The first story to break was that Bulldogs’ Australian Football League player Jason Akermanis advised gay players to stay in the closet. This was in the context of reports that journalists were “hunting” for gay players, and two former AFL players had been offered $150,000 to be the first gay players to “come out”. Akermanis said that he did not have a problem with gay players or gay people, but that the macho culture of football teams and the prevalence of locker room nudity and homosocial behaviour in football meant that it would be very difficult for any player who chose to come out. He said that the presence of an openly gay player in the change rooms would produce discomfort in team mates, and admitted that in the past when he played with an openly gay player, all the guys suddenly put towels around their waists, including himself. Akermanis has been roundly criticised for these comments, and the Western Bulldogs have distanced themselves from the sentiments he expressed.

Let’s contrast that with the reaction to the revelation that the New South Wales Minister for Transport and Roads, David Campbell, was seen leaving a gay sauna in Sydney on Tuesday night. Campbell was using his ministerial car, but had dismissed his driver (as he was entitled to do). After Channel 7 aired footage of Campbell leaving the sauna last night, Campbell resigned, saying that he had caused his family embarrassment. Campbell is married and has two adult children, but he has apparently been “moonlighting” for 20 years. Oh the titillation, the prurience on the part of the press! (The unpleasant twist in the Campbell tale is that the reporter behind the revelations, Adam Walters, had an affair with former NSW government minister Reba Meagher some years ago. Meagher went home with Walters without telling her official driver, who sat waiting for Meagher all night, while the driver’s pregnant wife worried at home. This forced the revelation of Meagher’s relationship with Walters (since ended). The Bolta suspects that there is an element of revenge in Walters’ revelations. For once I am in entire agreement with the Bolta: the whole thing is very grubby.)

In any case, having seen the titillation which greeted the revelations about Campbell, if I were a gay AFL player, I might think twice about “outing” myself. Although Aker was caned for his suggestion that perhaps it would be better to remain in the closet, the Campbell episode shows the media, at least, still react with to the outing of public figures with scandal (except perhaps for Ricky Martin, where everyone knew already! [ADMIN DEM: um, I think you wanted this one, the jury is still out on Gordon]). There is no suggestion that Campbell’s sexual proclivities affected the performance of his duties. Campbell was criticized for his response to the F3 gridlock on the freeway north of Sydney, but it transpired that phone records established that he was in the office and then at home after the F3 accident occurred. One of the best responses to the Campbell scandal is at Neil’s Second Decade. Please read it, it’s eminently sensible.

There’s no doubt that it is very difficult for public figures to come out as gay. Former Australian Olympic swimmer Daniel Kowalski recently publicly came out in national media, and three cheers for him. I thought it was fantastic. I have had a number of friends who found it difficult to terms with the fact that they were gay or lesbian when they were younger, and I know it was helpful to see public figures who were open and unapologetic about their sexuality. I hope that young gay men who see Kowalski’s example will be heartened by it.

Still, I don’t think we should force people to come out or that the media should pay people to come out. I think it’s really a choice for the individual involved. In the context of Elena Kagan’s nomination for the US Supreme Court, some gay and lesbian commentators have called upon Kagan to publicly “out” herself if she is lesbian. I don’t think her sexuality should be relevant to her qualification for the job, as long as she can do it competently. Of course, gay and lesbian judges can and should come out of the closet if they want to do so, but they certainly shouldn’t be forced to do so.

I tend to think that people’s private sexual proclivities should remain private unless (a) they want to make them public or (b) they are hypocrites (eg, a male politician runs on a platform of anti-gay “family” values but hires out rent boys on the sly). Gay and lesbian people should never be ashamed of their sexuality, but if they don’t want to make their sexuality public, that’s up to them. On the other hand, if they do choose to make their sexuality public, good on them. I’ve known enough people who struggled with their sexuality to know how difficult it can be. I’d certainly applaud any young AFL player who was brave enough to come out. It would take a hell of a lot of guts.

The other thing we should be aware of is that human sexual behaviour is varied, and people come to their own accommodations. It may be that Campbell and his wife had an understanding about his preferences, and that they stayed with one another because they had real affection for one another, notwithstanding his “moonlighting”. I don’t know. But surely that’s their business, not ours, and as long as he’s competent at his job, that shouldn’t matter.

Update: Jim Belshaw has a good post on the erosion of privacy in Australian politics.

Neil has a post where he agrees with Miranda Devine and notes that “Truly the Campbell affair in NSW has created some strange bedfellows!”

Crikey has a post which outlines the icky politics behind the Campbell story.

Update 2: Catallaxy and Jarrah Job.

