Leonard Link

Federal Judge Orders Florida High School to Recognize GSA

U.S. District Judge K. Michael Moore has ordered the School Board of Okeechobee County, Florida, to allow a Gay-Straight Alliance to meet at Okeechobie High School on the same basis that other non-curricular groups meet at the school.  In a July 29 ruling, Moore found that allowing the student group to meet at the school would not necessarily contradict or undermine the school’s sex education curriculum, which stresses abstinence outside of heterosexual marriage, and that the School Board’s official written policy banning any club based “any kind of sexual grouping, orientation, or activity of any kind” violates federal law.  Perhaps most significantly, Moore noted that the School Board has an obligation for the welfare of gay students, not just the majority of students.  Gonzalez v. School Board of Okeechobee County, 2008 Westlaw 2941155 (U.S.Dist.Ct., S.D. Fla., July 29, 2008).

Students at the high school sought to form a Gay-Straight Alliance during the Fall 2006 term, but were rebuffed by the administration, even after the students specifically raised the issue of the Equal Access Act, a federal statute under which almost every lawsuit seeking recognition for a Gay-Straight Alliance has been won by the students.  The students filed suit, represented by the ACLU of Florida, and obtained preliminary injunctive relief, but as happens in such litigation, cases drag on, students graduate, and bringing the case to a conclusion can become problematic.  In this case, the federal judge determined at one point that there were no actual plaintiffs left, and the case was on the verge of dismissal, but new student plaintiffs were found and the matter was revived last spring, when despite the prior injunction, the administration again rejected an attempt by students to form a GSA.

Judge Moore totally rejected the School Board’s argument that recognizing a GSA would somehow violate the school’s obligation under state curricular standards and federal law governing the use of federal funding grants.  Both the federal government and the state of Florida are formally committed to the head-in-the-sand approach advocated by right-wing Christian groups in approaching sex education for high schoolers.  The approach focuses on abstinence, lecturing students about refraining from any non-marital sex, and avoiding classroom discussion of contraception or abortion.

The School Board argued that allowing a GSA to form would be contrary to this curricular mandate, but Judge Moore was not convinced.   First, he quickly dispensed of the School Board’s absurd argument that it would lose federal funding if it allowed a GSA to form, pointing out that over 700 high schools in the U.S. have such student organizations, and there is no evidence that any of those schools have lost any federal funding as a result.    Actually, he noted, the Supreme Court has recognized a clear distinction between curricular and non-curricula activities in a variety of contexts, including cases in which schools argued that they should not be required to allow certain student groups because that could be misconstrued as endorsement of those groups’ agendas.  “If secondary school students are considered sophisticated enough to distinguish between student speech permitted on a nondiscriminatory basis and officials acts of the school,” wrote Moore, “it follows that Congress, in its provision of federal funds to the states, is capable of drawing the distinction as well, as are Florida’s courts.”

Moore also could see no inconsistency between the GSA’s mission to promote tolerance for gay people and the school’s abstinence-only health education program, rejecting the idea that “the dialogue required to discuss tolerance towards non-heterosexuals is impossible to convey without doing violence to the principle of abstinence.”  Moore argued that if this were true, then any discussion of sexual issues in the curriculum could be seen as undermining the abstinence policy, but the School Board “has pointed to no special factor pertaining to tolerance towards non-heterosexuals that distinguishes that topic from other matters concerning sexuality generally.”  He also rejected the notion that advocating tolerance for those who are not heterosexual is inconsistent with the abstinence program, concluding that forbidding the GSA was not required to protect the well-being of the district’s students.

Indeed, Moore pointed out that the abstinence program, when applied to gay people, “loses the core of its health and safety and child welfare component because a marriage-dependent abstinence only message is of de minimus relevance to non-heterosexuals,” since Florida does not allow same-sex marriage.  “The benefits that accrue to children with married parents are of little use to SBOC’s non-heterosexual students who may aspire to parenting but lack the prospect of a legally sanctioned marriage in the State of Florida,” he continued.  “The considerations pertaining to the benefits of marriage prior to procreation likewise lack relevance to SBOC’s non-heterosexual students who are not permitted to marry in Florida.”

He also noted that instruction about sexually-transmitted diseases was relevant to all students, but “an STD prevention curriculum reliant on abstinence outside of marriage does not provide information of a kind usable by non-heterosexuals to prevent disease,” and “teaching that ‘a mutually faithful monogamous relationship in the context of marriage is the expected standard of human sexual activity’” as required by the Florida abstinence only curriculum, “is not a principle of relevance to a non-heterosexual person.”  While conceding that Congress, the Florida legislature and the School Board had all put their imprimatur on this kind of program, Moore described it as being “of limited utility to OHS’s non-heterosexual students, the well-being of whom must also be considered,” and concluded that any inconsistencies could not be used to deny recognition to the GSA, since the Equal Access Act, by its terms, supersedes all other federal laws that might be deemed inconsistent with it.

Moore noted that under the Equal Access Act, the only way that SBOC could exclude a GSA would be to exclude all non-curricular student groups, and that it could not pick and chose based on the subject matter of the group, unless there was a legitimate justification based on the well-being of the students.  In this case, however, Moore emphasized that the well-being of non-heterosexual students was also relevant, and denying them a GSA was not in their best interest. 

