Grassley puts gay district court nominee’s vote on hold

The ranking Republican on the Senate Judiciary Committee Thursday morning asked that the nomination of openly gay attorney Paul Oetken and three other federal district court nominees be held over indefinitely.

The ranking Republican on the Senate Judiciary Committee Thursday morning asked that the nomination of openly gay attorney Paul Oetken and three other federal district court nominees be held over indefinitely.

U.S. Senator Charles Grassley (R-Iowa) offered no explanation for the request. Such requests, that committee votes on federal court nominees be postponed, has become a routine occurrence at Senate Judiciary Committee meetings. Committee Chair Patrick Leahy (D-Vt.) has routinely granted the requests.

In addition to Oetken, Grassley requested postponements for Paul Engelmayer, who—like Oetken—is nominated to serve on the U.S. District Court for the Southern District of New York (Manhattan). On paper and during his confirmation hearing, Engelmayer was questioned by the committee about his support, as a pro bono attorney, for same-sex couples seeking marriage licenses in New York. Engelmayer said he understands the difference between being an advocate and being a judge.

Grassley also asked that the long-standing nomination of law professor Goodwin Liu to join the 9th Circuit U.S. Court of Appeals bench be held one more week. Grassley said the additional week would make it less likely Liu’s nomination would face a filibuster on the floor of the Senate. Liu has been grilled repeatedly about his writing in support of marriage equality.

Liu is the longest standing nomination among 10 appeals court nominations which are still pending before the committee. The second longest standing is that of openly gay nominee Edward DuMont. DuMont was nominated to the Federal Circuit appeals court bench in April 2010. He has not yet received a confirmation hearing.

The Committee voted to recommend only one appeals court nominee thus far this session. And on March 31, it advanced only four of the 50 pending district court nominees.

Despite the delays, once the full Senate voted this year on 14 court nominees, not one senator has voted against a nominee.

DOJ to married green card applicants: DOMA still applies

Just days after putting the applications for green cards on hold for same-sex married couples, the U.S. Citizens and Immigration Service (USCIS) announced it is back to processing them again–with the Defense of Marriage Act (DOMA) in play.

Eric Holder

Just days after putting the applications for green cards on hold for same-sex married couples, the U.S. Citizens and Immigration Service (USCIS) announced it is back to processing them again—with the Defense of Marriage Act (DOMA) in play.

“The last few days have been extremely frustrating and disappointing,” said Lavi Soloway, an attorney specializing in binational same-sex married couples seeking immigration. “USCIS raised hopes that they had created a desperately needed interim remedy that would protect married gay and lesbian binational couples. But within days, the administration reversed the abeyance policy that had been in place in two USCIS offices, and briefly, nationwide. In the process, they created tremendous confusion.”

Christopher Bentley, press secretary for USCIS, said Wednesday that the agency has received the legal guidance it sought from the Department of Justice concerning DOMA and green card applications by same-sex married couples.

Same-sex married couples’ applications are “no longer on hold,” he said. And “USCIS has not implemented any change in policy and intends to continue enforcing the law.” In other words, DOMA still applies.

DOMA prohibits any agency of the federal government from recognizing a marriage license granted to a same-sex couple. For binational same-sex married couples seeking a green card to enable the foreign spouse to establish permanent residence in the U.S., the law closes a door open to other married couples. Spouses and other “immediate family members” can obtain green cards without waiting for a visa number to become available.

USCIS sought clarification from DOJ after U.S. Attorney General Eric Holder announced February 23 that DOJ would no longer defend DOMA in court as meeting heightened constitutional scrutiny. DOJ had also indicated it would continue to enforce DOMA until or unless the courts determined the law was unconstitutional. But some attorneys in the immigration field questioned whether the Holder announcement might apply to immigration courts.

USCIS issued a one-sentence statement Wednesday, saying, “USCIS has not implemented any change in policy and intends to continue enforcing the law.”

Soloway characterized that “explanation” as “unacceptable.”

“While DOMA is the law of the land, green card applications cannot be approved by USCIS,” said Soloway, “but there is no imperative that they be denied. Adjudications can be put on hold with final decisions on these cases deferred, giving binational couples lawful status and protection from deportation until DOMA is either repealed by Congress or struck down by the Supreme Court.”

“This unconstitutional law,” said Soloway, “should not be used as an excuse to do nothing while gay and lesbian families are being torn apart.”

Frank and Merkley poised to reintroduce ENDA

U.S. Rep. Barney Frank on Wednesday, March 30, announced he would soon re-introduce the Employment Non-Discrimination Act (ENDA), characterizing it as “winnable.”

Barney Frank

U.S. Rep. Barney Frank on Wednesday, March 30, announced he would soon re-introduce the Employment Non-Discrimination Act (ENDA), characterizing it as “winnable.”

But the bill, which seeks to prohibit discrimination based on sexual orientation and gender identity by employers, is unlikely to move during the current Congressional session—primarily because the Republican Party controls the House.

The bill is typically assigned to the House Committee on Education and Labor, now chaired by Rep. John Kline (R-Minn.). In 2009, during a committee hearing on the bill, Kline said his many concerns about the bill in previous years had “not been alleviated” by its recent rewrite.

Between 2007 and 2009, the bill added “gender identity” and also provided exemptions for religious organizations. Some form of religious exemption has existed in ENDA since the first ENDA text was submitted in 1994, but in 2007, the language concerning the exemption was given greater definition and clarity.

Diego Sanchez, a spokesman for Frank, said the language in this year’s bill is “exactly” as the one from last Congressional session.

The bill reads, “This Act shall not apply to a corporation, association, educational institution, or society that is exempt from the religious discrimination provisions of title VII of the Civil 23 Rights Acts of 1964….”

