. Fluent in Arabic, he was based in Damascus before his arrest. Among the many things lost to his incarceration is undoubtedly some excellent, insightful reporting from that part of the world. I can’t wait to make him an assignment.