Leonard Link

"Howl" - The Film

This is sheerly brilliant film-making by Rob Epstein and Jeffrey Friedman.  They have taken the transcript of the obscenity trial of publisher-bookseller Lawrence Ferlinghetti for the publishing and sale of Allen Ginsberg's poem, "Howl," and interwoven it with excerpts from the poem and selections from Ginsberg's own autobiographical recollections.  That means every word in the film apparently is either by Ginsberg himself or from the transcript of the trial.  Interweaving these textual sources, they have presented scenes from the trial, Ginsberg reading the poem from manuscript in a nightclub setting prior to its publication, and Ginsberg being interviewed in his apartment, speaking his recollections into a tape recorder.  These are the sources for the words in the film.

From this description, it might sound boring or static, but it is exactly the opposite because of what you see on the screen as this is unfolding.  The trial scenes are staged as trial scenes, with excellent actors depicting the prosecutor, defense attorney, judge and witnesses, and spectators.  The staging of Ginsberg's reading of his poem in the nightclub, is absolutely gripping and absorbing.  The interview in Ginsberg's apartment is not static because he moves around from time to time as he speaks and the camera moves around when he is sitting, and from time to time what he is saying is illustrated with black & white staging of what he is describing.  In addition, and intercut with the readings of the poem, are brilliantly colorful animations of images from the poem itself.

The animations may be the most controversial part of the production, and have taken hits from some critics already.  Perhaps the critics are not understanding the vital function of these animations.  When one is reading a potentially difficult poem, one can read at one's own pace, stop and re-read, stop and think, and form images in one's mind generated by the words on the page.  But a viewer of the film does not have this luxury. The poem is being read to you aloud in real time - in sequential bits - by Ginsberg in the nightclub, with occasional quotes from it in the "interview", and of course bits are read and chewed over during the trial scenes.  But the filmmakers need to help those viewers who are unacquainted with the poem and who are having these words thrown at them for the first time -- and I think the animations really help the viewer in finding his or her way through Ginsberg's tangled verses.  Do the animations unduly simplify the verse and fix it with only one of many possible meanings?  Of course.  (And the point of multiple meanings is well made through some of the expert testimony in the trial scenes.)  But in the context it is necessary and effective for the film experience.

James Franco is at the center of all this, depicting Ginsberg over a period of several years, from his early 20s through to his early 30s, as the film cuts back and forth between the nightclub reading, the interview, and the scenes depicting earlier experiences that he is describing in the interview.  (There is no separate verbal soundtrack for these flashback scenes - one sees them like silent home movies with Ginsberg narrating them.)  Franco really inhabits the character, channels him totally, and has you believing in him fully.  It is at once a virtuoso performance and a selfless one, as he has transformed himself through appearance and gesture into the somewhat nerdy, very needy young Ginsberg.

Everybody else is terrific as well.  Jon Hamm as the defense attorney is absolutely first rate - the ad man can play a defense lawyer just fine, and he delivers his summation brilliantly.  David Strathairn projects just the right sense of determined moral outrage at the sexual imagery of Ginsberg's poem, and as well reflects towards the end of the trial the understanding that what he is doing is putting him on the wrong side of history.  Bob Balaban as the judge is appropriately poker-faced and does a fine job of reading the judge's verdict from the bench.  The witnesses are wonderful - I was especially taken with Jeff Daniels as a particularly slippery example of the species of literary expert witness.  In silent parts, various handsome young men wonderfully impersonate the important men in Ginsberg's life - Jack Kerouac, Neal Cassady, and Peter Orlovsky, his life partner.

The cinematography, editing, music .... everything combines to really gripping effect.  And I can't imagine a better film to help explain to a general audience what First Amendment protection for artistic speech is all about.  This film should be shown in colleges and law schools as part of the curriculum once it's finished with its theatrical run.  (Perhaps the language is a bit sexually explicit for high schools, but these days.... who knows?)

Serious films of this nature tend not to have long theatrical runs, but I think it contributes to the experience to see it in a theater with other people, so I urge people in major cities where the thing is likely to be shown to see it without delay.  But it will also be an excellent experience on DVD or streaming when that becomes available.  The important thing is to see it.  Anybody who cares about artistic expression, or the gay experience -- especially the "coming out to oneself" experience -- of the 1950s, or just great acting and filmmaking, owes it to themself to see this film.  And if there is justice in the world, there should be some Oscar nominations for this film, in a variety of categories - not least, Mr. Franco.

Before Night Falls - Jorge Martin's opera is now a recording....

Albany Records has released a recording of Jorge Martin's opera, "Before Night Falls."  The opera received its world premiere in Fort Worth on May 29, and I received my copy of the recording in the mail on September 27, just under 4 months later.  Is that some kind of speed record?  Amazing?

Actually, it appears that the musicians involved in the world premiere made this recording between the first and second performances of the opera (which were spaced about a week apart), so it was made within that burst of excitement after the first performance while everything was still quite fresh in the minds and hearts of the participants.  I wrote enthusiastically about the opera after attending the premiere, and my enthusiasm is reinforced by a first hearing of the recording, which I think captures much of that excitement despite the absence of a live audience.  (Not all, of course - no studio recording can achieve quite the excitement of a live performance - especially a world premiere - but this recording comes close.)

There are, of course, big differences between attending a performance and listening to a sound recording, apart from the excitement of live performance.  In opera, the acting, dancing, costumes and sets make a big contribution to the overall effect.  With a recording we just have the music.  I have memories of the other elements, but a potential listener who was not present for the performance will have merely the visual prompts of production photos (black & white) contained in the booklet that comes with the recording.  Happily there are many production photos interspersed at appropriate points with the libretto in that booklet.  Albany has not gone the cheap route of some labels that omit a libretto or make you go on-line to download one.  And the combination of photos with libretto makes up for some of that difference between a sound-only recording and -- would one dare dream -- a DVD! 

