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A User's Guide to Day 2 of Gay Marriage at the Supreme Court, DOMA Edition

Have you heard? The Supreme Court is finally reviewing the gay marriage issue that this country's been waiting literally decades to resolve. Tuesday, the justices heard oral arguments and asked key questions on Hollingsworth vs. Perry, the case about California's Proposition 8. On Wednesday, it's time for United States vs. Windsor, the decisive case in determining whether the federal Defense of Marriage Act (DOMA) is constitutional or not. Political stars like Nancy Pelosi and Tammy Baldwin, the nation's only gay senator, plan to attend. So do a lot of other people, even if the crowd will be smaller, and even if we're talking about federal benefits, and not necessarily the larger question of how a state should define marriage. Corporations, non-profits, and all their friends have weighed in with over 300 amicus briefs having been filed. It's a big deal, and compounded all the more by the will-they-or-won't-they hedge from Day One on same-sex marriage at the Court. But if you haven't been following this case for the past four years, or if the last 24 hours have been a little overwhelming with all the legalese, don't worry. We've got you covered.

The Basics

Edith Windsor is a New York woman in her eighties who married Thea Speyer, her same-sex partner of 40 years, in Canada six years ago. In 2009, Speyer passed away, leaving her entire estate to Windsor who was slapped with a $363,000 tax bill. If it hadn't been for DOMA, the 1996 law that defined marriage at the federal level as the union between a man and a woman, she wouldn't have had to pay any taxes. So she reached out to some gay and lesbian advocacy groups, found a lawyer willing to start the fight, won the support of the American Civil Liberties Union (ACLU), and filed suit in the U.S. District Court for the Southern District of New York in 2011. 

It was destined to be a big case from the start. Windsor's was one of the cases that Attorney General Eric Holder cited in his February 23, 2011 statement announcing that the Obama administration could no longer defend portions of DOMA that it believed to be unconstitutional. This set the stage either for Congress to repeal the law or for the courts to overturn it. In June of 2012, the Southern District Court in New York ruled Section 3 of DOMA to be unconstitutional, pointing to the Fifth Amendment, and ordered for the federal government to give Windsor a tax refund. The Justice Department appealed a few days later, sending the case back to the Second Circuit Court of Appeals, which upheld the lower court's ruling in October. The DOJ appealed again, and on December 11, the Supreme Court granted certiorari, paving the way for Wednesday's hearing.

All this stirred the Bipartisan Legal Advisory Group (BLAG), a Republican-led group of congressmen and women who want to uphold the law in its current form, into action. The group disagreed with Obama administration which argued that sexual orientation was subject to heightened scrutiny, because gays and lesbians were discriminated against. BLAG later said that gays and lesbians are "one of the most influential, best-connected, and best-organized groups in modern politics, and have attained more legislative victories, political power, and popular favor in less time than virtually any other group in American history." BLAG has filed briefs along the way and argued that Congress doesn't infringe upon states' rights, as other's have claimed. While they're not technically defending DOMA in court, they've filed an amicus brief ahead of Wednesday's arguments and have played a major role in the case so far.

The Issues 

As many have pointed out, the challenges against DOMA have as much to do with how the country makes laws as they do with gay rights. The tricky thing is that the federal government actually agrees with the plaintiff that the law is unconstitutional, so the Supreme Court's first order of business will be to figure out if it even has the jurisdiction to hear the case. It's also unclear exactly what role, if any, BLAG should play in the case. As a result of the weird web of connections between the three parties, the Court appointed Harvard Law Professor Vicki Jackson as a friend of the Court to argue these two points. If everything checks out, the Court will proceed.

This is when things get really fun. The crux of the case rests on whether the federal government overstepped its authority when passing DOMA, but the more fundamental arguments regarding gay rights will play a key role. Windor's lawyers, like the Obama administration, maintain that the law violates the Constitution's equal protection clause. "The law denies to tens of thousands of same-sex couples who are legally married under state law an array of important federal benefits that are available to legally married opposite-sex couples," writes Solicitor General Donald B. Verrilli. These benefits include not only tax breaks like Windsor missed out on but also immigration and medical benefits.

The other side of the argument represents a mix of tradition and uncertainty. Lawyers for BLAG, however, argue that the law is necessary to encourage responsible procreation — in other words, to encourage couples to get married before having kids. Windsor's lawyers say that's "irrational, fantastical thinking." However, based on Tuesday's arguments in the case that will determine whether California's voters were within their power when they overturned a state Supreme Court ruling allowing gay marriage, the justices themselves are split. Justice Anthony Kennedy, who many legal experts think holds the deciding vote in the Prop. 8 case, wondered aloud Tuesday about the country having "five years of information to weigh against 2,000 years of history or more" in order to determine the impact of gay marriage on society. But some Court watchers insist that Tuesday's tepidness could have just been the justices teeing up to to strike down DOMA, which President Bill Clinton signed into law more than 16 years ago.

The Comparison

Many people are appropriately wondering how the Court is going to reconcile the DOMA case with the Prop. 8 case. It's not going to be easy. The New York Times's Adam Liptak suggests that the justices in Tuesday's questioning may have left itself "with an all-or-nothing choice on the merits" of Prop. 8, hinting at a ruling that would be much broader and apply to the whole country. (Rulings on both cases are expected at the end of the Court's term in June.) Then again, as Justice Kennedy's statements suggest, there's been a fair amount of hesitation over whether or not now is the right time to make the final call on gay marriage. It's possible that they could go after a very narrow in one or both cases. Consensus seems to suggest that they might just strike down DOMA and wait for the Prop. 8 issue.

