Shane Bitney Crone and the late Tom Bridegroom.

Actors Shane Bitney Crone and Tom Bridegroom lived together in Los Angeles, where they had been lovers for six years. In 2010, Tom gave Shane a promise ring, and the two planned to marry when they legally could do so in California.

On May 7 of last year, Tom, doing a model photo shoot on the roof of a building in Silver Lake, slipped and fell to his death.

In the video below, Shane shares the story of their relationship, their painful separation, and what he learned in the tragic process.

The president, then, while saying he thinks same-sex couples should be allowed to marry, also stated his view that that this a local issue to be resolved by each state. On that latter point, he’s both correct and incorrect.

Numerous federal rights and benefits turn on whether a couple is married, and prior to 1996 any marriage sanctioned by a state would qualify a couple for those federal rights and benefits. The question of whether a marriage was recognized for federal purposes –– while in some sense a matter of federal law –– was determined by reference to individual states’ law.

But when Congress passed the Defense of Marriage Act (DOMA) in 1996, it made marriage recognition a matter of federal law by stating that only the union of one man and one woman could be considered a marriage for federal law purposes. Thus, departing from our historical practice –– and, ironically, at a time when no state was providing marriage licenses to same-sex couples –– Congress and President Bill Clinton enacted, for the first time in American law, a federal policy under which some marriages recognized under state law would not be recognized by the US government.

The Supreme Court had made it a federal issue three decades earlier –– in 1967, in Loving v. Virginia –– when it ruled that the 14th Amendment applies to state decisions about who could marry whom. In that case, the high court ruled, on alternative grounds of due process –– the fundamental right to marry –– and equal protection, that a state could not base eligibility to marry on the race of the individuals. A Virginia law that made it a crime for a “white person” to “intermarry with a colored person” could not be enforced, because the state did not have a right to interfere in the freedom of two individuals to marry, absent some compelling state interest.

As a result, though it is up to the states to determine the qualifications for marriage, that determination must be made consistent with the 14th Amendment guarantees of due process and equal protection, under which the state must show a compelling justification if it is going to interfere with individual choice in the selection of a marital partner.

In opposing constitutional same-sex marriage claims, some courts have tried to narrow Loving v. Virginia to its facts –– an interracial different-sex marriage case –– and state that the fundamental right identified by the Supreme Court was the right of a man and a woman to marry regardless of race. But to do that is to make the same error the high court made in Bowers v. Hardwick –– the 1986 ruling that upheld Georgia’s sodomy law –– in identifying the right at issue too narrowly, and thus failing to place the case correctly in context.

The Supreme Court corrected the Bowers v. Hardwick error in Lawrence v. Texas –– the 2003 ruling striking the nation’s remaining sodomy laws –– which overruled Bowers and stated it was wrong when it was decided, because the right at issue was not, narrowly construed, the “right of homosexuals to engage in sodomy” but rather the right of any person, regardless of sexual orientation, to intimate association with a consenting adult partner.

The Hawaii Supreme Court got this analysis right in Baehr v. Lewin (1993), the decision that provoked Congress into passing DOMA. The Hawaii court said that the state’s refusal to issue marriage licenses to same-sex couples was a form of discrimination on the basis of sex, because the state had erected a classification based on sex as a qualification for marriage. Under Hawaii’s constitution, sex is a “suspect classification” –– which means that any state action that makes eligibility for a right or benefit dependent on the sex of a person could be upheld only if the state offered a compelling justification. In a subsequent trial, the judge found that the state government had failed to do so and ordered that same-sex couples be allowed to marry. The judge’s decision never went into effect because Hawaii amended its constitution to provide that only the Legislature can determine whether same-sex couples can marry.

In the Proposition 8 case, US District Court Judge Vaughn Walker, in 2010, ruled that the 14th Amendment requires California to allow same-sex couples to marry. As in Loving v. Virginia, the court based its ruling on both due process –– the fundamental right to marry –– and equal protection.

On appeal, a Ninth Circuit panel affirmed Walker, but on the narrower groundthat the record provided no support for finding that California voters in 2008 had a rational basis for rescinding the right to marry for same-sex couples after the State Supreme Court had ruled in favor of a state constitutional right to same-sex marriage earlier that year. Because the adoption of Proposition 8 was an act of raw politics, not a reasoned judgment based on valid policy concerns, it could not meet even the least demanding level of judicial review, the panel found.

Supporters of Proposition 8 have filed a petition with the Ninth Circuit for rehearing by a larger panel. The case may end up going to the Supreme Court, which could address it narrowly along the lines of the panel decision or deal with Walker’s broader ruling at the trial court.

So, as a matter of Executive Branch authority and legislative authority, marriage has traditionally not been a subject for federal law, as the president observed. However, both DOMA and Loving v. Virginia have made it a subject for federal law.

The Obama administration has already answered the question whether the federal government must recognize same-sex marriages by abandoning any defense of Section 3 of DOMAand filing briefs in pending cases arguing that it is unconstitutional under the Fifth Amendment, which binds the federal government to comply with due process and equal protection principles.

The administration has yet to take a formal position on the 14th Amendment question –– whether state governments are obligated to allow equal marriage rights for same-sex couples. The Department of Justice could do this by filing amicus briefs in some pending same-sex marriage lawsuits in which it is not a party. Most marriage litigation has been in state courts, raising only state constitutional claims –– on which DOJ participation would not seem appropriate –– but more recently, such suits have begun to be filed in federal courts or to raise federal as well as state constitutional claims even though filed in state court (as with Lambda Legal’s challenge to New Jersey’s civil union law).

It would be a natural move for the administration to adapt the briefs it has been filing in DOMA litigation and submit them as amicus briefs on behalf of plaintiffs in pending same-sex marriage cases that raise 14th Amendment claims. When the federal constitutionality of a state law is drawn into question, it would be appropriate –– though not mandatory –– for DOJ to express a view.

Underlying the briefs the administration has been filing is the legal analysis summarized by Attorney General Eric Holder in his February 2011 letter to House Speaker John Boehner explaining why DOJ would no longer defend DOMA’s Section 3. The Justice Department determined that Section 3 discriminates based on sexual orientation, and that sexual orientation discrimination was comparable to other forms of discrimination to which federal courts apply “heightened scrutiny.” When heightened scrutiny applies, there is a presumption of unconstitutionality and the government has the burden of showing an important government interest substantially advanced by the discriminatory policy. Holder’s analysis determined that Section 3 could not survive this test; no important federal government interest, he concluded, was substantially advanced by systematically and across-the-board refusing to recognize lawfully-contracted same-sex marriages for purposes of federal law.