Moore also found support for his conclusions in the First Amendment, and the body of cases dating back to the Vietnam War era holding that high school students have a right to engage in non-disruptive political speech at school.  Moore found that “the GSA’s tolerance based message would not materially or substantially interfere with discipline in the operation of the school,” so the School Board’s desire to avoid the “discomfort and unpleasantness of tolerating a minority of students whose sexual identity is distinct from the majority of students and discordant to SBOC’s abstinence only program” was not a legitimate justification to ban the GSA. 

Moore awarded token damages of $1 to the plaintiffs, since no evidence was introduced to support any actual monetary damages, but he also declared the plaintiffs to be the “prevailing party,” which means they can pursue an award for their litigation expenses.

[title of show] on Broadway

I did not see the previous incarnations of this production, but it appears to be something that has cumulated and grown over time.  The premise is that two young men are eager to collaborate on writing a musical comedy, eventual destination Broadway.  They are sparked to start by notice of a theater festival, entries due in three weeks.  Casting about for an idea for a musical, they decide to make a musical out of their efforts to make a musical.  Boxes within boxes.  They recruit two women and another man to collaborate with them in creating a four-singer + pianist show.  The show, now about 90 minutes long, consists of a series of scenes depicting their efforts along the way.  Interested is added by the fact that the two male leads are performed by the two guys who wrote the show, so they are performing their own material.

The idea is that this is a musical comedy, and so things are kept "light" through most of the production.  I'm not sure what it was last night, but the audience was totally turned-on by the entire thing, with huge laughter reactions to cracks that I found only mildly amusing at times.  It was like the audience was full of the best friends of Jeff Bowen and Hunter Bell, the artistic collaborators, and susan Blackwell and Heidi Blickenstaff, the two women who collaborate with them on the show.  Music and lyrics by Bowen, book by Bell.

I can heartily recommend it.  I had fun.  It is a diverting evening, and everybody performs with great commitment and energy.  All four characters are attractive, each in his or her own way.  There is a charming informality about it all...

 

Mourning Julius Richmond

The NY Times obituary page this morning carried a paid death notice for Dr. Julius Richmond, a distinguished health care professional who served as Surgeon General of the United States during the Carter Administration.  The notice will surely be followed soon with a regular article obituary, as Dr. Richmond was a person of great accomplishment, and bore heavy responsibility for mobilizing public opinion against smoking in this country when he issued his report on the link of smoking and lung cancer and other diseases.

But for LGBT people, Dr. Richmond is important for another reason.  Responding to the actions of the American Psychiatric Association and the American Psychological Association during the 1970s, resolving that homosexual orientation was not a form of mental illness,  Dr. Richmond declared that if homosexuality was not an illness, then it was not a proper subject for "diagnosis" by doctors, which meant that under his leadership the Public Health Service renounced its traditional role of "certifying" that persons seeking to enter the U.S. were "homosexuals" who were excludable under the medical provisions of the Immigration Law as "sexual psychopaths."  Dr. Richmond's bold action on this, at a time when Congress was not ready to repeal the gay immigration ban, was quite important as striking a blow for science over politics in the administration of American immigration policy, and caused consternation at the Justice Department.

Ultimately, the feds figured out alternative ways to try to comply with the statutory requirement that an individual be "certified" as medically excludable by the PHS.  They adopted a procedure for "self-declaration" by homosexuals in response to questioning, and they would ask questions based on what they found rummaging through the luggage of visitors and immigrants.  At least one federal circuit court declared this procedure illegitimate under the statute (the 9th Circuit, naturally, in Hill v. INS), making the West Coast an open port of entry for gay tourists and immigrants, but the situation was unstable, and only ultimately resolved ten years later when Congressman Barney Frank and allies succeeded in getting the anti-gay exclusion repealed, pretty much sub silentio, as part of an overall revision of the medical provisions of the Immigration law.

We salute you, Dr. Richmond, may you rest in peace....

Florida High School Principal’s Anti-Gay “Witch Hunt” Loses Lawsuit

nt U.S. District Judge Richard Smoak of Panama City, Florida, issued an opinion on July 24, explaining his ruling on May 15 in favor of Heather Gillman, a student who had sued the Holmes County, Florida, School Board over their prohibition of pro-gay rights expression at Ponce De Leon High School.   Judge Smoak found that David Davis, the school’s Principal, had responded to an incident of anti-lesbian harassment by some students by launching a “witch hunt” and discouraging students from showing solidarity with gay students at the school.  Smoak also found that the school board should bear liability because it had ratified and adopted Smoak’s actions as its own.  Gillman v. School Board, 2008 Westlaw 2854266 (N.D. Fla., Panama City Division, July 24, 2008).

Last September, a 12th grade student identified in the opinion as “Jane Doe” reported to a teacher’s aide that a group of five middle school students had been taunting her about her sexual orientation.  The teacher’s aide reported the incident to Principal Davis, who called the student into his office, quizzed her about the incident and her sexual orientation, and then told her that it was not “right” to be homosexual.  He asked whether her parents knew about her sexual orientation, and when she said no, he telephoned them and told them.  As a result, the student’s father threatened to kick her out of the house.