And striking down DOMA would immediately trigger benefits in the ten states that currently have legalized same-sex unions: Connecticut, Iowa, Maine, Maryland, Massachusetts New Hampshire, New York, Washington, Vermont, and the District of Columbia. If the justices uphold it, well, nothing changes. Or Edith Windsor could just get her money back in Option No. 3, if the Court deems itself "powerless to decide."

So the bad news is that the fight for gay marriage still faces a pretty uncertain future — at least until June, and maybe in two pieces when that decision day finally rolls along. The good news is that the wait won't be much longer. So hunker down, bookmark the SCOTUS blog for a little after 10 a.m. Eastern, follow these people on Twitter coming out of the courtroom, and enjoy the show. We'll be right here to make sense of it all for you.

The Official Story of Who Shot Bin Laden Has Given Way to a Stupid Media Feud

"You really believe this story? Osama Bin Laden?" asks Chris Pratt in the action movie version of the Zero Dark Thirty trailer that's been tearing up March Madness commercial breaks over the last week. And if you looked at the CNN.com homepage Tuesday night, the network was raising the question again, except this time, it wasn't just Hollywood's interpretation of real-life events. This was the counter-history of the news:

CNN is challenging last month's widely read exclusive account of Bin Laden's death by veteran investigative reporter Phil Bronstein in Esquire: "The Man Who Killed Osama bin Laden." Bronstein's story profiles "The Shooter," the member of Navy SEAL Team 6 who claims to have shot the world's most wanted man. It's a dramatic claim about a dramatic event, and the fact that conflicting accounts are emerging isn't a complete surprise. But the shadowy, sometimes schizophrenic and increasingly desperate struggle to figure out what really happened in Abbottabad the night of May 2, 2011, well, it's starting to get a little bit dirty.

Esquire and CNN are hardly alone in this struggle. The network is more or less ganging up against the magazine by joining SEAL Team 6 member Matt Bissonette, who wrote a best-selling book about the Bin Laden mission under the pen name Mark Owen, and SOFREP, a military blog run by former Navy SEAL Brandon Webb that recently contested the Shooter's account. These three are more or less calling Esquire's source a liar, claiming that he did not fire the fatal shots that killed Bin Laden, and some are even accusing the Shooter of seeking financial gain, despite the heavy layer of anonymity, claims of money troubles, and a pronounced sense of duty to remain anonymous that dominates the Esquire story.

The dispute revolves around that pivotal moment when the SEALs reached the top of the stairs and found Bin Laden standing in a bedroom. Esquire's Shooter claims to have been the second to reach the top of the stairs, when he saw Bin Laden reach for a gun and shot the terrorist twice while standing and once while on the ground. Shortly after CNN broke its story during its new Jake Tapper show late Tuesday afternoon, Esquire released a statement. "The Esquire article, 'The Shooter: The Man Who Killed Osama Bin Laden,' in the March 2013 issue, is based on information  from numerous sources, including members of Seal Team 6 and the Shooter himself, as well as detailed descriptions of mission debriefs," it reads. "We stand by our story."

CNN's source, who was not on the mission, says that account is "complete B-S." The first guy up the stairs, commonly referred to as "the point man," shot Bin Laden twice in the head, then dove on a pair of women he thought might be wearing suicide bomber vests, he said. Two other SEALs then shot Bin Laden, while he was on the ground. Bin Laden did not reach for a gun, he said, and the Shooter is stealing credit from the real hero, the point man, who would never "in a million years" speak publicly about that night. We've included a side-by-side comparison of the accounts at the bottom of this post.

There are really two things going on here. On one hand, you've got the sources, a bunch of Navy SEAL Team 6 guys and others with knowledge of the mission who are speaking out of turn — SEAL Team 6 members are sworn to secrecy, even if CNN's source wasn't on the mission in question — and staking their claims to the narrative. Some of them, like Bissonette, are making a bundle of money off of their involvement. Others, like the Shooter, are struggling with post-military life. (At least, according to Esquire and members of the Senate he is. But even that conversation, about how the military treats its veterans after they come home, veered toward a bunch of weird talk about how human resources work at the Department of Veterans Affairs.) The whole affair is getting more gossipy with each new narrative in the mix, and it's uncomfortably competitive. You could also argue, for instance, that Bissonette stands to profit from making his version of the story into the most trusted version of the story, because that would inevitably help him sell books. Webb, the blogger behind SOFREP, has also written several books. But regardless of intentions, which are always hard to comprehend, there is in-fighting.

Then you have the media. With everyone from major Hollywood studios to publishing houses to magazines to international news networks now jousting over the right version of this story (not to mention the Senate over that damn movie), it's getting more and more convoluted and harder and harder to listen to. It's not supposed to be like this! The story of how this team of super soldiers flew into a heavily guarded compound in the middle of the night and took down the world's worst terrorist is supposed to be a story about a great American triumph. Instead, we're stuck with outlets reaching for angles, and conflicting reports leaving readers to piece together the details from various accounts like soggy pieces of a jigsaw puzzle.