If that same analysis is applied in litigation challenging the refusal of a state to allow same-sex couples to marry, the same sort of question needs to be asked: What important state interests are substantially advanced by excluding same-sex couples from the right to marry? So far, the state high courts ruling in favor of same-sex marriage –– Massachusetts, Iowa, and Connecticut –– have concluded that there is no such state interest at stake. Those that have ruled against same-sex marriage have rested, generally, on some notion of legislative prerogative (as in the Vermont and New Jersey cases, finding a constitutional right to “equal benefits” but not to marriage) or the bizarre rationale of “channeling procreation” into stable households headed by different-sex married couples (embraced in 2006 in New York, for example, in a notoriously poorly-reasoned opinion). In light of the Supreme Court’s Lawrence ruling, merely preserving a traditional definition or expressing moral disapproval of homosexuality would not be sufficient, as Justice Antonin Scalia sarcastically observed in his dissenting opinion.

Summarizing the state of play, then: President Obama has already taken the legal position that the refusal of the federal government to recognize lawfully-contracted same-sex marriages violates the Fifth Amendment, concluding that Section 3 of DOMA cannot survive judicial review; he has taken the political position that same-sex couples should be able to marry. The last question for him to address, to complete the circle as it were, is whether the 14th Amendment requires the states, as a legal matter, to allow same-sex couples to marry. If it does, every state constitutional anti-marriage amendment would be invalid under the Supremacy Clause, and same-sex marriage would be universally available in the US.

The president’s May 9 statement marked a change of historic importance. For the first time, a sitting US president has stated that same-sex couples should be able to marry. But there is still a distance to traverse that is not solely a matter of state law, but also of federal constitutional principle.

BY DUNCAN OSBORNE

“I do not favor marriage between people of the same gender, and I do not favor civil unions if they are identical to marriage other than by name,” he told KDVR, a Colorado television station, on May 9. “My view is the domestic partnership benefits, hospital visitation rights, and the like are appropriate, but that the others are not.”

Colorado’s Legislature is currently wrestling with a civil union bill.

Romney made similar comments at an appearance in Oklahoma later in the day. While the presumptive Republican nominee for president has consistently opposed gay marriage and wants to amend the US Constitution to bar such unions, he has held varied positions on how government should treat same-sex relationships.

Romney’s position now is that he supports domestic partnerships. He appears to believe that those give fewer rights and benefits to same sex-couples than either civil unions or marriage. That would be news to domestic partners in California and Nevada, where such legal arrangements are marriages in all but the name.

Romney typically says hospital visitation and health coverage are the rights and benefits that should be available to domestic partners, but he has not said if partners should receive other benefits.

In 2003, after Massachusetts’ highest court ruled that the state must allow gay and lesbian couples to wed, Romney, then the Bay State’s governor, and some state legislators wanted the court to allow the Legislature to instead enact a law creating civil unions, with all the rights and benefits of marriage, but not the name. At the time, multiple press outlets reported that Romney supported the legislation, with one calling it a “Vermont-style civil union law.”

The Massachusetts Supreme Judicial Court rejected that civil union option in early 2004, and Romney immediately pressed the Legislature to take steps to amend the State Constitution to ban gay marriage without offering gay and lesbian couples any alternative partnership rights.

In an April 29 story this year, the Los Angeles Times reported that “some conservative activists criticized Romney for opening the door to civil unions” during the Massachusetts marriage fight.

Some on the right wing oppose gay marriage and civil unions, arguing that they are marriage-lite. Romney appears to be playing to those conservatives by refusing to endorse civil unions.

Romney’s chameleon-like approach to many policies was noted by Republicans as early as 2008, when he first sought the GOP presidential nomination. Senator John McCain’s campaign produced a 200-page book of Romney opposition research, which went public earlier this year, and it details his policy shifts and sometimes polar-opposite changes going back nearly 15 years.

On gay issues, Romney has opposed and endorsed the Employment Non-Discrimination Act (ENDA), federal legislation that would ban job discrimination based on sexual orientation and gender identity, and he opposed and endorsed ending the military’s Don’t Ask, Don’t Tell policy.

Responding to questions from reporters on May 9, Romney said that gay marriage was a “very tender and sensitive topic.” In 2005, in South Carolina, he vilified gay couples, according to an ABC News report two years later.

“Today, same-sex couples are marrying under the law in Massachusetts,” Romney said. “Some are actually having children born to them. We’ve been asked to change their birth certificates to remove the phrase mother and father and replace it with parent A and parent B. It’s not right on paper. It’s not right in fact.”

While political campaigns tend to emphasize different issues in primary campaigns as opposed to general elections, Romney is taking that practice to an extreme. In March, Eric Fehrnstrom, a longtime senior Romney advisor, likened the campaign to an Etch-a-Sketch.

“I think you hit a reset button for the fall campaign,” Fehrnstrom said on CNN. “Everything changes. It’s almost like an Etch-a-Sketch, you can kind of shake it up and we start all over again.”

His appearance interrupted Occupy Wall Street protesters as they negotiated the preparations for an anti-capitalist May Day General Strike. Seeming irritable and out of sorts, Mr. Marx sat glowering astride a fiery white horse amid apocalyptic clouds of glory, as hordes of journalists and OWS activists waving cell phones crushed in to record the event.

“HA HA! You’re undead!” laughed a cub reporter from the Wall Street Journal, pointing derisively at socialism’s greatest sage. “Where’s your dialectical materialism now, huh?”

“Shut up, kid,” grumbled Mr. Marx, massaging a carbuncle on his left buttock.

“Karl Marx!” cried CNN’s Anderson Cooper, thrusting a microphone at the stern, famously bearded visage, “now that you’ve obviously come back from some sort of Afterlife, don’t you think it’s silly to explain existence in terms of social class and the means of production? How about giving a little credit to the Man Upstairs?”