Hearing without any visual element certainly points up the extraordinary accomplishment of young Wes Mason, who embodied Reinaldo Arenas, the central character whose autobiography was the basis for the libretto.  This is a star-making performance.  Unfortunately, the sound-only format points up some of the weaknesses in the supporting cast, whose physical appropriateness for their roles and good acting and dancing helped to carry the performance but whose voices were not quite in the same league.  At the same time, the recording also emphasizes the marvelous job done by conductor Joseph Illick and the Fort Worth Opera's orchestra, with especially fine playing from various wind soloists and the percussionists, who have much to do in the dance segments. 

One distinct advantage of the sound recording over the visual production concerns an important dramatic device that Martin (who co-wrote the libretto) introduced into the story - the two "muses" who sing to Arenas from time to time.  In the production, the two women singing these roles were somewhat oddly dressed and a bit distracting - an intrusion into the otherwise relatively realistic presentation.  On a sound recording, the listener can think of them as voices inside Reinaldo's head.  Perhaps a future dramaturg staging this opera will conclude that the muses should not be visible.  That might be more effective in conveying their dramatic function.  On the other hand, it might just confuse the audience.  A judgment call there....

I listened on headphones without following the libretto, but I found myself absorbed in the drama and able to follow the action due to the superb diction of most of the singers, the good balance of voices with orchestra, and Martin's skillfull orchestration that manages to sound very full but is generally kind to the singers.  Indeed, I found that certain anomalies of instrumental balance that I experienced in the opera house, perhaps due to my seating location, were not a problem with the recording, which seems very well balanced.  I did find the sound of the chorus a bit more diffused than would be ideal, especially in the big "Victoria" scene in Act I, where I actually favor the private recording of that section from the cantata Martin fashioned for a choral music commission performed by the Monmouth Civic Chorus and caught "on the fly" in concert.  But overall I found this recording to be a very effective representation of the opera.

One of the problems with such a swift release of the recording after the first performance is that it "freezes" the opera in this format.  Throughout the history of opera, composers have tinkered with their works after the first performances and adapted them to changed circumstances as opportunities for new productions arose, as a result of which an opera could be refined through experience into a final form for posterity.  I imagine that Martin might be inclined to tinker before a second production, taking account of what he might feel worked better or less well in the first production, or making changes to accommodate the abilities of a new cast of singers, or to deal with the need for more or less transitional music for set changes or lengthening or shortening the dance sequences.  Who knows?  Sometimes operas are greatly improved in the process, and then one would want a new recording - but how often do contemporary operas enjoy second recordings? 

Just musing aloud there...  At this point, I'm one very happy listener to have this recording both as a souvenir of a wonderful premiere and as a source of much future entertainment and emotional satisfaction.  And, quickly, some record company must sign up Wes Mason...  I want a recital disc right away!!  And I hope that this recording serves to introduce the opera to many opera company artistic and music directors looking for new works to produce, since I think this deserves to be widely seen and heard.

Federal Appeals Court Faults Homosexual Stereotyping by Immigration Judge

The U.S. Court of Appeals for the 11^th Circuit, based in Atlanta, has set aside for reconsideration the Board of Immigration Appeals’ decision affirming a denial of asylum to a gay man from Serbia, finding that the Immigration Judge had relied on improper stereotypes about gay men in questioning the credibility of the petitioner, and that the BIA had failed to disavow the IJ’s reasoning. The court’s opinion was announced on September 27.

Writing for the unanimous three-judge panel, Judge Stanley Marcus related the petitioner’s horrific story of his mistreatment in Serbia and the generally adverse atmosphere for gay people in that country. Beginning in high school, the petitioner was identified by others as gay and subjected to harassment and abuse. When he came out to his parents, his father "beat him, threw him out of the house, and declared that he would rather Todorovic be dead." In addition, the petitioner alleged that his father "used personal connections" to have him conscripted into the Army, where he suffered further harassment and abuse. The petitioner also described abuse at the hands of law enforcement officials, including sexual assault.

After he had recovered from a particular vicious beating, he contacted a cruise line and applied for a job. This occupation brought him to the U.S., where he decided to stay and eventually applied for asylum. There are difficulties with his asylum application having been filed too long after his entry into the United States, but the court focuses more on the credibility determination by the Immigration Judge (IJ), presumably because the petitioner could still qualify for withholding of removal given the appropriate factual findings. At his asylum hearing, he submitted "a number of background articles regarding the treatment of homosexuals in Serbia. Some of them referenced the attack on the gay pride parade, and one noted that in the aftermath of the attack, the Serbian Prime Minister and Belgrade’s Chief of Police said that Serbia was not ready to tolerate homosexuality." Other articles documented violent attacks on gay people by the police and youth gangs, and the 2006 State Department country report noted that "violence and discrimination against homosexuals was a continuing problem in Serbia, and that gays and lesbians were reported to experience ‘widespread threats, hate speech, verbal assault, and physical violence."

The transcript of the IJ’s oral decision denying the petition contains the following statement to which the appeals court strongly objected: "The Court would first note that the respondent says he is singled out for persecution because he is gay in his home country. The Court studied the demeanor of this individual very carefully throughout his testimony in Court today, and this gentleman does not appear to be overtly gay. The Court does not know whether he is or not, his testimony is that he is overtly gay and has been since he was 17 years old. Be that as it may, it is not readily apparent to a person who would see this gentleman for the first time that, that is the case, since he bears no effeminate traits or any other trait that would mark him as a homosexual."

