Kagan: ‘vigorously defended’ DADT

Never before in the history of Supreme Court confirmation hearings have gay issues played such a prominent role.

Elena Kagan
Elena Kagan

Never before in the history of Supreme Court confirmation hearings have gay issues played such a prominent role. After quizzing Elena Kagan on Tuesday about the extent of her opposition to the “Don’t Ask, Don’t Tell,” Republicans on the Senate Judiciary Committee came back Wednesday and grilled her again on that matter and on the federal Defense of Marriage Act.

And the questions elicited some interesting answers—not all of which LGBT people will be happy with. She assured the Senate Judiciary Committee that she has “vigorously defended” “Don’t Ask, Don’t Tell” as Solicitor General and that the statute is constitutional. She suggested there has to be some flexibility for people with religious beliefs to obtain exemptions from certain state laws.

And she hinted strongly that a 1972 gay marriage case that the Supreme Court dismissed might have only limited precedential value should the issue come before the court again.

She hedged or declined to answer other questions. She would not say, for instance, whether the Supreme Court has jurisdiction over state marriage laws.

Kagan did say, however, that she and others in the Obama administration “talked a good deal…amongst ourselves and with” the Department of Defense as to whether to appeal a 9th Circuit U.S. Court of Appeals case the government lost on DADT.

Senator Jeff Sessions (R-Ala.), the ranking minority member on the committee, asked her about that because he and others saw it as a reluctance to defend the federal law excluding gays from the military.

But Kagan denied that, saying she and the administration “vigorously” defended the law and saw postponing appeal as the best way to defend the law.

The case in question is Margaret Witt v. Air Force, in which a highly decorated military nurse was discharged under the policy, apparently after a third party told military officials she was gay. In 2008, Witt, represented by the ACLU, won a preliminary court victory against DADT, when the 9th Circuit ruled she had a right to a trial. Last year, Kagan recommended the federal government not appeal that preliminary ruling to the Supreme Court but wait instead for the trial and its appeal to be completed.

Kagan said the administration made the decision in order to build a factual record that would demonstrate to the Supreme Court the burden it would place on the military to give each person discharged under DADT a trial.

“The government would have to show in each particular case,” said Kagan, “that a particular separation caused the military harm, rather than view it in general across the statute.” Such individual inquiries, she said, “would disrupt military operations.”

The response seemed to take the wind out of Sessions, who has led the charge against Kagan. He said he’d take another look at the decision, then complained that the decision was still “in harmony with the ACLU.”

Aubrey Sarvis, head of the Servicemembers Legal Defense Network (SLDN) said, “we simply do not agree with the Solicitor General on how she and her legal team approached and argued the Witt case.”

“SLDN continues to be at odds with that office, as well as the Department of Defense, on Witt. Indeed, the standard articulated by the Ninth Circuit in Witt should be the very standard that DOD uses in all DADT cases in every circuit.”

Sessions and others also probed Kagan again about what actions she took to prevent the military from recruiting at Harvard Law School, while she was dean there from 2003 to 2009. But they didn’t extract much.

Senator Orrin Hatch (R-Utah) questioned whether Kagan really provided equal access to military recruiters, as the Solomon Amendment requires. The Solomon Amendment, passed in 1996 and upheld by the Supreme Court in 2006, prohibited federal funds to universities which barred military recruiters.

Kagan said she believed the access Harvard Law provided was “an equally effective substitute” for the type of access enjoyed by employers. Other employers were required to sign a statement saying they did not discriminate based on sexual orientation and other characteristics, including based on military service.

Senator John Cornyn accused Kagan of trying to “stigmatize” service members with her handling of the DADT-Solomon conflict.

“It certainly wasn’t to stigmatize the military,” said Kagan, emphatically. She said she always tried to honor the military and demonstrate how important they are to the country. She also noted several times during the hearing that the number of attorneys recruited by the military from Harvard went up during the year Sessions and the other senators were questioning.

“I heard you say that,” said Cornyn, “but if the policy had no impact on recruiting, what possible purpose could it serve other than to stigmatize the military –provided them separate but equal” access.

Senator Charles Grassley questioned Kagan about gay marriage.

“Do you believe that marriage is a question reserved for the states to decide?” he asked.

It was the same question he posed to Sonia Sotomayor during her confirmation hearing last year. Sotomayor declined to answer the question but, when pressed about a gay marriage appeal—Baker v. Nelson—dismissed by the Supreme Court in 1972 and asked whether it amounted to precedent, Sotomayor said, “If it is the court’s precedent…I will apply that precedent to the facts of any new situation that implicates it.”

Kagan, too, declined to answer the first question, but she got pulled into Grassley’s questions about whether Baker amounts to precedent.

In Baker, a gay couple sought a marriage license in Minnesota and, when denied one, sued in state court. The couple lost in the Minnesota Supreme Court and then appealed to the Supreme Court. The Supreme Court did not hear arguments or issue a decision in Baker v. Nelson, but it did dismiss the appeal—an action that has more significance than simply refusing to hear the appeal. In dismissing the appeal, the high court explained it was doing so because there was no “substantial federal question” presented by the case. There is disagreement within legal circles as to whether that “summary dismissal” means anything today.

Kagan said she thinks the dismissal has “some precedential weight but not the weight of a normal decision” which has been fully briefed and argued before the high court.

“What weight would you give Baker v. Nelson?” asked Grassley.

Kagan said she would want to hear arguments, read briefs, and talked to her colleagues before making a decision on that.

“I’m disappointed,” said Grassley. He said he had hoped she would say Baker was “settled law” as to whether the Supreme Court could weigh in on state marriage laws.

Grassley also asked Kagan whether she played any role the Department of Justice “abandoning its argument,” in its cases defending the Defense of Marriage Act (DOMA), that the law was justified by the need to protect “traditional marriage” and to see that children are raised “by both parents.”

Kagan said she has not been a decision-maker on the DOMA cases because they are all still in district court and the Solicitor General’s office gets involved at the appellate level. However, she acknowledged participating in “some discussions” about the cases, though she added that she was not at liberty to reveal those discussions.

Senator Jon Kyl (R-Ariz.) challenged Kagan over her remarks about gay marriage at last year’s confirmation hearing as Solicitor General. He noted that, in response to a question, Kagan had said, “There is no federal constitutional right to same-sex marriage.”

“To me, that means the constitution cannot be properly read to include such a right,” said Kyl. “Is that what you meant to say.” Some conservative opponents of Kagan’s nomination have expressed concern that she parsed her words very carefully to last year and that, in that context, may have been saying only that, as Solicitor General, she knew she had a duty to defend the DOMA. Kagan fed that concern with her initial response, saying that she made the statement in response to a question about whether she could, as Solicitor General, defend the constitutionality of DOMA.

“Are you qualifying that now?” asked Kyl.

“I understood the state of the law and accepted the state of the law,” said Kagan. When Kyl pressed her further, she said she didn’t think it appropriate to respond, given the likelihood of a case on DOMA coming before the court.

Democratic senators generally steered away from gay-related discussions, but Senator Dianne Feinstein (D-Calif.) asked Kagan a question concerning the clash of religious beliefs and the constitution’s prohibition on promoting religion—a clash that often comes up with people seeking to circumvent state laws prohibiting discrimination based on sexual orientation.

Feinstein asked Kagan what her approach would be in interpreting the so-called Establishment Clause and the First Amendment guarantee of free exercise of religion.

Kagan said the court needs some flexibility—or “play in the joints”—to provide an exemption to a state law when it imposes “some substantial burden” on a person’s religious beliefs.

“There needs to be some play in the joints,” said Kagan, “to prevent a state from not being able to do anything.”

The response seemed to be an effort to walk a political tightrope, perhaps because of a memorandum she wrote as associate counsel in the Clinton White House disagreeing with a California Supreme Court decision that a landlord could not discriminate against an unmarried couple based on the landlord’s religious belief against co-habitation before marriage. The California court said the landlord had the option of getting out of the rental business, rather than compromise her religious views. Kagan called that “quite outrageous” and worried that “this kind of reasoning could strip” the Religious Freedom Restoration Act (RFRA) “of any real meaning.”

Lambda Legal Defense and Education Fund told Judiciary Chairman Patrick Leahy (D-Vt.) that the issue is “of great importance” to the LGBT community “that any individual who would be appointed to the Supreme Court be willing to follow the precedent” set forth in the Supreme Court’s determination—which was that the RFRA was unconstitutional.

Lambda had no comment on Wednesday about Kagan’s answer, saying they were taking a close look at the transcripts of the hearing before formulating their opinion.

The confirmation hearing continues Thursday and Friday with witnesses testifying for and against Kagan’s nomination.

Kagan acknowledges she’s “generally progressive”

One message Republicans tried to hammer away at this week, in an effort to derail Elena Kagan’s nomination to the U.S. Supreme Court, must have struck many LGBT viewers of her confirmation hearing as deeply ironic.

Elena Kagan
Elena Kagan

One message Republicans tried to hammer away at this week, in an effort to derail Elena Kagan’s nomination to the U.S. Supreme Court, must have struck many LGBT viewers of her confirmation hearing as deeply ironic. They said she treated the men and women of the military as “second-class citizens,” when she stood up for her belief that the law barring gays from the military was “a profound wrong.”

And yet gay groups have concerns of their own. Lambda Legal Defense and Education Fund, a national gay legal group, shared its concerns over Kagan –though they did so through a letter to Senate Judiciary Committee Chair Senator Patrick Leahy (D-Vt.). The group is worried Kagan might show too much deference to religious objections to non-discrimination laws and not enough deference to existing Supreme Court precedents that have largely benefited gays.

But it was Kagan’s actions as dean of Harvard Law School in the dispute over gays in the military that became a large focus of the first two days of her confirmation hearing. Republicans suggested Kagan’s efforts to balance the university’s non-discrimination policy with the military’s need to recruit lawyers amounted to an effort to defy that federal law. More generally, they also sought to label her “progressive,” a term they apparently consider negative.

Kagan initially deflected the effort to stamp her identity with a politically loaded characterization.

“I honestly don’t know what that label means,” said Kagan, in response to question from the ranking minority member, Senator Jeff Sessions of Alabama, as to whether a former colleague was correct when he identified her as a “legal progressive.”

“I think people should be allowed to label themselves,” said Kagan. “I don’t know what that label means, and I’m not going to characterize it one way or another.” She also noted that her political views would be a matter separate from what her views would be concerning the constitutionality of a law.

“Well, it means something,” said Sessions, “and I would have to classify you as someone in the theme of a legal progressive.”

Later in the day, Senator Tom Coburn (R-Okla.) later said he didn’t know what a progressive is either but that he thinks she’s a liberal. Senator Lindsey Graham (R-SC) asked her whether she is a “progressive in the mold of Obama himself.”

Kagan said she’d been a Democrat all her life, worked for two Democratic presidents, and “that’s what my politics are.”

Graham pressed again, asking whether she’s “progressive.”

“My political views are generally progressive,” acknowledged Kagan.

During his time questioning Kagan Tuesday, Sessions went on to attack, regarding two laws passed by Congress: the “Don’t Ask, Don’t Tell” law barring gays from the military and the Solomon Amendment prohibiting federal funds to universities that barred military recruiters because of the “Don’t Ask, Don’t Tell” policy.

Adopting the procedure and demeanor of a prosecuting attorney grilling a defendant, Sessions painted a picture of Kagan as complying with military recruiters only under threat of losing federal funds.

“You personally opposed ‘Don’t Ask, Don’t Tell’,” pressed Sessions.

“I do oppose it,” said Kagan, “and I did then.”

“And in a 2003 email,” said Sessions, “you wrote, ‘I abhor the military’s discriminatory recruitment policy. . . This is a profound wrong.”

“I believe the policy is unwise and unjust. I believed it then, and I believe it now,” said Kagan.

Kagan added, however, that she tried, as dean, to “make sure military recruiters had full access” to potential candidates for the military but to also protect Harvard’s own non-discrimination policy and students, including gay and lesbian students.

“I tried to do both of those things,” said Kagan.

“But you couldn’t do both,” said Sessions, “as it became clear.”

He continued, saying she “participated in protests” against the military policy, said she was “very opposed to two government policies,” and participated in submitting a legal brief “attacking the Don’t Ask, Don’t Tell policy.” He also noted that Kagan used a 3rd Circuit U.S. Court of Appeals decision that found the Solomon Amendment to be unconstitutional as an excuse to begin barring military recruiters at Harvard –even though Massachusetts is not a state within the 3rd Circuit.

“We were never out of compliance” with the law, said Kagan. She said, after the 3rd Circuit decision, military recruiters were still “welcome on campus, but through the auspices” of a campus veterans organization even though she thought it was appropriate to go back to Harvard’s original non-discrimination policy.

