Leonard Link

7th Circuit Denies Refugee Status to Gay Man from India

In an unpublished ruling, the U.S. Court of Appeals for the 7th Circuit rejected an appeal of a decision by the Board of Immigration Appeals to deny refugee status to a gay man from India.  The court agreed with the BIA that the harassment the man had suffered at the hands of family and classmates during his youth in India did not amount to "persecution" under U.S. immigration law, and that the petitioner had failed to show he would likely face persecution should he be deported back to India.  Patel v. Holder, 2012 Westlaw 562612 (Feb. 22, 2012).

The case shows the distinction drawn by the relevant laws between private persecution and public persecution.  The concept of asylum (and withholding of removal as a possible remedy for those who are not qualify for asylum) is to protect people from oppression by governmental forces and institutions in their native country.  The emphasis is on "official" persecution.  In the case of gay people, that would require active discrimination by the government, oppressive criminal laws, assaults by law enforcement agents, and similar sorts of persecution.  (One 9th Circuit case ruled years ago that the Soviet Russian practice of subjecting gays to shock therapy to "cure" their homosexuality would stand as persecution, even though it was "intended" as a "medical treatment" rather than a punishment.)

In this case, the court states, the petitioner entered the U.S. with his aunt and uncle in 1999 at age 17, and the record is unclear whether his entry was lawful.  But the court asserts that when he was discovered by immigration officials in Chicago in 2007, his presence was unlawful and removal proceedings were begun against him.  He applied for asylum, but it was far too late because such applications must be filed within one year of entry in the U.S.  There is a lesser form of relief, withholding of removal, which lacks many of the benefits of asylum but allows the individual to remain in the United States.  To qualify, a person has to show a history of past persecution underlying a reasonable fear of future persecution based on, in the case of gay people, membership in a particular social group.  U.S. immigration authorities treat gay people as being part of a particular social group, so the case would focus on whether actual persecution took play or would likely occur in the future.

The petitioner claimed that his family had "disowned" him because he was gay, and one of his uncles threatened to report him to the police.  At the time he was still in India, of course, the 2009 High Court ruling striking down the Victorian-era sodomy law had not yet been issued.  Reflecting the time when he was trying to prove his case on withholding of removal, the petitioner had introduced U.S. State Department Country Reports on India from 2007 and 2008, as well as a UK Border Agency Report.  These sources all agreed that anti-gay discrimination and assaults by private citizens occur, and sometimes the police join in.  As well, arrest threats under the sodomy law, Section 377, have been made. On the other hand, the reports show that actual arrests under Section 377 are rare and generally do not involve private consensual sexual activity, and that the Indian government's "stated policy is to tolerate homosexuality practiced in private." 

The petitioner's testimony focused on his personal experiences, said the court, including beatings and ridicule from schoolmates, being kicked out of the house by his parents, and his uncle threatening and slapping him.  However, he admitted under questioning that he had never suffered any harm from the government.

The Immigration Judge in his case, denying the petition after hearing his testimony, concluded that he had not established past official persecution or a reasonable fear of future persecution.  The private harassment he endured just doesn't count for this area of the law, it seems.  Societal intolerance as such is not enough to constitute "persecution."  Otherwise, said the court, every gay person in India would be entitled to seek refuge in the United States.  The BIA approved the IJ's order to proceed with removal from the U.S.

"The record here does not compel overturning the Board's order," wrote the court, "because the record lacks evidence of widespread police abuse or government-sanctioned intolerance of homosexuals."  although there was testimony that police sometimes harm gay men or threaten arrest, "the record reveals scant information about the prevalence of these acts; we know neither how often nor where in India they occur.  To the contrary, we know from these reports that the Indian government has proclaimed tolerance of private homosexual conduct and that police arrests under Section 377 are rare."  Ultimately, the court commented, "Private acts without state acquiescence, let alone knowledge, is not persecution." 