Karl Marx wrested the microphone from Mr. Cooper and declared to the multitudes, “Religion is still the opiate of the masses, you guys. In fact, Jesus is so hopped up on opiates, he can’t even see straight. Furthermore, Jesus thinks you all suck.”

The crowd gasped and shrank back. “Burn him!,” screamed a bevy of middle-aged tourists, sporting green foam Statue-of-Liberty crowns and carrying multiple shopping bags from Century 21.

Unruffled, Mr. Marx continued, “Hey, I tried to give you people a break. I explained to Jesus that your bourgeois consumer fetishism was created by your alienating social conditions. So Jesus said, ‘Fine, one bearded Jewish intellectual is as good as another — you go down there and sort them out.’ I said, ‘Bite me.’ Next thing I know, here I am. True story.”

Marxist scholars express doubt that the mortal being who formulated the paradigms of dialectical and historical materialism could have triumphed over death itself. Dr. Harvey B. Papershredder, adjunct sociology professor at Sarah Lawrence College, represented the going academic consensus when he stated, “Because I have invited Marx into my heart as my personal savior, I believe he no longer exists. Conversely, I exist. So does my latest book on capitalist injustice, premised on the hard-hitting Marxian fact that when oppressed workers die, they don’t come back. So please buy my book because we only live once and I want to feel good about myself before we all perish miserably in some capitalist-induced nuclear and/ or global warming disaster. It’s also available on Nook and Kindle. The book, not the disaster.”

Other leftists, less empirically grounded, are joyfully celebrating Mr. Marx’s return, saying they look forward to living in a promised classless society at the end of history. Many, having prided themselves for years on living “politically correct” lives by eschewing fur and meat products and demonstrating regularly against imperialist wars, have celebrated Marx’s return with delirious blog entries, tweets, and pilgrimages to Lower Manhattan in the belief that the “End of History” has arrived and the chosen will soon be raptured over to the Financial District to build a glorious “Worker’s Paradise.”

Meanwhile, at Union Square, devout progressives can purchase hand-lettered T-shirts sporting such slogans as “Better Dead AND Red” and “Prole-ier than Thou,” along with political buttons emblazoned with the images of martyred radicals and political prisoners. Even the local chapter of the Jehovah’s Witnesses has switched from distributing its signature magazine Watchtower to giving out free copies of Mao’s “Little Red Book.”

But the transcendent atmosphere of jubilation was marred in the last hour or so, when a rumor was tweeted that Mr. Marx is preparing to condemn the entire Revolutionary Workers Labor Party to hell for all eternity for the sin of infighting.

“Serves them right,” remarked Milo Kronstadt of the anarchist Party Against Workers Parties Party. “Lousy bunch of middle-class Marxist-Leninist white liberal Stalinist so-called activists. They should all die and rot.”

Another so-called activist from a more hierarchical tradition then pointed out the “lameness” of an anti-authoritarian “dude” who expects justice from the ultimate Authority on Marxism, and a general melee broke out. Fisticuffs finally abated about nine minutes ago when someone noticed that Mr. Marx was no longer to be seen.

Four minutes later, Mr. Marx was discovered at the pharmacy counter of the nearest Duane Reade, discussing the efficacy of Preparation H to treat his carbuncle. He reportedly confiscated and damaged the cell phone of an OWS politico in the act of tweeting a photo of Mr. Marx’s first back-to-earth purchase. As of the last 12 seconds, Mr. Karl Marx remains inside the Duane Reade, refusing to come out.

Given the complex coordinates of time, space, and this exact dialectical moment in material history, no one — as usual — knows what will happen. It remains for each and every one of the 99 percent to keep watching the skies.

New York Senator Kirsten Gillibrand in the 2011 LGBT Pride Parade in Manhattan. (COURTESY: OFFICE OF SENATOR GILLIBRAND)

BY PAUL SCHINDLER  |  It’s been a spectacular year since Marriage Equality New York (MENY; meny.us) held its last annual gala.

On June 24, a month after that event, Governor Andrew Cuomo signed the state’s Marriage Equality Act, granting full civil equality under state law to same-sex couples.

As MENY turns its attention to the nationwide fight to secure federal recognition for married gay and lesbian couples and to win marriage equality in the more than 40 states without it, there have also been striking gains. Last week, President Barack Obama, after several years of saying he was evolving on the issue, stunned the nation with his announcement that “it is important for me to go ahead and affirm that I think same-sex couples should be able to get married.”

Around the country, Washington State and Maryland have enacted gay marriage, LGBT advocates in Maine are confident enough in their ability to reverse a 2009 voter referendum voiding that state’s marriage equality law that they are headed back to the polls in November, and an appellate court upheld a San Francisco federal judge who struck down Proposition 8, though that fight is not yet over.

Out gay MSNBC news anchor Thomas Roberts will be honored along with his partner, Patrick Abner, at the Marriage Equality NY gala. (MSNBC)

And there are other challenges, of course. The victories in Washington and Maryland will likely face repeal efforts in November referendums, North Carolina voters, on the eve of Obama’s announcement, approved a constitutional amendment barring gay marriage by a big margin, and a similar ban is on the ballot in Minnesota this fall.

On balance, though, MENY has plenty to celebrate on May 21 at its National Gala, We Are the American Family.

Honorees will include New York Senator Kirsten Gillibrand, who has been a fighter on LGBT rights in Washington on issues from repeal of Don’t Ask, Don’t Tell to federal rights for married gay and lesbian couples; out gay MSNBC anchor Thomas Roberts and his partner, Patrick Abner; and the Marriage Equality Campaign Group of B’Nai Jeshurun, an Upper West Side Jewish congregation that was among many faith communities that contributed to the marriage equality victory in Albany.

We Are the American Family takes place at the 404 NYC Event Space, 404 Tenth Ave. at 33rd St. on Monday, May 21. The VIP cocktail hour is at 6 p.m.; with a reception at 7 and dinner and awards at 7:45.

Tickets begin at $175, with VIP admission at $270, at https://www.brownpapertickets.com/event/232883.

President Barack Obama during ABC "Good Morning America" co-host Robin Roberts' interview with him on May 9. | PETE SOUZA/ THE WHITE HOUSE

BY PAUL SCHINDLER |  In a stunning turn of events, President Barack Obama endorsed marriage equality this afternoon, in a taped interview with Robin Roberts, a co-host of ABC’s “Good Morning America.”

