California gay marriage ban overturned, appeal planned

A U.S. appeals court on Tuesday found California’s gay marriage ban unconstitutional in a case that is likely to lead to a showdown on the issue in the U.S. Supreme Court.

Proponents of the ban said they would appeal the ruling, and the Protect Marriage coalition that sponsored the ban called the judgment “out of step with every other federal appellate and Supreme Court decision.” The appeal is likely to keep gay marriage on hold pending future proceedings.

But gay marriage supporters celebrated. Outside San Francisco City Hall, Breana Hansen stood smiling by her partner, Monica Chacon. “We’re so happy. It’s a validation for us as a couple,” Hansen said.

The majority in the 2-1 decision by the 9th U.S. Circuit Court of Appeals did not address whether marriage was a fundamental right available to same-sex couples as well as heterosexuals. But the two judges ruled that California’s Proposition 8 ban did not further “responsible procreation,” which was at the heart of the argument by the ban’s supporters.

California joined the vast majority of U.S. states in outlawing same-sex marriage in 2008, when voters passed the ban known as Proposition 8.

That socially conservative vote by a state more known for hippies and Hollywood was seen as a watershed by both sides of the so-called culture wars, and two gay couples responded by filing the legal challenge currently making its way through the federal courts.

A federal judge in San Francisco struck down Proposition 8 in 2010, and gay marriage opponents appealed that ruling to the 9th U.S. Circuit Court of Appeals.

Opponents and supporters of same-sex marriage both have said they are ready to appeal the decision all the way to the U.S. Supreme Court.

Opponents of gay marriage have not decided whether to ask a larger 9th Circuit panel to hear the matter, or appeal directly to the Supreme Court, Andrew Pugno, general counsel for Protect Marriage and a lawyer on the team defending Prop 8, said by email.

The 9th Circuit’s rules allow at least two weeks before a ruling takes effect, so same sex marriages cannot immediately resume in California, court spokesman Dave Madden said.


The 2-1 decision from the 9th U.S. Circuit Court of Appeals featured two judges appointed by Democrats ruling against the ban, while a Republican-appointed judge dissented.

In the ruling, Judge Stephen Reinhardt focused on the unique circumstances of Prop 8 in California.

“Although the Constitution permits communities to enact most laws they believe to be desirable,” Reinhardt wrote, “it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently.”

“There was no such reason that Proposition 8 could have been enacted,” Reinhardt wrote.

Backers of Prop 8 had said that it would advance better child-rearing, but Reinhardt said the only effect of the measure was to deny same-sex couples the right to describe their relationship as a “marriage.”

“Proposition 8 therefore could not have been enacted to advance California’s interest in childrearing or responsible procreation,” he wrote, “for it had no effect on the rights of same-sex couples to raise children or on the procreative practices of other couples.”

Judge Michael Daly Hawkins joined Reinhardt’s opinion, while Judge N. Randy Smith dissented from the main constitutional findings.

“The optimal parenting rationale could conceivably be a legitimate governmental interest” for passing the gay marriage ban, wrote Smith. “I cannot conclude that Proposition 8 is ‘wholly irrelevant’ to any legitimate governmental interests.”

About 40 of the 50 U.S. states had outlawed gay marriage before a California state court ruled in 2008 that a ban was unconstitutional, leading to a summer of gay marriages. But California voters that November decided to change the state constitution to limit marriage to a man and woman.

It provoked some gay rights activists to take a matter that had been waged on a state-by-state basis to federal court, essentially staking the entire agenda on one case. Republican Ted Olson and Democrat David Boies – attorneys who represented George W. Bush and Al Gore, respectively, in the legal case that decided the 2000 presidential election – joined forces to take on Proposition 8 in court.

The U.S. Supreme Court is seen as a more conservative body than the lower courts that have been considering the case. Should the high court eventually decide to hear the case, much may depend on Anthony Kennedy, a Republican-appointed justice who has written important pro-gay rights decisions but has not explicitly endorsed gay marriage.

Six states – New York, Massachusetts, Connecticut, Vermont, New Hampshire and Iowa – allow gay marriage, as does Washington, D.C.

In addition, New Jersey and Washington state are considering legislation to legalize same-sex marriage, and gay rights activists in Maine say they plan to bring the issue to voters in a referendum in that state.

A rainbow over the Galilee

A dense foggy morning. The end-of-winter storm the forecasters promised us had stolen over the Mediterranean coast and was gradually taking over the Israeli skies.  Already March – almost Purim – and we thought that winter was already behind us. We’d already come to terms with the depressing thought that the scanty amount of precipitation we’d been treated to during the winter of Taf Shin Ayin Aleph was all there would be, and that it will have to sustain us through another parched summer.  More gardens and lawns will be left to dry out. And the price of water will surely keep rising. The Sea of Galilee will continue to recede from its shores. Coming home from school, our children will recite that we need to save water because Israel is drying up.