Is it absurd that an Immigration Judge in the U.S. in the 21^st century would make such a stupid statement on the record? Wrote Judge Marcus, "After thorough review, we conclude that the IJ’s decision was so colored by impermissible stereotyping of homosexuals, under the guise of a determination on ‘demeanor,’ that we cannot conduct meaningful appellate review of that decision, or of the BIA’s opinion essentially adopting it. In determining an applicant’s credibility, an Immigration Judge must consider the totality of the circumstances, including the applicant’s demeanor, the inherent plausibility of the applicant’s story, and the consistency among the applicant’s written and oral statements and other evidence of record. . . . The IJ alone is positioned to make determinations about demeanor - by observing the alien and assessing his or her tone and appearance - and in that sense is ‘uniquely qualified to decide whether an alien’s testimony has about it the ring of truth.’"

"At the same time," Marcus continued, "because of the ‘immense discretion’ conferred on those, such as an IJ, who find facts on the basis of oral testimony and demeanor, we require that credibility determinations made by an IJ rest on substantial evidence, rather than on conjecture or speculation. One clearly impermissible form of conjecture and speculation, sometimes disguised as a ‘demeanor’ determination, is the use of stereotypes as a substitute for evidence. Indeed, a number of our sister circuits have rejected credibility determinations that rest on stereotypes about how persons belonging to a particular group would act, sound, or appear."

Judge Marcus illustrated this point by citing decisions from the 2^nd, 8^th, and 10^th Circuits where courts had rejected IJ credibility determinations based on the IJ’s assertion that gay asylum petitioners were not effeminate enough to meet the IJ’s stereotyped image of a homosexual man. "This case presents similar problems," wrote Marcus, "inasmuch as the IJ relied on impermissible stereotypes about gay people as a substitute for substantial evidence. Notably, Todorovic never testified that he was ‘overtly gay’ or that this was the reason for his persecution; rather, the abuses to which he testified were the result of hostility by people who appeared to know he was gay for reasons other than his appearance or behavior."

Marcus asserted that the IJ’s demeanor determination "rests on wholly speculative assumptions made by the IJ; it is untethered from any evidential foundation; and it is thoroughly vague in its reference to ‘other traits’ that would mark the petitioner as a homosexual. Whatever else these offensive observations made by the fact-finder were, they were not credibility findings based on demeanor, but instead were driven by stereotypes about how a homosexual is supposed to look." Marcus commented that such stereotypes "would not be tolerated in other contexts, such as race or religion." "We see no reason to tolerate them here," he asserted.

The court found that the BIA’s decision to affirm the IJ’s opinion "is similarly unreviewable because we cannot tell whether it, too, was tainted by the IJ’s improper stereotyping of homosexuals." The BIA endorsed the IJ’s conclusion on credibility, citing a few other questionable points in the petitioner’s testimony. "Rather than distancing itself in some obvious and pronounced way from the IJ’s so-called ‘demeanor’ determination," wrote Marcus, "the Board appears to have broadly embraced the IJ’s credibility determination." The court acknowledged that the BIA might have based its conclusion on other points in the record, but "it is not too much to ask the fact-finder to make its credibility determinations without the stain of this stereotyping, utterly unconnected to any evidence. Quite simply, we cannot tell with any degree of confidence what the basis for the Board’s opinion was. As a result, we are precluded from engaging in meaningful appellate review. Accordingly, we vacate the agency’s decision and remand for a new factual hearing, free of any impermissible stereotyping or ungrounded assumptions about how gay men are supposed to look or act."

The incompetence and political bias of some members of the IJ corps in dealing with gay asylum petitions during the Bush Administration was notorious. It is difficult to tell whether this is yet another delayed example, since the court does not mention the date of the IJ opinion, but the pace at which these cases move through the administrative process to judicial review is such that it is most likely that the IJ in question (who is not identified by name in the opinion) rendered his decision several years ago. One hopes that the process of change under the new administration has rendered this case a window into the unfortunate past rather than a look at continuing dysfunction. One can only hope.

The GEMS Project 2010 - A Feast of Early Music

Over the past few days I have attended the three presentations of The GEMS Project 2010 in New York City.  GEMS is the acronym for Gotham Early Music Scene, self-described as "New York's service and advocacy organization for early music."  GEMS provides marketing and administrative services for over eighty (mainly small) ensembles specializing in the presentation of early music, which is generally anything written prior to Wolfgang Amadeus Mozart.  (Why that should be the dividing line is uncertain, but I've yet to hear Mozart at a GEMS program.  Not to say it hasn't happened, but I don't recall....) 

In addition to providing all these services for their member organizations, GEMS presents an annual season-starting mini-festival to showcase some of the organizations.  This year, the "project" consisted of three presentations, each providing extended exposure to the work of three groups specializing in Early Music. 

The first program, presented at St. Ignatius of Antioch Church on the Upper West Side of Manhattan last Thursday night, included performances by Parthenia, a viol ensemble with solo voice; TENET, an a cappella vocal ensemble; and The Four Nations Ensemble, on this occasion consisting of transverse flute, period violin and cello and harpsichord.  The second, presented at the Abigail Adams Smith Auditorium on the Upper East Side on Friday night, included performances by Sinfonia Players, a chamber ensemble drawn from Sinfonia New York (on this occasion flute, violin, cello and harpsichord), Trefoil, a medieval ensemble in which each of the three singers also played some period instruments; and Repast, a string trio with soprano soloist and harpsichord.  The final program, presented on Sunday afternoon at the Jerome L. Greene Performance Space at WNYC Radio, NYC, in the SOHO neighborhood, included performances by Lionheart, an all-male a cappella vocal ensemble; Asteria, a vocal duo with lute accompaniment; and Rebel, a chamber ensemble comprising two violins, cello and harpsichord. 

The programs were devised to present a contrast between vocal, instrumental and mixed music, and to range in period from the medieval to the early classical.  Althought there was no overall pattern or plan to the programs, each of the groups had devised a themed program for its 20-30 minute segment.  A special highlight was a free refreshment break paid for by some underwriters during the Friday evening program.  All three programs were generously underwritten by special donations, some anonymous and some credited.  The programs were very reasonably priced by NY professional concert standards.