Kline said back then that ENDA “creates an entirely new protected class that is vaguely defined and often subjective.” Specifically, he objected to the language of the bill prohibiting discrimination based on “perceived sexual orientation.”

“Attempting to legislate individual perceptions is truly uncharted territory,” said Kline, “and it does not take a legal scholar to recognize that such vaguely defined protections will lead to an explosion in litigation and inconsistent judicial decisions.”

Kline also said he thought legislators should consider the “consequences” ENDA might have on “religious and family-based organizations.”

A press person for Kline’s committee office did not return a call by deadline Wednesday but, given that the language of the bill has not changed since 2009, there seems little likelihood that Kline will enable a committee hearing or vote on the bill this session.

Still, supporters of the measure say it’s important to have the bill in the Congressional hopper, as it provides a tool around which supporters can lobby legislators to support the measure in a future session.

Julie Edwards, a spokeswoman for Senator Jeff Merkley (D-Ore.), said Wednesday that Merkley is working with his fellow co-sponsors to prepare ENDA for re-introduction there “in the next few weeks.”

The Senate is still controlled by Democrats and the bill received a hearing in the last session. But it did not get a vote in committee.

The last time ENDA got a vote in the Senate was 1996, when it came within one vote of passage. The Senate was controlled then by Republicans.

A version of ENDA passed the House in 2007.

But in both the House and Senate votes, the version of ENDA on the floor was one that included only sexual orientation, not gender identity.

By 2009, the LGBT community of organizations stood firm to insist that ENDA also include a prohibition on discrimination based on gender identity. And in 2009 as well as this year, ENDA does include both.

The Transgender Legal Defense and Education Fund issued a press release Wednesday, saying that 47 percent of transgender people surveyed reported being fired or denied a job because they are transgender.

The “gender identity” language would protect not just people who are transitioning from one sex to another, but also those whose outward appearance does not conform with common expectations for their gender. The language of the bill defines gender identity as: “gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth.”

A press release from Frank’s office noted that there are no laws in 29 states to prohibit sexual orientation discrimination in employment and none in 38 states to prohibit gender identity discrimination.

Human Rights Campaign President Joe Solmonese issued a statement, pitching ENDA as a jobs bill, an appeal that would presumably attract more Republican support.

“Passing ENDA is a key element of making sure all Americans can get back to work and get our country moving again,” said Solmonese.

Lambda Legal Executive Director Kevin Cathcart took a similar approach, saying, “With ENDA now re-introduced, it is time for Congress to make good on its promise to focus on the top priority of all Americans – good jobs and economic security.”

Republicans have said publicly they want to focus on jobs.

But Republicans have also indicated they want broad exemptions for religious organizations, and that is something that does not set well for many supporters of ENDA.

In a little bit of intrigue, Frank’s press release on Tuesday and Wednesday indicated he would have an important announcement concerning ENDA. That prompted many people to expect Frank would actually introduce the bill Wednesday.  But instead, he said he would try to sign up additional co-sponsors for the legislation before introducing the bill.

Interestingly, too, two of the House’s four openly gay members—Reps. Tammy Baldwin and David Cicilline—were not listed in Frank’s press release and did not attend the press conference. But spokespersons in both offices said the issue was one of scheduling and that both intend to co-sponsor the bill.

Green card applications for married gays on hold awaiting DOJ guidance

U.S. immigration officials confirmed that the green card applications of immigrants who are in marriages with same-sex partners who are American citizens will be “held in abeyance” until the Department of Justice provides “final guidance related to distinct legal issues” involved in such cases.

Lavi Soloway

U.S. immigration officials confirmed Monday, March 28, that the green card applications of immigrants who are in marriages with same-sex partners who are American citizens will be “held in abeyance” until the Department of Justice provides “final guidance related to distinct legal issues” involved in such cases.

Christopher Bentley, press secretary for the U.S. Citizenship and Immigration Service (USCIS), issued a two-sentence statement saying: “USCIS has not implemented any change in policy and intends to follow the President’s directive to continue enforcing the law.  USCIS has issued guidance to the field asking that related cases be held in abeyance while awaiting final guidance related to distinct legal issues.”

In a phone interview Tuesday, Bentley clarified that the statement refers to the Defense of Marriage Act (DOMA), which prohibits any federal agency from recognizing marriage licenses granted to same-sex couples.

Bentley said the statement was issued in conjunction with the publication of an article in TheDailyBeast.com, March 25. That article noted that some binational same-sex married couples were wondering whether the U.S. Attorney General’s announcement February 23—that the administration would no longer defend DOMA as meeting heightened constitutional scrutiny—would improve their chances at obtaining a green card.

It further noted that officials in two USCIS districts (Washington, D.C., and Baltimore) “informed attorneys from the advocacy group American Immigration Lawyers Association that cases in their districts involving married gay and lesbian couples would be put on hold.”

Lavi Soloway, an immigration attorney and specialist in LGBT issues, said in an interview that the USCIS announcement would stop indefinitely the deportation of immigrants who have applied for green cards based on their same-sex marriages to American citizens.

But he said Monday’s announcement does not guarantee that the government will eventually approve the application for a green card.

And USCIS’s Bentley said the agency expects to resume processing the green card applications of same-sex married couples as soon as it receives clarification from Department of Justice attorneys on how to proceed.

A green card entitles a foreign citizen to permanent residence in the United States. While most immigrants who apply for green cards must wait for a visa number to become available in order obtain one, an “immediate family” member, such as a spouse, does not have to wait.