President Barack Obama pledged Friday to name a Supreme Court justice who combines “empathy and understanding” with an impeccable legal background to succeed liberal David Souter, whose abrupt retirement announcement set off speculation the next justice could be a woman, a Hispanic or both.

Obama, who will be making the first high-court nomination by a Democrat in 15 years, pointedly referred to his plan to have “him or her” on the bench in time for the Supreme Court’s session that begins the first Monday in October.

“I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people’s lives,” said the president in a surprise appearance in the White House Press Room moments after speaking with Souter by telephone. Word of the impending retirement had leaked Thursday night.

The next wave of speculation was about the sexuality of some of the potential candidates, with some gay and lesbian rights groups pushing for an openly gay or lesbian appointment. Meanwhile, conservative commentators doubted the President would appoint an openly gay or lesbian judge.

Of course, then speculation started about other people on the list whose sexual preferences were not known. This Slate article explains:

Rumors abound that other women on the list are lesbians, though those rumors are rarely backed by any actual reporting or proof. None of this is surprising. Think of all the single, childless women in positions of prominence who have been “rumored to be gay.” Janet Reno, Harriet Miers, and Condoleezza Rice, for starters. The very much married Hillary Clinton is practically the only one who can proudly, casually say that she marches in Gay Pride parades, although rumors that she was a lesbian have dogged her, too, for decades.

Sometimes the code for gay gets sloppy and transparent. The Christian Coalition described Elena Kagan, former dean of Harvard Law School and U.S. solicitor general, as “extremely dangerous to America.” Although she has taken pains to welcome conservatives onto campus, Kagan is targeted by the right for being “gay friendly” because she took sides in a Supreme Court case in which several law schools objected to the military’s policy on gay servicemen and servicewomen.

Janet Napolitano, secretary of the Department of Homeland Security and another short-lister, has many times answered questions from Rush Limbaugh and reporters about whether she is gay. Again, nobody has offered any proof, except that she is unmarried. Which seems to make everyone think: lonely, misfit, or lesbian. Ed Rendell, head of the National Governor’s Association, once said about Napolitano, “Janet’s perfect for that job. Because for that job, you have to have no life. Janet has no family. Perfect. She can devote, literally, 19 to 20 hours a day to it.” So to lonely and lesbian add “no life.”

There are so many things wrong with all this speculation.

First, I don’t care what a judge’s sexual preferences are as long as he or she is a good judge, and can do his or her best to look reasonably objectively at a case (leaving aside postmodern questions of whether objectivity is really possible).

I suppose that’s the thing that worries me about open pushes for diversity. In principle, I think diversity in the judiciary is a Good Thing. It reflects the way society really is; there are a diverse group of people out there. Judgment is easier to accept if you think the group of people who are given the job of judging others reflect the variety of views out there. If a particular sector of society always makes up the group who judges, then justice looks like it is not fair and impartial after all. However, once a government starts saying that it is looking for diversity specifically, all kind of personal stuff becomes open slather.

I think back to the appointment of Bell J to our own High Court, and to Janet Albrechtsen’s reaction – Ms Albrechtsen objected to Bell J not because her appointment was unmerited, but because her appointment might be perceived as unmerited given the statements about diversity made by the Rudd government. I thought it was a particularly silly reason for suggesting that an appointment was inappropriate. Fortunately, Bell J’s sexual preferences and other personal details did not become an issue in the Australian press. Thank God for that.

I also think of a job interview where I was asked, “What disadvantage have you suffered?” It was asked in a manner which suggested that the interviewer was positively trying to help those who had suffered disadvantage. Nonetheless, it troubled me. To answer that question, I would have had to expose all kinds of personal details about myself (religion, sexuality, disability, ethnicity, class). I don’t believe any of those things affect my skills as a lawyer or as an advocate. I don’t believe they were relevant to the job. If I wanted to do so, I guess I could have painted a picture of disadvantage, but (a) I choose to look at my life as a blessing, not a disadvantage and (b) I think those details are private anyway.

Secondly, it seems that it is presumed that when a woman is single and childless, she’s a lesbian. Lesbians are not necessarily childless. I know a number of loving lesbian mothers. By the same token, I know a number of straight women who are single and childless but straight. Why the presumption? I suspect there’s all kinds of weird sexist assumptions hiding in there. Perhaps it’s because power is seen as something to be wielded by men, so if a woman is powerful…well, that’s treading into male territory. I wonder if people think, She must be on the other side of the fence, then. And hey, no man would want a woman who is powerful and smart like she is.

Notably, I don’t think single childless men face the same kind of prejudice. Just think of the difference between the two words “bachelor” and “spinster”. The latter has a kind of opprobrium attached which is not present in the word “bachelor”.