In a footnote, the court notes the July 2009 High Court of Delhi decision on the sodomy law.  By interesting coincidence, this decision was issued as the nation's Supreme Court is considering an appeal filed by various anti-gay groups, whose main argument is that homosexuality is a western phenomenon disapproved by traditional Indian culture and that the High Court was wrong to cite and rely upon decisions by western courts (such as the European Court of Human Rights and the U.S. Supreme Court's Lawrence v. Texas decision), as being culturally inapposite.  Early press reports of the oral argument suggest that the bench is very skeptical about the appellants' arguments and seems inclined to uphold the High Court's ruling.

Rulings Against Section 3 of DOMA Accumulate with S.J. in Golinski Case

Karen Golinski and Lambda Legal are the winners in another round of the lawsuit attempting to win for Ms. Golinski the ability to obtain insurance coverage for her same-sex spouse, Amy Cunninghis, from her employer, the U.S. Court of Appeals for the 9th Circuit.  On February 22, U.S. District Judge Jeffrey S. White (N.D.Cal.) granted summary judgment to Golinski on her claim that Section 3 of the Defense of Marriage Act, as applied to her, violates her 5th Amendment right to equal protection of the law from her government employer.  Golinski v. Office of Personnel Management, 2012 WL 569685.

In the course of making this ruling, Judge White determined that Section 3 embodies discrimination based on sexual orientation and thus is subject to judicial review using "heightened scrutiny."  To reach this conclusion, Judge White concluded that the 9th Circuit's standing precedent on sexual orientation discrimination claims, High Tech Gays v. Defense Industrial Security Clearance Office, 895 F.2d 563 (1990), is no longer good law. 

High Tech Gays, which rejected a claim for heightened scrutiny of the anti-gay procedures used by the Defense Department to grant security clearances to employees of defense contractors, was squarely based on the proposition that because sodomy laws were constitutional, gays could not claim heightened or strict scrutiny for equal protection claims against the government, and relied on Bowers v. Hardwick, 478 U.S. 186 (1986), which rejected a due process challenge to the Georgia sodomy law, to reach that holding.  Bowers was overruled in 2003 by the Supreme Court in Lawrence v. Texas, 539 U.S. 558, but lower federal courts in the 9th Circuit have continued to treat High Tech Gays as binding precedent simply because the 9th Circuit has never overruled or modified its holding.  (In the litigation against the "don't ask don't tell" policy in the 9th Circuit, heightened scrutiny was premised on due process rather than equal protection, the courts continuing to hold to High Tech Gays as a precedent on equal protection but finding that some sort of heightened scrutiny should be used because the military policy burdened the liberty interest in sexual autonomy identified by the Supreme Court in Lawrence.)

Judge White concluded that High Tech Gays is no longer good law, not only because Lawrence overruled Bowers, but also because the developments subsequent to High Tech Gays - Romer v. Evans and Lawrence most significantly -- undermined its reasoning.  White cited 9th Circuit authority holding that when subsequent rulings by the Supreme Court or the 9th Circuit itself undermine one if its precedents, district courts are no longer bound by the undermined precedent.

Thus, he concluded, the question of what the appropriate level of judicial review should be for sexual orientation discrimination claims is an "open question" in the 9th Circuit.  Proceeding from that point, White evaluated the various factors that the Supreme Court has discussed in equal protection cases and concluded that sexual orientation claims should be subjected under that analysis to heightened scrutiny, which shifts the burden to the government to show that the discriminatory policy significantly advances an important government interest.  Then taking his cue from the recent spate of rulings on DOMA claims by other district judges, he concluded that Section 3 could not survive heightened scrutiny.  Hedging his bets and armoring his decision against appeal, he also concluded that Section 3 could not survive less demanding rational basis review, either.