This is all to say that the struggle to find out who shot Osama Bin Laden is well beyond a simple fact-finding mission. It's instead turned into the stupid pissing match between multi-million dollar media companies and gossipy, potentially disgruntled Navy SEALs. And when the streams cross, it's the public that's getting wet.

See if you can spot the difference in the narratives. Esquire's reads:

I thought in that first instant how skinny he was, how tall and how short his beard was, all at once.…

I'm just looking at him from right here [he moves his hand out from his face about ten inches]. He's got a gun on a shelf right there, the short AK he's famous for. And he's moving forward. I don't know if she's got a vest and she's being pushed to martyr them both. He's got a gun within reach. He's a threat. I need to get a head shot so he won't have a chance to clack himself off [blow himself up].

In that second, I shot him, two times in the forehead. Bap! Bap! The second time as he's going down. He crumpled onto the floor in front of his bed and I hit him again, Bap! same place. That time I used my EOTech red-dot holo sight. He was dead. Not moving. His tongue was out. I watched him take his last breaths, just a reflex breath.

And CNN's challenge, which largely resembles Bissonette's, reads:

What actually happened the night of the raid, according to the SEAL Team 6 operator who I interviewed, is that the "point man" ran up the stairs to the top floor and shot bin Laden in the head when he saw what looked like bin Laden poking his head out his bedroom door. The shot gravely wounded al Qaeda's leader.

Having taken down bin Laden, the point man proceeded to rush two women he found in bin Laden's bedroom, gathering them in his arms to absorb the explosion in case they were wearing suicide vests, something that was a real concern of those who planned the raid.

Two more SEALs then entered bin Laden's bedroom and, seeing that al Qaeda's leader was lying mortally wounded on the floor, finished him off with shots to the chest.

Update, Monday, 9:25 a.m. Eastern: Esquire editor-in-chief David Granger has issued a response to the CNN story, which no longer includes the "complete B-S" line. The editor's note from Granger, which reaffirms that the magazine stands by its story, reads in part:

To be clear: Esquire and Phil Bronstein, the veteran journalist and writer of the story, object to CNN's report in the strongest possible terms. By stark contrast with Bronstein's thoroughgoing 15,000 word report, the CNN story constitutes a mere act of assertion. As far as can be gleaned from the report, it is based on the opinion of one current SEAL who was not on the bin Laden mission and who therefore could not have first-hand knowledge of it. It is little more than gossip. Esquire's story remains the most thoroughly reported account of the raid and of the death of Osama bin Laden.

There were 23 SEAL Team 6 members on the mission. The Shooter was without doubt one of them. Only two of the 23 were the first to arrive on the third floor of the residence, where bin Laden was killed. Multiple members of SEAL Team 6 confirmed that The Shooter was one of those two and reported to us that it was known within the unit that The Shooter had fired the fatal shots. Other individuals briefed on the mission confirmed this to us.

Sweden Isn't Happy About Google Trying to Control Its Official Language

Google recently got into a row with the Swedish Language Council over a new word in its official language: "ogooglebar" which means "ungoogleable." Google complained about the word, which the council then begrudgingly deleted from the Swedish language. The Swedes did vow to continue using the word in conversation, those rebels.

The Swedish Language Council had included ogooglebar on its annual list of new words that have entered common parlance. It's a fun list that includes words like "brony" and "mossgraffiti" — which is awesome, by the way. Google's objections were actually two-fold. Not only did it remind the council that Google was a registered trademark, the company also ask that the council to revise word's definition to specify that it referred to Google searches. It had been defined as something "that cannot be found on the Web with a search engine." But the Swedes simply deleted the word from the list and included a note at the bottom that expressed their "displeasure with Google's attempts to control the language." Later, Ann Cederberg, head of the council, declared, "If we want to have ogooglebar in the language, then we'll use the word and it's our use that gives it meaning — not a multinational company exerting pressure. Speech must be free!"

It sounds like a classic trademark dispute, but it's hard not to wonder how irked Google was over an official word that highlighted the shortcomings of its marquee product. After all, the company didn't put up a fuss in 2003, when the Swedish Language Council added the verb "googla" — that's Swedish for "Google," obviously — to its list. Why would they care a decade later, when Sweden adds the same word but with a prefix and suffix? "While Google, like many businesses, takes routine steps to protect our trademark, we are pleased that users connect the Google name with great search results," a Google spokesperson explained vaguely. Google is apparently less pleased when users connect the name Google with non-existant search results.