The next day, the student was absent because her sister had surgery, but rumors swept the school that she had been suspended for being gay, and other students resolved to show their support by wearing pro-gay slogans on their t-shirts, circulating a petition, and carrying signs with pro-gay messages.  This was followed a few days later by rumors that Davis had invited an anti-gay preacher from a local church to speak to an assembly, and students began devising a plan to walk out in protest.  In the event, the preacher said nothing about homosexuality in his talk and there was no walk-out, although students had been threatened by Davis that he would not tolerate any walk-out on his guest speaker.

After the assembly, Davis launched an investigation of what the pro-gay activities that were bubbling up at the school, interrogating thirty students about their sexual orientation and issuing a prohibition against any exhibition of pro-gay slogans or messages at the school.  Over the course of several days, Davis suspended eleven students, including a lesbian cousin of the student who became the plaintiff in this case, Heather Gillman, for their involvement, and told the mother of one student who was suspended that he could secretly “send her [daughter] off to a private Christian school down in Tallahassee” or to juvenile detention, and that “if there was a man in your house, your children were in church, you wouldn’t be having any of these gay issues.”

When students complained to the school board, it backed up Davis, reiterating his ruling against any pro-gay communications at the high school.  Heather Gillman, for one, was fed up with what was going on, contacted the American Civil Liberties Union, and agreed to be the plaintiff for a lawsuit.  Heather, by the way, is not gay, but was eager to show her support for her cousin and other gay students and was offended by the censorship of speech at her school.

Depositions and hearing testimony brought to light that Principal Davis considers himself an “evangelical Christian” and has strong religious objections to homosexuality, and believed it was appropriate for him to actualize those objections through his authority at the school, a point with which Judge Smoak sharply disagreed.

Under established First Amendment principles, high school students have a right to engage in political speech that is not disruptive of the educational program.  Davis and the school board claimed they were acting to prevent disruption, but Smoak determined that the only disruption came in response to Davis’s crack-down on pro-gay speech.  The student activities in support of Jane Doe and then of the other gay students at the school were not disruptive, according to Smoak, or at least no more so than the usual run of topics that might cause controversy at school.

While stating that he was “sensitive to the challenges to order and discipline that teachers and adminstrators are forced to confront each day,” Smoak nonetheless found that nothing presented by the defendants in this case justified the actions they took to suppress free speech at Ponce de Leon High School.  Characterizing the facts in this case as “extraordinary,” he wrote, “The Holmes county School Board has imposed an outright ban on speech by students that is not vulgar, lewd, obscene, plainly offensive, or violent, but which is pure, political, and expresses tolerance, acceptance, fairness, and support for not only a marginalized group, but more importantly, for a fellow student at Ponce de Leon.  The student, Jane Doe, had been victimized by the school principal solely because of her sexual orientation.  Principal Davis responded to Jane Doe’s complaints of harassment by other students, not by consoling her, but by shaming her.  David interrogated Jane about her sexual orientation, informed her parents that she identified as homosexual, warned her to stay away from other students because of her sexual orientation, preached to her that being homosexual was not ‘right,’ and ultimately suspended her for expressing her support for herself and other homosexual students.”

Smoak quoted at length from a decision by the U.S. Court of Appeals for the 9th Circuit, Harper v. Poway Unified School District, setting out extensive evidence for the detrimental effect on gay students of suffering demeaning comments from their peers, teachers or administrators.  He concluded that “it is clear that Principal Davis, not the innocuous symbols and phrases at issue, bears sole responsibility for any unrest that occurred at Ponce de Leon in September 2007.”  He characterized Davis’s activities as a “relentless crusade” and a “witch hunt.”

Showing that this lawsuit was about principle, not money, Gillman sought only symbolic damages but wanted, more importantly, an injunction against the suppression of free speech at Ponce de Leon, which Smoak awarded to her.  In addition, he awarded over $300,000 in attorneys fees to the plaintiffs, an expensive lesson in constitutional rights for the school board.  One wonders whether the school board retains counsel, and whether its counsel took and passed constitutional law in law school, since the principles Judge Smoak applied in this case have been well-established since the Supreme Court ruled in 1969 in favor of students who wanted to wear black armbands at a high school in Des Moines to protest the Vietnam War..

Aaron Charney Lands on His Feet....

Last year, we reported extensively on the lawsuit that Aaron Charney, formerly an associate attorney at Sullivan & Cromwell, had filed against that law firm, charging that he had been made the victim of sexual harassment and discrimination because he was gay.  The lawsuit caused much discussion in New York legal circles, including speculation that regardless of how the lawsuit turned out, Charney would never again be able to find work at a major New York law firm.

It turns out the speculation was incorrect.  Charney and Sullivan & Cromwell came to a settlement last fall, after preliminary rulings by the trial judge made clear that at least some aspects of the case were going to go through discovery and trial.  Given Charney's allegations and deposition statements concerning his treatment at Sullivan and by Sullivan attorneys during the initial stages of the lawsuit, it was clearly in Sullivan's interest to settle rather than to air these matters and have their partners examined under oath in open court, so the settlement -- for an undisclosed amount -- was not a super surprise.