The policy reasons for adopting Section 3, taken from the legislative history, pointed to moral disapproval of gay people and their relationships as the main inspiration for the statute, which was passed in the wake of same-sex marriage litigation in Hawaii.  Finding these justifications, as well as arguments about procreation and child-rearing, inadequate even to meet the less stringent rational basis test, Judge White also rejected the new arguments raised by counsel for the House "Bipartisan" Legal Advisory Group (BLAG), which has intervened as a defendant in light of the Justice Department's announcement last year that it would no longer defend Section 3 because it had concluded that Section 3 violates Equal Protection, as well as arguments raised by anti-gay amicus parties.  Most of the "newer" arguments had actually been raised by the Justice Department in the pending appeal of the Gill ruling in the 1st Circuit in Boston, but then abandoned when DOJ changed its position on the constitutionality of DOMA, only to be reasserted by counsel for BLAG. 

This case began when Golinski and Cunninghis married in California during the summer of 2008, and Golinski quickly applied to have Cunninghis covered as a spouse under her work-related health benefit plan.  As a 9th Circuit employee, her benefits were provided from a private insurance company under contract with the federal Office of Personnel Management (OPM).  The plan administrator refused to enroll Ms. Cunninghis on the ground that DOMA Section 3 prohibited recognizing the marriage.  Golinski filed a grievance with the 9th Circuit's internal dispute resolution system, and Chief Judge Alex Kozinski, sitting in an administrative capacity, ruled in her case that the relevant federal statutes on benefits could be construed in such a way that Ms. Cunninghis could be covered as a family member. OPM resisted this conclusion and refused to comply with Judge Kozinski's order.  Subsequent new litigation in the regular Article III courts was commenced when an attempt to get direct judicial enforcement of Judge Kozinski's order faltered on jurisdictional grounds.

Judge White concluded that Judge Kozinski's findings as to the interpretation of the statute were based on "unpersuasive" reasoning, as the statute carried an unambiguous and limited definition of "family member" that could not be stretched to cover a same-sex spouse in light of Section 3.  Thus, the case rose or fell based on whether Section 3 was constitutional.  Having concluded that it is not, Judge White issued a permanent injunction against OPM and its Director, openly-gay John Berry, preventing them "from interfering with the enrollment of Ms. Golinski's wife in her family health benefits plan."  (The insurer, Blue Cross, could not take action so long as OPM refused to authorize the coverage.)  Presumably Paul Clement, the lead attorney hired by BLAG to defend DOMA, will file an appeal in the 9th Circuit, where a petition for en banc review in Perry v. Brown, which held Proposition 8 unconstitutional, is now pending as well.

A Parting Shot Heard Around the State? Retiring NJ Judge Revives Federal Equal Protection Claim in Same-Sex Marriage Case

Yesterday, Mercer County Superior Court Judge Linda Feinberg granted Lambda Legal's motion to reconsider her earlier ruling dismissing a federal equal protection claim in Garden State Equality v. Dow, 2012 Westlaw 540608, and ruled that the claim will be reinstated as part of the case.  In Garden State Equality, plaintiffs are arguing that the New Jersey Civil Union Act, enacted in response to the New Jersey Supreme Court's 2006 ruling in Lewis v. Harris, 188 N.J. 415, does not provide same-sex couples with true equal protection as compared to married different-sex couples, but instead creates an unequal and inferior status, in violation by the Lewis v. Harris ruling.  Judge Feinberg's decision foreshadows a likely ruling in favor of plaintiffs on the merits, but.... at the end of January, Judge Feinberg announced that she would be retiring in March, so she will not be presiding over the trial in this case.

The timing of this ruling is quite interesting.  Just last Friday, Governor Chris Christie vetoed the Marriage Equality bill that had been approved by both houses of the New Jersey legislature earlier in the week.  Based on the votes in both houses, an override is not an immediate prospect, although proponents of same-sex marriage in New Jersey vowed to work on recruiting additional votes for an override, looking at a January 2014 deadline when the term of this legislature finally ends.  So this ruling on February 21, 2012, makes clear that the marriage fight in New Jersey is proceeding on parallel tracks, and the litigation track is alive and well.