'Smash' to Be Survived by Debra Messing

So Smash was a big old honking failure. That's OK. Its star, Debra Messing, isn't going to let that slow her down. She's just signed on to star in and executive produce a new CBS sitcom pilot from two Sex and the City writers. Messing will play "a happily married but harried mother struggling to balance family, life and work. Between her job as a ghost writer for a demanding celebrity chef and having three children -- ranging in age from preschool to 7 -- she feels like the world's worst mother because of her tendency to cut corners." Aha, so, OK, it's a standard harried mom thing. But with Debra Messing! This show is of course in second position to Smash — if there's another season, she's outta the pilot. But come on, there's not going to be another season of Smash. That dream is dead. So, good thing that Messing has a backup plan. But she's the only one, mind you. Everyone else from that show is ruined. Because they're not Debra Messing. [The Hollywood Reporter]

Seth Green has been cast in a pilot as well. And this one's a sure thing for at least six episodes. How? Because it's from Seth MacFarlane, who really Ted-ed himself to the top of the food chain last year. The show is called Dads and features Green and Tommy Dewey as 30s-ish guys whose lives are totally f'ed up when their crazy dads move in with them. The dads will be played by Peter Riegart and Martin Mull. So maybe it's like a male version of that Two Mothers movie with Robin Wright and Naomi Watts that's coming out soon? You know, when they start hooking up with each other's... Nah, I doubt it. I very much doubt that! It'll just be wacky highjinks and probably some toilet jokes and other irreverent things. And people who like Seth MacFarlane will like it and people who don't won't. That's just the way these things work. [Deadline]

MacFarlane's soon-to-be A Million Ways to Die costar Charlize Theron has just signed on to another movie, this one a thriller written by a writer from The Killing. The film is said to be "similar in tone to The Departed and End of Watch" and concerns "a corrupt vigilante group." Hm. Are The Departed and End of Watch really that similar? Or is it more like a combination of the two, like a handheld thing about cartoonishly corrupt police people? Who knows, but Theron is also producing, so I'm sure she knows what she's doing. She's been working a lot lately! I guess now that she has a kid, she needs the money. [The Hollywood Reporter]

Hey, Brooklyn, hold onto your butts. I mean, more than you've already been holding onto your butts since the Barclays Center was built. MTV has announced that this year's Video Music Awards will be happening at the downtown Brooklyn arena, meaning come August 25 that whole area is going to be a mess of young hip celebrities and the screaming teens who love them. Are you Brooklynites ready for that? I mistakenly walked through that area just after a Justin Bieber concert let out and that was nightmarish enough. But the VMAs? That's a lot of famous people all hanging out on Flatbush Avenue. It's gonna get hairy, is what I'm saying. [Vulture]

Hey, here are the dudes who are going to be playing the Ninja Turtles in the new live-action Ninja Turtles movie. Donatello the nerdy one will be played by Jeremy Howard. Leonardo the leader one will be played by Pete Ploszek. Hunger Games hunk Alan Ritchson will be cool/mean guy Raphael. And Noel Fisher, who plays Ian Gallagher's love interest on Shameless, will be party prince Michelangelo. And there you have it! Of course Megan Fox has already been cast as April O'Neil, and one assumes that Vincent Gallo is in talks to play old master Splinter the Rat Person. Sure to be a great movie. [Deadline]

Oh lord. Twentieth Century Fox has released a new "twzzr" or "tweezer" of the new Wolverine movie. Meaning it's a Twitter teaser of a the full-length trailer made with the six-second video app Vine. Yes, that is a sentence I just typed and I feel terrible about it. I am so sorry. Please let's kill this "tweezer" business before it really starts. [Twitter]

The Window for Embracing Same-Sex Marriage Has Closed

Senator Mark Warner of Virginia became the latest member of the Senate to announce his support for gay marriage Monday afternoon — and perhaps the last to do so with any effectiveness. In the recent history of buzzer-beaters for political benefit, others have not been quite so advantageous on the once hot-button issue.

There's a tricky calculus to figuring out when to hop on a bandwagon. If you're the first to embrace a controversial position, you risk becoming a gadfly. If you're too far ahead of the electorate, you could risk enormous political damage. Wait too long, and you get no political benefit or, worse, look like an opportunist. Or wait way too long, and you can look like you're hopelessly behind the times.

But there's a sweet spot: ahead of the curve among elected officials, slightly ahead of the curve of public opinion, but still with political risk. Time that right, and it's like hitting the jackpot of shameless political opportunity.

As we said, Warner is getting in under the wire. Mother Jones's Timothy Murphy marks the too-late point:

Just remember the deadline for "I've evolved on gay marriage" statements is *tonight* at midnight, EST.

— Tim Murphy (@timothypmurphy) March 25, 2013

The Supreme Court begins hearing arguments on the issue Tuesday. If the Court voids existing gay marriage laws — or if it looks like it's going to — it's too late to jump on that train. In other words: No more bets, people.

As a lesson for future elected officials, we've put together this handy analysis of how various elected officials did on their timing.

Too early.
There aren't a lot of politicians who jump out too early on controversial issues. Politicians are risk-averse. They're not excited about receiving a lot of critical phone calls. They fear primary races. So it's rare that a politician will actually act early and face the recriminations.

John Kerry in 2004. Perhaps the only politician whose position on gay marriage came too early was Kerry. While he didn't support gay marriage, he did support civil unions for same-sex couples. Kerry was hemmed in politically: a lot of his supporters wanted boldness on the issue, while his opponent's team (read: Karl Rove) worked to put a series of anti-gay-marriage intitiatives on state ballots. All passed. While the role of these initiatives is wildly overstated in that election's outcome, Kerry's support of civil unions certainly didn't provide an easier path forward in close races.