What is a super surprise is the news broken on July 28 by David Lat on his blog abovethelaw.com that Mr. Charney will be joining the New York mergers & acquisitions practice of the international London-based firm Clifford Chance in September.  Lat received a tip to this effect from an attorney at Clifford Chance, contacted the firm for verification, and received a statement confirming the story.  Charney will be slotted into the office as a fifth-year associate.  According to the firm's website, it has offices in 28 countries and employs more than 3,000 "legal advisors" -- so Charney is definitely back in the BigLaw game feet first.

The New York Law Journal, scooped on the story by Lat, published an "In Brief" item on the top of page one this morning, commenting, "Mr. Charney's ability to land another law firm position after being involved in such a high-profile suit against his former firm suggests such litigation may no longer be career suicide, provided the lawyer has desirable skills.  Clifford Chance and other major London firms have been especially eager to boost their New York M&A capabilities."

Lat put a less charitable spin on things, speculating that hiring Charney was a way to revive Clifford's reputation in gay legal circles after the firm had itself been the target of a lawsuit by a gay partner in the London office last year. . . .

To us, the interesting thing is that big firms now are eager to seek out openly-gay attorneys, and may actually care about their reputation in the LGBT legal community, having accepted that sexual orientation is irrelevant to professional credentials in a legal market where there remains, even in these shaky economic times, competition for top legal talent.

New York Judge Lets AVA Defamation Suit Against NY Post Continue

New York State Justice Walter B. Tolub of State Supreme Court in Manhattan, ruled on June 24 in AVA a/k/a Maximilia Cordero v. NYP Holdings, Inc., 2008 Westlaw 2522631, that Maximilia Cordero, known professionally as AVA, may prosecute her defamation suit against the New York Post and others for the publication of an article that quoted statements purporting to be her sexual fantasies from a MySpace page.  While dismissing most of Cordero’s legal claims against the newspaper, Justice Tolub concluded that there was enough ambiguity surrounding the fantasy quotations that it should be up to “the community” – that is, a jury – to decide whether their publication was harmful to the plaintiff’s reputation.

The lawsuit stems from an article by reporters Dareh Gregorian and Lucy Carne, both named as defendants, published in the Post on October 23, 2007, a version of which can be retrieved online, originally titled “Gender-Bend Shocker, Kinky Sex Suit Gal is a Man.”  From the description of the article by Justice Tolub, it appears that the version now available online has been “cleaned up” a bit from what was originally published in the newspaper.

The article reported on a lawsuit that Cordero had filed against Jeffrey Epstein, a fabulously wealthy Florida resident who has been prosecuted for having sex with underage girls.  In that lawsuit, Cordero alleged that Epstein had sexually molested her in his Manhattan mansion when she was a minor.  The Post reporters, finding this newsworthy, did some research on Cordero beyond reading the complaint filed in the lawsuit against Epstein, and reported in the October 23 article that Cordero “was born Maximillian Cordero in 1983,” but had dressed as female beginning at age 12 and had been taking hormones. 

The Post reporters found several MySpace pages purporting to be Cordero’s and to be presenting her comments, although the pages differed in identifying sex and age.  One of the pages presented a “masturbatory fantasy” involving “multiple men and then multiple women.”  On one of the pages, the writer describes herself as “a 17 year old model from New York City” – even though Cordero was at least 23 when the Post article was published.  The page also says, according to the Post, “I’m a spoiled bitch and really mean.  I love to have fun, hang out and party!  On and I’m a junk head (pills, designer substances....).”

After paring away various factual statements that he found to have been accurately reproduced from Cordero’s early court complaint against Epstein, such as the revelations that Cordero was born male but always viewed herself as a girl, had been hospitalized with psychiatric problems, was a heavy drug user and HIV-positive, Tolub wrote, “As best as this court can discern, two allegations remain in the complaint which might be considered actionable.  The first is that the Plaintiff was engaged in some form of criminal conduct.  The second statement which may be actionable, pertains to the claim that Plaintiff ‘was a promiscuous lying slut.’”   The version of the 2007 article now available on the Post’s website does not include any such statement, and Tolub comments that the Post never stated that Cordero is promiscuous, but readers might draw that conclusion from the quotation about her sexual fantasies.

The first allegation was based on the Post’s quotation of a statement by Howard Rubenstein, described as “Epstein’s spokesman,” who observed that the ongoing investigations of Epstein’s sexual activities had “made him an easy target ‘for money-seeking lawyers and their women.’” Cordero alleged that this statement accused her of criminal activity, but Tolub was not willing to give it that interpretation.  “Although the statement of Mr. Rubenstein does not reflect well on Ms. Cordero’s character,” wrote Tolub, “it does not go so far as to accuse her of criminality.  In common parlance, it is a stretch that this court believes is unwarranted, and as such cannot sustain a cause of action for defamation.”

However, Tolub was not ready to dispense with the other claim in ruling on a pre-trial dismissal motion.  Cordero is claiming that she did not write the material on the MySpace pages attributed to her by the Post in its article, alleging that they are “forgeries posted by unknown people,” according to Justice Tolub.  He noted that under New York law, “statements falsely suggesting that a person is sexually promiscuous or sexually licentious are generally actionable per se.”