“At a certain point I’ve just concluded that for me personally it is important for me to go ahead and affirm that I think same sex-couples should be able to get married,” the president said.

Obama’s embrace of gay marriage came just two days after Vice President Joe Biden, in an appearance on “Meet the Press,” said, “I am absolutely comfortable with the fact that men marrying men, women marrying women, and heterosexual men marrying women are entitled to the same exact rights. All the civil rights, all the civil liberties. And quite frankly I don’t see much of a distinction beyond that.”

On Sunday, the president’s reelection team immediately tried to knock down the view that Biden’s statement amounted to an endorsement of marriage for same-sex couples.

“What VP said –– that all married couples should have exactly the same legal rights –– is precisely POTUS’s position,” tweeted David Axelrod, senior strategist for the reelection campaign, just moments after Biden’s comments were aired.

In a 45-minute daily press briefing on Monday, more than a dozen reporters pressed White House press secretary Jay Carney to explain how the vice president’s comments did not break new ground and when the president would clarify his own thinking.

Last year, the administration announced it would no longer defend the Defense of Marriage Act against legal challenges and endorsed the Respect for Marriage Act, which would give legally married couples federal recognition.

Obama, however, had never before explicitly “evolved” –– in the language he repeatedly employed –– beyond his support in the 2008 campaign for civil unions. His comments to ABC were striking in the traditionalist approach he took to explaining his change of position –– talking about family, faith, and country as considerations in his thinking.

The president spoke about his personal interactions with gay and lesbian couples, including gay and lesbian servicemembers who can now serve in the military but cannot get legal recognition of their relationships.

“I have to tell you that over the course of several years as I have talked to friends and family and neighbors when I think about members of my own staff who are in incredibly committed monogamous relationships, same-sex relationships, who are raising kids together, when I think about those soldiers or airmen or marines or sailors who are out there fighting on my behalf and yet feel constrained, even now that Don’t Ask Don’t Tell is gone, because they are not able to commit themselves in a marriage, at a certain point I’ve just concluded that for me personally it is important for me to go ahead and affirm that I think same sex couples should be able to get married,” he said, according to a transcript posted at ABC.com.

In his remarks, the president acknowledged the critical role demographics play in people’s attitudes toward marriage equality.

“It’s interesting, some of this is also generational,” he said. “You know when I go to college campuses, sometimes I talk to college Republicans who think that I have terrible policies on the economy, on foreign policy, but are very clear that when it comes to same sex equality or, you know, sexual orientation that they believe in equality. They are much more comfortable with it. You know, Malia and Sasha, they have friends whose parents are same-sex couples. There have been times where Michelle and I have been sitting around the dinner table and we’re talking about their friends and their parents and Malia and Sasha, it wouldn’t dawn on them that somehow their friends’ parents would be treated differently. It doesn’t make sense to them and frankly, that’s the kind of thing that prompts a change in perspective.”

Obama, making a Christian-based argument for full equality, said that his wife, Michelle, helped him wrestle with the issue and that their faith played a critical role.

“In the end the values that I care most deeply about and she cares most deeply about is how we treat other people and, you know, I, you know, we are both practicing Christians and obviously this position may be considered to put us at odds with the views of others but, you know, when we think about our faith, the thing at root that we think about is, not only Christ sacrificing himself on our behalf, but it’s also the Golden Rule, you know, treat others the way you would want to be treated,” he said. “And I think that’s what we try to impart to our kids and that’s what motivates me as president and I figure the most consistent I can be in being true to those precepts, the better I’ll be as a as a dad and a husband and hopefully the better I’ll be as president.”
Obama told Roberts that he still believes that states will determine marriage laws for their citizens. The legal challenge to Proposition 8 was the first effort since a Minnesota case in the early 1970s in which same-sex plaintiffs have sought to make the case that a state denying same-sex couples the right to marry is a violation of the US Constitution. Though the US government is not a party to that suit, the analysis that led the Department of Justice is based in the same equal protection principle as the Prop 8 litigants have made.

The president’s statement came less than a day after North Carolina votes, by a margin of 61-39 percent approved a far-reaching constitutional amendment barring any legal recognition for same-sex couples. Press reports indicate that in some heavily African-American districts, the measure won two-thirds or more of the vote.

The president carried North Carolina in 2008 –– but only by 14,000 votes. Pundits have speculated about whether an endorsement of same-sex marriage by the president could dampen turnout among black voters, his strongest base of support.

In an interview with the CBS affiliate in Denver today, former Massachusetts Governor Mitt Romney said, “My position is the same on gay marriage as it’s been –– well –– from the beginning, and that is that marriage is a relation between a man and a woman. That’s the posture that I had as governor and I have that today.”

According to ABC, however, the Romney campaign did not respond to a request for comment on what impact it believes Obama’s new position will have on the race to the White House.

One of the whites, Molly Flaherty, whom Hennepin County Attorney Mike Freeman described to Gay City News as a “biker woman,” allegedly smashed a glass against McDonald’s face, causing a gash that required 11 stitches. At that point, a fight ensued, and one of McDonald’s harassers, Dean Schmitz, 47, who had a criminal record and a swastika tattoo on his body, ended up dead, stabbed by fabric scissors McDonald pulled from her purse.

Freeman’s office charged McDonald with second-degree murder, which the county attorney said would have landed her in jail for 15 years upon a conviction. On May 2, in Judge Daniel C. Moreno’s courtroom, McDonald pled guilty to second-degree manslaughter and will be sentenced on June 4 to 41 months in prison. With six months taken off that for time served and one third of the remaining sentence eliminated for good behavior, the young woman would spend two more years in jail.

CeCe McDonald will likely be in jail until at least mid-2014. | COURTESY OF CECE McDONALD

According to Hersch Izek, McDonald’s attorney, the case was “absolutely” overcharged. In early discussions with Freeman’s office, he said, the prosecutor offered to charge his client with second-degree manslaughter, but as an “intentional” crime, rather than the “unintentional” charge later agreed upon in the final plea agreement.

McDonald rejected that original offer, at which point, the murder charge was made.

“She was being punished for not taking the plea offer,” Izek said.