And then, suddenly, a genuine storm reached our skies. As if from a foreign land where winters are actually wintery. Booming thunder, inky clouds, driving rain and gale winds.  Darkness spread across the country, painting it in shades of gray and black. The green Galilee lost its color.  And then, from out of the rain clouds, smiling and confident, a rainbow appeared, stretching across the Bet Netufa valley.  A perfect arc in brilliant colors.

Six thirty AM, I was on my way to work at the Yezreel Valley College, and out of the corner of my eye, I saw the rainbow.  I immediately pulled over outside the gate to our village and got out of the car, even though the intensifying rain threatened to chase away the last remaining rays of sunshine that were still peeking out from behind the clouds.  I took out my cell phone and took a picture of the rainbow.  I had a feeling that the rainbow was a sign of something although I wasn’t sure what. But over the last two days, I figured it out.  The rainbow bridges between pessimism and optimism. Between worry and hope.  The rainbow seems to be promising to us and all of humanity, scurrying across the Promised Land, all too often forgetting that there is a reason and power behind it all: I am here. There is hope. Don’t despair. The covenant is still intact.

There are many reasons for concern here, at the end of winter Taf Shin Ayin Aleph. Yet there is also hope and promise.  And this combination – between worry and hope, seems to be expressed in the weather, the environment, and in nature.

On the one hand, it is hard to decide what to worry about most, about the troubles near or far.  At home, Israel is getting more crowded, plagued by drought, threatened by economic and social inequities, consensuses that were once unquestioned are now in doubt, verbal and physical violence are spreading in society, and living within it, there is a frustrated impatient minority, who understands more and more the power of the weak.

And in the surrounding neighborhood, the old order is collapsing like a house of cards practically overnight, and in place of the familiar problems, we may face a whole new and even larger set of problems. Iran continues to arm itself and call for the destruction of Israel. Entrenched dictators may be replaced with new, even worse ones, and peaceful borders could ignite.

And the larger world is less and less patient with this little country, with its chutzpa, that is seen, paradoxically, in spite of its small size and history of persecution of its people, as the violent bully of the neighborhood. Recently I heard about bizarre guilt feelings: Germany feels guilty towards the Palestinian people, because the Jewish people, which were practically exterminated by the German Nazis 70 years ago, found shelter and a national home in Israel at the expense of the Palestinians…  And for this reason the Germans need to support the Palestinians in their struggle against Israel.

Yet on the other hand, there are reasons for hope. The neighboring regimes are changing, and those that replace them could be for the better.  Perhaps this actually represents the authentic desire of the neighboring peoples to take their futures into their hands and head in the direction of democracy and freedom?

And among ourselves, in spite of it all, we have innovation, creativity, and many reasons for pride and optimism.  Two weeks ago in Eilat there was an annual conference on alternative energy. Thousands of companies and interested parties from around the world came to this Red Sea city. Gilad Maoz, a friend and a leading attorney in this field, told me that the conference is turning into one of the most important events in the industry, and that Israel is one of the leading centers for achievement and innovation in alternative energy. They say that after the exodus from Egypt, Moses had to lead the Israelites through the desert for forty years – in search of the only country in the Middle East without oil…. So we don’t have oil, and barely have water, but sunshine and creative minds we have in spades.

In the Book of Genesis, in the portion of Noah, it is written: “I have set My bow in the cloud, and it shall be for a token of a covenant between Me and the earth.”  And so, in spite of the troubles, threats and worries, spring is around the corner, more colorful and exuberant than ever. The mountains and valleys of the Galilee are brilliant green, yellow, pink and red, carpeted in cyclamens, anemones and wheat.  And while these lines are being written, blessed rains are falling across the country, quenching the parched earth and extending a parting gift from winter, before it disappears until next year. And every so often a rainbow appears from between the clouds and reminds us: there is hope. The covenant stands.

When one color is a rainbow

Normally, I write book reviews in the third person, eschewing the second person as intellectually unrigorous and the first person as, well, too personal. When I occasionally set aside my normal practice, it is usually when a book is about sex or race—two extremely personal, sensitive topics.  The third-person voice in those reviews seems, well, too impersonal.