It would be impossible to do justice to all three programs with a brief description, so I will content myself with saying that all three were performed to a very high professional standard, the musical selections were made to expose a wide variety of compositional styles, and that the diversity of material was such that any listener would be likely to find something especially appealing at each concert.  My own reaction was that the best of the best here was TENET, which is the vocal ensemble in residence at St. Ignatius, which is a small church with a marvelously warm acoustic setting for vocal music.  Perhaps I'm biased because two of the singers are acquaintances, Marc Molomot and Jesse Blumberg, but on the other hand many of the performers at all three concerts were familiar to me because I attend early music concerts in New York and have attended some of these "sampler" concerts in earlier seasons.  Also, many of the musicians have issued recordings which have found their way into my hands.

All in all, this was a feast for anybody who fancies early music, and is a "must attend" annual event.

Anybody interested in Early Music should visit the GEMS website and sign up for their free regular email blasts, the best way to get advance notice of the early music concerts being given in the NYC metro area.  It's at www.gemsny.org.

Federal Judge Orders Reinstatement of Lesbian Air Force Nurse

U.S. District Judge Ronald B. Leighton ruled on September 24 that the government had failed to justify the decision to discharge Major Margaret Witt, an Air Force Reserve flight nurse, under the "don’t ask, don’t tell" policy (DADT) on military service by gay people. Judge Leighton concluded that the Air Force should be required to immediately reinstate Major Witt, who had been given an "honorable discharge" after admitting during an investigation that she was a lesbian. Witt v. U.S. Department of the Air Force, 2010 Westlaw 37321889 (W.D.Wash.).

Judge Leighton, appointed to federal district court in Tacoma, Washington, by President George W. Bush, had initially dismissed Major Witt’s case in 2006, finding that the military policy "was subject to rational basis scrutiny, and that the evidentiary hearings held, and factual findings adopted, by Congress provided a sufficient foundation to support the regulation." In so ruling, Judge Leighton was faithfully following older cases from the 9^th Circuit Court of Appeals, which would have jurisdiction over appeals from Washington State, that had rejected challenges to the policy.

However, when Major Witt, represented by the ACLU, appealed to the 9^th Circuit, that court decided that legal developments since its earlier rulings required a new consideration of the constitutional issues. The U.S. Supreme Court had ruled in Lawrence v. Texas (2003) that the right of gay people to engage in sexual activity came within the protection of liberty under the Due Process Clause, striking down the Texas homosexual sodomy law. The 9^th Circuit panel reasoned in Major Witt’s case that since homosexual conduct enjoys constitutional protection, it would violate Due Process to allow the military to discharge a person for homosexuality if the government could not show that the discharge substantially furthered an important governmental interest, the test of "heightened scrutiny."

The full 9^th Circuit, in a sharply divided vote, refused to reconsider the three-judge panel decision, and the Obama Administration decided not to seek Supreme Court review at that point, accepting the 9^th Circuit’s order to send the case back to Judge Leighton for consideration under this heightened standard of judicial review. These events were playing out during the early days of the Obama Administration, with President Obama having pledged during his campaign to repeal the "don’t ask, don’t tell" policy. In those optimistic early days, the government may have expected that the policy would be changed before a trial could be held, since there would have to be time for pre-trial discovery that might last a year or more before a trial could be scheduled.

But repeal of the policy has taken much longer than the Administration expected, discovery was concluded, and the trial was conducted from September 13 through September 21, 2010. Ironically, the House of Representatives having approved a Defense Authorization bill that included a provision authorizing repeal of DADT, the Senate could not summon sufficient votes to break a Republican filibuster against the bill on the same date that Judge Leighton concluded the hearing on Major Witt’s case, September 21. Judge Leighton took just a few days to compose and release his 15-page opinion on September 24, ruling against the government.

Judge Leighton found that the 9^th Circuit panel had "clearly enunciated the Constitutional test that must be applied to DADT. Because DADT constitutes an intrusion ‘upon the personal and private lives of homosexuals, in a manner that implicates the rights identified in Lawrence, it is subjected to heightened scrutiny.’ To survive plaintiff’s constitutional challenge, the statute must (1) advance an important governmental interest, (2) the intrusion must significantly further that interest, and (3) the intrusion must be necessary to further that interest." As Major Witt’s case is an individual challenge to an individual discharge, it does not present the broader issue of whether DADT is unconstitutional on its face, recently addressed by District Judge Virginia Phillips in a case brought by the Log Cabin Republicans that resulted in a ruling against the government as well. The 9^th Circuit treated this as an "as applied" challenge to DADT, so the trial focused more narrowly on the question whether discharging Major Witt was necessary to achieve the goals Congress articulated when it adopted DADT: to safeguard unit cohesion and good order, which Congress found would be endangered by allowing gay people to serve openly.

Judge Leighton found that the trial recorded supported the conclusion that discharging Major Witt did not advance these goals, and actually detracted from them. She compiled a stellar record in the service, was widely respected, and had avoided bringing the issue of her sexuality into the open while on duty, conducting her personal life off duty and far from the military base. She had an extended relationship with a civilian woman that was conducted hundreds of miles away from where she was based and never came to the attention of military officials while it was going on. Unfortunately, after that relationship terminated, she began a relationship with a married woman, whose outraged husband contacted military officials, leading to the investigation in which Major Witt was found to have a "propensity" to engage in homosexual conduct, mandating her discharge from the service.

While adultery violates military law and could subject Major Witt to disciplinary penalties, it was clear throughout the investigation and discharge proceedings that she was being discharged because she had engaged in homosexual conduct with civilians, and had eventually admitted to this during the investigation. She has never been charged by the Air Force with adultery, and it was not the ground for her discharge. (Had it been, it would not likely have been an "honorable discharge.")