“DOD came to us and said, ‘ignore the 3rd Circuit decision, we’re going to the Supreme Court,’ and we did change back, said Kagan. “We did precisely what DOD asked us to do.”

“You didn’t do what the DOD asked you to do,” said Sessions.

Kagan held her ground, saying Harvard believed it was acting in compliance, but Sessions interrupted to say, “You stopped complying” and, as a result of that, he claimed, “that season” of recruiting “was lost.” He said Kagan never conveyed its position to DOD “in a straight up way” and that DOD said its recruiters were “blocked, stonewalled, and getting the runaround.”

Again, Kagan held her ground, noting that no season of recruiting was lost by the military and that, in fact, in the year to which Sessions was referring, the number of Harvard students recruited by the military went up, compared to previous years.

“You decided [the Solomon Amendment] was inappropriate and you reversed it,” said Sessions. “You treated [the military] in a second-class way.”

The sparring continued for some time and eventually, Sessions ran out of time (each senator’s time to ask questions is strictly limited). Committee Chairman Patrick Leahy (D-Vt.) gave Kagan a chance to make her final remarks on the matter.

“My father was a veteran,” said Kagan, “and I had students who served in the military and who wanted to” serve in the military.

“I felt the need to defend the non-discrimination policy,” said Kagan, “and protect students, including gay and lesbian students who wanted to serve and do that most honorable kind of service.”

In a press conference during recess, Leahy said he thinks Kagan’s testimony “lays to rest for good the issue of Harvard and [her] somehow being anti-military.”

“I think it’s very obvious that Solicitor General Kagan has shown strong support of the military, has strong respect for the military,” said Leahy. “She’s certainly not anti-military.”

Sessions told reporters during recess that Kagan appeared to be “crafting her testimony” to fit a White House spin on the Harvard military recruiting dispute. He said Kagan was responsible for a reversal of Harvard’s willingness to enable military recruiters to visit campus.

A number of documents submitted to the Senate Judiciary Committee and a number of witnesses scheduled for this week’s hearing have indicated that Kagan has both publicly and privately expressed her respect for the military.

After being attacked for having disagreed with a Congressional law—one concerning military exclusion of gay people—she was then attacked for having defended a Congressional law—one that had limited corporate funding to influence elections.

Senator Orrin Hatch (R-Utah) asked Kagan whether she agreed with the Supreme Court’s recent decision, Citizens United v. Federal Elections Commission. As Solicitor General, Kagan’s job was to defend the federal campaign funding law that Citizens United struck down, and she said so.

Hatch was taking on the difficult task of trying to defend the Citizens United decision, which has been enormously controversial and had become great fodder for Democrats against Republicans during the first day of the confirmation hearing.

Later, Senator Arlen Specter (D-Penn.) tried to pin down Kagan on whether she considered the Supreme Court’s ruling in Citizens United disrespectful of Congress. Kagan tried to avoid answering the question, and Specter, with apparent frustration and impatience, moved on and tried to get Kagan to criticize specific conservative justices, especially Justices John Roberts and Sam Alito, who he said gave the Committee “assurances of deference” to Congress and then “there was none.” Kagan repeatedly avoided making such statements.

In fact, much of Day One, June 28, of the confirmation hearing was taken up with partisan bomb-throwing, in between remarks in praise of Senator Robert Byrd (D-WVa.), the Senate’s longest serving member, who died very early Monday morning.

The political sideshows on Monday may have been due in part because so many political pundits have declared Kagan’s confirmation is virtually inevitable; it may also have been due to the fact that confirmation hearings have become a somewhat predictable series of thrusts and parries with a nominee.

Kagan’s own opening statement on Monday was unremarkable except, perhaps, for the fact that she did not make the traditional introductions of individual family members. Kagan’s parents are deceased, but her two brothers were in the confirmation hearing with her. Instead of introducing them, Kagan, who is not married, simply thanked the “family, friends, and students” who had joined her in the confirmation room and then turned around and looked down a row of people sitting behind her. Republicans made clear on Monday that they would seek to portray Kagan as anti-military, lacking in judicial experience, and inclined toward “activism.”

Responding to questions about “activist judges,” from Senator John Cornyn (R-Texas), Kagan said she thinks judges are “always constrained by the law” where the text is clear. But where the text is not clear, said Kagan, judges must look to other “sources of law,” including original intent and “continuing history and traditions.”

Senator Jon Kyl (R-Ariz.) said he has “substantive concerns” about Kagan’s views on “gay marriage” and other issues. The only other mention of gay marriage in the first two days of the five-day hearing came from Senator Sheldon Whitehouse (D-R.Is.). Whitehouse took the occasion of his opening statement Monday to criticize the current Supreme Court for having taken the “extraordinary” action of “inject[ing] itself into the day-to-day business of the lower courts, issuing an extraordinary ruling prohibiting the online streaming of the gay marriage trial in San Francisco.”

Some Kagan supporters pointed to the fact that Senator Scott Brown (R-Mass.), along with Senator John Kerry (D-Mass.), introduced the nominee to the committee as a sign that Republicans can support her confirmation. But it is tradition that the two senators from a nominee’s home state introduce him or her, and Brown’s words fell far short of support. He called her an “impressive and pleasant individual” and said she had “gone far since graduating” from Harvard. Then, he simply reiterated some details from her resume.

In his June 25 letter to Leahy, Lambda’s legal director Jon Davidson expressed its concern about a memo Kagan wrote in 1996, as associate counsel in the Clinton White House. In the memo, Kagan disagreed with a California Supreme Court decision that a landlord could not discriminate against an unmarried couple based on the landlord’s religious belief against co-habitation before marriage. The California court said the landlord had the option of getting out of the rental business, rather than compromise her religious views. Kagan called that “quite outrageous” and worried that “this kind of reasoning could strip” the Religious Freedom Restoration Act “of any real meaning.” Lambda noted that the U.S. Supreme Court later struck down the RFRA as largely unconstitutional.

“It is of great importance to Lambda Legal and our constituents that any individual who would be appointed to the Supreme Court be willing to follow the precedent” set forth in the Supreme Court’s determination. Davidson said that “permitting those with religious objections to flout laws applicable to all others who enter the commercial sector unjustifiably would impose serious harms on workers, tenants and consumers, open dangerous loopholes to protections against discrimination; and contravene crucial state interests in assuring equality for all.”

Lambda also took exception with a statement Kagan made last year during her confirmation hearing for Solicitor General: “There is no federal constitutional right to same-sex marriage.”

Davidson said Lambda is “particularly concerned that every judicial nominee be committed to honoring and enforcing the core constitutional guarantees of equal protection, liberty and due process for all Americans, regardless of sexual orientation, gender identity or HIV status.”

“In order for any nominee to receive the approval of your Committee,” wrote Davidson, “we believe it should be clear the nominee will respect these core constitutional principles and, in particular, is committed to following as binding legal precedent cases such as Lawrence v. Texas, Romer v. Evans, and Roe v. Wade. The decisions in all three cases have been critical to the improving the ability of LGBT people to ensure equal protection under the law.

As of the end of Tuesday’s hearing, no senator had asked Kagan a question about gay marriage. Coburn, without any references, said in passing that he thinks she pro gay-marriage. Kagan did not attempt to correct that statement.

But the last senator to question Kagan on Tuesday—Senator Ben Cardin (D-Md.)—did ask her whether the constitution’s promise of “We the people” covers legal protection against job place discrimination based on sexual orientation and gender identity. The question was not academic. Cardin noted that the Employment Non-Discrimination Act (ENDA) has over 200 co-sponsors and that he expects the bill to pass this year.

“I am certain there’s going to be a legal challenge” to that bill, he noted, asking Kagan what her consideration will be in examining such a challenge.

“The policy decision,” said Kagan, “is up to Congress and the question that might come before the court—if they are statutory in nature—the appropriate question to ask will be what Congress intended.”

It was, as is typical of Kagan, a cautious answer to a controversial question.

Appointment of Byrd replacement bodes well for DADT repeal

The immediate replacement for U.S. Senator Robert Byrd will most likely be chosen by the governor, not by a special election—and that is good news for the chances of repealing “Don’t Ask, Don’t Tell.”

Robert Byrd
Robert Byrd

The immediate replacement for U.S. Senator Robert Byrd (D-W. Va.), who died June 28, will most likely be chosen by the governor, not by a special election—and that is good news for the chances of repealing the “Don’t Ask, Don’t Tell” (DADT) ban on lesbian and gay servicemembers.

Byrd’s death came after West Virginia’s primary elections were held this year, and state law requires that candidates in special elections to fill vacancies must file during the regular primary filing period, which has already passed. The next regular primary and general elections will not come again until 2012.

West Virginia Secretary of State Natalie Tennant issued a statement the day of Byrd’s death, confirming that there can be no special election until 2012. At that point, there will be two elections, one for the remaining five or so weeks of Byrd’s unexpired term, and one for the next full term.

That means Democratic Gov. Joe Manchin will get to appoint a senator to serve Sen. Byrd’s term until that election.

Byrd had provided critical support in moving forward a measure to repeal DADT. He worked with Senate and House leadership on a provision that would give Congress an additional 60 days to review the proposed policy changes, even after the president, the Secretary of Defense, and the Chairman of the Joint Chiefs certify them.

That language was included in an amendment to the Defense Authorization bill that passed the House and the Senate Armed Services Committee (of which Byrd was a member) at the end of May. The full Senate is set to take it up when it returns from recess July 12.

With the vote likely to be close, the focus now is on who Gov. Manchin will choose to replace Byrd. The most frequently mentioned names in the media have been Nick Casey, the former chair of the state Democratic Party, who has just accepted a federal judgeship, and the new party chair, Larry Puccio, the governor’s former chief of staff.

Other names include Senate Pres. Earl Ray Tomblin, Carte Goodwin, a former counsel to the governor, and former state Supreme Court Justice Richard Neely.

No matter who is chosen, most sources see the person as a placeholder for Gov. Manchin, who has long been viewed as a candidate to replace Byrd. Manchin has said that he would not appoint himself to the position, however.

Stephen Skinner, chair of the board of Fairness West Virginia, the state’s leading LGBT advocacy group, said he would expect both Casey and Puccio to follow Byrd’s lead on DADT and can’t imagine that any of the other possible appointees would differ. He said his organization has existing relationships with all of the likely choices, and “we’ll immediately reach out to whomever is chosen.”

The LGBT-related record of the possible choices is slim. Goodwin, as counsel to Gov. Manchin, and Tomblin, as Senate president, backed the governor in rejecting a 2008 attempt by the Family Policy Council of West Virginia to push through a state constitutional amendment that sought to limit marriage to one man and one woman. They pointed out that current state law already does so.

Fox News reported June 29, however, that state Republicans will continue to fight for a special election this coming November.

If they are successful, the likely Republican contender would be U.S. Rep. Shelley Moore Capito. She is the only Republican in the state’s Congressional delegation—but is seen as a moderate—and the state voted for Republican candidates in the last three presidential elections.

Capito is no supporter of LGBT rights, however. She voted against the Employment Nondiscrimination Act in 2007 and against a 2007 standalone version of an LGBT-inclusive hate crimes act. (She ultimately voted for the defense appropriations bill to which the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act was successfully attached.) And, in 2006, she voted for a failed House resolution that would have proposed a constitutional amendment defining marriage in the U.S. as the union of a man and a woman.

Most critically, she voted against the Defense Authorization amendment to repeal DADT that Sen. Byrd had worked to pass.

Kagan hearing: Day 1: partisan bickering

Except that she was wearing a bright blue jacket and sitting in the middle of the Senate hearing room, U.S. Supreme Court nominee Elena Kagan was, in one sense, invisible on the first day of her confirmation.

The members of the Senate Judiciary Committee spent much of their time Monday singing the praises of Senator Robert Byrd (D-WVa.) who died Sunday night, and much of the remaining time slinging partisan barbs at one another.

Except that she was wearing a bright blue jacket and sitting in the middle of the Senate hearing room, U.S. Supreme Court nominee Elena Kagan was, in one sense, invisible on the first day of her confirmation.

The members of the Senate Judiciary Committee spent much of their time Monday singing the praises of Senator Robert Byrd (D-WVa.) who died Sunday night, and much of the remaining time slinging partisan barbs at one another.

That may be in part because so many political pundits have declared Kagan’s confirmation is virtually inevitable; it may be because confirmation hearings have become such a predictable series of thrusts and parries.

Kagan’s own statement was unremarkable except, perhaps, for the fact that she did not make the traditional introductions of individual family members. Kagan’s parents are deceased, but she indicated her two brothers were in the confirmation hearing with her. Instead, she simply thanked the “family, friends, and students” who had joined her in the confirmation room and then turned and looked down a row of people sitting behind her.

Republicans frequently portrayed Kagan as anti-military, lacking in judicial experience, and inclined toward “activism.”

The Committee’s ranking Republican, Jeff Sessions (R-Alabama), said Kagan “kicked the military out of the recruiting office” at Harvard Law School “in violation of federal law.”

“Her actions punished the military and demeaned our soldiers as they were courageously fighting two wars overseas,” said Sessions. He also suggested that she took actions that “deliberately and unnecessarily” put the military’s “Don’t Ask, Don’t Tell” policy in jeopardy.

Other Republicans made much the same claim, contending that Kagan defied the federal Solomon Amendment, which prohibited federal funds to a university that barred military recruiters.

Democrats, including Senator Dianne Feinstein (D-Calif.), rebutted those claims, noting that military recruiters were not barred during Kagan’s tenure as Harvard Law dean and that Kagan simply enforced an existing policy at the school. They declared portrayals of Kagan as “anti-military” to be fiction and suggested Republicans complaining of her lack of judicial experience were attempting to apply a double-standard. They noted many justices had no prior experience as a judge, including Chief Justice William Rehnquist.

Senator Jon Kyl (R-Ariz.) said he has “substantive concerns” about Kagan’s views on “gay marriage” and other issues.

But mostly the day was spent in partisan bickering.

Senator SheldonWhitehouse (D-R.Is.) took the occasion to criticize the current Supreme Court for having taken the “extraordinary” action of “inject[ing] itself into the day-to-day business of the lower courts, issuing an extraordinary ruling prohibiting the online streaming of the gay marriage trial in San Francisco.”

Some Kagan supporters pointed to the fact that Senator Scott Brown (R-Mass.), along with Senator John Kerry (D-Mass.), introduced the nominee to the committee as a sign that Republicans can support her confirmation. But it is tradition that the two senators from a nominee’s home state introduce him or her, and Brown’s words fell far short of support. He called her an “impressive and pleasant individual” and said she had “gone far since graduating” from Harvard. Then, he simply reiterated some details from her resume.

Another Supreme Court victory, amidst ideological hostilities

For the second time in a week, the U.S. Supreme Court issued an opinion that delivered a small, indirect, and perhaps unfinished victory to policies that have benefited the LGBT community.

Ruth Bader Ginsburg, Collection of the Supreme Court of the United States, Photographer: Steve Petteway
Ruth Bader Ginsburg, Collection of the Supreme Court of the United States, Photographer: Steve Petteway

For the second time in a week, the U.S. Supreme Court on Monday (June 28) issued an opinion that delivered a small, indirect, and perhaps unfinished victory to policies that have benefited the LGBT community. In doing so, it also gave the community an important symbolic nod: that religious beliefs may not always trump non-discrimination policies. And, it did so with a hostile 5 to 4 split among the justices.

The nod came in an opinion penned by Justice Ruth Bader Ginsburg for a majority that included Justice Anthony Kennedy, the obvious swing vote between two increasingly polar segments of the court.

The case this week was Christian Legal Society v. Martinez, from the 9th Circuit U.S. Court of Appeals. Just last week, the high court upheld another 9th Circuit decision—in Doe v. Reed—which said a Washington State law requiring public availability of records indicating the names and addresses of people who sign petitions putting issues on the ballot is constitutional.

This week, it upheld the 9th Circuit’s decision upholding a public school’s non-discrimination policy.

A Christian student group, Christian Legal Society (CLS), had been denied official student group status at the University of California-San Francisco’s Hastings College of Law.

CLS had argued that the public university violated its First Amendment rights when it refused it official recognition and the benefits and resources that go along with that status. The school argued that it treated CLS like every other group when it required CLS to comply with the school’s policy against discrimination based on sexual orientation, religion, and other factors.

The majority agreed with the lower courts that UCSF’s non-discrimination policy is “a reasonable, viewpoint-neutral condition on access” to student group privileges and resources.

In her opinion, Ginsburg said CLS was trying to circumvent the non-discrimination policy and that, she said, was seeking “not parity with other organizations, but a preferential exemption” from a legitimate policy.

“The First Amendment shields CLS against state prohibition of the organization’s expressive activity, however exclusionary that activity may be,” wrote Ginsburg. “But CLS enjoys no constitutional right to state subvention of its selectivity.”

“We are thrilled that the Court rejected the dangerous argument that anti-gay groups have a First Amendment right to discriminate, even when they are accepting public funds,” said Shannon Minter, legal director for the National Center for Lesbian Rights, which represented the gay student group at Hastings. The gay student group was an intervenor party to the litigation.

“This decision,” said Minter, “should go a long way toward putting a stop to efforts by anti-gay groups to challenge basic non-discrimination policies and laws.”

Minter said CLS has been bringing similar cases across the country in a “blatant effort to undermine anti-discrimination protections for LGBT people.”

But Justice Sam Alito, writing for the dissent, saw a march being led by a different drummer’s beat. He chided the majority as going so far as to use a “misleading portrayal” of the facts of the case in order to make a play for “political correctness.” His dissent seethes against a majority he perceives to be leading a liberal march.

“Brushing aside inconvenient precedent,” writes Alito, parodying former Vice President Gore’s Inconvenient Truth documentary against global warming, “the Court arms public educational institutions with a handy weapon for suppressing the speech of unpopular groups….”

In his case, Alito is referring to Christian groups as unpopular.

Alito was joined by the court’s reliably conservative justices, Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas.

The case was considered particularly significant to the LGBT community because it tested the ability of some people to ignore laws prohibiting discrimination based on sexual orientation. Christian Legal would allow gay students and people who would not endorse the group’s stated religious viewpoint to be members of the group. But it would not allow such people to vote or hold office.

That, said the university, was discrimination based on sexual orientation and religion.

The First Amendment right to religious beliefs has frequently trumped laws and policies banning discrimination based on sexual orientation at the U.S. Supreme Court level. It did so most notoriously in 1995 in a case called Rosenberger v. University of Virginia—where the Supreme Court said a public university had to provide funding for a campus Christian group’s newsletter even though the newsletter espoused beliefs that contradicted the university’s non-discrimination policy.

During oral arguments in April, many of the justices complained about the uncertainty of important facts in the case. For instance, the facts of the case did not indicate clearly whether the school refused official status to the Christian Legal chapter because the group violated the school’s written non-discrimination policy or because the group violated the school’s stated interpretation of that policy—dubbed the “all-comers” policy—that all official student groups must allow full and equal participation by all students.

Christian Legal said it was willing to abide by the written policy, by allowing gays to attend its meetings; but it said the all-comers went too far and amounted to interference with the group members’ First Amendment rights to free association and free exercise of religion.

The majority stuck to the all-comers policy, noting that CLS and the university had both agreed in the district court that this was the policy used to deny CLS its status as a recognized student group. But it remanded one of CLS’s claims back to the 9th Circuit—whether the University had applied its all-comers policy exclusively against CLS, and not other groups.

The National Center for Lesbian Rights provided representation to the UC-Hastings gay group Outlaw, which was designated as a party to the lawsuit, as an intervenor, to help defend the policy.

Lambda Legal Defense and Education Fund, along with Gay & Lesbian Advocates & Defenders (GLAD), submitted a brief to the court in favor of the school, saying that public funds and student fees should not be used to support discrimination against any student.

Could victory in court mean loss in public support?

An informal survey by the Washington Post published June 18 asked a tiny number of well-placed experts—six—to say what they think will happen if federal Judge Vaughn Walker overturns California’s ban on same-sex marriage. Two of the six pointed to existing polling data to warn of the potential for a negative impact.

Patrick Egan
Patrick Egan

An informal survey by the Washington Post published June 18 asked a tiny number of well-placed experts—six—to say what they think will happen if federal Judge Vaughn Walker overturns California’s ban on same-sex marriage. Two of the six pointed to existing polling data to warn of the potential for a negative impact.

Scott Keeter, director of survey research at the Pew Research Center, said Pew’s previous polling data predicts “backlash.” Those polls, and others, have historically shown LGBT victories in court lead to an increase in public opposition to same-sex marriage. It happened after the U.S. Supreme Court struck down state sodomy laws (in June 2003). It happened after the Massachusetts Supreme Judicial Court ruled gay couples had a constitutional right to marriage equality (in November 2003). And even before Walker issues his decision, said Keeter, polls indicate the public opinion climate “remains chilly” for same-sex marriage.

Joe Mathews, a senior fellow at the New America Foundation, a political think tank, said that, while public opinion is trending in favor of marriage equality, “a divisive court decision that gets too far ahead of voters could prolong the fight over same-sex marriage for a generation or more. . . .”

“If judges strongly support overturning Prop 8 at each stage of the appeal, this emerging judicial consensus that gay-marriage bans are unconstitutional would speed acceptance of such unions across the country,” wrote Mathews. “But if Prop 8 is overturned by a narrowly and nastily divided U.S. Supreme Court, say 5 to 4, such a decision could conceivably do more harm than good.”

So, where is public opinion on same-sex marriage right now?

Two recent reports shed some light on that, and some doubt.

First, the light: The 2010 Values and Beliefs survey, which Gallup conducts every May, indicated that 52 percent of adults surveyed consider “gay and lesbian relations” to be “morally acceptable,” compared to 43 percent who said they are “morally wrong.” Five percent had no response or had some other opinion. The results were based on random telephone interviews with 1,029 adults conducted between May 3 and 6, 2010. The margin of error is plus or minus 4 percentage points.

The 52 percent saying “morally acceptable” was up three points over 2009, when 49 percent said “morally acceptable.” And the percentage saying “morally wrong” was down four points—from 47 percent in 2009 to 43 percent this year. (Five percent no opinion or other response in 2009.)

This year was the first time since Gallup began asking the question that more than 50 percent of Americans said they believe “gay and lesbian relations” are morally acceptable.

“What’s different this year is that the spread between ‘morally acceptable’ and ‘morally wrong’ is a whole lot bigger,” says Lee Badgett, a professor of Economics at UMass Amherst, and the research director at the Williams Institute for Sexual Orientation Law and Public Policy at UCLA. It was a nine-point spread this year, compared to only a two-point spread last year.

“The question is,” said Badgett, “will that turn out to be a tipping point or not?”

Gallup polling data shows the “morally acceptable” response has been on a steady trend upward since 2004. It took a six-point dive in 2004, just six months after the Massachusetts high court issued its landmark marriage equality decision.

The percentage of Americans who consider gay relations to be “morally wrong”—43 percent—is the lowest it’s been in a decade. And also for the first time, a larger percent of men said “morally acceptable” than women—53 percent of men and 51 percent of women now believe “gay and lesbian relations” are morally acceptable.

The change in men’s attitudes was striking. In May 2006, 39 percent of men polled said they felt “homosexual relations” were morally acceptable. By this year, that number had jumped to 53 percent. That’s a 14-point jump, while, over the same period, acceptance among women increased just 2 percent.

Gary Gates, a demographer at UCLA who studies the LGBT population, cautions against putting too much stock in one poll. But, he says, “a variety of polls have been showing, depending on the wording, increased amounts of acceptance towards LGB and, in some cases, T people. That acceptance has gone up in both men and women.”

To a certain degree, the improvements could have something to do with the fact that Gallup’s wording changed in 2008, from “homosexual relations” to “gay and lesbian relations.” According to Gates and Badgett, people respond differently in polls on gay issues depending on the way questions are asked. Questions about “homosexuals” tend to receive more of a negative reaction than the same questions about “gays and lesbians.”

“The closer you get to people having to think about sex,” said Gates, “the worse gay people do in polls.”

But experts agree say there is probably no single reason for this change in how men are polling, but rather a number of contributing factors.

“Some of it is exposure,” says Mark Stevens, a psychologist at California State University in Northridge. “Guys are growing up where they have friends who are gay. There is a little bit more in the media, on the TV. And it’s kind of cool to be a little bit more liberal and a little bit more accepting.”

Gates agrees that exposure is likely a big part of it, though not just for men.

“We know that a higher proportion of gay people are being more open and being more open at younger ages. And we do know that knowing gay people or having a relationship with an LGBT person does actually have an impact on people’s broader attitudes.”

Age is, and always has been, a factor, something that was clear in the survey’s results. Younger men (like younger women) are generally more accepting than their parents and grandparents.

In addition to the increase in acceptance among men, the Gallup poll also found improved attitudes towards gays and lesbians among every other sub-group polled: from Catholics to Protestants, Democrats to Independents, moderates to conservatives.

Though the degree to which those views shifted differed greatly, it’s evident that there is a steady, gradual shift taking place in the way Americans view gay and lesbian relationships and civil rights for gay people. In fact, Gallup’s polling this year shows the public views “gay and lesbian relations” as more morally acceptable than doctor-assisted suicide (46 percent) and less than having a baby outside of marriage (54 percent).

But what about legalizing marriages for same-sex couples?

While the Gallup poll showed 52 percent of people said they consider “gay and lesbian relations” to be “morally acceptable” and 58 percent said those relations should be “legal,” only 44 percent said such marriages should be recognized. That is up four points from 2009, and up 16 points since 1996, when Gallup first began asking about gay marriage specifically. The Gallup polling on gay marriage is now approximately where it was for interracial marriage in the late 1970s and early 1980s. The balance in favor interracial marriage crossed its tipping point with the 1991 survey –when 48 percent approved and 42 percent disapproved marriage between blacks and whites.

But do people’s attitudes necessarily translate into how they are likely to vote on an issue? Not as reliably as one might expect.

Political scientist Patrick Egan, who has done considerable polling on gay-related political issues, examined the results of 167 pre-election polls on 32 different ballot measures concerning either same-sex marriage or domestic partnerships. He found that pre-election polls “consistently underestimated” the number of people who would vote for a ban on same-sex marriage—by an average of seven points. And, “the share of the public saying they intend to vote for or against these measures typically changes very little over the course” of the ballot measure campaigns.

This gap between how voters say they will vote and what they actually do in the voting booth does not appear to be a product of wanting to give the a poll-taker a socially desirable response of supporting equality for all, said Egan. He could find no evidence for that. For instance, he said, in states with large gay populations, one would expect many people who wanted to ban gay marriage would tell a pollster that they were against the ban. Voters in California, for instance, would be more likely than voters in Mississippi to say they were going to vote against the ban and then vote for it. But there was no such correlation and no other evidence emerged in Egan’s analysis to explain the gap.

Still, it’s clear Americans are becoming increasingly open and accepting and experts and polling data suggest this trend will continue—unless something happens to set opinion back.

“You never know how society is changing, and sometimes it’s not very obvious because it’s very subtle,” says Stevens. While the reasons such a shift is occurring now “might not be necessarily explainable,” he says, “it’s really good to see.”

Lisa Keen contributed to this report.

Marriage equality opponents vow rematch over public disclosure case

In a ruling hailed by gay activists, the U.S. Supreme Court upheld a law that requires public disclosure of the names of people who signed a petition to put an anti-gay referendum on the ballot in Washington State. But litigation may not yet be finished.

Chief Justice John Roberts (Photo credit: Steve Petteway, Collection of the Supreme Court of the United States)
Chief Justice John Roberts (Photo credit: Steve Petteway, Collection of the Supreme Court of the United States)

In a ruling hailed by gay activists, the U.S. Supreme Court on June 24 upheld a law that requires public disclosure of the names of people who signed a petition to put an anti-gay referendum on the ballot in Washington State. But litigation over the domestic partnership battle may not yet be finished and may be back before the court in a year or so.

The 8 to 1 decision, with only Justice Clarence Thomas in dissent, said a state law requiring the names and addresses of petition signers be available to the public does not violate the First Amendment of the U.S. Constitution.

Chief Justice John Roberts wrote the decision—a bit of a surprise given that his questions during oral argument seemed to indicate he would be inclined to rule in favor of the plaintiffs. However, in the opinion, Roberts suggested plaintiffs could do better by limiting their challenge to the state law’s impact in the Referendum 71.

James Bopp, who represented Protect Marriage Washington, said Thursday plaintiffs “absolutely” intend to pursue that route.

The case, Doe v. Reed, questioned the constitutionality of Washington’s Public Record Act (PRA).

Protect Marriage Washington and two “John Doe” plaintiffs brought the lawsuit on behalf of citizens who signed a petition to put Referendum 71 on the ballot in 2009. The defendant was Washington Secretary of State Sam Reed, a coalition that supported the state’s new domestic partnership law, and a group that sought to preserve openness in government.

Referendum 71 sought to repeal the domestic partnership law that had been recently approved by the legislature. And Protect Marriage said the public disclosure of the names of people signing the petition to put it on the ballot had a chilling effect on their freedom of speech. According to Protect Marriage, the law enabled persons who disagreed with petition-signers to target them for harassment and threats.

A federal district court judge in Seattle agreed with the group, but the 9th Circuit U.S. Court of Appeals did not, so plaintiffs appealed to the U.S. Supreme Court.

Chief Justice Roberts said that the state law furthered the state’s interest in preserving the “integrity of the electoral process” and that this is sufficient justification for it. He said the law helps prevent fraud, mitigates mistakes, and promotes “transparency and accountability in the electoral process.”

Anne Levinson, chairman of the pro-gay Washington Families Standing Together group, applauded the result, calling it “a significant defeat for those who have sought to enshrine discrimination into law at the ballot box.”

“Perhaps no other group has witnessed its rights put up for public vote more than LGBT Americans,” said Levinson. “Social conservatives have used ballot measures in state after state, over more than 30 years, to keep LGBT Americans from being able to adopt children, to marry and even to be protected from discrimination in housing and employment.”

Attorneys for Protect Marriage had argued that the “First Amendment protects citizens from intimidation resulting from compelled disclosure of their identity and beliefs and their private associations.” And during oral argument in April, Justice Stephen Breyer seemed to signal some sympathy with this argument. He asked whether people who supported integration would ever have signed a pro-integration petition if “there was a very good chance that their businesses would be bombed, that they would certainly be boycotted, that their children might be harassed.”

Washington State Attorney General Robert McKenna responded by noting that the high court, in the controversial Citizens United v. Federal Election Commission decision in January, had already allowed for case-by-case exceptions to be made concerning the disclosures of campaign contributors. That decision held that contributors would have to show a “reasonable probability” that disclosure of their names “would subject them to threats, harassment, or reprisals from either government officials or private parties.”

McKenna added, and the majority clearly agreed, that Protect Marriage plaintiffs had failed to offer any evidence to support their concern for harassment. And, noted McKenna, three other states with public disclosure laws held gay-related ballot measures and offered “no evidence…that anyone who signed any of these petitions in those three States was subjected to harassment.”

Citizens United has been one of the Supreme Court’s most controversial decisions, ever. The decision said the government could not put a limit on how much money a corporation contributes to a political campaign. The 5 to 4 ruling was harshly criticized by many as opening a door for corporate domination of electoral politics. But the decision also said that contributors could not hide public disclosure of their contributions without demonstrating a “reasonable probability” that disclosure “would subject them to threats, harassment, or reprisals from either government officials or private parties.”

Chief Justice Roberts said plaintiffs’ contention that the Washington disclosure law subjected supporters of ballot measures to harassment could not justify striking down the public records law for all referenda; but, he suggested plaintiffs might have more luck with a more narrowly focused legal challenge.

Protect Marriage did make a more narrow claim—that supporters of Referendum 71 were vulnerable to significant threats—but that claim was not before the Supreme Court—only its claim that the state public disclosure law was, in and of itself, unconstitutional.

Even though voters in November 2009 rejected Referendum 71 and the domestic partnership law will mark its first anniversary next month, Bopp said the litigation will continue.

But five justices wrote or joined concurring opinions to signal that they will be hard to convince on a case specific to Referendum 71. Justice Sonia Sotomayor, writing for herself and Justices John Paul Stevens and Ruth Bader Ginsburg, said “courts presented with an as-applied challenge” to public disclosure laws “should be deeply skeptical of any assertion that the Constitution, which embraces political transparency, compels States to conceal the identity of persons who seek to participate in lawmaking through a state-created referendum process.”

Justice Stevens, writing for himself and Justice Breyer, also said he thinks the as-applied scenario is “unlikely” to be successful. He characterized Protect Marriage’s fear of harassment as “speculative.” (Stevens is retiring this month.)

“For an as-applied challenge to a law such as the PRA to succeed, there would have to be a significant threat of harassment directed at those who sign the petition law enforcement measures,” wrote Stevens. “…Debates about tax policy and regulation of private property can become just as heated as debates about domestic partnerships.”

Justice Antonin Scalia wrote a concurring opinion, too, though his position against plaintiffs seemed evident at oral argument.

“There are laws against threats and intimidation,” wrote Scalia, “and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which—thanks to the Supreme Court—campaigns anonymously and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.”

Scalia’s point that laws already exist to deal with harassment and threats was one highlighted by a brief filed by Lambda Legal Defense and Education Fund, Gay and Lesbian Advocates and Defenders, and the National Center for Lesbian Rights, along with the Human Rights Campaign and the National Gay and Lesbian Task Force.

Only two justices suggested hope for Protect Marriage in an as-applied challenge—Justices Sam Alito and Clarence Thomas.

Alito wrote a concurring opinion but said he believes Protect Marriage has a “strong” case through an as-applied challenge.

“The widespread harassment and intimidation suffered by supporters of California’s Proposition 8 provides strong support for an as-applied exemption in the present case,” wrote Alito. He said Yes on 8 supporters submitted “substantial evidence of harassment suffered by Proposition 8 supporters” during their request to keep cameras out of the courtroom during the Proposition 8 trial.

Thomas said he thinks the “compelled” disclosure of names “severely burdens [First Amendment] rights and chills citizen participation in the referendum process.”

Lambda’s Legal Director Jon Davidson, who was the principal author of the gay groups’ brief, said he thought the majority struck an important balance.

“It’s good the court reaffirmed a high test here,” said Davidson. “You can’t, as a blanket matter, bar the disclosure of the petitions. But if you’re trying to bar [disclosure], you have to show a reasonable probability of harassment –not just a possibility, but a probability.”

Davidson said the ruling is “incredibly important to our community, given the number of measures that have gone on ballots to block gay people’s rights.”

“We have been the target of more initiatives to do that than any other group in the history of initiatives,” said Davidson, “so it’s important for us to be able to see if measures are properly qualified.”

“The real thing going on here,” said Davidson, “has been an attempt by right-wing groups to take away our rights secretly.

Supreme Court upholds disclosure of petitioners’ names

The U.S. Supreme Court today upheld a law that requires public disclosure of the names of people who signed a petition to put an anti-gay referendum on the ballot in Washington State.

Chief Justice John Roberts (Photo credit: Steve Petteway, Collection of the Supreme Court of the United States)
Chief Justice John Roberts (Photo credit: Steve Petteway, Collection of the Supreme Court of the United States)

The U.S. Supreme Court today upheld a law that requires public disclosure of the names of people who signed a petition to put an anti-gay referendum on the ballot in Washington State.

The 8 to 1 decision, with only Justice Clarence Thomas in dissent, said the law requiring records of petition signers to be available to the public, does not violate the First Amendment of the U.S. Constitution.

The decision was written by Chief Justice John Roberts, whose questions, during oral arguments, appeared to indicate he would be inclined to strike down the law.

The case, Doe v. Reed, questioned the constitutionality of a Washington State law that makes public the names and addresses of citizens who sign petitions to put various issues onto the ballot. A group called Protect Marriage Washington and two “John Doe” plaintiffs brought the appeal on behalf of citizens who signed a petition to put a referendum on the ballot—Referendum 71—against a new domestic partnership law. They said the public disclosure of their names violated their right to privacy and freedom of speech. A federal district court judge in Seattle had agreed with them but the 9th Circuit U.S. Court of Appeals did not, so they appealed to the U.S. Supreme Court.

Attorneys for the plaintiffs argued that the “First Amendment protects citizens from intimidation resulting from compelled disclosure of their identity and beliefs and their private associations.”

Chief Justice Roberts said that the State’s interest in preserving the “integrity of the electoral process” was sufficient justification for its Public Records Law (PRA). He said the law helps prevent fraud, mitigates mistakes, and promotes “transparency and accountability in the electoral process.”

He said plaintiffs’ contention that the disclosure law subjected supporters of a referendum on the state domestic partnership law to harassment could not—on that specific referendum—justify striking down the public records law for all referenda.

“Faced with the State’s unrebutted arguments that only modest burdens attend the disclosure of a typical petition,” wrote Roberts, “plaintiffs’ broad challenge to the PRA must be rejected.” He suggested plaintiffs might have more luck with a more narrowly focused legal challenge.

During oral argument, Justice Antonin Scalia, the court’s most staunch conservative and a consistent vote against pro-gay positions, said the First Amendment did not protect citizens “from criticism or even nasty phone calls when you exercise your political rights to legislate, or to take part in the legislative process.” It was essentially the same point made by five national gay legal and political groups in their friend-of-the-court brief. The gay brief was filed by Lambda Legal Defense and Education Fund, Gay and Lesbian Advocates and Defenders, and the National Center for Lesbian Rights, along with the Human Rights Campaign and the National Gay and Lesbian Task Force.

Scalia wrote an opinion concurring in the judgment, as did several of the other justices.

White House hosts Pride event

It was not exactly the same rousing, sustained cheer of last year that greeted President Obama as he entered the East Room Tuesday evening for a reception in honor of LGBT Pride month. There was an awkward quiet as he shook some hands near the stage before making his remarks, and several moments of silence when normally one might have expected the requisite applause.

But the several hundred people attending the White House LGBT Pride Month Reception were enthusiastic in their reception of the president.

It was not exactly the same rousing, sustained cheer of last year that greeted President Obama as he entered the East Room Tuesday evening for a reception in honor of LGBT Pride month. There was an awkward quiet as he shook some hands near the stage before making his remarks, and several moments of silence when normally one might have expected the requisite applause.

But the several hundred people attending the White House LGBT Pride Month Reception were enthusiastic in their reception of the president.

President Obama welcomed a crowd that was said to include more grassroots activists and fewer entrenched leaders at the national level. (A request for the guest list was turned down, a routine occurrence, even though the guest list will become public in 90 days.)

On hand was Roberta Achtenberg, one of the first openly gay appointees, from the Clinton administration. Also there was country-western singer Chely Wright, who only recently acknowledged publicly that she is gay.

Initially, President Obama read somewhat stiffly from prepared remarks, then grew more comfortable, talking about promises to the LGBT community which he administration has delivered upon.

He reminded his audience that, in that same room one year ago, he pledged that he would “not put aside matters of basic equality, and we haven’t.” The crowd did not cheer, and the president moved quickly on, noting that while his administration has a lot of work to do, it has made some progress.

Among the milestones of that progress, said Obama was passage and enactment of the hate crimes law and a memorandum directing the Department of Health and Human Services to ensure that all hospitals receiving Medicaid and Medicare enable LGBT patients to designate their partners and families for visitation privileges. The president said he directed HHS Secretary Kathleen Sebelius to sent a message to hospitals today to begin complying with the request even before formal regulations have been adopted.

President Obama also pointed to a memorandum he initiated last June, directing federal agencies to extend “as many benefits as possible under the law” to gay federal employees with same-sex partners.

Obama reiterated some promises that he has not yet delivered on: passing “an inclusive non-discrimination” act to protect employees—a reiteration that drew a loud and enthusiastic cheer—and repealing the Defense of Marriage Act, and ending the military’s “Don’t Ask, Don’t Tell” policy—which drew a slightly smaller cheer. On the latter point, the president defended his administration’s decision to enable the Pentagon to complete its implementation study before approval final repeal of the policy. He said that was “the only way to get this” repeal to work, given that the Pentagon is “in the midst of two wars.”

“The bottom line,” said the president, “is that we have never been closer to ending this discriminatory policy, and I’m going to keep on fighting till it’s on my desk and I sign it.”

Absent from tonight’s event were the three openly gay representatives. The president noted that Reps. Tammy Baldwin (D-Wisc.) and Jared Polis (D-Colo.) had to leave early. No mention of Rep. Barney Frank (D-Mass.). A spokesman for Frank did not respond by deadline as to why Rep. Frank was not at the event.

A list of “notable guests” obtained by a White House pool reporter did include Baldwin and Polis’ names but not Frank’s.

But among the notable guests who did attend were Vice President Joe Biden, House Speaker Nancy Pelosi, Office of Personnel Management Director John Berry, and Export-Import Bank leader Fred Hochberg.

Kagan — Gays are constituency, not priority

It’s been clear since Elena Kagan was nominated to the U.S. Supreme Court that her confirmation hearing would be unusually focused on things gay.

First, there were the complaints that she barred military recruiters from Harvard Law School while she was dean. Then, came rumors that she herself is gay. And finally, there has been a generalized fear expressed by right-wing groups that she’s liberal enough to reverse the Defense of Marriage Act.

But there’s surprisingly little support for any of these assumptions in the thousands of emails, memoranda, and other documents submitted to the Senate Judiciary Committee from the archives of the Clinton White House.

kagan_elenaIt’s been clear since Elena Kagan was nominated to the U.S. Supreme Court that her confirmation hearing would be unusually focused on things gay.

First, there were the complaints that she barred military recruiters from Harvard Law School while she was dean. Then, came rumors that she herself is gay. And finally, there has been a generalized fear expressed by right-wing groups that she’s liberal enough to reverse the Defense of Marriage Act.

But there’s surprisingly little support for any of these assumptions in the thousands of emails, memoranda, and other documents submitted to the Senate Judiciary Committee from the archives of the Clinton White House. Kagan, who served as associate White House counsel from 1995-96 and as an official with the Domestic Policy Council from 1997-99, showed little stomach for tackling gay-related issues.

Strangely, there are no emails or documents addressing the Defense of Marriage Act (DOMA), though the legislation was introduced, passed, and signed by President Clinton in 1996. That was the year Kagan was Associate Counsel and, thus, the point person to advise the president on the constitutionality of bills coming to his desk.

In response to questions during her confirmation hearing to become Solicitor General, Kagan said she “never studied” the Massachusetts Supreme Judicial Court’s 2003 ruling that said gay couples have a state constitutional right to obtain marriage licenses the same as straight couples. The lack of interest seems particularly odd given that she was dean of Boston-based Harvard Law School at the time the decision became globally publicized and discussed—triggering attention from presidential candidates to Congress to the mayor of San Francisco. She told the Senate Judiciary Committee she couldn’t remember making any remarks about the law even though she moderated a panel on the landmark Goodridge decision at Harvard Law School three months after it was issued and during the throes of conflict in the Massachusetts legislature considering ways to undo it.

“I suspect I participated in informal conversation about the decision when it came out,” said Kagan, “but I cannot remember anything I said.”

At least two people close to her support that claim.

Asked in a telephone press conference last month whether Kagan advised Clinton on the constitutionality of DOMA, her then colleague Michael Waldman said, “I don’t know if she offered her view” on DOMA. Asked whether she would have prepared a memo to the president concerning the bill’s constitutionality, he said “possibly.” This reporter has found none thus far.

And Lauren Lucas, who graduated from Harvard Law in 2005 and participated in a White House teleconference with reporters about Kagan, recalled that there was “a lot of student discussion” about the Goodridge decision but Lucas “heard no comment from Kagan.”

In fact, emails from Kagan generally managed to make no comment about gay issues—not even whether she would attend a White House meeting to discuss a gay issue. In response to a February 21, 1997, email she received asking that she attend a “Gays Issues” meeting that afternoon, Kagan’s response complains that she’s gotten notice of the meeting only that day; nothing about whether she would attend.

Two months later, openly gay White House staffer Richard Socarides gave her two days notice and asked her to attend a meeting to discuss hate crimes with a group of “gay and lesbian anti-violence (hate crimes) advocates from around the country.” His email tells her the meeting is at the request of the advocates who wish “to discuss the recent rise in hate crimes directed at gay and lesbian Americans.” Her response is curt and non-committal: “if I can.”

In August of that year, Socarides emailed Kagan asking her “Where are we?” on the “sexual orientation non-discrimination executive order.” Kagan forwarded his email to another policy official to ask, “did bruce really say for maria to do this? Why?”

Bruce Reed was Kagan’s boss, director of the White House Domestic Policy Council. Maria Echaveste was deputy chief of staff. Another email six months later showed the Council was still talking about it.

These are not the machinations of a stealth gay activist. The emails, documents, and testimony at her confirmation hearing for Solicitor General paint a picture of an official who is aware of gays as a constituency but not as a priority.

On “Don’t Ask, Don’t Tell,” her position seemed crafted to walk the most narrow of middle lines. Speaking to a group of senior cadets at West Point in 2007, Kagan said she was “grieved” that the military and law schools were in court, facing off over the policy to exclude gays.

“Law schools, including mine, believe that employment opportunities should extend to all their students, regardless of their race or sex or sexual orientation,” said Kagan. “And I personally believe that the exclusion of gays and lesbians from the military is both unjust and unwise. I wish devoutly that these Americans too could join this noblest of all professions and serve their country in this most important of all ways.”

Shortly after Kagan became dean of Harvard Law, in 2003, an Air Force Chief of Recruiting sent an email to superiors indicating that Harvard “folded and conformed to our interpretation” of the Solomon Amendment, “but did so WITH much grumbling.”

While “Don’t Ask, Don’t Tell” preceded Kagan’s time as White House counsel, the Solomon Amendment was passed in 1996, when she was associate councils. The amendment was passed in response to law schools uniting behind a policy of requiring employers who wanted to recruit among their students to abide by a policy of non-discrimination, including no discrimination based on sexual orientation. Kagan inherited the policy as dean at Harvard Law when she took the helm in 2003. That October, an Air Force recruiting chief emailed superiors that “Harvard complied [with the amendment] and treated the [Air Force] the same as other employers.” The report indicated military recruiters were allowed on campus and were not required to sign a non-discrimination statement regarding sexual orientation.

At about that same time, a group of 24 law schools filed a lawsuit against the Solomon Amendment; Harvard was not one of them.

But two years later, in 2005 and after a federal appeals court declared the Solomon Amendment unconstitutional, email exchanges between the Air Force and an assistant dean, suggested the decision on whether to allow military recruiters on campus was up in the air at Harvard and a matter to be decided by “the faculty.” One such email quotes the assistant dean as indicating that Kagan “had made her position (opposition) to military recruiting very clear” but that “the university president [Larry Summers] felt differently.”

A letter from Harvard’s vice president and general counsel informed the Air Force in June 2005—one month after the U.S. Supreme Court indicated it wanted to weigh in on the matter– that military recruiters would have access to recruitment services at the Law School. The Supreme Court reversed the appeals decision and upheld the Solomon Amendment in March 2006.

During her confirmation hearing to become Solicitor General, the Senate Judiciary Committee asked her about the Solomon Amendment. Specifically, some members of the committee wanted to know whether Kagan had encouraged or participated in any protests against the military and whether she abided by guidance from the Association of American Law Schools to take “ameliorative steps” against the amendment.

Kagan’s response was a portrait of caution. She said her approach was to “create a respectful and welcoming environment for gay and lesbian students.” She said Harvard Law never sponsored or organized protests, but that she “made remarks at one assembly organized for this purpose” by the gay student group and “may have attended but not spoken at one other event of this kind.”

Kagan has been more emphatic when asked about “Don’t Ask, Don’t Tell.”

“I can say that, in any case attacking the constitutionality of [the federal law involving Don’t Ask, Don’t Tell],” said Kagan, in response to written questions from Senator Arlen Specter during the February 2009 confirmation hearing, “I would apply the usual strong presumption of constitutionality and give full weight to the factors supporting this presumption, such as the prior appellate court decisions upholding the statute and the doctrine of judicial deference to legislation involving military matters.”

Also during her confirmation hearing to become Solicitor General, Kagan was asked whether she would support the right of health care providers to decline to participate in abortions “because of their moral and religious beliefs.” The question was referring to a rule issued by the Department of Health and Human Services during the second term of President George W. Bush. The rule sought to enable health care providers to abstain from a number of procedures—including insemination of a lesbian— by saying the procedure violated their religious or moral beliefs. Kagan said she didn’t know anything about the so-called “Conscience Rule” but that, if it were a statute attacked on constitutional grounds, she would ask, “is there a reasonable defense to be offered in support of the statute?”

“If so, I would make that defense,” wrote Kagan in her responses.

The Los Angeles Times and other media also found an email from May 1999 in which Kagan described herself as the “biggest fan” in the Clinton White House of the Religious Freedom Restoration Act (later reincarnated as the Religious Freedom Liberty Act). What they didn’t report, however, is that, in an email one month earlier, Kagan acknowledged, “the gay community, supported by many civil rights groups, oppose RLPA as currently drafted.”

“RLPA could provide a religious liberties defense to many state laws, including some civil rights laws, such as fair housing laws that prevent discrimination against gays and lesbians and unmarried persons,” wrote Kagan in the April 29, 1999, email to Bruce Reed. “This result is not certain, but it is certainly possible, at least in some states.”

In the later email, she warned then Vice President Al Gore’s staff that they’d have a “gay/lesbian firestorm” on their hands if Gore endorsed the legislation.

It was another example of Kagan seeing the gay community as a constituency, not a priority. But on at least one occasion, a May 27, 1997, memo co-written by Kagan and Reed, the constituency got a nod. The memo expresses concerns about a proposed race commission and suggests, as an alternative, that President Clinton lead a series of “town halls” on race-related issues or that the White House host a conference on such issues. The Reed-Kagan proposal notes that those options could also “accommodate some attention to issues of intolerance” against other minorities, including gays and lesbians.

Richard Socarides, who was White House liaison to the gay community during the Clinton years, suggests that the portrait painted by this latter memo is a more accurate one than are the various emails.

“I worked with her and got to know her quite well during that period of 1996 to 99,” said Socarides. “She was very supportive of what the president was trying to do around creating greater equality for gays and lesbians. She was very supportive of the mission that he had given me—to make sure, to the extent possible, that gays were included and a part of every relevant policy discussion that took place.”

Socarides said he doesn’t remember Kagan being at any of the White House meetings on DOMA, but that he did talk to her “early on” about his proposal to have the president issue an executive order on sexual orientation discrimination in the federal workplace.

“She was on board from the start,” said Socarides.

Socarides said he simply couldn’t explain why Kagan’s email concerning the proposed executive order appears to question why the administration should issue it. The order, issued in May 1998, declared that a Civil Service law requirement that a federal employee’s “conduct not related to job performance” (such as the employee’s sexual orientation) could not be a basis for discrimination.

“Her reaction was like, ‘Sounds right to me, let’s do it,’” said Socarides. “She was never dragging her feet on this or any gay stuff.”

Many of these issues are likely to come up when the Senate Judiciary Committee holds its confirmation hearings, starting Monday, June 28.

Keen News Service Podcast, 6/19/2010

Federal Departments Mixed in Promotion of LGBT Rights

A panel of six LGBT activist leaders in April were asked to grade the Obama administration thus far on LGBT issues. Three panelists gave the administration a “D,” two gave it a “B,” and one a “C.” Keen News Service decided to take a look at eight major federal departments and apply a similar grading system.

A panel of six LGBT activist leaders in April were asked to grade the Obama administration thus far on LGBT issues. Three panelists gave the administration a “D,” two gave it a “B,” and one a “C.” Keen News Service decided to take a look at eight major federal departments and apply a similar grading system.

The result was strikingly similar to that of the April 22 LGBT Leadership Townhall panel, hosted by Sirius XM Radio’s Michelangelo Signorile Show. The panel’s average came to 1.8 on a scale that gives 1 point for a D and 4 for an A. The KNS analysis came up with a 2.0.

The Departments of State and Housing and Urban Development each earned a “B” from KNS, a grade given for taking significant steps toward equal rights for LGBT people, even if some inequities remain. Health and Human Services and the Office of Personnel Management each earned a “C,” given for taking some steps toward equal rights and making no efforts to obstruct equality, while many or major inequities remain within that department’s purview. And Defense, Justice, and Education each earned a “D,” for taking few steps toward improving equal rights and making some efforts to obstruct such rights.

None of the departments warranted an “A,” for taking significant and comprehensive steps toward improving equal rights for LGBT people—or an “F,” for doing nothing to improve equal rights for LGBT people and also taking steps to block such equality.

Department of State (DOS): The DOS said it would provide the same benefits to the same-sex partners of foreign service employees sent abroad as to opposite-sex spouses, including diplomatic passports, use of U.S. medical facilities, emergency evacuation, and training at the Foreign Service Institute.

Two major items are not covered, however: health care and retirement benefits. President Obama, in a memo requesting partner benefits for federal employees, stated that federal law prevents his administration from extending those benefits.

DOS has additionally changed two policies regarding passports. A person in a legal same-sex marriage can apply for a new passport using his or her taken (married) surname, and a transgender person can change the gender listed on their passport without needing gender reassignment surgery, simply certification from an attending medical physician.

Secretary of State Hillary Clinton has publicly decried Uganda’s proposed harsh anti-gay bill, and spoken directly with Ugandan President Yoweri Museveni about it. Karl Wycoff, Deputy Assistant Secretary of State, testified at a January House hearing on the Ugandan bill, and said the U.S. embassy in Uganda has been working with the Ugandan government and local gay and lesbian groups to stop the legislation.

The DOS also issued a statement condemning the Malawi government’s sentencing of a couple—a gay man and a transgender woman—to 14 years of hard labor for “carnal knowledge against the order of nature” and “gross indecency.”

The DOS worked with President Obama to appoint David Huebner as U.S. Ambassador to New Zealand in December 2009. Huebner is the first openly gay person to be appointed to an ambassadorship in the Obama administration, and the third in U.S. history.

Grade: B.

Housing & Urban Development (HUD): HUD has commissioned the first-ever national study of discrimination against LGBT people in the rental and sale of housing. Already, it has conducted town hall meetings in three cities to solicit input for shaping the study.

HUD Secretary Shaun Donovan has also proposed policy changes that would stop discrimination on the basis of sexual orientation or gender identity in HUD’s core housing programs, require those who participate in HUD programs to comply with local anti-discrimination laws that cover sexual orientation and gender identity, and end mortgage-loan discrimination based on sexual orientation and gender identity. The policies are being drafted and will go through a period of public comment before being enacted.

HUD has two openly gay appointees who required Senate confirmation, Raphael Bostic, Assistant Secretary for Policy Development and Research, who will be overseeing the LGBT discrimination study, and Mercedes Marquez, Assistant Secretary for Community Planning and Development.

Grade: B.

Department of Commerce (DOC): The DOC changed Census Bureau policies in order to retain data on same-sex couples reporting themselves as “married.” The Census Bureau also cooperated with Our Families Count, a coalition of LGBT organizations, on an education campaign to motivate LGBT Americans to take part in the 2010 Census.

The DOC has two openly gay appointees requiring Senate confirmation, Michael Camunez, Assistant Secretary for Market Access and Compliance, and David Mills, Assistant Secretary for Export Enforcement.

The National Gay & Lesbian Task Force’s Queer the Census project, however, is still working to have questions about sexual orientation and gender identity included in future Census surveys.

Grade: B.

Health and Human Services (HHS): HHS Secretary Kathleen Sebelius and Kathy Greenlee, the openly lesbian Assistant Secretary of the Administration on Aging, announced plans to establish the first national resource center for LGBT seniors. To that end, they awarded a three-year, $900,000 grant to Services & Advocacy for Gay, Lesbian, Bisexual & Transgender Elders (SAGE).

In addition to Greenlee, HHS has one other LGBT appointee requiring Senate confirmation, Richard Sorian, Assistant Secretary for Public Affairs.

HHS in July 2009 ended its longstanding policy of banning people with HIV/AIDS from traveling to the U.S. The department also worked with President Obama and Congress to reauthorize the Ryan White HIV/AIDS Treatment Extension Act, the largest federal program dedicated to HIV care and treatment.

HHS is now drafting rules to support the President’s memo ensuring hospital visitation and decision-making rights for patients’ designees, including same-sex partners. They will then make the proposed rules available for public comment before enacting them, a process expected to take several months.

And a draft of “Healthy People 2020,” a decennial document to set national goals for health and reduce health disparities, includes sexual orientation and gender as attributes that may cause disparities.

LGBT disparities were in fact noted in Healthy People 2010, the version published in November 2000 under President Clinton. For the 2020 version, a commentary submitted by the National Coalition for LGBT Health and many major LGBT organizations calls for more acknowledgement of gender identity and greater inclusion of LGBT demographics in all relevant federal health surveys.

HHS, however, through its U.S. Healthy Marriage Demonstration Fund, continues to provide over half a million dollars a year to the anti-LGBT Iowa Family Policy Center (IFPC). The grants, begun under President George W. Bush, go from the IFPC to a third-party marriage-counseling program called Marriage Matters, reported the Iowa Independent. The American Civil Liberties Union of Iowa told the Independent May 7 that it plans to investigate whether the grants violate the separation of church and state.

And an HHS committee in June voted to uphold the lifetime ban against blood donation by men who have sex with men. People who have sex with someone of the opposite sex who is HIV positive, however, must only wait one year. The committee heard testimony from Peter Sprigg, senior fellow of the ultra-conservative Family Research Council, among others.

Grade: C.

Office of Personnel Management (OPM): Head of the department is John Berry, the highest-ranking openly gay official in any federal administration. Elaine Kaplan, his general counsel, and Vic Basile, Senior Counselor to the Director, are also openly gay.

Under Berry, OPM added gender identity to sexual orientation in the Equal Employment Opportunity statement for federal employment.

Last June, President Obama directed federal agencies to determine what benefits they could make available to the same-sex partners of federal employees under existing laws. OPM worked with the Department of Justice to review the information and recommend to the president that he extend all of the identified benefits.

Berry, however, ordered the health insurance carrier of a lesbian federal employee not to comply with a 9th Circuit Court order to include her partner on her insurance plan. He explained at the National Gay & Lesbian Task Force’s 2009 Leadership Conference that Kaplan and the DOJ both concluded that neither OPM nor the president have the authority to provide such benefits. He said that is one reason the Domestic Partnership Benefits and Obligations Act, which would institute these benefits, is so important.

Grade: C.

Department of Defense (DOD): Secretary of Defense Robert Gates and Chair of the Joint Chiefs Adm. Mike Mullen have told Congress they would implement repeal of Don’t Ask, Don’t Tell (DADT) if Congress approves it, and Mullen said he personally believes that’s the right thing to do. Gates in March approved new regulations that make it more difficult for gay and lesbian servicemembers to be discharged under the policy.

On April 30, however, Gates said Congress should not pass its own repeal of DADT before he can complete a study on its impact and come up with an implementation plan. On May 25, he said he would accept a proposed congressional amendment that would repeal DADT but not go into effect until after the DOD study is complete—but he would still prefer that Congress wait until after the study before passing legislation. The study is due December 1.

The DOD boasts one openly gay appointee who required Senate confirmation, Douglas Wilson, Assistant Secretary of Defense for Public Affairs.

Grade: D.

Department of Justice (DOJ): The DOJ filed briefs in Smelt v. U.S. and Commonwealth of Massachusetts v. U.S. Department of Health and Human Services et al. strongly defending the Defense of Marriage Act, and in Log Cabin Republicans v. U.S., defending Don’t Ask, Don’t Tell.

Thomas E. Perez, Assistant Attorney General for the Civil Rights Division, did, however, issue a strong statement in support of the Matthew Shepard and James Byrd Hate Crimes Prevention Act. Mara Keisling, executive director of the National Center for Transgender Equality, said at the LGBT Leadership Townhall that DOJ has been doing “spectacular” community education around the Act.

She explained in an interview that NCTE has been working with The Leadership Conference on Civil and Human Rights to help train the DOJ’s Community Relations Service (CRS) about LGBT-related hate crimes. Based on that experience, she believes CRS “wants to implement the law right,” according to the spirit as well as the letter of the law. The DOJ is also preparing to train local law enforcement about the Act this summer.

And in June, the DOJ’s Office of Legal Counsel issued a memo stating that federal prosecutors may use the Violence Against Women Act in cases of interstate stalking and domestic violence involving same-sex couples.

Earlier this year, the DOJ also filed a motion to intervene in the case of a New York teen who was bullied and physically assaulted at his public school for being effeminate. DOJ lawyers backed arguments made by the New York ACLU, which said that Title IX of the federal Equal Opportunity in Education Act, which prohibits gender-based discrimination, also applies to discrimination based on actual or perceived sexual orientation and gender expression.

The DOJ motion was still pending when a settlement was reached between the school district and the student. In the settlement, the court noted the U.S.’s desire to intervene and its wish to resolve the student’s claim without further litigation.

Although NPR reported the case as “a novel interpretation of the Title IX statute,” Title IX was in fact used in at least three federal cases under President Clinton and two under President George W. Bush to combat harassment based on sexual orientation or gender non-conformity.

There are three openly gay Obama appointees to the DOJ that required Senate approval: Jenny Durkan, U.S. Attorney for the Western District of Washington, Sharon Lubinski, U.S. Marshal, and Laura Duffy, U.S. Attorney for the Southern District of California.

The DOJ plans to hold a Pride event later this month with Attorney General Eric Holder, Perez, Lubinski, and Durkan in attendance.

Grade: D.

Department of Education (DOE): The LGBT community had high hopes for the DOE when President Obama appointed openly gay Kevin Jennings, founder of the Gay, Lesbian, and Straight Education Network, as head of Office of Safe and Drug-Free Schools (OSDFS).

The OSDFS budget was slashed 40 percent even before Jennings took office, however. The remaining money will be used to fund a “Successful, Safe, and Healthy Students” program that will provide grants for schools to address a variety of problems. Anti-bullying programs that include LGBT-based bullying could be one possible component.

The DOE has done little else to address the high incidence of bullying based on real or perceived sexual orientation and gender identity.

No DOE officials testified in a July 2009 House committee hearing on “Strengthening School Safety through Prevention of Bullying.”

The DOE included no specific call for federal anti-bullying protections or programs in the Blueprint for Education that sets forth President Obama’s framework for a major reform of education policies, despite bills in Congress that would provide such protections.

The DOE has also issued no statements on the several bullying-related youth suicides—at least two of which were because of harassment based on perceived sexual orientation—that have occurred since President Obama took office.

Grade: D.

There were also LGBT-related developments in agencies not covered above. The IRS, for example, said in June that same-sex domestic partners in California must combine their incomes and each report half when they file their tax returns. This is consistent with the way that married opposite-sex couples file under California’s community-property law.

Prop 8 closing: Fear v. Equality

There were so many people trying to get in to watch the final day of the landmark trial challenging California’s same-sex marriage ban, the court staff had to set up an additional overflow room for observers.

Judge Vaughn Walker
Judge Vaughn Walker

There were so many people trying to get in to watch the final day of the landmark trial challenging California’s same-sex marriage ban, the court staff had to set up an additional overflow room for observers. Those dozen or so members of the public who managed to snare seats in Courtroom 6 on the 17th floor of San Francisco’s federal courthouse building had to stand in line starting at 5:45 Wednesday morning to get them.

But gays in California are used to standing in line. They stood in line exactly two years ago—June 16, 2008—to be among the first same-sex couples to obtain marriage licenses in the state. Now, they were watching closing arguments in Perry v. Schwarzenegger, an historic case challenging the November 2008 initiative that took away the right for gay couples to obtain marriage licenses in California.

Conservative icon Ted Olson, one of the most famous attorneys in the country, choked back some emotion as he talked about the “grave and irreparable harm” Proposition 8 inflicts upon gay people. And he implored U.S. District Court Judge Vaughn Walker to muster the courage to strike down the law in the same way the California Supreme Court had been the first to strike down the ban against interracial marriages in 1948.

His conservative opponent, Charles Cooper, for the Proposition 8 supporters, passionately regretted in court Wednesday a statement he made a year ago at a preliminary hearing. At that hearing, Judge Walker asked Cooper what harm allowing gays to marry might wreak upon straight couples’ ability to procreate. Cooper had replied, “I don’t know,” and was repeatedly quoted in the media as saying so.

“I don’t know how many times, Your Honor, I had wished I could have those words back,” said Cooper, as the courtroom erupted in laughter. “Whatever your question is now,” he said, gesturing boldly, “I damn sure know. Whatever it is.”

To that, Judge Walker asked Cooper to explain what the Yes on 8 team’s expert witness David Blankenhorn meant when he testified at trial in January that, “America will be more American or will be closer to the American idea” when same-sex marriage is legalized.

Cooper said he thought Blankenhorn was “giving voice to a sentiment” shared by many Americans but that that sentiment does not overcome “the threat of harm to a central and vital institution—marriage.”

Judge Vaughn pressed Cooper several times to identify specific evidence and witnesses that demonstrated this harm, but Cooper, instead, talked of the potential for unforeseen consequences.

“It is not possible to predict with certainty and confidence” what change might come about to marriage as an institution should same-sex marriages be legalized, said Cooper, but it “could be profound.”

“It could portend some social consequences that would not be good ones,” added Cooper. “And that reality—that I didn’t know—is because no one can know.”

Cooper argued that this fear of unknown consequences is a “rational basis” for the ban on same-sex marriage.

“If there is a legitimate and rational basis to be concerned about,” he said, “it couldn’t be more rational for the people of California to say, ‘We aren’t going to run that risk. . . . We’re going to wait. We want to see what happens in Massachusetts. We want to see what happens right here, and elsewhere.’ And perhaps,” said Cooper, “Mr. Olson and his clients, whose sentiments are powerful, will be able to convince their fellow Californians that, in fact, they’re right.”

“Is the ‘I don’t know’ answer enough?” pursued Judge Walker.

“It is,” said Cooper.

Not surprisingly, Olson disagreed, and he had U.S. Supreme Court citations to back it up. He pointed to a 1985 decision—Cleburne v. Cleburne—in which “the Supreme Court did say . . . that mere negative attitudes, fear, or unsubstantiated factors or assertions wouldn’t be sufficiently cognizable.”

“They just don’t know,” said Olson of supporters of Proposition 8. “That is the essence of their case as it comes to the end of the trial and the closing arguments. They just don’t know whether same-sex marriage will harm the institution of heterosexual marriage, and I submit the overwhelming evidence in this case proves that we do know. And the fact is allowing [same-sex marriage] will not deter heterosexuals from marrying or staying married or from having babies…[but] strengthens the institution of marriage for heterosexual and homosexual persons and their children.”

“Ted Olson cleaned Cooper’s clock,” said Kate Kendell, head of the National Center for Lesbian Rights. She called Olson’s performance “brilliant” and “meticulously prepared” and Cooper’s arguments “thin and ludicrous.”

“Olson, and the whole trial, made clear that voter attitudes about gays is just not enough to justify such a damning exclusion,” said Kendell. “It was a bravura performance—start to finish—and an honor to watch.”

Jenny Pizer, head of Lambda Legal Defense and Education Fund’s Marriage Project, said Olson did “an effective job” of hammering home the U.S. Supreme Court precedent supporting the “freedom to marry as a right of individuals that is so basic and important that the state cannot abridge it. . . .”

Walker also asked questions about “when is it appropriate for the judiciary to weigh in on legal and constitutional questions that may touch on sensitive social issues.” When the U.S. Supreme Court overturned laws against interracial marriage, with Loving v. Virginia, he noted, the political tide was already turning in favor of doing so—only about a dozen states still had such laws in 1967, down from a high of 41.

“Do we have such a political tide here that’s going to carry the Supreme Court?” he asked.

“I believe there is a political tied running,” said Olson. “And I think that people’s eyes are being opened. People are becoming more understanding and tolerant.” But Olson said the court should not require political polling to be “a few points higher” before ruling against discrimination.

“Some judge is going to have to decide what we have asked you to decide,” said Olson, “and there will never be a case with a more thorough presentation of the record.”

Judge Walker will, of course, decide. The primary questions before him are whether California’s ban on same-sex marriage violates the federal constitution’s guarantee to equal protection and due process. Assuming he rules that the ban does so, he must then determine whether there is some reason that justifies the ban. And related to that inquiry, he must decide how compelling a reason is required in order to trump the constitutional rights of gay citizens.

“I’ll be floored if he does not offer the Ninth Circuit [U.S. Court of Appeals] his conclusions about whether very rigorous scrutiny should be applied to antigay discrimination,” said Lambda’s Pizer.

Kendell said she thinks Walker will use “some higher level of scrutiny” than just a simple “rational” one—the easiest level to satisfy. The higher levels of review—quasi and strict—she noted would be “enormously helpful in challenging all manner of laws that discriminate based on sexual orientation.”

The highest level of review—strict scrutiny—is applied to laws that disfavor persons on the basis of race, and Olson relied heavily on comparisons between the current ban on same-sex marriage and the ban that existed in the 1960s on interracial marriage. The claim by supporters of Proposition 8, he said, that marriage has “traditionally” been understood to be one man and one woman does not constitute a reason to ban same-sex marriage.

That, said Olson, is a “Because I said so” type reason that “would justify racially segregated schools” in the sixties.

But if Walker applies the lowest level of scrutiny, said Kendell, “virtually every state law we attack survives because, at the rational basis level, laws essentially get a free pass.”

Mid-day report: Prop 8 trial closing arguments

Conservative attorney Ted Olson relied heavily this morning on comparisons between the current ban on same-sex marriage and the ban that existed in the 1960’s on interracial marriage.

Ted Olson
Ted Olson

Conservative attorney Ted Olson relied heavily this morning on comparisons between the current ban on same-sex marriage and the ban that existed in the 1960s on interracial marriage. The claim by supporters of Proposition 8, he said, that marriage has traditionally been understood to be one man and one woman, does not constitute a reason to ban same-sex marriage.

That, said Olson, is a “because I said so”-type reason. That “would justify racially segregated schools” in the 60’s.

U.S. District Court Judge Vaughn Walker fired off some tough questions for Olson, who was leading the legal team challenging California’s same-sex marriage ban.

He noted, for instance, a Supreme Court decision that said “any debatable” explanation would pass muster. But the questions had the tone of a devil’s advocate. And Olson quickly cited Supreme Court decisions that held negative attitudes about a group such as gays cannot be used to justify a law.

The San Francisco courtroom was filled to capacity Wednesday morning, with room enough to accommodate only about a dozen members of the public, who waited in line since 5:45 a.m. to get in.

Closing arguments continue this afternoon with Judge Walker hearing from supporters of Proposition 8.

Prop 8 proponents lose pre-closing skirmish

Closing arguments get underway Wednesday in the Proposition 8 case in California, and attorneys representing the various officials who campaigned for the ban on same-sex marriage were just dealt another blow.

Closing arguments get underway Wednesday in the Proposition 8 case in California, and attorneys representing the various officials who campaigned for the ban on same-sex marriage were just dealt another blow.

U.S. District Court Judge Vaughn Walker issued an order Friday denying their request to strike from the evidence certain emails that demonstrate how heavily involved Catholic and Mormon church officials were in the Yes on 8 campaign.

The evidence is not necessarily critical as a legal matter. There are many grounds on which Walker can decide the fate of the anti-same-sex marriage law without considering anti-gay religious-based sentiment. But the denial does create a public record that could be embarrassing to Catholic and Mormon church officials. Those officials, particularly with the Mormon Church, have been eager to keep their participation private.

But Walker said the First Amendment does not protect an email from disclosure “simply because it was intended to be private.” The First Amendment, in the context of an initiative campaign, he said, protects those communications between individuals who make up a formal group, not communications between individuals in various groups.

Closing arguments begin at 1 p.m. Eastern, 10 a.m. Pacific, time Wednesday and are expected to conclude that afternoon. Plaintiffs attorney Ted Olson said he believes Walker could issue a decision “within weeks.”

Test your LGBT IQ

It’s LGBT Pride Month and time to check your LGBT-IQ.

Only one question this year: Besides the measures on the House and Senate Defense authorization bills to repeal Don’t Ask, Don’t Tell, name the other 25 LGBT-specific bills pending in Congress right now.

Barney Frank
Barney Frank

It’s LGBT Pride Month and time to check your LGBT-IQ.

Only one question this year: Besides the measures on the House and Senate Defense authorization bills to repeal Don’t Ask, Don’t Tell, name the other 25 LGBT-specific bills pending in Congress right now.

ENDA? Yes—the Employment Non-Discrimination Act. That’s two: a bill in the House and one in the Senate. Both have had hearings but neither has had a committee vote.

Hate crimes? No—that passed last fall, attached to the Defense authorization bill for fiscal year 2010. The president signed it into law on October 28.

Repeal DOMA? Yes, that’s one bill, in the House; though it isn’t sponsored by the most veteran of Congress’ three openly gay members and has gone exactly nowhere since it was introduced last September. Not even a hearing. Not likely to go anywhere either, though it has 111 co-sponsors.

Ryan White? No, that’s not really an LGBT bill. It’s an HIV medical treatment funding bill. But it is of interest to the community and it, too, was signed into law last fall.

Twenty-three more to go. . . .

Give up?

Don’t feel bad. Most people can’t name them. And most of these bills are going nowhere this year anyway.

But for those readers hoping to refine their LGBT-IQ during the month of June, here’s a quick primer, categorized by their proximity to passage:

Poised for passage (2):

Don’t Ask, Don’t Tell repeal – two individual stand-alone bills (one in the Senate, one in the House) to repeal the military’s policy of excluding gays were introduced by Senate Joe Lieberman (I-Conn.) and Rep. Patrick Murphy (D-Penn.). The full House, in considering a Defense authorization bill, approved adding an amendment that put the repeal measure into the annual funding bill. The Senate Armed Services Committee put a similar amendment into its Defense funding bill and then sent it to the full Senate. Now, all eyes are on the full Senate where Republicans are expected to try and sabotage the repeal measure or filibuster the entire funding bill. Then, the funding bill will go to a House-Senate conference committee where members must decide on one final version. DADT repeal could be won or lost anywhere along the line, and most likely before August. But the way the measure is now written –requiring Pentagon certification before it can be implemented—it could be a failed effort even if it does pass Congress.

On the verge of a vote (4):

Employment Non-Discrimination (ENDA) – House Speaker Nancy Pelosi promises the House bill, to prohibit discrimination based on sexual orientation and gender identity, will get a vote this year. But she won’t move the bill until DADT (see above) passes, and she can’t promise ENDA will pass. Rumblings of conservative Democrats and moderate Republicans in the press suggest some level of uneasiness around the inclusion of gender identity. Republicans are expected to try and kill the bill, sponsored by Rep. Barney Frank (D-Mass.), with scare tactics –saying it will lead to cross-dressing teachers for kindergartners and men with beards wearing dresses to gain access to women’s restrooms. Meanwhile, there are no promises in the Senate and Senate Majority Leader Harry Reid (D-Nev.) did not even mention the bill, sponsored by Sen. Jeff Merkley (D-Ore.), at the top of this month when outlining the work ahead.

Domestic Partner Benefits/Obligations (aka DPBO) – Both the Senate bill, sponsored by Lieberman, and the House bill, sponsored by Rep. Tammy Baldwin (D-Wisc.) have passed committee and both have gotten two public nods from President Obama. The House bill has 140 co-sponsors; the Senate one has 31. But they’re gathering dust waiting for their moments on the floor for two reasons: 1. The health care reform bill overshadowed everything until March of this year, and 2. There are unresolved issues about how to pay for the bills. Until that happens—and it might—they’ll continue waiting in the wings while time runs out on this Congressional session.

Going nowhere this session (19):

Tax Equity for Health Plan Beneficiaries – This bill, introduced by Rep. Jim McDermott (D-Wisc.) and Senator Charles Schumer (D-NY), has the same “payfor” issues as the Domestic Partner bill. But it has only 44 co-sponsors in the House and 17 in the Senate, and neither has passed committee.

Respect for Marriage – Rep. Jerrold Nadler (D-NY) is the only legislator in Congress to introduce a bill this session to seek repeal of the federal Defense of Marriage Act (DOMA). The bill has a respectable 111 co-sponsors but is not as high a priority as DADT and ENDA or even DPBO among LGBT activists in Washington. Plus, politically, it’s a tougher sell in a mid-term election year at a time when the latest poll (Gallup, in May) showed only 44 percent of the American public thinks gays should be able to marry. There is no Senate counterpart and the bill has seen no action since being introduced last September.

Every Child Deserves a Family – This bill, from Rep. Pete Stark (D-Calif.), seeks to end discrimination based on sexual orientation or gender identity in the adoption of a child. It has 26 co-sponsors, no Senate counterpart, and has seen no action since being introduced last October.

Family Leave Insurance – This bill, introduced by Rep. Stark, would expand the existing federal Family and Medical Leave Act (FMLA) in a number of ways and, of particular interest to the LGBT community, enable employees to take leave in order to care for a domestic partner or child of a domestic partner. Their bill has only 35 co-sponsors, has no counterpart in the Senate, and has seen no action seen being introduced in March of last year.

Family and Medical Leave Inclusion – This bill, introduced by Rep. Carolyn Maloney (D-NY) along with the three openly gay representatives in Congress, would also amend the FMLA but only for the purpose of enabling gay employees to take leave to care for “a same-sex spouse, domestic partner, parent-in-law, adult child, sibling, or grandparent who has a serious health condition.” The bill has 29 co-sponsors, no counterpart in the Senate, and has seen no action seen being introduced in April of last year.

Uniting American Families – With immigration being such a hot issue these days, one would expect this legislation—introduced by Sen. Patrick Leahy (D-Vt.) and Rep. Nadler—to have seen some action, but it hasn’t. The House bill has 124 co-sponsors; the Senate bill 23. Leahy, chair of the Senate Judiciary Committee, held a hearing last June, and there was talk of including the measure as part of an overall immigration reform bill. But so far, nothing else has happened.

Equal Rights for Health Care – This bill, introduced by Rep. Laura Richardson (D-Calif.), would prohibit discrimination based on sexual orientation, gender identity, and other characteristics in the delivery of health care services or federally funded health research. It has only 13 co-sponsors, no Senate counterpart, and has gone nowhere since being introduced in June 2009.

Freedom from Discrimination in Credit – Rep. Frank chairs the powerful House Financial Services Committee where this bill has sat quietly since being introduced by Rep. Steve Israel (D-NY) with Frank and 75 co-sponsors. It would amend the Equal Credit Opportunity Act to prohibit discrimination based on sexual orientation or gender identity in credit services. There is no Senate counterpart and no movement in sight.

Student Non-Discrimination – Rookie Congressman Jared Polis (D-Colo.), who is both openly gay and a staunch advocate for education, introduced this bill in January 2010, seeking to prohibit discrimination based on actual or perceived sexual orientation or gender identity in public schools. It has the support of 111 co-sponsors, including Reps. Frank and Baldwin. Its counterpart in the Senate was introduced by rookie Senator Al Franken (D-Minn.) and has 23 co-sponsors. But neither bill is expected to see action this year.

Safe Schools Improvement – Rep. Linda Sanchez (D-Calif.) introduced this bill in the House to amend the Safe and Drug-Free Schools and Communities Act to collect data on and move to prevent bullying. It specifically identifies one form of bullying as targeting students based on real or perceived sexual orientation or gender identity. And it has 113 co-sponsors. There was a push to include this as part of the Obama administration’s proposed reform of No Child Left Behind, but the proposal submitted by the president did not include it. Rep. Danny Davis (D-Ill.) introduced a similar bill in April, but has only five co-sponsors. There is no Senate counterpart and no action likely.

Health Equity and Accountability – This bill, introduced by Rep. Donna Christiansen (D-Virgin Islands), seeks to have the Department of Health and Human Services collect data on health matters related to sexual orientation and a number of other characteristics, but it calls on HHS to develop a plan to eliminate disparities in health care on the basis of race, ethnicity, and primary language only. It has 58 co-sponsors (including Rep. Baldwin), no Senate counterpart, and has seen no action since its introduction in June 2009.

Equal Access to COBRA – COBRA, or the Consolidated Omnibus Budget Reconciliation Act of 1986, is a federal law that enables employees who to keep their existing job-related health insurance coverage for themselves and their families for 18 months after they’ve lost their jobs. This bill, from Senator Barbara Boxer (D-Calif.) would enable gay employees to continue their coverage for their domestic partners. The bill, introduced in March 2010, has no co-sponsors, no counterpart in the House, and no prospects for this session of Congress.

Housing – three nearly identical bills – In March, three legislators introduced three nearly identical bills prohibit discrimination based on sexual orientation and gender identity in real estate transactions and brokerage services: the Fair and Inclusive Housing Rights from Rep. Nadler has two co-sponsors, the Housing Nondiscrimination Act from Rep. Edolphus Towns (D-NY) has none, and the Housing Non-Discrimination Act from Rep. Joe Sestak (D-Penn.) also has no co-sponsors.

Keep in mind: This primer expires when the 111th Congressional session adjourns at the end of this year. All bills left pending must be reintroduced and start down the political passage tracks all over again, from the top.

Keen News Service Podcast, 6/12/2010

Fed partner benefits: The ‘pay-for’ hurdle

When President Obama issued a memorandum extending certain benefits to the same-sex partners of federal employees, he noted there are still certain benefits he cannot extend under current law. But the legislation the president and many LGBT organizations are touting as a solution faces one big hurdle that nobody’s talking about.

Tammy Baldwin
Tammy Baldwin

When President Obama issued a memorandum June 2 extending certain benefits to the same-sex partners of federal employees, he noted that there are still certain benefits he cannot extend under current law. But the legislation that the president and many LGBT organizations are touting as a solution faces one big hurdle that nobody’s talking about—how to pay for it.

The Domestic Partnership Benefits and Obligations Act (DPBOA) seeks to extend health insurance and retirement benefits to the domestic partners of federal employees just as they already are extended to opposite-sex spouses. The bill passed the Senate Committee on Homeland Security and Governmental Affairs in December 2009 and the House Judiciary Committee in January 2010.

One major difference between the two versions is that the House version, sponsored by Rep. Tammy Baldwin (D-Wisc.), would extend benefits to federal retirees, as well as to current employees. The Senate version, sponsored by Sen. Joe Lieberman (I-Conn.), would not.

The difference gives the two versions very different price tags. The Senate version of the bill contains $113 million in so-called “on-budget” direct spending; the House version has $354 million.

The Advocate and Washington Blade reported in late May that Rep. Baldwin said she had received information from the Office of Personnel Management (OPM) identifying how the costs of the bill will be covered—the so-called “pay-for” data.

But Jerilyn Goodman, a spokeswoman for Baldwin’s office, told Keen News Service June 7, “We are working closely with [the Senate] and OPM to put together a pay-for that covers current retirees/annuitants.” A spokesperson for OPM also said they are still working on the pay-for information. And an aide for the Democratic leadership confirmed June 8 that, “The pay-for issue is not resolved.”

That may delay the bill’s ability to move forward, despite the recently restated support of the president.

And in the wake of the President’s June 2 memo on partner benefits, House Speaker Nancy Pelosi issued a press release that indicated DPBOA might not be a priority.

While expressing support for DPBOA, she also noted, “Right now, we are working to finalize the defense authorization bill, which will repeal the discriminatory ‘don’t ask, don’t tell policy.’” The House passed the Defense measure May 27 but must wait for the Senate to approve its version and then go into conference committee to agree on one final version.

Even if DPBOA passes, however, the benefits to same-sex partners will not be treated the same as those offered to opposite-sex spouses. Health insurance benefits that an employee receives for a same-sex partner are considered taxable income by the federal government, whereas for an opposite-sex spouse, they are not.

A study by the Center for American Progress and UCLA’s Williams Institute in 2007 found that employees with partners pay an average of $1,069 per year more in taxes than married employees with the same coverage. Collectively, they pay $178 million per year in additional taxes, and U.S. employers collectively pay $57 million per year in additional payroll taxes.

A bill to equalize tax treatment of health insurance benefits, the Tax Equity for Health Plan Beneficiaries Act (TEHPBA), is in the House Ways and Means Committee, sponsored by Rep. Jim McDermott (D-Wash.) and in the Senate Finance Committee, sponsored by Sen. Charles Schumer (D-N.Y.) The bill would apply to all employees, not just federal ones.

Goodman said that Rep. Baldwin’s office worked closely with McDermott’s office to get TEHPBA included in the health reform bill that passed the House this year, but the language was not in the Senate bill that the president eventually chose to pursue. The legislators are continuing to work for passage of the measures as standalone bills, but, though related, DPBOA and TEHPBA cannot be combined because they each go through different committees, said Goodman.

McDermott’s communications director, Ed Shelleby, said, “We’re very hopeful that [TEHPBA] will get passed this year” as a stand-alone but that “we are also investigating if there are other appropriate bills to which the provisions could be attached.” They are also re-evaluating the cost of the bill, he said, explaining that some provisions in the new health care reform law may lower original estimates.

Health benefits aside, even the limited benefits extended under current law to partners of federal employees by the president’s June 2 memo will not all take effect right away.

The regulations governing several of the benefits must still go through a months-long process before they will be put into their final form and the benefits can take effect. OPM must publish proposed regulations in the Federal Register regarding the addition of a same-sex partner to the list of individuals presumed to have an insurable interest in a federal retiree. It must do the same for clarifying that employees’ same-sex partners qualify as “family members” for purposes of noncompetitive appointments. The General Services Administration must publish proposed regulations regarding relocation and travel expenses.

The proposed regulations will be subject a period of public comment—typically 60 days—before final versions will be drawn up (which could again take months) and can become active.

No cameras for Prop 8 closing

U.S. District Court Judge Vaughn Walker gave no explanation late Wednesday for his decision to keep cameras out of the courtroom next week when he hears closing arguments in the landmark Proposition 8 trial.

U.S. District Court Judge Vaughn Walker gave no explanation late Wednesday for his decision to keep cameras out of the courtroom next week when he hears closing arguments in the landmark Proposition 8 trial.

Major news organizations submitted a joint request last month, asking to record the proceedings next Wednesday, and arguing that allowing the broadcast would “enhance the public’s ability to witness … this historic case.”

Walker himself had initially sought authorization to broadcast the proceedings—through delayed streaming on the web and through closed-circuit access in several federal courtrooms around the country. The broadcast was to be part of a pilot program being developed by the 9th Circuit U.S. Court of Appeals, for making courtroom proceedings more accessible to the public.

But before the trial got underway in January, the U.S. Supreme Court intervened and prohibited Walker from making a broadcast of the proceedings available anywhere outside a closed circuit feed in the federal courthouse in San Francisco during the trial.

The media organizations, in making their request last month, noted that the objections expressed in the Supreme Court intervention were no longer at issue. But Yes on 8 lead attorney Charles Cooper objected to broadcast of closing arguments, and on June 9. Walker issued a terse denial.

“No further request to include the case in the pilot program is contemplated,” said the judge. “The media coalition’s request is therefore denied.”

But attorneys Ted Olson and David Boies, who are leading the team that is challenging California’s same-sex marriage ban, delivered a preview of their closing argument in a conference call with reporters on Thursday.

Boies said witnesses for Yes on 8 not only failed to identify a legitimate need to bar gay couples from marriage, they contradicted themselves repeatedly during the three-week-long trial.

And Olson said the Proposition 8 case, Perry v. Schwarzenegger in the U.S. District Court for Northern California, shares much in common with the historic Loving v. Virginia case of the 1960s. In that case, an interracial couple challenged laws barring white people from marrying non-whites.

Olson said his opponents in the Proposition 8 case “make essentially the same argument.” And he noted a unanimous U.S. Supreme Court struck down those laws.

Olson also commented on Judge Walker’s list of 39 questions for closing argument, said they were very much typical of Walker.

“He’s very much involved in the case, and he’s done his homework,” said Olson.

Like other attorneys watching the case, Olson suggested Walker’s list of questions indicates he’s probably already done a draft of his decision. Olson said he believes Walker could render a decision “within weeks” of closing arguments adjournment.