Tolub observed that the Post’s reporting of Cordero’s charges against Epstein did “not detail the graphic allegations made in the Epstein Lawsuit and never make any assertion about Plaintiff being promiscuous or having indiscriminate sex with others.”  However, the article mentions and quotes from “Plaintiff’s alleged sexual fantasies as posted on MySpace.”  So the question was whether Tolub would conclude, as a matter of law, that if those quotations were spurious, they could be the basis for a libel action because they were harmful to Cordero’s reputation. 

The way this works on a motion to dismiss is that the court takes the first crack at deciding whether the words in issue were “reasonably capable of causing a defamatory meaning.  However,” continued Tolub, “a question for the jury is presented if the words used are ambiguous or susceptible of several meanings, one of which disgraces or discredits the Plaintiff.”  Tolub was not willing to make that judgment as a matter of law.  “The court is mindful that changing social mores could affect how certain sexual conduct is viewed by the community, and recognizes that what was once considered defamatory per se may no longer be considered defamatory today,” he continued.

“In this regard,” Tolub concluded, “the court is of the opinion that it is for the community to decide whether the language has a defamatory import, and whether the Article may be considered defamatory in the context in which it was presented.”  Thus, the defamation claim would not be dismissed.

However, in a portion of the opinion that has not been selected for official publication but which was published in the New York Law Journal last week, Tolub rejected Cordero’s invasion of privacy claim, pointing out that New York courts have not adopted a general civil right of privacy, and that a statutory right of privacy in New York is limited to unauthorized commercial appropriation of a person’s name and image, a concept not applicable to news reporting on topics of public interest such as an article about a lawsuit concerning a controversial defendant.

Tolub also rejected the argument that New York’s HIV confidentiality statute would come into play here.  Cordero stated in her Epstein Complaint that she is HIV-positive, another fact mentioned in the original version of the Post article published in 2007.  Tolub pointed out that the confidentiality statute concerns unauthorized disclosure of HIV-related information by custodians of medical records or confidential medical information.  He concluded that the statute has no application to a newspaper reporting facts stated by the Plaintiff in an unsealed legal document filed in the court and open to anybody to see.

The "Don't Ask, Don't Tell" Hearings and the Missing Witness

Last week the personnel subcommittee of the House Committee with military oversight held the first oversight hearing that has ever been held on the military "don't ask, don't tell" policy since it was adopted during 1993, the first year of the Clinton Administration, as a compromise measure permitting gay people to serve in the military so long as everybody could pretend they were not there.  (This policy has always struck me as one of the most absurd charades in the history of this country, and the whole thing would be farce were it not so serious in having harmed the lives of thousands of individuals and endangered the security of the U.S. by leading to the dismissal from service of people whose skills and dedication we badly need.)  And, in a prodigy of awkward timing, there is now an article in the August 4 issue of The New Yorker that should have been published BEFORE last week's hearing was held, not after, because it helps to illustrate the bizarre world of the military in which the "don't ask, don't tell" policy applies.

The article, by Ben McGrath, is titled "A Soldier's Legacy," with the subtitle "Don't ask, don't tell, but Alan Rogers was a hero to everyone who knew him."  The subject is Major Alan Rogers, who died relatively recently while on active duty in Iraq.   Rogers, whose military service dated back to before the first Gulf War, was an up-from-the-bootstraps self-made African-American man, adopted as an infant (which he did not find out until 2000 when his adoptive parents died), raised under modest circumstances, who through reverence, hard work and dedication managed to achieve an education (including a graduate degree) and a sterling military career in which he seems to have mightily impressed just about everybody with whom he came into contact.  Rogers also figured out during his early military assignment in Germany that he was gay, and he learned how to function as a gay man within the military environment by sharply compartmentalizing his life.  Indeed, many of those who thought of him as among their closest friends evidently did not know he was gay.  Although he was  known in secretive gay military circles, a rumor circulated among his straight colleagues that he was "divorced" as a way of explaining the single status of such a sterling character as he is described to have been in this article.

After he died, the fact that he may have been among the most prominent, if not the first, "openly" gay casualties in the Iraq war was rather unceremoniously buried with him.  The Washington Post, covering his funeral at Arlington Cemetery, was aware from interviews with friends and family that Rogers was gay, but decided to suppress that information from its coverage.  Was he "out" or was he "closeted"?  To the extent that he was, apparently, an active participant in that underworld of gay military personnel that exists outside any major base you can find, as well as in Iraq, he was "out."  But to the extent that he was successfully navigating the system by adhering strictly to the "don't tell" part of the military code, he was "closeted."

An attempt by somebody upset at the "closeting" of the obituaries and memorials to establish a Wikipedia entry telling the truth about Major Rogers was met with editorial censorship, which has been traced back to a Pentagon public relations office.  Some people do not want Major Rogers, such an exemplary military officer, to be held up as counter-evidence to the absurd claims that allowing gay people to serve will destroy military unit cohesion and morale - a contention that is laughable on its own in light of the successful abolition of the gay ban by all of our significant military allies.  Where would we be in Iraq and Afghanistan without the British and the Canadians in our coalition? -- and they have openly gay troops serving alongside our forces.  Indeed, the British and Canadians have both come to the point of allowing gay soldiers in uniform to participate in Gay Pride Parades and undertake recruitment efforts specifically targeted to the gay community, because they have figured out that sexual orientation is essentially irrelevant to the qualifications for an effective military career.