The other point made by the Slate article is that of course all the majority of women who are shortlisted for judicial office are unmarried or divorced and childless. It goes on to say:

And so the list is a Catch-22: The choices a woman may make to achieve stunning legal success are the same ones that may also someday preclude her from a Supreme Court confirmation.

One of my friends has been trying to persuade me ditch the PhD and go to the Bar. However, my priority is spending time with my children right now, and I can’t see the Bar being a particularly good environment for allowing me to achieve that. And, as I’ve been saying for the last 3 years on my blog, I don’t think that you can have it all – you have to make a choice, child or career, to a certain degree. Sure, you can have kids and choose to do the career thing both at once. But if you really want to do the career thing properly, this means you’ve got to cut back on time you spend with your kids, whereas if you want to spend more time with your kids, your career suffers. There’s only so much of yourself you can spread around.

Well, we’ll have to keep an eye who President Obama nominates to replace Justice Souter. I just hope that people are not too hard on her, whoever she may be.

The amendment inserted a new definition of “de facto relationship” in s 4AA of the Family Law Act 1975 (Cth):

Meaning of de facto relationship

(1) A person is in a de facto relationship with another person if:

(a) the persons are not legally married to each other; and

(b) the persons are not related by family (see subsection (6)); and

(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

Paragraph (c) has effect subject to subsection (5).

Working out if persons have a relationship as a couple

(2) Those circumstances may include any or all of the following:

(a) the duration of the relationship;

(b) the nature and extent of their common residence;

(c) whether a sexual relationship exists;

(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

(e) the ownership, use and acquisition of their property;

(f)the degree of mutual commitment to a shared life;

(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;

(h) the care and support of children;

(i) the reputation and public aspects of the relationship.

(3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.

(4) A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.

(5) For the purposes of this Act:

(a) a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and

(b) a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.

(emphasis to s 2AA(5)(b) added)

The amendments have been dubbed “the mistress laws” by the Daily Telegraph, as the consequence of s 2AA(5)(b) might be that if a person has a second relationship outside of marriage, then the second partner may be able to claim for a share of the assets in Family Court proceedings. This could come as a shock to those cheating wives or husbands who think that they are protected by their married status.

The new laws will also render a whole range of pre-nuptial agreements void.

Same-sex couples definitely should have the same recourse to the law as heterosexual couples upon breakdown or the end of a relationship, particularly if they choose to formalise their relationship by registering it. But these new laws do not give either heterosexual or homosexual people a choice as to whether to formalise their relationship.

It seems to me that all this could have been avoided by instituting some kind of civil relationship registry whereby heterosexual and same-sex couples can register their relationships in a legally binding way. I don’t really understand the concern of religious groups; if it is a civil relationship registry, then it does not impinge upon the marriage laws chosen by their particular religion. People can still choose to get married within their particular religion according to the customs of that religion.

A particularly interesting question is whether these laws effectively legalise polygamy, as multiple partners may be treated as equivalent whether there is a pre-existing marriage or not.

To those politicians who rejected the prospect of a civil register on religious grounds – did you really want to sanction polygamy? Actually, come to think of it, the Old Testament and the Qu’ran are full of polygamy, so perhaps a tacit recognition of polygamy doesn’t concern the religious as much as a formal recognition of same-sex couples?

Ha, those unintended consequences, they’ll get you every time.

(Via Not a Hedgehog)

Update:

I’m not the only one to think that these laws effectively sanction polygamy. Meanwhile, Saint is seriously unimpressed with the new laws. (link to Saint now fixed).

Update 2:

Have a look at Marcellous’ excellent post on this issue. I wish I’d included it in my analysis when I initially wrote my post. My only excuse is that I think it was written two weeks before my son was born, and I was probably in the throes of false labour, so didn’t take it in properly at the time.

Marcellous also has some other posts which show the pitfalls of retrospectively untangling a relationship.

First, there’s the recent case of Whiting v Whiting, which is very messy indeed.

Secondly, there is Marcellous’ earlier post on a case, Quijarro v Robson [2008] NSWSC 818 which shows the problems which may arise where a de facto has a secret mistress. If A thinks she has a de facto relationship with B, but B in fact has a secret relationship with C on the side, does A still have a de facto relationship with B? Or is the only de facto relationship between B and C? This case involved a will where B died and did not leave provision for A, who thought she was B’s de facto. It transpired that B was having an affair with C. Accordingly, A could not establish that she had a de facto relationship with B. As Marcellous says:

[I]f you think you are a de facto but your partner has deceived you or you have been prepared to overlook what you see as mere lapses or deviations by the other person, you may really be nothing. You need to be legally married to be able to do that. That seems a very strange result indeed, since it means that, contrary to all the stuff that conservative moralists say and indeed some empirical observations about how many people actually live, the requirements for fidelity in a de facto relationship are in fact higher than those which apply as a matter of fact in a great many de jure marriages (as a matter of law, infidelity is irrelevant to these).