Soloway cautioned that “not all married couples—gay or straight—are eligible to file” the petition and application necessary to obtain a green card.

“All need legal advice,” said Soloway, “but especially gay couples, because they’re filing [for a green card] in the current context –when it can’t be approved under current law. The greatest concern for some of those couples is that filing now would be the wrong move.  They can end up in deportation that can’t be delayed.”

“But with the proper guidance from attorneys,” said Soloway, “many couples whose concern is imminent deportation can persuade courts and government attorneys to adjourn deportation proceedings based on pending, marriage-based applications.”

Soloway’s firm represents a binational lesbian couple in New York who just last week secured a hold on a deportation proceeding. The hold was granted based on the couple’s marriage in Connecticut last year. A U.S. immigration judge in Manhattan ruled March 22 that the deportation proceeding against Monica Alcota should be adjourned until federal courts determine the constitutionality of DOMA. Soloway said he believes this is the first time an immigration judge has put a deportation proceeding on hold to allow a same-sex couple the opportunity to pursue an immigration petition based on their marriage.

Arkansas Supreme Court reconsiders adoption ban

The Arkansas Supreme Court heard arguments March 17 in a case to determine whether the state constitution will allow a law banning any person cohabiting with a sexual partner outside of marriage from adopting or foster a child. It is a case some legal observers expect could end up before the U.S. Supreme Court.

The Arkansas Supreme Court heard arguments March 17 in a case to determine whether the state constitution will allow a law banning any person cohabiting with a sexual partner outside of marriage from adopting or foster a child. It is a case some legal observers expect could end up before the U.S. Supreme Court.

The Arkansas law, Act 1, was passed by voter referendum in November 2008, the same month California voters passed Proposition 8 to ban same-sex marriage. Shortly thereafter, the American Civil Liberties Union (ACLU) and the ACLU of Arkansas challenged Act 1 in court.

In April 2010, a state circuit court overturned Act 1, saying it violates the Arkansas Constitution. It dismissed plaintiffs’ claims that the law also violates their rights under the United States Constitution.

The state, along with the Family Council Action Committee—the conservative group that led the petition drive for Act 1—appealed the case, Arkansas Dept. of Human Services and Family Council Action Committee v. Sheila Cole Et Al., to the Arkansas Supreme Court.

Plaintiffs include a lesbian couple who adopted a special-needs child before Act 1 was passed and wants to adopt another child now; a lesbian grandmother who wants to adopt her grandchild, who is currently in state care; three teenagers in the foster care system awaiting placement; and several married opposite-sex couples whom Act 1 prevents from designating certain friends or relatives to adopt their children in the case of the parents’ deaths.

The plaintiffs say that Act 1 violates their rights to equal protection, due process, and the right to privacy under the state constitution.

The defendants claim that Act 1 is necessary to protect children.

Defense lawyer Byron Babione, representing the Family Council Action Committee, also told the court that the issues in the case were part of the state’s larger policy of defining marriage as between a man and a woman. Act 1, he said, serves to encourage marriage and to channel children into “home environments where they do best” and are “less likely to be subject to risks.”

Attorney Garrard Beeney, arguing for the plaintiffs, said Act 1 does not serve the purpose of encouraging marriage because it does not exclude single people from fostering—and it does exclude gay people, who cannot marry in the state.

The heart of Beeney’s argument, however, was that two previous state Supreme Court rulings have held that certain actions similar to the ones in this case violate the state constitution.

In a 2006 case, Department of Human Services v. Howard, the court overturned a state policy that had banned gay people from fostering or adopting children. The state supreme court ruled that the policy excluded gays “based on morality and bias,” and the facts of the case showed no correlation between the welfare of foster children and “the blanket exclusion” of gay people.

And in the 2002 case, Jegley v. Picado, the court recognized the “fundamental right” to intimate relations in the home, as the U.S. Supreme Court did a year later in the landmark Lawrence v. Texas.

Two of the justices who authored the majority and concurring opinions in Howard — Donald Corbin and Robert Brown– also heard the Cole case, as did Chief Justice Jim Hannah, who concurred in Jegley. Neither of the dissenting judges in Jegley remains on the seven-member bench.

Act 1, said Beeney, forces couples to choose between the fundamental right to intimate relations, recognized by Jegley, and their desire to raise children. The Act is therefore a “direct” and “substantial impingement” on that right. It can only stand if the government can identify some “compelling” purpose for it and the law is “narrowly tailored” to accomplish that purpose.

Beeney argued this was not the situation with Act 1. He pointed out that, in 2008, before Act 1 passed, DHS itself rescinded its policy of banning unmarried cohabitors from fostering or adopting. And members of DHS—including the director—testified in the lower court that the Act serves no child welfare purpose.

Several of the justices’ questions to both Babione and Beeney focused on whether the Act should be evaluated based on “heightened scrutiny,” which requires a higher justification, or the lower “rational basis” standard.

The lower court found that Act 1 violated the fundamental right to privacy under state law and should thus be evaluated using strict scrutiny as was Jegley. But the court also said that it did not violate any such right under federal law.

The plaintiffs say that heightened scrutiny should apply, even though, as Beeney noted, Act 1 also “miserably fails,” to demonstrate even a “rational basis,” and actually harms children by keeping them in state care when otherwise qualified people are willing to take them into their homes.

Babione, however, said the protection of children was a sufficient “rational basis” for the Act, and that having to choose between cohabiting and fostering represented only an “indirect, limited burden” on the right guaranteed in Jegley.

Several justices, Brown in particular, pressed Babione on that point. Babione responded that Jegley does not punish cohabitation, and that the interests of children are “paramount.”

Brown then asked him why the state’s extensive screening process for foster parents was not enough to evaluate candidates.

Act 1, Babione responded, serves the purpose of filtering out the “highest risk” people—although he admitted the system is “not foolproof” and might overlook some qualified parents.

Deputy Attorney General Colin Jorgensen agreed, telling the court, “No screening system is perfect.” Because the DHS system is understaffed, he said, it ends up with better applicants if officials “have more time to dedicate to clients who are lower risk.”

Justice Corbin also asked Babione, “What evidence have you presented in this case that indicates that homosexual or gay parents present potential harm to a child?” When Babione referred him to the citations in the defense brief, Corbin questioned whether they were opinion or fact. Babione said they were opinions based upon social science research.

Christine Sun, lead counsel for the ACLU on the case (but who did not argue it on March 17), said she expects a ruling before the court adjourns at the end of June. She said that, depending upon the outcome and how the ruling is written, asking the U.S. Supreme Court to hear the case is “definitely an option.”

In 2005, the U.S. Supreme Court declined to hear a case, Lofton v. Secretary of the Department of Children and Family Services, in which the federal 11th Circuit Court of Appeal said a Florida ban on adoption by gay men and lesbians violated no federal constitutional rights. Babione quoted the Circuit Court in Lofton near the beginning of his argument in Cole, saying, “The state stands in the shoes of the parents that children have lost.”

On March 18, Senator Kirsten Gillibrand (D-N.Y.) and Rep. Pete Stark (D-Calif.) told the Washington Blade they would be introducing bills to ban states from discriminating against LGBT people in foster placements or adoption. A similar bill, the Every Child Deserves a Family Act, was introduced by Stark last session, but died in committee.

9th Circuit refuses to lift stay on ruling that Prop 8 is unconstitutional

The U.S. Court of Appeals panel hearing the Proposition 8 case on Wednesday denied a request by plaintiffs to lift the stay on the lower court’s ruling in their favor.

Had the three-judge panel granted the request, same-sex couples in California would have been able to obtain marriage licenses immediately. In refsing to lift the stay, the panel ensures that same-sex couples will not be able to obtain marriage licenses in California for at least another year or two.

The U.S. Court of Appeals panel hearing the Proposition 8 case on Wednesday denied a request by plaintiffs to lift the stay on the lower court’s ruling in their favor.

Had the three-judge panel granted the request, same-sex couples in California would have been able to obtain marriage licenses immediately. In refsing to lift the stay, the panel ensures that same-sex couples will not be able to obtain marriage licenses in California for at least another year or two.

The panel denied the request “at this time” and with very little explanation.

The panel’s one-sentence order cited two previous decisions. One was a 2009 ruling from the U.S. Supreme Court in Nken v. Holder, where the court said that, while there was a public interest in preventing “aliens” from being wrongfully removed from this country, there was no basis “for the blithe assertion” that an allowing a contested immigrant to stay in this country pending the outcome of his case did not cause “any injury to the public interest.”

Attorneys Ted Olson and David Boies argued, in requesting that the 9th Circuit panel lift the stay on the U.S. district court ruling in favor of same-sex couples, that there was no harm to the public in allowing same-sex couples to marry.

The second case referred to by the panel was Southeast Alaska Conservation Council v. U.S. Army Corps of Engineers. In that 2006 ruling from the 9th Circuit, a three-judge panel denied a request to vacate an injunction, noting that the court must balance “the plaintiffs likelihood of success against the relative hardship to the parties,” including “advancement of the public interest.”

The three-judge panel in Perry v. Schwarzenegger did not offer any details about either case to explain, specifically, why it was denying the request to vacate the stay in the Perry case.

Chad Griffin, president of the American Foundation for Equal Rights, which is sponsoring the lawsuit challenging California’s ban on same-sex marriages, expressed disappointment in the panel’s refusal to lift the stay.

“We felt then, as we do now,” said Griffin, “that it is decidedly unjust and unreasonable to expect California’s gay and lesbian couples to put their lives on hold and suffer daily discrimination as second-class citizens while their U.S. District Court victory comes to its final conclusion.”

The 9th Circuit panel is still awaiting a decision from the California Supreme Court on whether there is any authority in California law that enables Yes on 8 to represent voters in appealing the district court decision in federal court. Arguments on that issue are expected in September and Shannon Minter of the National Center for Lesbian Rights recently speculated it could be 2012 before the California Supreme Court issues a decision on that matter alone.

Once the state supreme court weighs in on standing, the federal appeals panel must then issue its own opinion concerning standing. If it decides Yes on 8 has standing, it will also issue its opinion on whether Proposition 8 does violate the federal constitution. Thus, in denying the request to lift the stay on the district court decision, the panel this week signals that it could be a year or two before same-sex couples in California might be able to obtain marriage licenses.

AIDS activist legend Elizabeth Taylor dies

Acting legend Elizabeth Taylor, who put her own reputation on the line in order to help people with AIDS at a time, in the 1980s, when society was deeply afraid of the disease, died of congestive heart failure Wednesday, March 23, at a hospital in Los Angeles. She was 79.

Acting legend Elizabeth Taylor, who put her own reputation on the line in order to help people with AIDS at a time, in the 1980s, when society was deeply afraid of the disease, died of congestive heart failure Wednesday, March 23, at a hospital in Los Angeles. She was 79.

Taylor was a close friend of closeted gay actor Rock Hudson, who became one of the first high-profile people with AIDS in 1985. In addition to standing by his side, Taylor helped establish the American Foundation for AIDS Research (AmFAR) to raise money to help with what was then a very anemic attempt to search for a cure.

Taylor’s legendary status inspired participation by many –politicians, celebrities, and corporations—to contribute to AIDS research and to pressure the government to step up its own response, under then President Ronald Reagan. According to AmFAR’s website, the organization has raised more than $325 million to support AIDS research.

AmFAR issued a statement Wednesday, honoring its founding international chairman. Taylor, said the organization, “was without doubt one of the most inspirational figures in the fight against AIDS.”

“She was among the first to speak out on behalf of people living with HIV when others reacted with fear and often outright hostility,” said the statement. “For 25 years, Dame Elizabeth has been a passionate advocate of AIDS research, treatment and care. She has testified eloquently on Capitol Hill, while raising millions of dollars for AmFAR. Dame Elizabeth’s compassion, radiance, and generosity of spirit will be greatly missed by us all. She leaves a monumental legacy that has improved and extended millions of lives and will enrich countless more for generations to come.”

Taylor won two Academy Awards for Best Actress—in Butterfield 8 in 1960 and Who’s Afraid of Virginia Woolf? in 1966. She also won enormous popularity for her roles in such classics as Cleopatra and Cat on a Hot Tin Roof, as well as Giant, a feature in which she starred with Hudson and James Dean.

White House pushes to end persecution of LGBT people worldwide

The White House announced Tuesday evening that President Obama and Brazilian President Rousseff have established a “special rapporteur on LGBT issues at the Organization of American States.” It also drew attention to a United Nations declaration, backed by the U.S. and joined by 85 other countries, calling for an end to violence and persecution against LGBT people.

The White House announced Tuesday evening that President Obama and Brazilian President Rousseff have established a “special rapporteur on LGBT issues at the Organization of American States.” It also drew attention to a United Nations declaration, backed by the U.S. and joined by 85 other countries, calling for an end to violence and persecution against LGBT people.

Obama was in Brazil Saturday and Sunday as part of his first presidential visit to South America. The trip, which was to focus on the economy and trade, has been in stiff competition with the news that American forces—as part of a United Nations action—are now bombing Libya.

Brazilian President Dilma Vana Rousseff, who has been in office only two months, also issued a statement March 21 about fighting homophobia.

The White House announcement was issued through Press Secretary Jay Carney’s office, saying the President “was pleased to announce during his trip to Brazil that he and President Rousseff agreed to promote respect for the human rights of lesbian, gay, bisexual and transgender individuals through the establishment of a special rapporteur on LGBT issues at the Organization of American States.”

This “special rapporteur” will be the first of its kind in the international system. The Organization of American States currently has three rapporteurships—or study groups—on issues such as the rights of Afro-descendants, indigenous people, and people deprived of liberty. It has four “special rapporteur” looking at the rights of children, women, migrant workers and their families, and the freedom of expression.

The White House press statement Tuesday night also drew attention to a “joint commitment” by the United States and 85 other countries to reaffirm “our joint commitment to ened acts of violence and human rights abuses on the basis of sexual orientation and gender identity.”

“Over the past months, our diplomats have been engaged in frank, and at times difficult, conversations about the human rights of LGBT persons with governments from around world,” noted the Press Secretary’s statement, issued March 22 at 8:44 p.m. “The President is proud of the work we have done to build international consensus on this critical issue and is committed to continuing our determined efforts to advance the human rights of all people, regardless of their sexual orientation or gender identity.”

State Department Secretary Hillary Clinton also issued a statement Tuesday, saying the United States took “a leading role” in developing the statement with 30 other countries.

“We will continue to promote human rights around the world for all people who are marginalized and discriminated against because of sexual orientation or gender identity,” said Clinton’s statement. “And we will not rest until every man, woman and child is able to live up to his or her potential free from persecution or discrimination of any kind.”

According to a fact sheet issued by the White House late Tuesday night, the United Nations statement is entitled, “Ending Acts of Violence and Related Human Rights Violations Based On Sexual Orientation and Gender Identity.” Two previous statements—one in 2006 and one in 2008—were signed by 54 and 67 countries, respectively. The 2011 statement, unlike the previous ones, includes a statement welcoming attention to LGBT issues as a part of the Universal Periodic Review process. It also notes increased attention to LGBT issues in regional human rights fora, encourages the Office of the High Commissioner for Human Rights to continue addressing LGBT issues, and calls for states to end criminal sanctions based on LGBT status.”

The U.S., Colombia, and Slovenia co-chaired a group of 30 countries that worked actively on the new statement. The 10-point document calls on all countries “to take steps to end acts of violence, criminal sanctions and related human rights violations committed against individuals because of their sexual orientation or gender identity, encourage Special Procedures, treaty bodies and other stakeholders to continue to integrate these issues within their relevant mandates, and urge the Council to address these important human rights issues.”

Senate confirmations: A partisan pelt-and-wait game

It looked like a cake-walk: President Obama nominated openly gay attorney Paul Oetken to a federal district court bench in Manhattan two months ago, and just last week, he had a confirmation hearing.

Charles Grassley

It looked like a cake-walk: President Obama nominated openly gay attorney Paul Oetken to a federal district court bench in Manhattan two months ago, and just last week, he had a confirmation hearing. No one objected; no one had a tough question; no challenges to his ability to serve as an impartial judge, no matter what the case.

But there were no Republicans at that confirmation hearing, and Republicans have been maximizing their ability to stall nominees by asking for more time to “review” the nominees’ answers to various additional questions—questions on things such as same-sex marriage.

Senator Charles Grassley, the ranking Republican on the Senate Judiciary Committee, has been leading the charge. Grassley did show up briefly to Oetken’s March 16 hearing, just long enough to make remarks welcoming the nomination of another Iowa native. Oetken was raised in Cedar Rapids.

But Grassley’s remarks don’t guarantee his vote and the following day, Grassley engaged in a pelting match with Committee Chairman Patrick Leahy (D-Vt.) over which party has stalled the most nominees of which president.

Grassley and other Republicans on the Senate Judiciary Committee have made fairly clear that confirmations are war. They have blocked votes on many of Obama’s nominees as payback for when Democrats blocked votes on the nominees of Republican President George W. Bush. They have used confirmation hearings to harangue publicly President Obama’s decision to stop arguing that there is a compelling justification for the Defense of Marriage Act (DOMA).

They have quizzed numerous nominees over whether they believe the U.S. Constitution guarantees same-sex couples the right to marry.

None of them stayed to ask Oetken how he feels about that issue, but during a business meeting of the Committee the next day, Senator Jeff Sessions (R-Ala.) claimed that an Obama nominee to be deputy attorney general, James Cole, must be supportive of the administration decision not to defend DOMA.

Sessions claimed that law enforcement officials, such as Cole, have a “throw up” obligation to defend the law.

“The old rule about defending a statute,” said Sessions, who served as Alabama’s Attorney General before entering the Senate, “is you should have a duty to defend the law of Congress unless to do so would cause you to throw up [while] making the argument. They used to call it the throw up rule.”

Instead, said Sessions, the Obama administration law officials are “elevating their own preferences on social policy over the constitution, the will of Congress and the American people.” He said the administration has “consistently refused to meaningfully defend” DOMA or Don’t Ask, Don’t Tell. He did not mention that Congress voted in December to repeal Don’t Ask, Don’t Tell, the law that bars gays from serving in the military. He also failed to note that the Obama administration is defending DOMA in the First Circuit, where it believes only a simple, rational reason for the law is necessary for its defense. The administration’s announcement concerning the defense of DOMA includes only those courts in which the level of scrutiny the law deserves has not yet been settled by the courts. In those jurisdictions, the Obama administration intends to argue that a compelling justification is required and that DOMA does not meet that standard.

For his part, Oetken did refer to his same-sex partner during his introductory remarks to the two Democratic senators who did stay for the hearing. And one of those senators, Charles Schumer of New York, made note that Oetken’s nomination puts him in position to become the first openly gay man to be confirmed to the federal bench.

There was no conversation at either meeting last week about another historic nominee—President Obama’s openly gay nominee to the Federal Circuit. If confirmed, Edward DuMont would become the first openly gay person appointed to a federal appeals court bench.

But the Committee has not scheduled a confirmation hearing for DuMont—even though he was nominated almost a year ago. Republicans on the committee are said to be “reviewing” his confirmation papers.

Republicans have not presented DuMont with additional questions, as they have other appeals court nominees.

Sometimes the questions are direct; sometimes, indirect.

Frequently, Senator Tom Coburn has asked nominees whether they believe judicial doctrine rightly incorporates the evolving understandings of the Constitution forged through social movements, legislation, and historical practice?” Such a question could be referring to any number of controversial issues. Nominee James Graves responded as many other nominees have, saying he didn’t agree with the “premise” of the question “that there are evolving understandings of the Constitution.” The full Senate approved his confirmation to the 5th Circuit last month on a voice vote.

Senator Sessions took the more specific approach, asking Caitlin Halligan, nominated to the U.S. Court of Appeals for D.C., whether she believes the “original intent” of the 14th Amendment “supports recognition of a constitutional right to same-sex marriage or of a constitutional obligation on the part of any government not to define marriage as the union of a man and a woman?”

Halligan, like Graves, simply dodged the question, stating only that “The Supreme Court has not determined” the answer to that question and that it is a subject of “active litigation.”

Presented with essentially the same question, Goodwin Liu, a nominee to the 9th Circuit who has been targeted by conservatives for opposition, also tried to dodge it. But several Republican senators noted that Liu had written a brief to the California Supreme Court supporting a challenge to Proposition 8. Liu insisted that his brief did not argue for same-sex marriage, but rather argued simply that the state’s definition of same-sex marriage violated the state constitution, at the time.

Liu took great pains to emphasize that he has made no public argument or expressed no view publically concerning whether limited definitions of marriage violate the federal constitution.

“I have not previously expressed any view on whether the federal Constitution confers a right to same-sex marriage,” said Liu, in response to written questions from Grassely, “and because that issue may come before me as a judge if I am confirmed, I believe it is not appropriate for me to do so now.”

The committee voted to recommend Halligan’s nomination on March 10 and sent it to the full Senate where it awaits action. Liu’s nomination is still awaiting a committee vote. It is scheduled to come up at the next Committee business meeting, March 31. The Committee is scheduled to hold a hearing on nominations March 30, but no list has yet been posted to indicate which nominees will be up.

Court loss with a silver lining

Efforts to secure equal benefits for a gay federal court employee in San Francisco suffered a setback Wednesday when a federal judge dismissed the employee’s lawsuit. But Lambda Legal Defense says the dismissal has a silver lining.

Jennifer Pizer

Efforts to secure equal benefits for a gay federal court employee in San Francisco suffered a setback Wednesday when a federal judge dismissed the employee’s lawsuit. But Lambda Legal Defense, which is representing the employee, Karen Golinski, says the dismissal has a silver lining.

Judge Jeffrey White, an appointee of President George W. Bush to the federal district court for Northern California, on March 16 granted the U.S. Department of Justice’s request to dismiss the case, Golinski v. Office of Personnel Management.

Golinski, who was able to legally marry her same-sex spouse in California in 2008, is employed as an attorney by the 9th Circuit U.S. Court of Appeals. As an employee, she is entitled to certain benefits, including health coverage for herself and her family. But when Golinski applied to add her spouse to her health coverage, the administrative office of the 9th Circuit denied the coverage. Ninth Circuit Chief Justice Alex Kozinski, in his capacity as head of administration for the circuit, ruled that was discriminatory, and he ordered the office to reverse its decision. But the Office of Personnel Management, headed by openly gay appointee John Berry, instructed the insurance company, Blue Cross/Blue Shield, to deny the claim, citing the Defense of Marriage Act (DOMA).

DOMA, enacted in 1996, prohibits any federal entity from recognizing a marriage license granted to a same-sex couple.

Kozinski, a strong civil rights supporter, ordered OPM to stop instructing the insurance company that coverage for Golinski would violate DOMA and to stop interfering “in any way” with Golinski’s obtaining coverage for her spouse.

OPM essentially ignored Kozinski’s order and reiterated, through a press release, that DOMA prohibits employees from obtaining health coverage for same-sex spouses.

Golinski, with the help of Lambda, sought a preliminary injunction to force OPM to abide by Kozinski’s order.

Judge White’s decision on March 16 denied that request, even though, in doing so, he noted that both parties “do not dispute, and the Court finds, that [Golinski] has a clear right to relief.”

In doing so, he noted that DOMA was not implicated in this specific phase of the case. Instead, he said, the only question before him was a procedural one—whether the court could rule that Kozinski’s order trumps OPM’s. And he ruled OPM had a duty to act in the way it did.

“The Court cannot find and neither party has cited any authority to support the contention that a contrary interpretation of federal law by an administrator [such as Kozinski] governs the disbursement of federal employee health benefits when the Executive agency tasked by Congress to administration the program [OPM], reading current federal law to preclude distribution of benefits to same-sex couples, determines that coverage is improper,” concluded White.

“It’s terribly disappointing that Karen and Amy [her spouse] will have to wait even longer for the health benefits that Karen’s heterosexual colleagues already receive,” said Jenny Pizer, National Marriage Project Director for Lambda Legal. But she said Lambda was “encouraged” that Judge White also concluded that Golinski “has a clear right to relief” and his statement that DOMA “unfairly” restricts benefits.

But Pizer said Lambda would file an amended complaint now to add claims challenging the constitutionality of DOMA.

Delaware Supreme Court confirms lesbian mom is a parent

The Delaware Supreme Court issued a ruling upholding the right of a woman to be identified as a “de facto” parent of a child she had been raising with her former same-sex partner—a child the partner adopted but that the woman herself did not.

The Delaware Supreme Court issued a ruling March 14 upholding the right of a woman to be identified as a “de facto” parent of a child she had been raising with her former same-sex partner—a child the partner adopted but that the woman herself did not. The ruling was based on the amending of a state law to expand the state’s definition of a “parent” to give full, equal rights to lesbian and gay parents who may not have biological or adoptive ties to their children.

The custody battle between the women not only relied on the amended law, but, in an earlier phase, it had motivated the legislature to amend the law. And in its decision, the Delaware Supreme Court ruled against a challenge to the newly amended law’s constitutionality.

The state Supreme Court ruling upheld a lower court decision stating that Carol Guest had the right to joint custody of the child she had been raising with her former partner, Lynn Smith, even though Smith was the only one who had adopted the child. (The names in the case are pseudonyms used by the court.)

Smith and Guest had obtained the child through a service in Kazakhstan, but that country does not permit two women to adopt a child jointly. Because of that, only Smith filed papers to legally adopt the child in March 2003, but both women raised the child together. According to court documents, a lawyer advised the couple in June 2003 that Guest could petition for adoption in the United States after she lived with the child for a year, but Guest did not do so and the couple split in May 2004. Smith cut off Guest’s contact with their child shortly after that.

The case made two passes through the state courts.

When Guest initially sought custody and visitation through the Family Court, in 2004, Smith countered that Guest had no standing to bring a custody action under the Delaware Uniform Parentage Act (DUPA), which defines who may be considered a “parent” under state law. But the Family Court ruled for Guest in June 2006, saying she had standing as a “de facto” parent—someone who acted as a parent to the child—although she was not a legal parent.

The Supreme Court in February 2009 overturned the Family Court’s ruling and denied Guest custody. The court said the DUPA did not recognize de facto parents and noted that changing the law “is a public policy decision for the General Assembly to make.”

The legislature did so in July 2009, amending the DUPA to define a “de facto” parent as someone who has the “support and consent” of the legal parent(s) and has acted as a parent to that child for long enough to have established “a bonded and dependent” parental relationship with the child.

After Guest went back to the Family Court and was granted custody under the new law, Smith challenged the decision and appealed to the state Supreme Court, which considered the women’s situation for a second time.

This time, Smith claimed the Family Court ruling violated her right to raise her child, as maintained by the 2000 U.S. Supreme Court case of Troxel v. Granville. In that case, the high court struck down a Washington state law that allowed any third party—such as a grandparent—to petition for child visitation rights, even if the parents objected.

But the Delaware Supreme Court said that the cases differed because, in Troxel, the third party had no claim to a parent-child relationship.

“Guest is not ‘any third party,’” the court explained, but a “de facto” parent. As such, under the newly amended law, she is also a legal parent of the child and has “a co-equal ‘fundamental parental interest’” in raising the child.

The definition of “de facto” parent varies from state to state, and not all states give de facto parents full legal status, as does Delaware, explained LGBT family law expert Nancy Polikoff, in an interview. Some states may recognize them as having a claim only to visitation or custody, but not as full parents for the purpose of government benefits and inheritance rights.