Sweet spot.
Rob Portman. The Ohio senator's announcement last week that he was supporting gay marriage after his son came out was obviously chosen with specific timing. (He's known his son was gay since last year.) By announcing last week, Portman remains ahead of the electorate in that state, but still with a high level of political risk. As the first sitting Republican senator to express his support, he gains an additional level of political benefit. Context matters, and for Portman the context was perfect. His Democratic counterpart, Sherrod Brown, has been openly supportive of gay marriage for some time, opposing various anti-gay-marriage efforts while still in the House. But the standard for a Democrat is different.

How lucky Portman got on timing is just becoming clear. A poll came out Monday showing that more than half of Ohioans support gay marriage. Had Portman announced after the poll came out, he would have looked like an opportunist. The senator almost certainly knew what the numbers looked like last week. The rest of the world didn't.

Barack Obama. Intentionally or not, Obama's announcement of support for gay marriage last spring may end up being one of the most perfectly timed switches on a controversial social issue in recent memory. Before a close presidential election, well ahead of the electorate, seemingly before he was ready — every factor made Obama's decision look like a risk taken for the sake of moral honesty. In November, the president captured three-quarters of the gay vote.

The Democrats who joined Obama after his announcement — Harry Reid, for example — probably hit the sweet spot, too. Demonstrating loyalty to the president at a difficult moment softened the blow

Claire McCaskill. These categorizations are subjective, and a case could be made that McCaskill was just a tad too late. But, again, context matters. And Missouri, the senator's home state, has been slow to embrace the idea of gay marriage. (Last June, only 33 percent of voters supported gay marriage.) McCaskill had the added benefit of being the first senator since Portman to make such an announcement. Two is company.

Too late.
Mark Warner. And three is a crowd. Warner's announcement on his Facebook page came at an odd time: right after McCaskill's roll-out, giving the impression of a guy showing up late to a party. And his home state, Virginia, is a safer state for a Democrat. It went for Obama last year; Missouri went for Romney. Which isn't to say that he garners no benefit from the late move. He just could have gotten more earlier.

Hillary Clinton. As Secretary of State, Clinton couldn't take a public position on political issues. But for a key leader in the party to make an announcement by video in 2013 — as though the act were exceptional — seemed a bit off. Especially since the move followed her husband's announcement.

Behind the times.
Bill Clinton. Before Hillary's video message, the former president announced that he believed the Defense of Marriage Act — one of the issues the Supreme Court is considering and a bill Clinton himself signed into law — was unconstitutional. It was a weird move, by way of an op-ed in the Washington Post, and one that seemed as though it was meant to paper over an unhappy aspect of his well protected legacy. It was almost certainly too late.

Saxby Chambliss. The retiring senator last week didn't embrace gay marriage, but he ensured that his legacy would be carved in stone. "I'm not gay," he said. "So I'm not going to marry one." An unchangeable punctuation mark. No matter how the issue evolves, Chambliss has defined his position on the subject.

There's one last addition to the "Too late" category. Namely: Any other senators that come out in support of gay marriage over the next week. Unless that senator is Marco Rubio. For the third time — context matters.

What Happens When an NFL Player Comes Out Is Good for the NFL

The National Football League has been fighting back since the Super Bowl against negative reports and offensive comments from within its unfriendly confines that the most popular pro sports league is setting a bad precedent on gay marriage, homophobia, and hiring discrimination when it comes to sexual preference. But if a new report about an NFL player coming out comes true, the league could find itself opening up to an unprecedented reality — and might find itself as the surprise leading voice on gay rights in sports.

CBS Sports' Mike Freeman claims there is a gay player in the NFL currently mulling whether he wants to reveal his homosexuality to the public over the next few months. Whispers and asides about gay football players have floated through media reports ever since the poisonous outbreak of coverage broke out this year, but this the first report of the big moment actually arriving for the NFL. Per Freeman:

Based on interviews over the past several weeks with current and former players, I'm told that a current gay NFL player is strongly considering coming out publicly within the next few months -- and after doing so, the player would attempt to continue his career.

[...]

This player's true concern, I'm told, is not the reaction inside an NFL locker room but outside of it. The player fears he will suffer serious harm from homophobic fans, and that is the only thing preventing him from coming out. My sources will not say who this alleged player is.

This would obviously be a big step forward for the NFL. Heck, it was just the end of last season when San Francisco 49ers cornerback Chris Culliver said he wouldn't accept a gay teammate in the locker room. That happened right before the Super Bowl, and it briefly opened up a dialogue about gay rights in the NFL. Except that dialogue quickly took a turn for the awful, when some of Culliver's 49er teammates made more unseemly comments about gay rights.

In the intervening months, the NFL suffered compounding embarrassments on the equality front, even as other leagues made strides. At the NFL's annual rookie combine, where new recruits show pro scouts their on-field skills in a physical job try-out and in-person interviews, NBC's Dan Florio reported that the sexual identity of the scandal-ridden Notre Dame linebacker Manti Te'o was the "elephant in the room" during evaluations from team executives. "Teams want to know whether Manti Te'o is gay. They just want to know. They want to know because in an NFL locker room, it's a different world," Florio wrote. A wave of criticism followed. Florio couldn't or didn't name a team or executive who asked the questions, and Te'o didn't speak out on the issue. But then University of Colorado tight end Nick Kasa told an ESPN radio station teams were outright asking if he was gay. Kasa told ESPN Radio Denver that he had been asked, point-blank: "Do you like girls?" Things were downhill from there. The league faced even more criticism, and some wondered aloud whether the questions from execs were even legal under the league's collective bargaining agreement. The league eventually dismissed the questions as "banter," but said the NFL found it "disappointing and embarrassing” and announced work with gay rights groups on how to better the league's equality policies. 