Judge Leighton found that the revelation about Major Witt’s sexuality had not adversely affected the esteem in which she was held by her unit, but that her suspension and then dismissal from the service did have an adverse effect. Indeed, Leighton reached more general conclusions extending beyond the sole case of Major Witt.

"The evidence produced at trial overwhelmingly supports the conclusion that the suspension and discharge of Margaret Witt did not significantly further the important government interest in advancing unit morale and cohesion," wrote Judge Leighton. "To the contrary, the actions taken against Major Witt had the opposite effect. The 446^th AES is a highly professional, rapid response, air evacuation team. It is comprised of flight nurses and medical technicians who are well-trained, well-led and highly motivated. They provide a vital service to our fighting men and women around the world. Serving within that unit are known or suspected gay or lesbian service men and women. There is no evidence before this Court to suggest that their service within the unit causes problems of the type predicted in the Congressional findings of fact. . . These people train together, fly together, care for patients together, deploy together. There is nothing in the record before this Court suggesting that the sexual orientation (acknowledged or suspected) has negatively impacted the performance, dedication or enthusiasm of the 446^th AES. There is no evidence that wounded troops care about the sexual orientation of the flight nurse or medical technician tending to their wounds."

Judge Leighton went on to find that Witt "was an exemplary officer. She was an effective leader, a caring mentor, a skilled clinician, and an integral member of an effective team. Her loss within the squadron resulted in a diminution of the unit’s ability to carry out is mission. Good flight nurses are hard to find." Further, he found that the evidence supported Witt’s argument that her reinstatement "would not adversely affect the morale or unit cohesion of the 446^th AES."

The government had argued that the court should not base its decision narrowly on the 446^th AES, but rather more broadly on the military as a whole, relying on polls showing substantial preference among military personnel against serving with openly gay people, but Leighton was dismissive of this evidence, pointing out that the military had shown its ability to accommodate diversity in the ranks.

While acknowledging these polls, wrote Leighton, "The possibility of such push back is off-set by the known negative impact of DADT upon the military: the loss of highly skilled and trained military personnel once they have been outed and the concomitant assault on unit morale and cohesion caused by their extraction from the military. In this regard, the Court notes the Army’s policy of deploying openly gay or lesbian personnel if the discharge process has not yet begun when the order to deploy issues," a reference to the so-called "stop-loss" policy that produced a decline in gay-related discharges after the initiation of hostilities in the Middle East. "In this time of war," he commented, "the Army, at least, has decided that allowing openly gay service is preferable to going to war without a member of a particular unit."

Leighton also rejected the government’s attempt now to rely on the adulterous nature of Witt’s affair with the woman whose husband had turned her in to the military authorities, pointing out that the Air Force had not relied on this in its discharge decision.

"For the reasons expressed," wrote Leighton, "the Court concludes that DADT, when applied to Major Margaret Witt, does not further the government’s interest in promoting military readiness, unit morale and cohesion. If DADT does not significantly further an important government interest under prong two of the three-part test, it cannot be necessary to further that interest as required under prong three. Application of DADT therefore violates Major Witt’s substantive due process rights under the Fifth Amendment to the United States Constitution. She should be reinstated at the earliest possible moment."

This is a historic ruling because it is the first time that a federal district judge has ruled after a full trial that the evidentiary record does not support discharging an individual service member under DADT, even if one were to assume that the policy – viewed in the abstract – is constitutional. Unlike the numerous prior cases in which courts have upheld the policy under the less demanding rational basis test and thus dismissed the individual plaintiff’s challenge to his or her discharge, this ruling, if allowed to stand, would mandate that every gay-related discharge be evaluated on its individual facts to determine whether discharge of the servicemember in question is necessary to preserve unit morale in light of the circumstances of their training and service and value to the military. As such, it would vastly increase the administrative expense of enforcing the policy, rendering it practically unworkable.

While much attention has been focused in recent weeks on whether the Obama Administration will appeal Judge Phillips’ ruling on the facial challenge, ultimately the decision whether to appeal Judge Leighton’s ruling may be more weighty, since his ruling came in response to a direct remand from the 9^th Circuit and he followed their instructions to the letter. One can’t predict how the 9^th Circuit would deal with a facial challenge, but it is entirely predictable that an appeal of this as-applied challenge would be futile for the government, in light of the evidentiary record.

The ruling also explodes any stereotype one might still have about how federal judges appointed by George W. Bush will rule in gay rights cases. In this instance, a judge appointed early in the Bush Administration has effectively repudiated the same rationale repeatedly invoked by Republican supporters of DADT, such as Senator John McCain, who led the filibuster effort that prevented a vote on repeal on the day the Witt trial ended. Let’s see whether Republican critics will charge Judge Leighton, one of their own, with being a "judicial activist," bearing in mind that he originally dismissed this case, only to reach a different conclusion once he had immersed himself in the factual record and discovered for himself the severe illogic of the challenged policy.

NY Philharmonic starts the new season with a bang!!

Literally, with a bang - those final chords of the Hindemith Symphonic Metamorphosis of Themes of Carl Maria von Weber...  What a canny program this was to start the subscription season, a nice balance of diverse items.  Before the intermission, Don Juan by Richard Strauss and the Violin Concerto in E Minor by Felix Mendelssohn, with Itzhak Perlman as soloist.  So, pre-intermission was romantic music of the 19th century.  After intermission we had Metaboles by Henri Dutilleux (a living composer, in his 90s) and the Symphonic Metamorphosis by Hindemith, a product of the World War II period when Hindemith was living in exile from Germany in the U.S.  Thus, we had the 20th century covered, albeit without the most "far-out" experiments of the century.  Alan Gilbert, beginning his second season as Musical Director, conducted the concert.

The orchestra is in great shape.  It seems they haven't yet permanently filled the first clarinet chair, since Mark Nuccio is still listed as acting principal.  He really played up a storm tonight.  Between the Dutilleux and the Hindemith he had many chances to shine tonight, and shine he really did, as did all the wind principals and the crowd back in the percussion section.  But then the entire orchestra sounded absolutely superb, and they looked like they were really having fun playing together again.