The argument is made in the article by one person that Rogers' sexual orientation was irrelevant to his splendid military career, and thus should not now be thrust forward in the memorials and obituaries.  But I think it is a decent rejoinder that in remembering a human being, we should remember the whole person, not just the facade presented to one group of friends or acquaintances. 

Rogers' sexual orientation was a component part of his identity, the same identity that won him such extraordinary respect and affection from the troops he commanded, the peers with whom he related in the service, and the superiors to whom he reported.  Rogers was denied the ability to conduct the kind of emotionally fulfilling personal life that he was striving for, because of the need to comply with the military policy in order to avoid being dismissed.  Indeed, the article points out that he had been impressed by the fact that the "don't ask, don't tell" policy does not apply to military contractors, who are performing much the same kind of work in Iraq and elsewhere at higher rates of compensation than military personnel, and had begun plotting his earlier retirement so he could drop the pretenses, do the work he is good at, and lead an emotionally fulfilling lifestyle without having to keep his sexual orientation a secret.  Thus, he would be joining that quiet but steady parade of gay officers who take retirement as soon as they can and go to work for military contractors, doing what they do best free of the stupid, politically inspired policies foisted upon the nation by the likes of Sam Nunn and Colin Powell.

At the hearing last week, there was testimony from a retired military officer about how the Defense Department lost their investment in her because she felt compelled to leave due to the policy.  The press has been full of stories over the years about how talented personnel in whom much training has been invested have had their careers cut short.  Indeed, the earliest poster boys for the fight for the right to serve - Leonard Matlovitch and Copy Berg, whose cases went to the D.C. Circuit way back in the early days of this struggle in the 1970s - were exemplary of the exact same thing.  They were talented, successful officers whose careers were on an upward trend until they were forced out, depriving the Army and the Navy in those cases of two career officers who would have made a great contribution to our nation's defense.

When will the cowards in Congress -- mostly not military veterans, by the way -- who continue to bury this issue finally get the courage to do what needs to be done, repeal "don't ask, don't tell," and instead amend the regulations to forbid sexual orientation discrimination in the Armed Forces?  By all public opinion polls, the public is way out ahead of them on this.  And the statute in which they do it should be renamed from its present nondescript title to the Major Alan Rogers National Security Enhancement Act of 2008....

Florida Appeal Court Upholds Injunction Against Anti-Gay Teen Stalker

Florida’s 4th District Court of Appeal unanimously upheld a decision by Broward County Circuit Judge Ronald J. Rothschild to issue an injunction against continuing stalking activity by Nicholas Weisz, a teenager alleged to have waged a campaign of harassment against Stephen Clair and Joseph Killfoile, a gay couple living in the same neighborhood as Weisz.

According to the appellate decision by Judge Melanie G. May, Clair and Killfoile had been neighbors of the Weisz family for eight years, and for the past six, young Nicholas, who was described by the court as over six feet tall and weighing 200 pounds, had been “gay-bashing them.”

The problem had started three years ago, when Nicholas was given a motor scooter and took to riding it back and forth in front of the Clair-Killfoile house, “revving the motor to provoke them.”  They were provoked, and called the local police department to complain.  The police contacted Weisz’s parents, who reprimanded him.  He, in turn, blamed Clair and Killfoile and apparently set off on a compaign to make their lives miserable.

The specific events that precipitated Clair and Killfoile to go to court seeking an injunction against the boy and his parents began about three weeks before their appearance before Judge Rothschild.  According to May’s opinion, Clair “was unloading groceries from the car when the minor child looked at him and in a confrontational manner said, ‘Rum, rum, rum, rum, rum, rum, rum.’  The petitioner further testified that every time he is in his yard, the minor child shouted derogatory comments.”  In a footnote, May relates that these comments were: “You queer.” “Faggot.”  “You sick faggot.”  Killfoile had talked to Nicholas’s parents about the problem, but “the father told him that they were getting what they deserved for having called the police about the scooter.”

Two weeks before the court hearing, Clair and Killfoile were driving around the neighborhood while a realtor was showing their house to prospective purchasers.  They found their way blocked by a group of children, including Nicholas, who came up to their car and said, “Get out of the car, I’m going to light you up, motherfucker.”  A parent who was present in the crowd told Nicholas to shut up, but he approached the car a second time and should the same thing.  He also shouted “I’m going to murder you.”

This seems to have been the final straw that led them to file suit against the Weiszes, representing themselves at the hearing.  Clair testified that Nicholas had boasted about his father having semi-automatic weapons.  He testified that he and Killfoile had been “living in fear.”  He said they were not able to walk in the neighborhood, walk their dogs or ride their bikes, and that they slept with a fire extinguisher on one side of the bed and a gun on the other due to the threats from Nicholas.  Clair testified that he had lost weight since Nicholas made his threats, and was undergoing counseling and taking medication to cope with his emotional upset.

Although Nicholas and his parents were represented at the hearing, they did not refute any of Clair’s testimony.  They argued that the court did not have authority to issue an injunction, because Nicholas had not actually harmed either man.