It may be that s 2AA(5)(b) was enacted to get around problems such as these.

Milk was the first openly gay politician elected to office in the USA. He had become a gay activist relatively late in life. After a few attempts at running for the position of Supervisor in San Fransisco, he succeeded after Mayor Moscone allowed individual districts to vote for candidates to represent them directly.

The new system of voting led to the election of a number of unorthodox Supervisors, among them a conservative fireman called Dan White. Apparently, White and Milk initially got along well, despite their political differences, but then had a falling out when Milk voted for a mental health facility to be located in White’s district (against White’s wishes). White started being increasingly critical of Milk.

In the meantime, various politicians were attempting to cash in on anti-gay sentiment, and Senator John Briggs put forth Proposition 6, which would have made it legal to fire school teachers who were homosexual on the basis that they posed a danger to children. Initially, public opinion was in favour of Proposition 6, but Milk and his friends instituted a grass-roots campaign where they went and talked to voters. The Proposition was rejected. Incidentally, I was fascinated to see that Ronald Reagan went on the public record as saying that Proposition 6 should be rejected, but Jimmy Carter was reluctant even to be photographed with Milk, and Carter’s sister offered to “cure” Milk of his homosexuality.

By this time, Dan White had become depressed and dispirited with politics, and in what appeared to be a fit of pique, he resigned from his position. His supporters and constituents were very disappointed, and he then asked to be reinstated. However, Moscone received legal advice which suggested that there was no requirement that White be reinstated, and the final choice was down to him as Mayor. Milk lobbied for White not to be reinstated.

The newspapers were full of the Dan White reinstatement drama, and then the Jonestown massacre in Guyana occurred. Most of the 900+ people who died had been San Fransiscans, and the papers were full of the horror of it. White was apparently unhappy that his attempt to get reinstated had fallen off the press radar. He also learned that Moscone was unlikely to reinstate him as Supervisor.

On 27 November 1977, White crept into the San Fransisco City Hall via the back window. He was carrying a gun and extra bullets. He went up to the Mayor’s office and assassinated Moscone. He then walked to the other end of the building and assassinated Milk. He was arrested and charged with two counts of murder.

When White came to trial, the jury consisted of white, heterosexual San Fransiscans who were primarily Catholic (as was White). There were no ethnic minorities and or homosexual people on the jury (it is worth noting that Milk had been popular with minorities for his passionate defence of their rights). White’s counsel used what became known as the “Twinkies defence”: White had binged on junk food in the days before the murder, and this unaccustomed consumption of junk food affected his mental deterioration. White was acquitted of murder and found guilty of two counts of voluntary murder. The verdict created outrage, and riots ensued in San Fransisco. White ended up serving 5 years for the killings. However, he committed suicide a little over a year after he was released.

It was a tragic and compelling story. I cried at various points. Such a waste of lives.

After the documentary, I was thinking about the importance of criminal trials in establishing a sense of vindication — that is to say, a sense that a person has received the punishment he or she deserves. There were riots after White’s sentence because many people felt that he got off far more lightly than a person of a minority group would have done. Apparently the police were strongly biased towards White, and the prosecution did not raise a number of critical issues which might have changed the jury’s mind about whether the murders were premeditated  (eg, the pre-existing tension between White and Milk). Such cases inevitably bring the justice system into disrepute.

I couldn’t help thinking, too, of parallels between White’s trial and OJ Simpson’s trial and subsequent acquittal for the murders of Nicole Simpson and Ron Goldman. There was a similar miscalculation by the prosecution, coupled with a jury which was predominately of the same ethnic background as the accused. After the trial, there were allegations that Simpson had gotten away with murder because the jury was biased.  Plus ça change, plus c’est la même chose. I suppose it’s just human nature: perhaps it’s easier for people to identify strongly with others who are like them (whether victim or accused). And, in the case of the African American population, there is a long history of negative interaction with the justice enforcement system, which means that the justice system had to work doubly hard to persuade them that one of their own did wrong.

On the upside, the documentary made me think that many positive things had occurred since Milk’s death. We now have politicians who are openly gay or lesbian; it is no longer a cause for comment in most circles. The likelihood of gay and lesbian people being sacked from their workplaces because of their sexuality is less than in the past, and at least these days there are legal recourses available if people have been discriminated against. Same-sex relationships are edging towards equality with heterosexual relationships before the law (slowly, but surely). I think and hope Harvey Milk would be pleased.