Perlman's technique is not quite what it once was, and I heard some dubious intonation at times, but he certainly rose to all the big moments in the Mendelssohn, polished off the first movement cadenza with ease, and brought that soulful involvement that has made him such a widely-beloved soloist among concert audiences. 

The diversity of works on the program was quite exciting, and it was especially good to hear the Hindemith, which the program book reports had not been played by the orchestra in 15 years -- too long for such a mid-20th century staple.

Well-launched, guys!

Florida Appeals Court Invalidates Gay Adoption Ban; Governor Says No Appeal

A unanimous three-judge panel of the Florida 3^rd District Court of Appeal ruled on September 22 that Florida’s statute providing that a person who is "a homosexual" may not adopt a child is unconstitutional. Ruling on the state’s appeal of a decision by Miami-Dade County Circuit Judge Cindy S. Lederman granting Martin Gill’s petition to adopt his two foster children, the court found that there was no rational basis for the state to categorically exclude gay people from being adoptive parents. Governor Charles Crist promptly announced that the state would stop enforcing the ban and would not appeal the ruling to the Florida Supreme Court. Florida Dept. of Children & Families v. In re: Matter of Adoption of X.X.G. & N.R.G., No. 3D08-3044.

The ban was enacted in 1977, as a legislative reaction to singer Anita Bryant’s referendum campaign to repeal a gay rights ordinance that had been adopted by the City of Miami. Bryant had based her campaign on a claim that gay people were dangerous to children, and that under the Miami ordinance gay people would have a right to be employed as public school teachers where they would have access to young children. A ban on adoptions by gay people then swept through the legislature, without any input from the state agency responsible for administering the adoption system.

Although both the Florida Supreme Court and the U.S. Court of Appeals for the 11^th Circuit, based in Atlanta, have rejected federal constitutional challenges to the adoption ban in the past, there had never been a direct appellate ruling on whether the ban violated Section 2 (Basic Rights) of the Florida Constitution, which incorporates an equal protection requirement. In its 1995 ruling upholding the ban, the Florida Supreme Court had found that the record in that case contained insufficient evidence to rule on the equal protection point, leaving it an open question.

Although adoptions by gay people were forbidden with the passage of the statute, there was no prohibition on gay people acting as foster parents or legal guardians of children, and gay people who were biological parents were not deprived of custody. The result was a growing body of evidence over time, as more and more gay people were raising children in these other capacities, that in fact gay people were perfectly capable of being good parents and providing good homes for children. The professional staff at the state’s Department of Children and Families came to the view that only the statutory ban stood in the way of granting an adoption for an otherwise qualified gay applicant.

In this case, Martin Gill and his partner had taken in two youngsters as foster parents at the request of the Department, after they were removed from their birth parents due to neglect and abuse. Gill, his partner, and their son took these children into their home and hearts and nurtured them back to physical and psychological health. When the state moved to terminate the parental rights of the biological parents, Gill petitioned to adopt. A positive home study concluded that although adoption by Gill would be in the best interest of the children, he could not adopt because of the statutory ban. Gill then brought his adoption petition to the Miami-Dade Circuit Court, challenging the ban with the assistance of a team of volunteer attorneys from the ACLU and other organizations.

Circuit Judge Cindy Lederman held an extended trial with numerous fact and expert witnesses, compiling a voluminous record supporting her conclusion that there was no rational basis for a categorical ban, and that Gill was well qualified to adopt the children. The appeals court concurred completely with her conclusions.

Writing for the court, Judge Gerald B. Cope, Jr., observed, "Given a total ban on adoption by homosexual persons, one might expect that this reflected a legislative judgment that homosexual persons are, as a group, unfit to be parents. No one in this case has made, or even hinted at, any such argument. To the contrary, the parties agree "that gay people and heterosexuals make equally good parents. . . Thus in this case no one attempts to justify the prohibition on homosexual adoption on any theory that homosexual persons are unfit to be parents."

The state’s only real substantive argument – an argument that had been accepted as intuitively obvious if unprovable by the U.S. 11^th Circuit Court of Appeals -- was that children adopted by gay people or same-sex couples would be deprived of having adult role models from both sexes, which the state argued was preferable for the child’s healthy psychological development.

If this were indeed the state’s goal in banning gays from adopting, the court pointed out, it made no sense because more than a third of adoptions approved by Florida courts involve single parents, not different-sex couples, so all those children will also lack parental role models of both sexes. Furthermore, the ban made no sense as part of a system that allows gay people to be foster parents, frequently in long-term placements, or even legal guardians, a long-term setting in which state oversight ceases as it does in adoptions.

"It is difficult to see any rational basis in utilizing homosexual persons as foster parents or guardians on a temporary or permanent basis, while imposing a blanket prohibition on adoption by those same persons," wrote Judge Cope. "The Department contends, however, that the basis for this distinction can be found in the social science evidence." Unfortunately for the state, the social science evidence, presented to the circuit court by numerous experts, all pointed in the opposite direction, in favor of letting gay people raise children. The only contrary expert testimony presented by the state was found to be flawed and unpersuasive by Judge Lederman, and the appeals court ruled that she "was entitled to reach the conclusion, which she did, that the Department’s experts’ opinions were not valid from a scientific point of view."

The Department also trotted out various stereotypes about gay couples (instability, prone to domestic violence) that were effectively shot down by Gill’s experts, and – in a move that has to be embarrassing for the state - the court pointed out that the state had selectively quoted from and misrepresented the testimony of Gill’s expert witnesses in its arguments to the court of appeal.

Having concluded that there is no rational basis for the statute, the court affirmed Judge Lederman’s decision to grant Martin Gill’s adoption petition and to find the statute unconstitutional.