The murder charge sparked considerable outrage among McDonald’s companions that night and other friends, within the Twin Cities’ sizeable LGBT community, and on the part of transgender advocates there and nationwide.

Dean Spade, who in 2002 founded New York’s Sylvia Rivera Law Project, which provides free legal services to transgender, intersex, and other gender-nonconforming clients, and now teaches at Seattle University, attended some of McDonald’s pre-trial proceedings, including the May 2 plea hearing.

On his Facebook page, Spade described McDonald’s appearance that day: “Horrifying to watch her forced to recount the events of her attack on the stand, to watch the judge speak to her condescendingly about how pulling scissors out of her purse as her attacker chased her down the street unlawfully endangered her attacker. This system is so disgusting.”

Mara Keisling, who as executive director of the National Center for Transgender Equality is the trans community’s leading advocate in Washington, released a statement saying, “I’m really torn up about this case. Here we have a justice system that’s criminalized CeCe for surviving… And this is a painful truth for so many other transgender women of color who’ve been victimized by hate and fear.”

Freeman has a different view of the case’s conclusion. His team of prosecutors, he said, had the elements of a manslaughter conviction “locked up tight” –– in front of Moreno, McDonald acknowledged she held the scissors that went into Schmitz’s heart, that she handled them in a way that caused “unreasonable” risk to him, that he was unarmed, and that she understood her legal duty to handle a weapon so that nobody is harmed. Those statements on the defendant’s part, the county prosecutor said, were sufficient for the judge to accept the manslaughter plea, under which McDonald waived her right to make any future self-defense claim.

Despite McDonald’s waiver of that legal right, Izek said, he believes she did in fact act in self-defense motivated by fear.

The specific details of how McDonald’s scissors ended up in Schmitz’s heart, however, will never be determined beyond a reasonable doubt because the prosecutor’s original murder case will not go before a jury. According to her supporters, who established a website to track the criminal case against her, she told Moreno that after fighting off both the woman who attacked her and Schmitz, she tried to leave the scene to get medical attention. At that point, Schmitz pursued her, she became fearful and pulled out her scissors, and as he pulled her toward him, they entered his chest.

Prosecutor Freeman said he had not yet received the plea hearing’s written transcript, so could not say what specific assertions McDonald made, but termed her account “hard to believe,” stating she has alternately claimed that she stabbed Schmitz in self-defense and that the stabbing resulted from him pulling her toward him, and, at another point, said her original story to police was meant to cover for someone else who did the stabbing.

Izek said several of McDonald’s accounts came during her five-hour questioning immediately after she was stitched up in a hospital. Though she waived her right to counsel, Izek sought to have her statements that night kept out of any trial. Still in her hospital gown at the time of questioning, he said, she was on medication and still in pain. He argued that the traumatic circumstances of that interrogation essentially made her waiver of the right to counsel “involuntary.” Judge Moreno rejected Izek’s motion.

A letter later written to the Minneapolis Star-Tribune, which Izek said he likely would have stipulated as coming from McDonald, claimed she was not the person holding the scissors. Her attorney said that letter, too, preceded her having legal representation. Izek said he was prepared to explain McDonald’s inconsistencies in a way that a jury would have accepted.

According to Freeman and numerous press accounts, some witnesses on the scene told police they saw Schmitz pull McDonald off a brawl with her attacker and that, right after that, they heard him say, “You stabbed me,” to which she responded, “Yes, I did,” before leaving the scene.

Without going into the specifics of a case that will never be tried, Freeman made clear that the account from these witnesses formed the basis of his approach to prosecuting McDonald. He also emphasized that the county attorney and the judge, having accepted McDonald’s acknowledgement of the key elements required for a manslaughter conviction, including having acted “unreasonably,” could still move forward in accepting the plea arrangement despite her account in court last week of the moment the scissors entered Schmitz’s body.

But Izek insisted that the witnesses who related the account of Schmitz saying, “You stabbed me” confirmed that the exchange took place after he had followed McDonald as she tried to leave the scene. With Schmitz’s back to the witnesses, Izek said, nobody actually saw the scissors go into his chest.

Izek said he was “fully prepared” to go to trial with a self-defense theory of his client’s case. The decision to accept the plea deal, he said, was McDonald’s.

The county attorney conceded that there was courtroom debate about expert testimony regarding the transgender community. In the end, a University of Minnesota professor would be allowed to testify, but only, according to the Twin Cities Daily Planet, about the definition of the word “transgender,” not about the findings of the National Coalition of Anti-Violence Projects that of all LGBTQ hate murder victims, about half are transgender women. The prosecutor insisted that, despicable as the conduct of the crowd outside the biker bar was, the case was not about crime statistics, criminal records, or Nazi tattoos, but rather what happened in a few short minutes during which McDonald pulled scissors out of her purse.

Asked whether he thought the prosecutor’s office acted out of animus toward McDonald as a transgender woman in charging her with murder, Izek said he did not. Instead, he believes, Freeman’s office was “insensitive” and “unsympathetic” to the dangers McDonald would have perceived.

“They viewed it as a bar fight,” he said.

In a post on bilerico.com, Dr. Jillian Weiss, a professor of law and society at Ramapo College of New Jersey, wrote, “There was no media coverage, discussing how she bravely stood her ground.”

Anticipating that sort of critique, Freeman argued that Minnesota, unlike Florida, offers “a fairly limited self-defense and castle defense.” Outside the home, potential victims have an obligation to retreat if possible and use only as much force as is proportional to the threat. McDonald exceeded that limitation, he said.

The “initial skirmish” that June evening, the prosecutor said, was “clearly homophobic and perhaps racist, but clearly homophobic.” Though Hennepin County has transferred jurisdiction over the investigation of Flaherty, the woman alleged to have attacked McDonald, to a nearby county –– citing the inherent conflict in prosecuting both her and her assailant — Freeman was confident that a first-degree assault charge is imminent in that case. He could not speak to whether it would be prosecuted as a hate crime.

Izek said he also expected Flaherty’s indictment for first-degree assault but was also unsure about the hate crime element.

Expect those who rallied to McDonald’s defense to follow that prosecution carefully, just as they have vowed to turn out in big numbers for her June 4 sentencing.

Izek said that the next legal issue McDonald’s defense team will face is how she will be incarcerated. He suggested a lawsuit might be required to keep her out of a men’s facility.