But if an NFL player were to come out and continue his career, that would change everything. The NFL would become the first major sports league to ever have an active, outwardly gay athlete.  Major League Soccer's Robbie Rogers came out and subsequently retired from competition earlier this year. Baseball may be close, according to an outspoken football player. And, well, the best the NBA is doing on the gay rights front is a tweet from Kobe Bryant about slurs from fans. It would be a watershed moment, in the most testosterone heavy of sports, and turn all the questions into potential answers, almost immediately. How does a league react when the rumored becomes reality? How do its fans? Does acceptance follow, or sad shame?

One person who seems concerned about a player coming out is NBC's Florio, who wrote a rambling, barely coherent reaction to Freeman's report on Monday. It's so bad it spawned a hashtag mocking Florio's writing. Florio seems to assume that the mystery player might be a lesser known athlete on his way out of the league attempting to stay relevant:

“The player would attempt to continue his career” after coming out, Freeman writes.  This suggests that the player may not currently have a team, or that the player believes he may not make it onto the final 53-man roster of the team for which he currently plays.

We’re reluctant to apply cynicism to what would be a watershed moment for pro sports, but it would be naive to assume, given the team-first focus of football, that a gay player thinking about coming out of the closet hasn’t considered both how the move could hurt him and how it could help him.  For a marginal player who may be on his way out of the league, the indirect benefit of coming out could be getting another chance to play from a team that chooses to embrace diversity — or that doesn’t want to be perceived as shunning it.

Literally no one else among the many loud voices on the issue of gay rights in sports has publicly come to that conclusion. Apparently Florio doesn't consider "being the first openly gay athlete in any sport" enough of a challenge to overcome that one might consider retirement, like Rogers did. Apparently the public outing of an NFL player is being preempted by public shaming.

The mystery NFL player would have the support of at least two NFL players: the Baltimore Ravens' Brendon Ayanbadejo and the Minnesota Vikings' Chris Kluwe — the two most outspoken players in the league on the issue of gay rights. In a USA Today interview released Monday evening, Ayanbadejo actually guessed that baseball would have an out gay athlete before football does. He was not responding directly to Freeman's report, though, and it's unclear whether he was aware of it before the interview began. 

Still, Kluwe and Ayanbadejo are pressuring the Supreme Court to legalize gay marriage with support from 212 Capitol Hill politicians and one former U.F.C. champion as the Court takes up Proposition 8 and the federal Defense of Marriage Act on Tuesday and Wednesday, respectively. The two players also recently picked up support from another prominent NFL player: Cleveland Browns linebacker Scott Fujita, who wrote about why he supports the gay marriage movement in The New York Times over the weekend: 

I don’t know how to explain to [my daughters] what “inferior” means or why their country treats our friends as such. I don’t want to tell them that “Yes, our friends love each other just like Mommy and Daddy love each other, but that their love is considered ‘less than.’ ”

After all this, one brave man could force the NFL to tell a much different story. Whether the league's approach, from executives to players to fans, will be a loving one — well, anything can happen in football.

Is Tilda Swinton's Nap Bad for Art?

Another day, another nap for Tilda Swinton at the Museum of Modern Art. Yes, the actress/cultural oddity was back at MoMA in her glass box in New York again Monday after creating a sensation this weekend when she, unannounced, began performing her piece "The Maybe," originally devised in collaboration with Cornelia Parker, at the preeminent museum. "The Maybe" consists of Swinton sleeping in a glass box. And while museum visitors and culture critics around the world continuing to freak out Swinton's appearance, it was also slammed today by one of the most high profile art critics on Earth: New York magazines's Jerry Saltz, who sees the Swinton thing as more self-serving stunt than performance art—even if there's something to that.

Swinton-mania is still definitely going strong. There's now a Tumblr dedicated to answering the question "Is Tilda Swinton Sleeping in a Box?" The answer today was of course "Yes." 

According to Gothamist, Swinton moved upstairs today to a second floor gallery, after she was on display Saturday in the Agnes Gund Garden Lobby. She also apparently got some celebrity visitors: Sarah Jessica Parker and Matthew Broderick stopped by, according to People. James Franco has also been reported at the scene, but that should surprise absolutely no one—he once stared at performance artist Marina Abramovic from a chair at MoMA, and is, well, James Franco. 

And, yet, the Swinton performance has not impressed everyone. Saltz wrote that Swinton's performance is yet another example of MoMA—which recently and famously staged Abramović's "The Artist is Present," the exhibition that drew the attention of celebrities aside from Franco—using a living art gimmick to draw in visitors. He calls the Swinton piece the "latest twist on whatever-it-takes to get them in the doors while presumably showing a little intellectual leg." Saltz continues: 

I'm a sourpuss, so I think this is just a hokey artsy strategy to disguise the fact that the place doesn't have enough room to show its tremendous collection. Visiting there now is unpleasant because the museum has been so overcrowded since its 2004 makeover. The event also has inner content: MoMA is narcissistically puffing its celebrity feathers, playing at being avant-garde. And then the atrium itself is a problem: It’s such a weirdly proportioned disembodied non-space that almost all efforts to hang traditional artworks there have been a bust.