So, as I shift to the first-person and second-person voices for the duration of this review, let’s get something clear right away: If you plan to read Nell Irvin Painter’s “The History of White People” (W.W. Norton, $27.95, 496 pages) rigorously—and there seems to be no alternative given the intellectually challenging nature of the book—you must surrender the conventional wisdom that race is a fact of life. If you believe that blacks are a separate race, easily distinguishable from whites, and if that belief cannot be shaken, reading historian Nell Irvin Painter’s book is quite likely a waste of your time. Painter, a Princeton University professor with whitish hair and blackish skin, will tell you that race is an idea, and a demonstrably mistaken idea at that.

The book carries significant implications for Jews, implications dealt with by Painter throughout the learned text. We’ll return to the ideas about Jews later in this review.

The author of seven previous books, all about race in one way or another, Painter knows altering long-held conceptions will be difficult. She knows she is writing against the grain: “American history offers up a large bounty of commentary on what it means to be nonwhite, moving easily between alternations in the meaning of race as color, from ‘colored’ to ‘Negro’ to ‘Afro-American’ to ‘black’ to ‘African-American,’ always associating the idea of blackness with slavery.”

That narrowness is absurd when examined across the sweep of human history. Painter notes that “little attention has been paid to history’s equally confused and flexible discourses on the white races and the old, old slave trade from eastern Europe.”

Yes, white races, plural. Why? Painter explains “for most of the past centuries…educated Americans firmly believed in the existence of more than one European race. It is possible, and important, to investigate the other side of history without trivializing the history we already know so well.”

Believing in more than one European race is Painter’s verbal shorthand for showing that the rulers have often felt it is important to demonize and thus treat poorly those people slightly different from themselves. As a result, in Europe those who could be called—and often called themselves—Irish Catholics would find themselves classified as genetically inferior to those who called themselves Saxons within the British Isles and on the European continent. Those classifications—unfounded generalizations, really—carried profound negative consequences for the oppressed. For the oppressors, too, but they did not grasp the concept right away. They rarely do.

Most of the book consists of Painter moving from one misguided theorist to the next, as she exposes each for his deeply felt and widely accepted but profoundly flawed racialized theorizing. Among the theorists gaining attention in the United States after the Revolutionary War was Ralph Waldo Emerson. Anybody who has studied Emerson’s writings carefully understands that his smug superiority is built on a foundation of racialized thinking, and yet his name is invoked regularly during discussions of genius. Painter brings down Emerson convincingly. But she does so with gentle words and sentences. She is artful at unmasking fools but interpreting them according to the prevailing mores of their eras.

Near the end of the book, Painter delivers the punch line. It is a punch line that many, probably most, educated individuals know. Yet it is a punch line regularly forgotten during heated discussions about race. The punch line goes like this: genetic scientists have shown through DNA research that everybody evolved from the same tribes starting in Africa, that 99.99 percent of human genetic material does not vary from body to body. In other words, racial distinctions are not scientifically valid. Rather, they are social concepts.

Oh yeah, the Jews. In generation after generation, the so-called big thinkers, non-Jewish branches, have racialized Jews as part of “the other.” Exactly what other, the race theorists have been unable to agree. An influential race theorist, Johann Friedrich Blumenbach (1752-1840), delivered as scientific fact the outsider status of Jews residing in Europe. Despite their long residence among Gentiles,
Blumenbach said, “the Jewish race presents the most notorious and least deceptive [example], which can easily be recognized everywhere by their eyes alone, which breathe of the East.” Later race theorists would focus on Jewish noses or some other anatomical characteristic while passing off prejudice as science.

Painter is not certain when the misguided thinking will end, if ever. But the historic panorama does change, even if imperceptibly during a single lifetime. Maybe five generations from now, a yet unborn historian will write how Painter helped lead the way to a new understanding.

Steve Weinberg’s most recent book is “Taking on the Trust: The Epic Battle of Ida Tarbell and John D. Rockefeller.”

Skirball builds a real rainbow for Noah’s Ark

Danielle Berrin shows off the rainbow
Longtime collaborators architect Moshe Safdie and artist Ned Kahn were busy designing the new headquarters for the Bureau of Alcohol, Tobacco and Firearms in Washington D.C. when Safdie invited Kahn to “think about rainbows.” Standing in a courtyard, staring into a design he describes as a reflecting pool, Kahn’s first thoughts were of water. Then came the flood — ice melting, rising sea levels, global warming; then artwork bridging man and nature; and the image of someone standing on a cliff becoming engulfed by a wave.

All he had to do was figure out how to break water into the perfect-sized droplets to create a rainbow. And then he did.

Just beyond the new Noah’s Ark installation at the Skirball Cultural Center, where Asian elephants and Boringo giraffes tower, a lushly landscaped courtyard has been designed as a rainbow arbor.

Rising from a base of rocks, Kahn’s rainbow is a curved metal form that wraps around a walkway, spraying droplets of mist that coalesce to form a rainbow. It is the marriage of a museum exhibit and a symbolic natural oasis, recalling both the benevolent and destructive elements of nature and symbolizing God’s promise to Noah not to flood the earth again.

To prepare for the arbor’s construction, Kahn studied many versions of the Noah story: “I remember being struck by how many different cultures had references to a flood, the way flood stories seem like part of the collective memory of humankind.”

Having studied environmental science, Kahn often blends natural and man-made elements to create contemplative sanctuaries that connect people to the forces of nature.

“I think you could say that most of my work is located in urban environments, where people are disconnected from natural forces and phenomena, so a lot of what I’ve created is part of this realization that everything is a man-nature hybrid.”

The rainbow arbor relies on the unpredictability of each day’s elements: “I stuck a bunch of pieces of metal together, put novels [apparatuses that break the water] into it and ran water. But when you turn it on, it’s the wind and sunlight that animates it … it’s not entirely my creation.”

The central image came to him in a dream: “I was with my father, and we were on a hillside watching a wave crash, and it was really gentle, and when it hit us, we were washed away by it. But it was this sweet, nice dream … probably the opposite of what most people think of floods.”

Indeed, the sculpture’s abstract shape resembles an undulating wave, but as in Kahn’s dream, it is a delicate form — with perforated metal that appears transparent and a mist that sprinkles your skin, the way it would if you were behind a waterfall.

Conceived as a climax to the whimsical and wild experience of the Noah’s Ark exhibit, the rainbow arbor provides a contrast in its soothing, sensory experience.

In a world where man is increasingly alienated from untainted nature and global warming threatens the planet, Kahn’s mist sculpture embodies the hope of a promising future — or, as he puts it: “The rainbow was the symbol that they had made it.”

The rainbow can be found at the Skirball Cultural Center, 2701 N. Sepulveda Blvd., Los Angeles. (310) 440-4500. Skirball hours: Tues.-Fri., noon-5p.m; Thurs., noon-9 p.m.; Sat., Sun., 10 a.m.-5 p.m. For more information, visit

Show Celebrates Spectrum of Arlen Songs

It’ll be nostalgia time at the Ford Amphitheatre when Harold Arlen’s greatest tunes come alive again for the concert “The Wonderful Wizard of Song.”

The show’s title is a not-so-subtle allusion to “The Wizard of Oz,” which featured Arlen’s Oscar-winning hit, “Over the Rainbow.”

A prolific composer, Arlen wrote 500 songs featured in 20 Broadway shows and 30 movies, of which more than 20 will be played at the June 1, 2 and 3 evening concerts.

Included in the program are such romantic classics as “Stormy Weather,” “Blues in the Night,” “That Old Black Magic,” “Get Happy,” “I Got the World on a String,” “Come Rain or Come Shine,” and “It’s Only a Paper Moon.”

Putting on the show will be Arlen’s son, saxophonist Sam Arlen; George Bugatti’s Three Crooners; a 12-piece orchestra; and an on-screen tribute to the composer by Tony Bennett.

The concert is part of an extended national celebration of Harold Arlen’s centennial; he was born Hyman Arluck, in Buffalo, the son of a cantor and grandson of a rabbi.

In a storyline akin to that of “The Jazz Singer,” Arlen’s father expected him to follow the family tradition and become a cantor or rabbi, or, at least, a classical pianist.

Young Harold sang in his father’s synagogue in his teens, but after moving to New York he became part of the lively jazz culture of the 1920s, Sam Arlen recalled in a phone interview.

After success on Broadway, Harold Arlen worked in Hollywood for the next 20 years and kept sending his songs to his father, the cantor. Eventually, Samuel Arlen started including snippets of his son’s songs in his prayers, telling his Harold, “I think you’re on to something.”

Another family story recalled by Sam Arlen speaks to his father’s creativity and working style. The composer and his wife were driving down Sunset Boulevard when he suddenly told his wife to stop the car and pull over to the side.

She did so, and within a few minutes Arlen had composed the melody to “Over the Rainbow,” which the American Film Institute recently selected as the No. 1 song of all-time.

“There’s a special meaning to having this show in Los Angeles,” said Sam Arlen. “My father, who died in 1986, was an avid golfer, and he loved the city and its atmosphere.”

“The Wonderful Wizard of Song,” 8 p.m., June 1,2 and 3. $32-$29 (adults) $12 (children). For reservations or information, phone the Ford box office at (323) 461-3673, or visit