In a concurring opinion, Judge Vance E. Salter emphasized the important role of Gill’s partner and their son in the lives of the two foster children, referring to them as a family, pointing out that the case involves "five persons and associated relationships, not just the adoptive parent and the two children.. . .The continued use of the legal system to attempt to unwind these relationships is simply inexplicable," he commented.

Judge Salter also pointedly noted that the professionals at the Department of Children and Families were opposed to the ban, and two of them had testified at trial in support of Gill’s adoption petition. "The categorical ban was enacted in haste and reaction in 1977," he wrote, but the statute was also subsequently amended to add a requirement that the "best interest of the child" be "of foremost concern" in the court’s determination of adoption petitions. "By the time of the trial below, the application of the statutory ban was contrary to both the professional judgment of the Department and the legislative directive to assure ‘the best interest of the child’ in ‘every’ adoption. Confronted with two irreconcilable provisions, the trial court properly followed the later and ‘foremost’ directive."

While noting that the court was not called upon to consider "the larger controversy regarding same-sex marriage," Judge Salter also made note of the recent ruling in Perry v. Schwarzenegger by the federal district court in San Francisco, observing that "many of the same equal protection arguments, and two of the expert witnesses who testified in the adoption case here, were cited in the court’s order."

Under Florida procedure, the state has a right to appeal to the state supreme court any court of appeal ruling holding a statute to be unconstitutional. But, as noted above, Governor Crist, currently an independent candidate for the U.S. Senate, recently changed his position on gay adoption, now arguing that adoption petitions by gay people should be decided on a case-by-case basis rather than under a categorical exclusion. Consequently, it is not surprising that he quickly announced that the state would not appeal this ruling.

Florida Appeals Court Invalidates Gay Adoption Ban; Crist Announced No Appeal

A unanimous three-judge panel of the Florida 3^rd District Court of Appeal ruled on September 22 that Florida’s statute providing that a person who is "a homosexual" may not adopt a child is unconstitutional. Ruling on the state’s appeal of a decision by Miami-Dade County Circuit Judge Cindy S. Lederman granting Martin Gill’s petition to adopt his two foster children, the court found that there was no rational basis for the state to categorically exclude gay people from being adoptive parents. Governor Charles Crist promptly announced that the state would stop enforcing the ban and would not appeal the ruling to the Florida Supreme Court.  Florida Department of Children and Families v.s In re: Matter of Adoption of X.X.G. and N.R.G., No. 3D08-3044.

The ban was enacted in 1977, as a legislative reaction to singer Anita Bryant’s referendum campaign to repeal a gay rights ordinance that had been adopted by the City of Miami. Bryant had based her campaign on a claim that gay people were dangerous to children, and that under the Miami ordinance gay people would have a right to be employed as public school teachers where they would have access to young children. A ban on adoptions by gay people then swept through the legislature, without any input from the state agency responsible for administering the adoption system.

Although both the Florida Supreme Court and the U.S. Court of Appeals for the 11^th Circuit, based in Atlanta, have rejected federal constitutional challenges to the adoption ban in the past, there had never been a direct appellate ruling on whether the ban violated Section 2 (Basic Rights) of the Florida Constitution, which incorporates an equal protection requirement. In its 1995 ruling upholding the ban, the Florida Supreme Court had found that the record in that case contained insufficient evidence to rule on the equal protection point, leaving it an open question.

Although adoptions by gay people were forbidden with the passage of the statute, there was no prohibition on gay people acting as foster parents or legal guardians of children, and gay people who were biological parents were not deprived of custody. The result was a growing body of evidence over time, as more and more gay people were raising children in these other capacities, that in fact gay people were perfectly capable of being good parents and providing good homes for children. The professional staff at the state’s Department of Children and Families came to the view that only the statutory ban stood in the way of granting an adoption for an otherwise qualified gay applicant.

In this case, Martin Gill and his partner had taken in two youngsters as foster parents at the request of the Department, after they were removed from their birth parents due to neglect and abuse. Gill, his partner, and their son took these children into their home and hearts and nurtured them back to physical and psychological health. When the state moved to terminate the parental rights of the biological parents, Gill petitioned to adopt. A positive home study concluded that although adoption by Gill would be in the best interest of the children, he could not adopt because of the statutory ban. Gill then brought his adoption petition to the Miami-Dade Circuit Court, challenging the ban with the assistance of a team of volunteer attorneys from the ACLU and other organizations.

Circuit Judge Cindy Lederman held an extended trial with numerous fact and expert witnesses, compiling a voluminous record supporting her conclusion that there was no rational basis for a categorical ban, and that Gill was well qualified to adopt the children. The appeals court concurred completely with her conclusions.

Writing for the court, Judge Gerald B. Cope, Jr., observed, "Given a total ban on adoption by homosexual persons, one might expect that this reflected a legislative judgment that homosexual persons are, as a group, unfit to be parents. No one in this case has made, or even hinted at, any such argument. To the contrary, the parties agree "that gay people and heterosexuals make equally good parents. . . Thus in this case no one attempts to justify the prohibition on homosexual adoption on any theory that homosexual persons are unfit to be parents."

The state’s only real substantive argument – an argument that had been accepted as intuitively obvious if unprovable by the U.S. 11^th Circuit Court of Appeals -- was that children adopted by gay people or same-sex couples would be deprived of having adult role models from both sexes, which the state argued was preferable for the child’s healthy psychological development.

If this were indeed the state’s goal in banning gays from adopting, the court pointed out, it made no sense because more than a third of adoptions approved by Florida courts involve single parents, not different-sex couples, so all those children will also lack parental role models of both sexes. Furthermore, the ban made no sense as part of a system that allows gay people to be foster parents, frequently in long-term placements, or even legal guardians, a long-term setting in which state oversight ceases as it does in adoptions.

"It is difficult to see any rational basis in utilizing homosexual persons as foster parents or guardians on a temporary or permanent basis, while imposing a blanket prohibition on adoption by those same persons," wrote Judge Cope. "The Department contends, however, that the basis for this distinction can be found in the social science evidence." Unfortunately for the state, the social science evidence, presented to the circuit court by numerous experts, all pointed in the opposite direction, in favor of letting gay people raise children. The only contrary expert testimony presented by the state was found to be flawed and unpersuasive by Judge Lederman, and the appeals court ruled that she "was entitled to reach the conclusion, which she did, that the Department’s experts’ opinions were not valid from a scientific point of view."

The Department also trotted out various stereotypes about gay couples (instability, prone to domestic violence) that were effectively shot down by Gill’s experts, and – in a move that has to be embarrassing for the state - the court pointed out that the state had selectively quoted from and misrepresented the testimony of Gill’s expert witnesses in its arguments to the court of appeal.

Having concluded that there is no rational basis for the statute, the court affirmed Judge Lederman’s decision to grant Martin Gill’s adoption petition and to find the statute unconstitutional.

In a concurring opinion, Judge Vance E. Salter emphasized the important role of Gill’s partner and their son in the lives of the two foster children, referring to them as a family, pointing out that the case involves "five persons and associated relationships, not just the adoptive parent and the two children.. . .The continued use of the legal system to attempt to unwind these relationships is simply inexplicable," he commented.

Judge Salter also pointedly noted that the professionals at the Department of Children and Families were opposed to the ban, and two of them had testified at trial in support of Gill’s adoption petition. "The categorical ban was enacted in haste and reaction in 1977," he wrote, but the statute was also subsequently amended to add a requirement that the "best interest of the child" be "of foremost concern" in the court’s determination of adoption petitions. "By the time of the trial below, the application of the statutory ban was contrary to both the professional judgment of the Department and the legislative directive to assure ‘the best interest of the child’ in ‘every’ adoption. Confronted with two irreconcilable provisions, the trial court properly followed the later and ‘foremost’ directive."

While noting that the court was not called upon to consider "the larger controversy regarding same-sex marriage," Judge Salter also made note of the recent ruling in Perry v. Schwarzenegger by the federal district court in San Francisco, observing that "many of the same equal protection arguments, and two of the expert witnesses who testified in the adoption case here, were cited in the court’s order."

Under Florida procedure, the state has a right to appeal to the state supreme court any court of appeal ruling holding a statute to be unconstitutional. But, as noted above, Governor Crist, currently an independent candidate for the U.S. Senate, recently changed his position on gay adoption, now arguing that adoption petitions by gay people should be decided on a case-by-case basis rather than under a categorical exclusion. Consequently, it is not surprising that he quickly announced that the state would not appeal this ruling.

The New Concert Season Begins - Five Boroughs Music Festival

My new concert season began tonight, on a small scale but no less auspiciously for that, with the opening program of the 4th Season of Five Boroughs Music Festival.  Actually, this was a repeat on the Upper West Side of Manhattan of a program that was presented yesterday in Staten Island.  Composer/pianist Ricky Ian Gordon presented a program of his songs with Deborah Selig (soprano), Katherine Drago (Mezzo-soprano), William Ferguson (tenor), and Andrew Wilkowske (baritone).  Todd Palmer was the excellent clarinet soloist during the second half, when Melvin Chen (pianist) collaborated with Palmer and Selig to present Gordon's extended setting of his own lyrics inspired by the Orpheus and Euridice legend. In the first half, Gordon collaborated at the keyboard with each of the singers in solo and ensemble numbers.

Mr. Gordon also introduced his pieces in an affable, humorous manner, projecting a personality shared with his music, which flows sweetly, nicely illustrating his carefully chosen texts by such as Langston Hughes, Edna St. Vincent Millay, Frank O'Hara, Dorothy Parker -- in short, he goes to the top for his poetry when not writing his own lyrics.

This very talented and dedicated group of musicians obviously worked very hard to provide the best possible showing for Gordon's work, and the result was an ideal recital in a splendid setting - the small, charming Christ & St. Stephen's Church on West 69th Street.  I can't imagine a better setting for an intimate concert of this sort. 

This was a wonderful beginning for my concert season.  I commend the Five Boroughs Music Festival to all readers in the NYC metro area.  Check out there website for details of upcoming programs: 5bmf.org.  The next program, to be presented in Brooklyn (Nov. 21) and Manhattan (Nov. 23) will include songs by Robert Schumann and Hugo Wolf, sung by Jennifer Zetlan, Liza Forrester, Scott Murphree, and 5BMF artistic director Jesse Blumberg.

Shout-Out to Marc-Andre Hamelin on his Magnificent Etudes

From time to time, pianist Marc-Andre Hamelin has included an etude of his own composition as a recital encore or as one among many short pieces in a recital recording.  Always enticing and entertaining, these works suggested that one of the world's great pianists has a sense of humor and a sure feeling for effective keyboard compositions.  Now, at last, he has collaborated with Hyperion, his main recording label, to produce an entire disc of his piano music, including all 12 of the Etudes in All the Minor Keys (from which those encores were drawn) as well as a bunch of other terrific short pieces for piano.

Hamelin is without doubt one of the most supremely gifted keyboard artists before the public today, and his recordings of both mainstream and unusual repertory generally top the lists of recommended recordings.  His own compositions are tailored to his particular pianistic strengths, and would surely pose daunting obstacles for other pianists, but I suspect that any aspiring lion of the keyboard would surely benefit from working his or her way through the twelve etudes, which present just about any technical and musical challenge one might confront in the grand romantic piano repertory of the 19th century.  Most of these etudes are "take-offs" on one or another of the great romantic composers - with a brief look-in at Scarlatti and Bach as well - and I suspect anybody who has mastered them will have found the key to the repertory at large.

This is prime ipod territory, and I'm putting this disc on mine right away.  Highly recommended to anybody who likes keyboard heroics.