But Judge Rothschild concluded that the statute authorizing injunctive relief to victims of repeat violence was broadly enough written to cover the situation, and issued injunctions barring the Weiszes from any continued harassment of Clair of Killfoile.  The Weiszes appealed this ruling.  The court of appeal is handling it as two separate cases, and ruled on July 23 only on the injunction protecting Clair.

Judge May noted that the statute defines “repeat violence” as meaning “two incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition, which are directed against the petitioner.”  Florida statutes provide that a person “who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking,” and harassment “means to engage in a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose.”

May found that the hearing record supported Rothschild’s conclusion that Clair was entitled to the injunction, writing, “Here, petitioner testified to multiple occasions where the minor child shouted obscenities at the petitioner and his domestic partner, threatened to ‘light them up,’ and ultimately threatened to murder them.”  Noting Clair’s testimony about the impact of this course of conduct on him, May concluded that “the evidence satisfies the elements of stalking,” sufficient to warrant issuing the injunction.  The court has not yet ruled on the Weisz’s appeal of the injunction protecting Killfoile.

Szymanowski At Bard Summerscape

Before plunging into their summer festival's main topic for this year - Prokofiev and His World - the Bard Summerscape Festival gave us a program of stage pieces by Karol Szymanowski (1882-1937), Poland's leading composer of the first half of the 20th century. 

They claimed to be presenting the U.S. premiere of Szymanowski's ballet, Harnasie, albeit in a production conceived by Lech Majewski, a Polish director whose work has been concentrated in Eastern Europe.  The choreographer was Noemie Lafrance.  Leon Botstein was in the pit conducting the American Symphony Orchestra.  The dancers were a local crew, but the tenor soloist, Tadeusz Szlenkier, who has some offstage singing to do, is Polish (and sang a lead role in King Roger - see below).  I've enjoyed this music for a long time in several different recordings - and had even acquired a score while on a tour in Poland in 1989 - but had never heard it performed live, and, of course, this being the U.S. premiere as a ballet, had never seen it performed.  I thought the orchestral performance was very effective, but I didn't care for the choreography at all.  Indeed, I had a hard time figuring out what was supposed to be going on much of the time, and the synopsis in the program didn't help too much.  What I thought was missing was really enthusiastic, strenuous dancing, and any close connection with the actual details of the story.  After all, we are talking about peasants, robbers, and a peasant wedding...., but what we got were lots of abstractions, as far as I could tell... Also, we could have done with more colorful costumes.  And it wasn't until intermission that somebody suggested to me that those mobs of white-clothed people walking back and forth across the stage were supposed to be a herd of sheep.  Well, maybe I just lack the imagination to appreciate this.  But I found the choreography awkward and boring.

On the other hand, I thought the staging of King Roger was magnificent, and showed what can be done with imaginative costuming and lighting and a few key props, in the absence of a budget to build real sets.  One never missed sets.  The very dark stage was filled with vividly costumed characters and necessary props to create a very effective setting for each of the three acts, performed on this occasion as three scenes of an uninterrupted presentation.  The production was conceived, again, by Mr. Majewski, also credited with the costumes.  Ms. Lafrance was again responsible for the choreography, and perhaps this was a bit of a weaker part of the production - at least, there seemed to be an awful lot of arms waving around in weird ways.  But some of the movement in the second act in particular was quite effective in suggesting the orgiastic effect of the Shepherd on the royal courtiers of King Roger.

The opera is loosely based on Euripede's play, The Bacchae, but updated to medieval Sicily and using the historical figure of King Roger in place of the Theban Pentheus.  The Shepherd is Dionysos, or at least his representative or embodiment on earth.  Roxana, the wife of King Roger, has a very prominent role, as does Roger's Arabic courtier, Edrisi.  The two local religious leaders are the other prominent parts.  All of these solo parts were taken by Polish singers.  (The production provided English titles projected over the screen, and they were very well coordinated with the action.)  The chorus was imported from the Wroclaw Opera Company, since it is unlikely one could train an American chorus to sing the crucial choral portions in idiomatic Polish in the time available for preparing this.

The plot is actually rather simple.  While attending religious services in the cathedral, King Roger is informed by the religious leaders that a Shepherd has appeared in the countryside preaching heresy, and they ask him to reign in the Shepherd.  (Indeed, the congregation sings for his execution.) Roxana and Edrisi ask the King to hear out the Shepherd and decide for himself whether the guy is a problem. The Shepherd is summoned and gives a preliminary explanation of his faith.  The King is indecisive, first decreeing his execution, then agreeing to a trial later that night in the King's palace.  The King awaits the Shepherd with foreboding, hearing his wife singing a paen to the Shepherd's religious values. The Shepherd returns that night and is given the third degree by the King.  The Shepherd explains his Dionysian philosophy, and the outraged King orders him put in chains preparatory to execution.  But The Shepherd breaks out of his chains and mesmerizes the King along with everybody else. The entire court follows the Shepherd out of the palace, Roxana right behind him.  The King and Edrisi eventually follow them to the shore, where the Shepherd reveals himself as Dionysos and the King has his epiphany as the sun rises.  (How the opera ends is a bit of a mystery - every account I've seen with recordings seems slightly different, and even the synopses in the two booklets given out at Bard were not entirely in sync.)   At any rate, this seems to be an opera of philosophical disputation, as there is not a whole lot of real action, but there is gorgeous music and the crowd scenes are well handled.

The singers were outstanding.  Adam Kruszewski as King Roger had a firm, well-focused baritone and sang with great authority and sensitivity.  Iwona Hossa's Roxana shone beautifully in her Act II song, which is the lyrical highlight of the piece.  As the Shepherd, Tadeusz Szlenkier was capable, but I really think a bigger, smoother, more charismatic voice is needed for this role.  After all, the Shepherd is supposed to have a hypnotic effect on all those with whom he comes in contact, and an ordinarily good tenor voice won't achieve this. Perhaps it's just that young Mr. Szlenkier needs to grow a bit more into the role.  He was physically commanding enough, but I thought the make-up folks went a bit overboard with the eye-shadow, making him look unfortunately a bit too much like a raccoon (!!), and that big white whatever-it-was that he was carrying around in Act II to suggest radiance emanating from him was a bit laughable at times.  (I did like the effect of the shirtless guys standing behind him waving their arms to simulate the multiple-armed Indian god - but they were used to better effect when they were mixing it up with the women of the court in the writhing orgiastic scene that ensued.  In other words, this production did not skimp on the exotic sexuality obviously intended by Szymanowski and his librettist, Jaroslaw Iwaszkiewicz.)

I doubt that King Roger is a candidate for inclusion in the American opera repertory, but an occasional production is well worth while.  The music is splendid, although this is definitely a one-song opera (Roxana's song in Act II), but the choral effects in Act I are thrilling, and the orchestration is superb, with some very interesting instrumental combinations and coloristic effects.  Anybody who enjoys Richard Strauss of the Salome and Elektra period would get a kick out of this, although Szymanowski's orchestra is not as "busy" as Strauss's most of the time.  But there is a similar strong tonal core with lots of spicy dissonance and rhythmic variety to keep things lively.

A job well done by Bostein and the ASO, and compliments to Bard Summerscape for making it possible for those of us who love Szymanowski's music to actually attend performances of these two pieces without having to travel to Poland.

[I wrote the above comments last night, before seeing this morning's review in the NY Times by Anthony Tommasini.  I can see where he is coming from on some of the criticisms, but have sharp disagreements on others.  I thought the emphasis of a ritualistic type of setting, with stylized movements, pervasive darkness with a few key props and colorful costumes, worked rather well, considering the limited funds that were probably available for this staging of a rarely-performed opera.  I didn't need to see any more of the on-stage personnel than were highlighted by the very effective lighting.  Of course, I was at the third performance, not the first, and it is possible that things were evolving as the run got under way.  They were certainly evolving in terms of conductor and orchestra.  I felt that Leon Botstein was in complete command on Sunday afternoon and the orchestra did a good job of navigating two complicated scores.  This cannot have been easy music to learn, or to coordinate between pit and stage, and so given the limitations on rehearsal time available, I'm not surprised that the first night appeared to have its rough spots.  I suspect that as the run continues through to next weekend, things will continue getting better on that front.  The crack in the headline about Shepherds dressed like Liberace was a low-blow at the costume designer - who in this case was the stage director and conceiver of the production - and I thought unwarranted.  I doubt that even Liberace went in for such heavy eye shadow!!!]

Brideshead Revisited - The New Film

I came to this not having read the book or seen the old, extended television miniseries, so I was taking it in with fresh eyes, every plot twist new to me.  I enjoyed it very much.  The casting was well carried out.  The only character that didn't convince me was Emma Thompson's Lady Mainmarch, who I thought should have been a bit more forbidding at the outset.  Michael Gambon was perfect as Lord Mainmarch, but then I have no personal recollection of Olivier in this role.

In the leads, I was much taken with Matthew Goode as Charles Ryder, Ben Whishaw as Sebastian Flyte, and Hayley Atwell as Sebastian's sister, Julia.  I thought they functioned well as an ensemble, and the supporting roles were also well taken.  What made the picture for me, however, were the sets and music.  Filmed in a few rooms of a grand English country home for the interiors, with luscious exteriors, especially the big fountain.  And I thought Adrian Johnston's music perfectly suited to the drama, especially in the final scene.

With so little being aimed at adults at the movies this summer, here's one to savor, even with some of its faults.  Some of the comments I've seen in the press suggest that the movie is not strictly faithful to the book, but I can't imagine how any novel can be "faithfully" recreated as a film and succeed cinematically.  The two forms are different and have different needs.  So if characters are combined, moved around, eliminated, placed in different settings from the original, in order to be able to provide a coherent story in a bit over 2 hours (for something that had previously required a 12 hour miniseries), so be it.  My only real complaint is that there were a few points where I thought it dragged just slightly, but they were not so prolonged as to lose my attention, and most of the time I thought the pacing just fine.

This is a fine accomplishment for the filmmaker, Julian Jarrold, and all of his creative crew.  At present it is only available at four lesser theaters in Manhattan, but I hope it does enough business to justify moving out into the more commercial neighborhood theaters.  It deserves to do well.