In a press release issued the day of the plea deal, Freeman said, “This outcome is an example of the criminal justice system responding proportionately to a tragic situation.” He is under no illusions, however, that McDonald’s many supporters and sympathizers will accept any but the last two words of that sentiment.

A group of about 550 activists traveled to the State Capitol in Albany as part of the Pride Agenda's Equality & Justice lobby day. | MIKE YOOD

BY PAUL SCHINDLER  |  A week after the New York State Assembly’s passage of a transgender civil rights law — for the fifth time — roughly 550 LGBT community advocates descended on Albany on May 8 for the Empire State Pride Agenda’s (ESPA) annual Equality & Justice lobbying day.

A key goal was to push the Republican State Senate majority –– which last June allowed a vote on marriage equality and provided four supporters critical to its success –– to break the logjam that has stalled the Gender Expression Non-Discrimination Act for nearly a decade.

“GENDA is our number one priority,” said Lynn Faria, ESPA’s interim executive director.

Faria declined to name or speculate on specific GOP targets who could be enlisted, in turn, to press their party to bring the bill up for a floor vote, but said, “We are looking at a broader educational effort. We are continuing to engage the Senate majority to make sure that the voices of the 78 percent of New Yorkers who support the bill are heard and to bring the stories of discrimination against transgender people to the senators.”

GENDA, sponsored by Senator Daniel Squadron, a Lower Manhattan/ Brownstone Brooklyn Democrat who this year assumed leadership on the bill from out gay Chelsea Democrat Tom Duane, is currently in the Rules Committee, which is chaired by Majority Leader Dean Skelos, a Nassau County Republican. The measure will not advance to the floor unless the GOP majority caucus gives its okay. The Republicans’ deliberations on taking that step on gay marriage last June occasioned weeks of drama in Albany.

According to ESPA, participants held lobbying meetings in the offices of 176 legislators, though the group did not immediately have a breakout of how many of those were among the 62 senators or their staffs.

Ari More, a transgender woman from Buffalo, has been to Equality & Justice Day every May since 2003. Feeling comfortable with the commitment of her state senator, Democrat Tim Kennedy, to helping pass GENDA, she spent much of the day coordinating other participants as they shuttled from meeting to meeting.

Education remains a major component of the lobbying effort, she said. Some legislators and their staff voice confusion about why transgender civil rights protections are not protected under the 2002 Sexual Orientation Non-Discrimination Act (SONDA) — even though that bill was purposely written to not incorporate gender identity and expression into its language out of political considerations.

Still, More noted, Albany is now more welcoming of education on transgender issues than she has ever before witnessed.

A member of both Stonewall Democrats of Western New York and Spectrum of Western New York, a transgender support group, More said she and other trans activists across the state have been “steadfast” in supporting gay and lesbian goals over the past decade. She spoke at one of last year’s rallies in the weeks just prior to State Senate passage of the marriage equality bill.

With gender protections excluded from SONDA and then nine years passing with no state action on transgender rights –– only to see gay marriage leapfrog over that — More said, “Of course I have frustrations about that… I am demanding that my gay and lesbian brothers and sisters continue to stand with us.”

So far, she said, she sees the activist commitment by the community still alive. She added, “Thank God we got DASA,” the Dignity for All Students Act, which created anti-bullying protections based on sexual orientation and gender expression, among other categories. “At least the trans kids can be safe.”

GENDA’s passage in the Assembly on April 30, led by Chelsea Democrat Dick Gottfried, was a routine affair, with two Republicans and one Independent joining 78 Democrats in an 81-59 victory. Those voting no included 46 Republicans and 13 Democrats. The margin of victory in the Assembly likely understates the support for the measure there –– among the eight members who did not vote were seven Democrats, six of them from New York City.

The archives of the Pride Agenda’s website contain a 2009 scorecard based on public statements by those then serving in the Senate, which showed 34 votes in support of GENDA, two more than necessary for passage. That list included nearly all of the Democrats as well as seven Republicans who are still in office. Separate from that list, two other Republicans — Stephen Saland and Mark Grisanti — voted for marriage equality in 2011 and are likely targets in this year’s GENDA push.

Despite the upbeat 2009 handicapping, GENDA suffered a crippling setback in June 2010, when it failed to clear the Senate Judiciary Committee despite the fact that Democrats were then the majority party. With Bronx Democrat Ruben Diaz, an implacable foe of LGBT rights, on the committee, Majority Leader John Sampson of Brooklyn, who chaired Judiciary, relied on commitments from several Republicans that they would support the measure. When not a single GOP senator did so –– among Republican committee members, several were listed as yes votes in the previous year’s scorecard –– the bill was dead for the year.

A particularly disquieting aspect of that defeat was the way a Democratic committee staffer answered a GOP senator’s concerns about “men in dresses” entering women’s rooms. That staffer responded by asking the Republicans to consider what might happen to those “men in dresses” if they were required to use men’s rooms instead — accepting a misinformed framing of the gender identity and expression issue that has dogged transgender civil rights efforts in a number of legislatures around the nation.

Asked whether his colleagues in the Democratic caucus were up to speed in defending GENDA on its merits and countering the opposition’s scare tactics, Squadron said, “Everyone that I’m talking to is clear that this bill is about basic protections in housing, employment, and public accommodations for gender identity and expression, just like for so many other categories in the law.”

"After I Do," a post-marriage equality community meeting called by Senator Daniel Squadron late last summer, generated a lot of discussion about the need to enact GENDA. | NY STATE SENATE

Squadron took a pass on talking about specific senators’ positions on GENDA, but rather said, “Look, the key is to get a vote, to force people to cast a vote on civil rights. My view is that if you force folks to take a vote on civil rights that a majority of the Senate will do the right thing. That is my belief and my hope.”

Several times, however, he emphasized that he did not have a list of yes votes in his pocket.

“I am not saying that I could assure you today that we have the votes,” Squadron said. “We have work to do to make sure we can get this done.”

Melissa Sklarz, a longtime transgender activist who is president of the Stonewall Democratic Club of NYC, noted that well over a dozen Republican senators –– including the 11 from Long Island and New York City –– represent communities that provide local nondiscrimination protections based on gender identity and expression.