Saltz questions MoMA's relationship to celebrity and what it costs a museum with so much else to offer. The quandary of the relationship of celebrity to museum culture is not a new one, and in fact was recently the basis of critique against gallerist-turned-MOCA director Jeffrey Deitch. In October of last year Guy Trebay wrote of Deitch's tenure in the New York Times:

There have been missteps over the two years since Mr. Deitch moved west, specifically a handful of shows that took celebrity as their focus. Yet while there have been measurable and even outstanding successes, these have been purged from the narrative.

But, as Saltz points out himself, there is also some good to the project in "the wonderful possibility that museum visitors might come here, see a movie star asleep in a case, accept it as some kind of art, get super excited, and wonder how on Earth something this strange got started. And they'd rush upstairs to the greatest collection of modern art in the world, let themselves go, and add their thinking to the group mind." Even if the idea itself borders on sell-out, there is some purpose served by the undoubtedly attention-grabbing piece: More people should see what MoMA has to offer, even if it's surrounded by the seemingly random stunt piece. And since she was napping a bit closer to some actual art rather than a staircase just beyond the museum entrance on Monday, well, maybe there's hope for this ridiculous thing yet. Just don't get too excited for back-to-back performances. MoMA is closed on Tuesdays. 

Harvard and the Question of Quiz Bowl Cheating

You may have seen this coming: Andrew Watkins, the Harvard quiz bowler accused of cheating by the National Academy of Quiz Tournaments, is denying that he actually cheated. Watkins, the former president of Harvard's quiz bowl team, told The Harvard Crimson that, while he used his NAQT employee account to access an index of official questions that were later used in the championship tournaments that Harvard's team won, he otherwise "had no intention to—and functionally speaking did not—benefit from the content of the questions in any way." So did Watkins actually cheat? Let's go over the evidence — and, perhaps more important, the ethics of this bizarre scandal.

First, the evidence. On one hand, it's beyond dispute that Watkins was at least privy to quiz bowl questions. (In a strange bit of wordplay, Watkins told the Crimson that he only loaded the site on which the questions were listed, but didn't actually read them: "A website containing question content was loaded. At no point did I read the questions therein." Even stranger, Watkins refused to disclose why, exactly, he loaded the website.)

On the other hand, it's unclear if Watkins used those questions to gain an advantage in the actual championship. In the statement he provided to NAQT when it announced its sanctions against him, Watkins emphasized that "there is neither direct nor statistical evidence that I took advantage of my access." The NAQT appears to agree Watkins' performance demonstrated zero statistical anomalies. But of the four students caught accessing the company's servers, Watkins was the most successful quiz bowler. If his performance was statistically sound, his achievements were certainly unprecedented: Watkins delivered Harvard the first Division I quiz bowl championship ever won by an all-undergraduate team.

Even then, Watkins's competitors and teammates considered his performance inconsistent. The Crimson notes that Watkins often killed it at tournaments hosted by the NAQT, only to falter at tournaments hosted by other quiz companies. His performance was so remarkable that a 2011 Crimson article, about one of the tournaments at which Watkins is accused of cheating, devoted several paragraphs to it. In retrospect, they're eerie to read:

The squad was baffled when Watkins—showing ability beyond his science expertise—answered the deciding question, an inquiry concerning the history of Thailand.

“Andy buzzed in, and he hadn’t gotten a history question all tournament,”

Simons said. “It was funny that he took that one.”

“It was not in a category that I’m comfortable with or generally speaking, good at,” Watkins said. “But with only a few seconds [to react], you can’t really induce your teammates to answer the question.”

Which brings us to the ethics of this episode. If Watkins merely had access to quiz bowl materials, does that mean he cheated, ethically speaking? We'll probably never know the answer, since it depends, in part, on reading Watkins's mind, in order to determine whether he sought and obtained an unfair advantage. But in the world of quiz, which tests participants' familiarity with pre-determined categories such as world history and science, the answer seems clearer: he compromised the integrity of the competition. Why? Unlike other non-athletic collegiate competitions — policy debate, for example —  knowing the questions is as good as knowing the answers. That changes the equation of what's considered unethical.

To that end, Watkins's former team seems to agree that he crossed an ethical boundary. "Andy Watkins obviously cheated, and has embarrassed himself and our school's team," Graham Moyer, the president of Harvard's quiz bowl team, told The Atlantic Wire. When asked if Watkins's transgression signaled some kind of deeper pathology — which, at Harvard, is a legitimate concern — Moyer responded:  "What Andy did should not reflect on the team as a whole. He made his own terrible decisions and has paid for them, but his decisions have nothing to do with the decisions and ethics of anyone currently on the Harvard team or any of our recent alumni."

What Comes After Gay Marriage?

This is a big week for the gay rights movement. In the coming days, the Supreme Court will be hearing arguments on both a challenge to the federal Defense of Marriage Act and to California's Proposition 8, a voter initiative that banned same sex marriage in that state in 2008. In a very real way, we could see the beginning of the end of the marriage equality struggle this week. Of course it could also be the week of two major setbacks, but let's stick with what's widely expected, shall we? Because within that optimism there is also some confusion. If gay marriage does happen, finally and universally, what's next?