The state's arguments against the federal Equal Protection claim were essentially threefold: First, that the U.S. Supreme Court's 1971 dismissal of a federal same-sex marriage suit on the ground that it did not present a "substantial federal question" (Baker v. Nelson) mandated dismissal; Second, that even if an Equal Protection Claim could be pressed, it would easily be defeated by the state under rationality review; and Third, that there was insufficient "state action" to make this a federal Equal Protection issue.

As to the first argument, Judge Feinberg accepted the plaintiffs' response that Baker v. Nelson is no longer binding on the court, because it has been superseded by developments in the law since 1971.  This is actually a rather obvious argument, as all the advances in LGBT legal rights that are relevant to this case post-dated Baker v. Nelson, most significantly the Supreme Court victories in Romer v. Evans (1996) and Lawrence v. Texas (2003).  But Judge Feinberg noted other Supreme Court decisions as significant, including Loving v. Virginia (even though it predated Baker and in fact had provided the main precedent argued by the Baker plaintiffs in seeking a marriage license in Minnesota) and Frontiero v. Richardson, a 1973 case in which the Supreme Court applied heightened scrutiny under Equal Protection to a federal policy that discriminated against women.  At the time of Baker, the Supreme Court had not yet applied heightened scrutiny to sex discrimination claims.

"Quite simply," wrote Judge Feinberg, "Baker has been undermined by subsequent Supreme Court precedent. . .  The Baker case was brought at a time when 'the history of systemic and harsh discrimination against lesbians and gay men had barely been challenged," citing a 2009 law review article by Bennett Klein (of GLAD) and Daniel Redman (of NCLR).  "While in Baker the Supreme Court dismissed the appeal for want of a substantial federal question, based on the evolution set forth herein, subsequent developments support the conclusion that the issues raised in Baker would no longer be considered unsubstantial. Accordingly, in today's legal arena, Baker is not controlling."

The judge then went on to consider the significant of the recent three-judge panel decision in the 9th Circuit in Perry v. Brown, affirming a trial court ruling that California Proposition 8 is unconstitutional.  She quoted Judge Walker's conclusion that Proposition 8 "fails to survive even rational basis review" under the Equal Protection Clause, and then notes Circuit Judge Reinhardt's conclusion, affirming Judge Walker's holding on the ground that Proposition 8 "singled out a certain class of citizens for disfavored treatment." 

"Here, under the third count, plaintiffs assert that the Civil Union Act violates the Equal Protection Clause of the Fourteenth Amendment by denying them access to marriage and relegating them to a separate and arguably second class status, while not serving any legitimate state interest," wrote the judge.  "The Civil Union Act, unlike Proposition 8, was intended to confer more benefits on same-sex couples, rather than take any away. However, the Civil Union Act is arguably similar because it singles out a certain class of citizens, namely gays and lesbians, for allegedly disfavored treatment.  While the Civil Union Act does bestow certain benefits on same-sex couples, it also denies them the designation of marriage for their committed relationships and it allegedly does not bestow upon plaintiffs all of the same benefits enjoyed by their heterosexual counterparts."  Consequently, she ruled, plaintiffs can proceed on both federal and state constitutional equal protection grounds in their lawsuit.

It seems clear that the panel decision in Perry helped to create a "tipping point" for the judge in backing away from her earlier ruling rejecting the federal Equal Protection claim.

Judge Feinberg refrained from specifying what standard of proof would be applicable upon trial of this claim, pointing out that the New Jersey Supreme Court in Lewis had already found that there was "no legitimate governmental purpose for denying same-sex couples the same benefits and responsibilities afforded to their heterosexual counterparts."  Thus the purpose of this proceeding going forward is to make a trial record from which the court can determine whether the Civil Union Act, as charged by the plaintiffs, fails to provide the same benefits and responsibilities as married couples enjoy.

Judge Feinberg observed, "For the most part, the justification offered by the State to support the distinction between heterosexual and same-sex couples in the Civil Union Act is 'tradition.'  Since marriage has historically been defined as the union between a man and a woman, the State argues this is a sufficient basis to distinguish between heterosexual and same-sex couples."  But she points out that courts have rejected "tradition" as a justification for unequal government treatment. 

Turning to the last part of the state's argument against the 14th Amendment claim, she found there was a sufficient basis in the record to find "state action," at least for purposes of determining whether the Equal Protection claim can be pursued.  The guarantee of equal protection of the laws is ultimately a guarantee of equal treatment by the government and its agents, so a remaining issue in the case is whether whatever inequalities exist under the Civil Union Act are attributable in some way to the government and are not entirely the result of decisions by private actors, such as businesses and individuals who are not acting in a governmental capacity.  Here the documentation gathered by the Civil Union Review Commission shows both private and public forms of unequal treatment, and the emphasis of the Plaintiffs going forward will need to document the public forms of inequality and to show how the private forms of inequality actually flow from a governmental action - the determination by the legislature to confer a separate and unequal status on same-sex partners.

But Plaintiffs will have to devise their trial strategy in the light of Judge Feinberg's pending retirement, since their proof will be submitted to and evaluated by a different judge.

 

Prop 8 Proponents Opt for Delay - Seek En Banc Rehearing at the 9th Circuit

Today was the deadline for the Proponents of Proposition 8 to file a motion for rehearing en banc in the 9th Circuit case of Perry v. Brown, and this morning Charles Cooper, their attorney, announced that they would be filing the petition today. 

Two weeks ago, a three-judge panel voted 2-1 to affirm former Chief District Judge Walker's August 2010 decision that Proposition 8 - which amended the California Constitution to provide that only the marriage of one man and one woman is valid or recognized in California - is unconstitutional.  The panel ruled on narrower grounds than Walker, holding that Proposition 8 failed 14th Amendment Equal Protection review, because there was no rational basis for revoking the right of same-sex couples to call their relationship marriage while leaving intact existing California law under which same-sex domestic partners who register with the state are afforded all the state law rights and benefits of marriage.  (Walker had ruled more broadly that same-sex couples have a constitutional right to marry under the 14th Amendment; the panel said that there was no need to decide that broader issue in this case.)

By filing a petition for en banc rehearing, the Proponents make it highly unlikely that the U.S. Supreme Court will consider this case before the November 2012 general election.  There is no predicting how long the full circuit of more than 25 judges will take to decide whether to grant rehearing.  Even if it is just a matter of weeks and they turn down the petition, that would reset the 90-day-clock for filing a petition with the U.S. Supreme Court seeking certiorari, and a cert petition filed in March or April, even if ultimately granted, would be granted too late for oral argument during this term of the Court, which would normally end around the last week of June.  So if cert is granted, oral argument would be held during the next term of the Court, which begins early in October.  Even if this was among the first cases argued, it would be unlikely to result in an opinion being issued prior to Election Day just a month later, and given the timing of everything, it seems unlikely that this would necessarily be among the first cases scheduled for argument in the fall.

If a majority of the active judges on the Circuit vote to grant the petition for rehearing en banc, the panel decision will be vacated, and a special panel of eleven judges will be constituted, with Chief Judge Kozinski presiding and ten others chosen at random from among the active judges.  Given the overall composition of the Circuit, it is highly likely that a majority of the judges on the 11-judge panel will be appointees of Democratic presidents, for what that is worth.  (This helps to explain why the 9th Circuit is reputedly the Circuit whose decisions are most frequently reversed by the Supreme Court, which has had a Republican-appointed majority for many decades.)  The en banc panel would then call for briefing and hold oral arguments, which means that a decision from the en banc panel would not be likely before Election Day, unless they really expedite things.

The County Clerk of Imperial County had petitioned the 9th Circuit for an extension of time to file a motion for rehearing en banc of the panel's decision, issued the same day as the Perry v. Brown ruling on the merits, against allowing the Clerk to intervene as an Appellant.  If that extension wasn't granted, their petition would also be due today. 

Among the possible twists and turns that the case could take before an en banc panel could be a determination that the three-judge panel erred in holding that the Proponents of Proposition 8 had standing to appeal Judge Walker's ruling, in which case the en banc panel would not reach the merits and would dismiss the appeal.  Alternatively, the en banc panel could affirm or reverse Walker's broader constitutional ruling on the merits, or it could affirm on some other theory, including the narrower theory embraced by the majority of the three-judge panel.  There was a dissent  in the three-judge panel that argued there was a rational basis for denying the word "marriage" to same-sex couples, rather weakly argued, which could be adopted by the en banc court. Hard to speculate much more before knowing the composition of the en banc panel and, even then, this case is unlike anything else the 9th Circuit judges have been called to rule upon.

Meanwhile, what happens to Judge Walker's Order, which included an injunction against enforcement of Proposition 8?  It has been on hold ever since the appellate process got under way.  If the Proponents did not file a petition today, the 9th Circuit panel's mandate would have been filed, which would have lifted the stay pretty quickly, although one would expect that the Proponents would file a petition to extend the stay pending their filing of a cert petition.  News reports indicate that counsel for the Plaintiffs (challengers of Prop 8 in the trial court, now appellees), Ted Olson and David Boies, planned to seek to have the stay lifted, arguing that Prop 8 has now been declared unconstitutional by two courts, but that seems quite unlikely at this stage of the proceedings.

Something interesting to watch for down the line, however, would be what might happen if the 9th Circuit either denies the en banc petition or ultimately rules on the merits that Prop 8 is unconstitutional.  Proponents could get the Order stayed while preparing their cert. petition, which then delays same-sex marriages in California further.  Ultimately it seems likely that if the Supreme Court is interested in this case, it would stay Judge Walker's Order while the appellate process continues.

Weekend Opera Trifecta: A Barber, A Courtesan, and a Prima Donna

Sometimes the stars align and suddenly I find myself attending three operas in one weekend.  (Actually, to the best of my recollection this is the first time I've actually attended three operas in one weekend!).  Saturday matinee - Rossini's The Barber of Seville at the Metropolitan Opera.  Saturday evening - Verdi's La Traviata at the NY City Opera performing at the Brooklyn Academy of Music (BAM).  Sunday afternoon - Wainwright's Prima Donna, again NY City OPera performing at BAM.  While there were definitely low points as well as high points, I generally have good things to say about all of them.

But the production of Barber at the Met is not one of the higher points.  I remember an earlier production with naturalistic sets that changed from scene to scene.  This new production by Bartlett Sher conforms with the current trend towards going without sets, instead moving around props to suggest different settings.  I don't like the current trend.  I like real sets that are actually intended to suggest the setting in which the action specified in the libretto takes place.  But I guess if one is focusing mainly on the music and the drama or comedy, the sets are not so important.  But this is also where I think the production and performance let me down a bit.  I remember performances of Barber that were really funny.  This one wasn't.  I remember performances that were light and frothy.  This one wasn't.  A bit amusing at times but never really funny. 

I thought Marco Armiliato's tempi were a bit on the slow side and the playing struck me as a bit on the heavy side.  On the positive, however, I really did enjoy Diana Damrau's singing of Rosina (and she sang this role in the prior production as well), Colin Lee was a bit stolid as the Count.  Rodion Pogossov's Figaro lacked "bounce," as far as I'm concerned, although some of this may have more to do with fitting in with what the stage director wanted.  Having Figaro enter sitting on top of his wagon struck me as silly - was it an excuse to have a live donkey on the stage which had no other reason for being there?  (Live animals on stage detract attention from the live people on stage, and shouldn't be used unless the plot actually demands them.)  John Del Carlo's Bartolo was actually the most comic turn, and the one that came closest to what I remember of really great Barbers I've seen.  Gerruccio Furlanetto as Basilio was next to Del Carlo in comic accomplishment.  A Met official apologized for before the second Act for Del Carlo singing with a cold, but I didn't hear anything wrong.

And I didn't see the reason for building a platform over the orchestra pit.  Waste of effort, negative effect on the sound, and no good reason for the cast to be prancing about in front of the orchestra.  Am I complaining too much?  It was a very polished performance - just not a great comic Barber.

In the evening it was La Traviata.  This is City Opera's first year of wandering after renouncing their lease at Lincoln Center.  It's great that they don't have to perform in a hall designed for dance.  BAM's opera house is designed for opera, and is a much more comfortable and acoustically sound environment.  This Traviata production was borrowed from Glimmerglass and has the limitations of summer theater - a basic unit set subjected to slight modifications from one scene to the next - but the wallpaper gives the show away.  How believable that the five different sets for a Traviata performance would all have the same wallpaper (and window treatments as well)?  But, again, one comes to Traviata mainly for the singing, and I thought the principals - Laquita Mitchell (Violetta), David Pomeroy (Alfredo Germont), and Stephen Powell (Giorgio Germont) - were splendid.  If I were to award first place, it would be to Powell, who seemed the most settled and confident in his role, but all three were superb.  Steven White conducted an alert City Opera Orchestra. 

Finally, this afternoon, the U.S. premiere of Rufus Wainwright's Prima Donna, which was debuted in the U.K. and then played in Canada before making its way to City Opera.  Wainwright started with Callas, the sad story of the soprano's final years when she kept dreaming of performing again, and mixed in various other elements to come up with a libretto that is not always convincing.  He decided to set his story in Paris (where Callas spent her final years) and so put his libretto into French.  I'm not sure it's such a great idea for an American composer to set a French libretto for his first full-length professional opera production, but there it is.  He had a splendid conductor and cast, and the unit set made sense for the story (and was more interesting than the previous evening's Traviata set, with much more inventive lighting as well). 

Jayce Ogren, who made such splendid work of Bernstein's "A Quiet Place" during City Opera's last season at Lincoln Center, led a committed performance, and Melody Moore was stunning as Regine Saint Laurent, the soprano dreaming of a come-back.  Kathryn Guthrie Demos was also stunning as Marie, the chambermaid, who had what was the most excerptable aria in the piece, at the beginning of Act II.  Randal Turner as the officious gay butler, propping up the singer with pills and pushing her to return to the stage, was suitably detestable as a character but spectacular in his role, and Taylor Stayton as the journalist who comes to interview Saint Laurent about her planned come-back and enters her dreams as a young lover was superb as an actor, although his voice tended to get buried under the lush orchestration.

And it was orchestration rather than melodic invention that impressed me most about Wainwright's music.  Act I seemed to fall into the genre of opera soundtrack music, i.e., music that doesn't call attention to itself in terms of melodic invention.  It seemed to me that things moved rather slowly in Act I, and that the composer was trying to avoid sounding like a pop song writer who strings together some catchy songs and calls it an opera - resulting perhaps in the pendulum swinging a bit far in the other direction.  But Act II struck me as much better, the composer less frightened of writing recognizable melody that could even become memorable on repeated hearing.  Perhaps I would like Act I better after having heard Act II and identifying the motivic seeds that would blossom later.  Snatches of the "opera" that was to serve for Saint Laurent's come-back (a mythical "Eleanor of Acquataine") appear in Act I without making a great impression, but then an extended dream sequence in Act II lets them really be heard, and the style sounds like the operas of Chausson or Chabrier - second-rank French opera in a romantic style.

The harmonic language is generally conservative, the scoring influenced heavily by Puccini as well as Wagner and the French romantics.  I hope Wainwright writes another opera, because he is melodically gifted, has a flair for orchestration, and if he is paying close attention will have learned lots of lessons on his first time out.  This is running for some more performances this week and is worth hearing.