Melissa Sklarz noted that well over a dozen GOP senators –– including the 11 from Long Island and New York City –– represent communities with gender identity and expression anti-bias laws.

However, Gay City News calls to seven Republican senators –– including Skelos, last year’s four marriage equality supporters, and several from Long Island and New York City –– seeking information on their positions on GENDA were not returned.

The posture of the Log Cabin Republicans toward moving GENDA this year may offer insight into how the GOP majority is currently looking at the issue. Asked his view of whether the measure stands, Gregory T. Angelo, chair of the New York State Log Cabin Republicans, wrote in an email, “We’re following the bill, but our priority this year is supporting the GOP Senators who made marriage a reality for all New Yorkers and making sure Republicans retain the majority in the Senate Chamber in November.”

Squadron argued that the key obstacle is intransigence on the GOP majority’s part to allowing a vote.

“Senator Skelos has worked to block Democratic bills in the Rules Committee,” he said. “He has not allowed a vote on 311 Democratic bills. GENDA has not seen the light of day.”

Parliamentary procedures that would allow members to move a bill to the floor without committee approval, he said, have been “flouted.”

In one sign that the GOP may at least be listening, however, a Pride Agenda spokesman, George True Simpson, noted that several of the group’s board members had a face-to-face sit-down Tuesday with Senator Tom Libous, the deputy majority leader.

Terri Smith-Caronia, who is responsible for public policy at Housing Works, the AIDS services group that has been a major player in the effort to enact GENDA, said that Skelos’ decision to send the measure to Rules rather than the Judiciary Committee “signals” his intention not to move it this year. A successful vote would be easier to achieve in Judiciary than in Rules, she said, given the committees’ membership.

Smith-Caronia said her group counts 31 yes votes, with 17 undecided and 13 opposed (she, too, would not discuss specific names). Though that tally puts the number of additional supporters needed to ensure passage at just one, she said that Governor Andrew Cuomo, long on record in favor of GENDA, would like to see four more senators come around before advocates press for a floor vote. The bill, she said, is “not one of the governor’s priorities” this year.

More, the Buffalo activist, said her understanding was that the governor would make GENDA an early priority in 2013, after this year’s elections are behind the Senate Senate.

Cuomo’s office did not respond to a request for comment.

Sklarz questioned why Skelos has any reason to fear a backlash from conservatives over allowing a GENDA floor vote.

“He allowed a vote on marriage and now he has a Senate map that counts cows more than people,” she said, referring to a redistricting plan widely thought to advantage upstate Republicans in holding on to their narrow 32-29 majority in November.

Squadron responded by saying “right” when asked about the GOP’s view that redistricting represented a win for them, but said that has not translated into any less resistance to letting Democratic bills move forward.

“Welcome to Albany,” he said. “There is a real discomfort with bipartisanship in Albany.”

Squadron, when asked about the prospects for the ESPA lobbying day advancing the issue, said most voters underestimate their ability to effect change in the Legislature.

“Again and again, people’s engagement with an issue and explaining the way it affects people’s lives, especially constituents’ lives, make a difference to senators,” he said.

Beyond its shoe of grassroots support on May 8, ESPA is relying on the same advisors –– Faria termed them the Dream Team –– employed in last year’s marriage push: lobbyists Mike Avella, a Republican, of Meara Avella Dickinson and Democrat Emily Giske from Bolton-St. John’s as well as communications consultant Jennifer Cunningham from SKDKnickerbocker.

Despite the work of ESPA, its professional advisors, Housing Works, the Human Rights Campaign, and activists traveling to Albany, Sklarz is wary about whether the effort is equal to the task.

“Legislators don’t seem to have the political will to act,” she said, while noting that “in the absence of any clear sign from the Legislature… the courts are starting to step in” –– both in New York and nationwide –– in decisions that interpret bias based on gender identity and expression as “sex discrimination.”

Last month, the Equal Employment Opportunity Commission, the federal agency with authority for interpreting the 1964 Civil Rights Act’s ban on sex discrimination, ruled that a “complaint of discrimination based on gender identity, change of sex, and/ or transgender status” can be pursued in federal courts on sex discrimination grounds.

The lack of any significant outcry against rulings like this, Sklarz argued, shows that frenzied responses in state legislatures to transgender civil rights measures are simply “political talking points.”

More said she senses that Albany legislators are beginning to understand that “nonsense” about bathrooms has been “a smokescreen, a distraction from talking about basic rights.”

Lynn Faria, the Pride Agenda's interim executive director, addressed the hundreds of activists who traveled to Albany on May 8. | MIKE YOOD

According to Faria, those lobbying in Albany also pressed for continued funding for LGBT health and human services needs — including more money for homeless queer youth –– and “thanked” legislators and Governor Cuomo for enacting marriage equality last year. She noted the governor’s longstanding support for GENDA.

“He is publicly supportive of the bill, and we are incredibly grateful,” she said.

Mayor Michael Bloomberg’s 2013 budget faces criticism from AIDS, homeless youth advocates. | GAY CITY NEWS

BY DUNCAN OSBORNE   |  When Mayor Michael Bloomberg released his proposed budget for New York City’s 2013 fiscal year, he said it was “an on-time balanced budget that reflects our values and our priorities.”

Guess who isn’t a priority?

“The budget we’re submitting won’t impose any new taxes on New Yorkers,” the mayor said on May 3. “It maintains the strength of the NYPD and also increases support for our public schools.”

The $68.7 billion budget continues cuts to services for people with AIDS and for HIV prevention efforts at a time when the city’s Department of Health and Mental Hygiene (DOHMH) is reporting increases in new HIV infections among young gay men, with young African-American men impacted most severely.

The proposed budget for the 2013 fiscal year, which begins on July 1, eliminates $27.6 million from the DOHMH disease control and epidemiology programs.

Specific HIV prevention cuts include eliminating six positions in the DOHMH sexually transmitted disease unit, ten positions in its “comprehensive HIV prevention programs,” and nine jobs in its “enhanced comprehensive HIV prevention planning” unit. All of the proposed job cuts are full-time positions.

“This is troubling indeed, especially in light of spikes in new infections for other [sexually transmitted infections], syphilis, in particular,” Tokes Osubu, executive director of Gay Men of African Descent (GMAD), wrote in an email. Sexually transmitted diseases make HIV easier to transmit or acquire.

DOHMH advocates for widespread HIV testing and getting those who test positive for the AIDS virus into treatment as the best response to AIDS. The theory, which is supported by some evidence, is that people who test positive will alter their behavior to not infect others and that those in treatment are less infectious, so even if they have unsafe sex, they are less likely to infect others.

In the proposed budget, DOHMH is cutting a half million dollars from its HIV testing efforts and eliminating two positions in a program that links HIV positive people to treatment.

“As a result of citywide budget reductions, the health department reduced funding efforts by six percent for FY13,” the DOHMH said in a statement. “Federal grant dollars have offset reductions in some programs, including HIV, and by streamlining and eliminating duplication; we continue to prioritize activities with the potential to reach the greatest number of affected and high-risk individuals and populations.”

The Bloomberg administration said that it has been responsibly handling large budget gaps in recent years and expected gaps ranging from $3 billion to $3.7 billion in the three fiscal years after 2013. The proposed cuts were not new, but were made in the middle of the current fiscal year and carried over to 2013, City Hall said in a statement.

The city’s HIV/ AIDS Services Administration (HASA), which helps people with AIDS obtain housing, Medicaid, and other benefits, had at least $8.5 million in combined cuts to its services and a housing program. An email circulated among advocates by Jaron Benjamin, a staffer at Voices of Community Activists & Leaders (VOCAL), put the HASA cuts at $12.5 million.

“Funded at more than $400 million, an increase of 40 percent since Mayor Bloomberg took office, our proposed cuts to HASA amount to two percent of its total budget with no adverse impact on our clients,” HASA said in a statement. “[The agency] is proud that its HASA program provides greater care and support to its 32,000 clients with clinical symptomatic HIV or AIDS than any other program in any other city in the country.”

One issue confronting gay and AIDS groups is that the member items from City Council members were zeroed out by the Bloomberg administration. Those groups have come to rely on member items to replace funds eliminated by the mayor.

“The biggest challenge for the HIV community is that none of the City Council restorations are included in the mayor’s budget,” said Matthew Lesieur, the director of public policy at VillageCare. “Once the Council takes a leadership role in the process… it is forever in their pocketbook. My concern is is that sustainable?”

As a funding source, the Council is not necessarily reliable because there is competition among constituents for that cash and when members leave the Council, groups may lose a friend there.

This past December, nine AIDS groups, the Council, and the DOHMH fought over cuts to HIV prevention contracts. During the dispute, Thomas Farley, the city’s health commissioner, told one AIDS group in a letter that HIV prevention funds were cut by $19 million in the prior five years, with his department eliminating $8 million and the City Council cutting $11 million.

The city’s Department of Youth & Community Development (DYCD) funds some beds at the Ali Forney Center, a shelter provider for homeless lesbian, gay, bisexual, and transgender youth. Some of that cash was provided by $18.3 million in Council funds, allocated to a number of programs. Lew Fidler, a Brooklyn councilman who is vying for a vacant State Senate seat, has been a fierce advocate for Ali Forney, which currently operates 47 emergency beds and 30 transitional beds. Should he leave the Council, it’s unclear who would take up that advocacy role.

“It sounds to me like the mayor’s budget gets rid of all the City Council money from last year and has additional cuts to their base line,” said Carl Siciliano, Ali Forney’s executive director. “As it stands right now, we would lose all of our Council money and that would mean we would lose 26 beds.

This is an exquisitely mounted and performed production of Pinter’s breakthrough 1960 play that is helmed by Christopher Morahan, whose own directing goes back to that revolutionary decade and includes work for the Royal Shakespeare Company and the Royal Court Theatre and a stint as associate director of the National Theatre under Sir Peter Hall.

Jonathan Pryce has been perfecting the role of the homeless Davies since 2009, when this version was created by Theatre Royal Bath Productions/ Liverpool Everyman and Playhouse. For his tour of the colonies –– Australia and America –– this year and his debut at BAM, Pryce is joined by Alan Cox as the laconic Aston, who invites Davies to share his room, and Alex Hassell as Aston’s tempestuous brother Mick, who owns the flat and pops in, out, and off.

Jonathan Pryce in Harold Pinter’s “The Caretaker” at BAM through June 17. (RICHARD TERMINE)

I’m generally not crazy about plays about crazy people. Willy Loman would have been more compelling to me as an average middle class striver beaten down by the system than he is as a guy who hears voices and pathologically treats those around him like shit. Arthur Miller dresses up “Death of a Salesman” with sentiment and Big Themes.

A little over a decade later, Pinter achieved commercial success with “Caretaker”’s clear-eyed stage rendering of Davies and Aston, who have been defeated before the play begins, and young Mick, who is functioning but running on fumes of delusion. Mick, in a sexy scary turn by Hassell reminiscent of the young Rufus Sewell, also adds more than a touch of Pinterian menace that injects drama even — and perhaps especially — to the scenes he is not in. His recitation of how he’d like to fix up the place is a tour de force.

By not compromising this story of broken people with any uplift or Larger Meaning, Pinter is more successful in making us squirm over the ways these characters and their predicaments are reflected in our own lives. It was called Theatre of the Absurd when it came out, but the absurdity it makes us think about is in ourselves, not the play.

The achievement of Morahan and his players is in making these out-there characters real, not “theatrical” in the pejorative sense. Pryce’s ability to stay inside the skin of mad and maddening Davies in his seemingly hopeless quest to survive with some dignity is a wonder.

Cox, memorable as the rejected suitor in the film of “Mrs. Dalloway,” takes stillness and silence to a whole new level. But when he describes at length his defining encounter with the medical establishment as a boy, we’re riveted.

A caveat. The show worked better from the fifth row where there were unoccupied seats my eagle-eyed friend Jed and I were able to move to after intermission than from the 11th. Pryce’s uncompromising lower class accent is more intelligible when you’re almost in the room with him. The theater skills of all hands, however, read right to the back of the house.

THE CARETAKER  |  BAM’s Harvey Theater  |  651 Fulton St. at Ashland Pl.  |  Through Jun. 17  |  Tue.-Sat. at 7:30 p.m.  |  Sat. at 2 p.m.; Sun. at 3 p.m.  |  $25 – $100 |  bam.org  or  718-636-4100