So much emotion and effort has gone into the decade-plus-long fight that to see those dreams suddenly and finitely realized in a concrete way could prove a bit jarring. The marriage equality fight has been such a unifying, galvanizing one that it will be strange to lose it as a cause to rally around. Of course if the SCOTUS decisions go the way of marriage equality, nothing will happen overnight, exactly. But it could be quick, which means the gay community and its allies should start thinking about what else can be done, what the next common cause can be. The benefits of  such a clear and, at its core, uncontroversial topic to collectively fight for — either through action or just passive support—have been huge. It would be a shame to become atomized, to all retreat to our various sects now that the big campaign has ended.

But let us give you a taste of what comes after marriage: Today on the Internet you could read young Will Portman's gentle piece about coming out to his parents, whose public interest stems from his father being a Republican U.S. senator, or you could read Gawker writer Rich Juzwiak's take on the 34th edition of the Black Party, which, as he writes, is "the leather-themed bacchanal for gay men, which is generally modified on first reference by 'infamous' and 'notorious.'" One is an earnest and square letter defending what's become politically correct, the other a slightly addled journey into a vivid sex party that wants to blow politically correct up. They're entirely different posts and seemingly represent two entirely different people (or at least two different sides of people). And yet both Portman and Juzwiak are of course united under a larger Gay umbrella, one that's been made both broad and sturdy by the gay marriage fight.

As far as I'm aware, neither Rich nor Will have regularly hit the pavement and knocked on doors campaigning for gay marriage, but they do both exist in a contemporary America that has seen gays and lesbians borne toward some measure of acceptance on the back of the marriage fight. Especially in the post-Prop. 8 era, when a revulsion at a collective act of discrimination in California (of all places) seemed to trump any internal debates about the merits of marriage as an institution. Those who didn't want marriage for themselves or their social circles could at least rally behind the broader symbolism of a purportedly progressive state voting to take away the rights from those who did and do. As much as some might complain about the forced normalizing of the marriage equality struggle — removing the queerness from queerness — in general the get-everyone-involved marriage fight seemed almost universally viewed as important and beneficial to the gay community, in both obvious and subtle ways. So it will be curious to see it finally realized, if it is.

But that doesn't have to mean that we'll all soon be scattered to the wind, left to dwell in smaller subsets, veterans all living different lives. There are still battles, or rather causes, that need addressing that could further strengthen the gay community as a whole, while solidifying its position in the bigger world. One of the most important, to me anyway, is actually an internal struggle. While the gay marriage movement has of course been widely important and effective and involved people from myriad walks of life, aspects of it have, at times, ignored certain people in favor of others. Meaning, the public face of the cause has largely been the same: white and at least middle class. Which is a problem. The racial and economic disparities in the gay community are similar to those in larger America, but they also come with their own particular sets of issues, particularly youth homelessness and the spread of HIV/AIDS. In fact, the idea that HIV/AIDS is largely a problem of the past is a pretty privileged and entirely inaccurate one that many people let persist while moving full steam ahead with the marriage equality campaign. The topic is certainly more of a downer, a reminder of the difficult past rather than a hope for the gleaming future, but of course in some ways that only better highlights its importance.

There are also trans friends and allies to help and support; though often strangely lumped together in one big LGBT clump, many causes and concerns of the trans community are distinctly different than those of gay cisgendered people. For various reasons, gender identity struggles don't have as much social cachet as something like gay marriage, though in many ways they are more urgent and fundamental. Though a certain type of queer person might soon enjoy what begins to look like full equality and acceptance, there are many others who are still deeply embattled.

And of course there are those pesky young people. What do we do with them? What do they do with us? Many gay American kids are growing up in a world that is dramatically different from what it was a mere decade ago. So what does that mean for the future of gay identity? Good things? Bad things? Glee things? I've detected notes of bitterness toward younger generations who "have it easier" and "don't appreciate their elders" creeping into corners of the gay conversation lately. Obviously older people will always grumble about younger ones and vice versa, but there's a particularly stringent and politically tinged tenor to those sentiments in the gay world that could further exacerbate that feared post-marriage gay diaspora. Not that gays need always move as a monolithic group, far from it, but through a more active and encompassing sense of unity, we've gotten a lot more done. So there will be plenty to celebrate if the Supreme Court goes for equality this week, and vows to redouble efforts if they do not, but we can keep in mind that the issues that will affect us next in most cases already do.

Kate Upton's Boobs Are Too Busy for This Kid's Prom Proposal

We realize there's only so much time one can spend in a day watching new trailers, viral video clips, and shaky cellphone footage of people arguing on live television. This is why every day The Atlantic Wire highlights the videos that truly earn your five minutes (or less) of attention. Today:

So, after all that back and forth over the viral prom proposal that a not-so-viral (but still positive!) response, 20-year-old supermodel Kate Upton will not be going to prom with 17-year-old Jake Davidson. Ah, scheduling, Alas, more than two million YouTube plays later, Jake's legendary effort is worth appreciating once more:

Microbes are all over your body. Trillions of them. Resistance is futile. So is hand sanitizer. But here's a video that will make you feel slightly better:

If life just doesn't work out for us, or your job doesn't work out for you, "tambourine man" would be an excellent addition to your resumé:

And finally, this is Florida: