The Dish

Puerto Rico’s ban has been upheld:

U.S. District Judge Juan M. Pérez-Giménez said in his decision that by dismissing an appeal in Baker vs. Nelson, a 1971 case in which two men sought to marry in Minnesota, the Supreme Court bound all lower courts to assume bans on same-sex marriage do not violate the Constitution. The high court could choose to overrule itself but has not, he said.

Lyle Denniston provides important context:

The San Juan jurist said the Supreme Court has never overruled that decision, so it is still binding on lower federal courts — an argument that has failed in all of the recent rulings against such bans.  But the judge also said that he was bound to follow the Baker precedent because the First Circuit, which has binding legal authority in Puerto Rico cases, had itself done just that two years ago.

In a Massachusetts case in which the First Circuit had struck down a key part of the Defense of Marriage Act, barring all federal marital benefits to same-sex couples already legally married under their state’s laws (the same result that the Supreme Court reached last year), the First Circuit had said that Baker v. Nelson was still a binding precedent, Judge Perez-Gimenez noted.  That ruling, he added, tied his hands.

Dale Carpenter explains the significance of the ruling:

[T]he issue of Baker‘s effect is actively being considered in other circuits. Most immediately, the Sixth Circuit is already considering a case that turns in part on whether Baker controls. In the Eighth Circuit, a motion to dismiss a same-sex marriage challenge was argued in a South Dakota district court last Friday. (The challenge was brought by my former student Joshua Newville.) And the Fifth Circuit will soon schedule argument in Texas’s appeal from a district court decision striking down that state’s limitation on marriage.

No matter whether it’s decided on Baker grounds or on substantive grounds, a decision denying same-sex marriage at the appellate court level would create the circuit split on same-sex marriage that awaits resolution by the Supreme Court.

Ian Millhiser expects the Puerto Rico decision will be reversed:

[W]hile Pérez-Giménez clearly holds very passionate views on the question of whether same-sex couples are entitled to the same rights as everyone else, his views are unlikely to persuade many of his fellow judges. It’s even possible that his opinion could ultimately wind up bolstering the case for marriage equality. That’s because his decision will appeal to the United States Court of Appeals for the First Circuit, a court dominated by Democratic appointees (although, it is worth noting that Pérez-Giménez was appointed to the bench by President Jimmy Carter). All four of the states that comprise the First Circuit — Maine, Massachusetts, New Hampshire and Rhode Island — are already marriage equality states, so a decision out of a federal court in Puerto Rico is the only path to bring a marriage equality case before this circuit.

Given the makeup of the First Circuit, the overwhelming consensus among federal judges in favor of marriage equality, and the belligerent tone of Pérez-Giménez’s opinion, it is unlikely that his decision will be upheld on appeal.

Natasha Geiling reminds us that earlier this month in 1849, the writer was found “delirious and dressed in shabby second-hand clothes, lying in the gutter” in Baltimore. He died a few days later – and we still don’t know why, exactly. Geiling walks us through a few of the theories surrounding Poe’s death, including the notion it might have been due to “cooping,” a form of voter fraud “practiced by gangs in the 19th century where an unsuspecting victim would be kidnapped, disguised and forced to vote for a specific candidate multiple times under multiple disguised identities”:

Voter fraud was extremely common in Baltimore around the mid 1800s, and the polling site where Walker found the disheveled Poe was a known place that coopers brought their victims. The fact that Poe was found delirious on election day, then, is no coincidence.

Over the years, the cooping theory has come to be one of the more widely accepted explanations for Poe’s strange demeanor before his death. Before Prohibition, voters were given alcohol after voting as a sort of reward; had Poe been forced to vote multiple times in a cooping scheme, that might explain his semi-conscious, ragged state.

Around the late 1870s, Poe’s biographer J.H. Ingram received several letters that blamed Poe’s death on a cooping scheme. A letter from William Hand Browne, a member of the faculty at Johns Hopkins, explains that “the general belief here is, that Poe was seized by one of these gangs, (his death happening just at election-time; an election for sheriff took place on Oct. 4th), ‘cooped,’ stupefied with liquor, dragged out and voted, and then turned adrift to die.”

Another possibility for Poe’s demise?

One of the most recent theories about Poe’s death suggests that the author succumbed to a brain tumor, which influenced his behavior before his death. When Poe died, he was buried, rather unceremoniously, in an unmarked grave in a Baltimore graveyard. Twenty-six years later, a statue was erected, honoring Poe, near the graveyard’s entrance. Poe’s coffin was dug up, and his remains exhumed, in order to be moved to the new place of honor. But more than two decades of buried decay had not been kind to Poe’s coffin—or the corpse within it—and the apparatus fell apart as workers tried to move it from one part of the graveyard to another. Little remained of Poe’s body, but one worker did remark on a strange feature of Poe’s skull: a mass rolling around inside. Newspapers of the day claimed that the clump was Poe’s brain, shriveled yet intact after almost three decades in the ground.

We know, today, that the mass could not be Poe’s brain, which is one of the first parts of the body to rot after death. But Matthew Pearl, an American author who wrote a novel about Poe’s death, was nonetheless intrigued by this clump. He contacted a forensic pathologist, who told him that while the clump couldn’t be a brain, it could be a brain tumor, which can calcify after death into hard masses.

Previous Dish on Poe here.

(Daguerreotype of E.A.P., 1849, via Wikimedia Commons)

And other quotes from a variety of gay and lesbian writers:

Philip Kennicott looks back with ambivalence at the classic gay literature – think Oscar Wilde, Jean Genet, Andre Gide, and Thomas Mann, among others – that shaped the way he came to terms with his own sexuality. While certain novels allowed him to understand he wasn’t alone, the “pleasure of finding new access to these worlds was almost always punctured by the bleakness of the books themselves”:

It is painful to read the bulk of this early canon, and it will only become more and more painful, as gay subcultures dissolve, and the bourgeois respectability that so many of these authors abandoned yet craved becomes the norm. In Genet, marriage between two men was the ultimate profanation, one of the strongest inversions of value the author could muster to scandalize his audience and delight his rebellious readers. The image of same-sex marriage was purely explosive, a strategy for blasting apart the hypocrisy and pretentions of traditional morality. Today, it is becoming commonplace.

I wonder if these books will survive like the literature of abolition, such as Harriet Beecher Stowe’s Uncle Tom’s Cabin—marginal, dated, remembered as important for its earnest, sentimental ambition, but also a catalog of stereotypes. Or if they will be mostly forgotten, like the nineteenth-century literature of aesthetic perversity and decadence that many of these authors so deeply admired? Will Gide and Genet be as obscure to readers as Huysmans and the Comte de Lautréamont (Isidore-Lucien Ducasse)?

I hope not, and not least because they mattered to me, and helped forge a common language of reference among many gay men of my generation. I hope they survive for the many poignant epitaphs they contain, grave markers for the men who were used, abused, and banished from their pages. Let me write them down in my notebook, so I don’t forget their names: Hans, who loved Hermann; Basini, who loved Törless; the Page of Herodias, who loved the Young Syrian; Giovanni, who loved David; and the all rest, unnamed, often with no voice, but not forgotten.