Only four other states—Maine, New Jersey, Pennsylvania, and Washington—will, like Delaware, recognize non-biological, non-adoptive parents as having the full rights and responsibilities of parentage. They base their recognition on the person’s relationship with the child, according to the National Center for Lesbian Rights, in an October 2010 fact sheet, “Legal Recognition of LGBT Families.”

States that recognize marriage or civil unions of same-sex couples may also recognize non-biological, non-adoptive parents as full parents under state law. But in Delaware and the other four states, the parents’ rights are based upon their relationship to the child, not to the other adult. Their parental rights are thus not subject to challenge under the Defense of Marriage Act (DOMA) or other state laws banning the recognition of same-sex relationships.

DOMA repeal: All hands now on deck

When U.S. Rep. Jerrold Nadler (D-NY) introduced the Respect for Marriage Act in 2009, he conceded there was little chance for passage in the 111th Congress. Clearly, something’s changed.

Jerrold Nadler

When U.S. Rep. Jerrold Nadler (D-NY) introduced the Respect for Marriage Act in 2009, he conceded there was little chance for passage in the 111th Congress. Absent from the 102 co-sponsors that year was Rep. Barney Frank (D-Mass.), the most veteran and influential of the three openly gay members of Congress. He said the bill had “zero” chance of passage. Also missing was then-House Speaker Nancy Peolsi (D-Calif.) and Majority Leader Steny Hoyer (D-Md.) as co-sponsors, and there was no companion bill in the Senate.

Clearly, something’s changed.

When Nadler reintroduced his bill to the 112th Congress Wednesday morning, March 16, Frank, Pelosi, and Hoyer were among its 108 co-sponsors.

And the Nadler bill this year is joined by a first-ever companion bill in the Senate, introduced Wednesday by Democratic Senators Kirsten Gillibrand of New York, Dianne Feinstein of California, Patrick Leahy of Vermont, Christopher Coons of Delaware, and Richard Blumenthal of Connecticut.

What has not changed is the content of the legislation. The new Respect for Marriage Act is “precisely the same” as the last one, noted Nadler spokesman Ilan Kayatsky.

The measures seek to repeal the Defense of Marriage Act (DOMA). DOMA, enacted in 1996, prohibits the federal government from recognizing the legally secured marriages of same-sex couples and provides for states to ignore those marriages as well.

And there is still little likelihood of passage—at least in the Republican-controlled House. The bill will go to the House Judiciary Committee that is now chaired by Rep. Lamar Smith (R-Tex.), who late last year tried briefly to defend DOMA in federal court himself, saying the administration wasn’t doing enough.

But the legislation arrives to a political climate concerning same-sex marriage that is clearly changing.

The latest independent poll, completed March 1 and involving 1,504 adults nationally, shows—once again—a new high in support for allowing gays to marry. While 46 percent told the Pew Research Center they oppose allowing gays to marry, 45 percent said they favor doing so—a two-point jump in the space of six months. (Nine percent said they were unsure. The margin of error was plus or minus three points.)

A poll sponsored last week by the Human Rights Campaign found that 51 percent oppose DOMA, 34 percent favor it, and 15 percent had no opinion. When asked whether legally married gay couples should be able to obtain specific federal benefits provided to straight couples, 60 percent supported gay spouses being able to obtain Social Security benefits and 58 percent supported health coverage for federal employees’ same-sex spouses.

The HRC poll gave its respondents—800 registered voters nationwide—two statements and asked which came closer to their point of view about the House decision to defend DOMA in federal court. One choice was: the move diverts taxpayer money to a divisive issue at a time Congress should be focusing on creating jobs and cutting the deficit. The other choice was that Congress was forced to defend the law after President Obama’s administration “failed to do so.” Fifty-four percent chose the former, and 32 percent chose the latter. (The remainder said Neither, Both, or did not respond.)

In introducing the bill Wednesday, Rep. Nadler said Congress should not wait for the courts to declare DOMA unconstitutional.

“The responsibility for DOMA lies with Congress,” said Nadler, “and the time for dumping this shameful law is long overdue.  Rather than prolonging litigation, Congress should repeal DOMA now and bring an end to the harm it causes gay and lesbian families each and every day.”

Feinstein announced last month that she would introduce a repeal bill, noting that she had opposed the passage of DOMA in 1996.

“It was the wrong law then,” she said, “it is the wrong law now; and it should be repealed.”

In a related development, bills were introduced to both chambers last Thursday, March 10, seeking to enable coverage for domestic partners under COBRA.

COBRA (Consolidated Omnibus Budget Reconciliation Act) is the federal law that requires group insurance plans to enable employees and their families to continue paying for their health coverage for a period of time following the loss or change in employment status.

In the Senate, the Equal Access to COBRA Act (S. 563) was re-introduced by Senator Barbara Boxer (D-Calif.) and has no co-sponsors; in the House, HR 1028 was introduced for the first time, by Rep. Anthony Weiner (D-NY), with 45 co-sponsors.

“Current federal laws related to COBRA coverage do not apply to domestic partners or same-sex spouses—even at companies that offer health coverage to domestic partners of employees,” according to a press statement from Boxer’s office. The proposed law, said the statement, would apply to companies that already offer health coverage to domestic partners and their children.

Cold feet: Maryland House backs off vote on marriage

Supporters of allowing same-sex couples to marry in Maryland could see the altar: passing the House and sending the bill to a governor who said he would sign it. But on March 11, the House unanimously voted to send it back to committee.

The road to marriage equality in Maryland had never been a short and smooth one, but supporters of allowing same-sex couples to marry could see the altar: passing the House and sending the bill to a governor who said he would sign it. But supporters never had a clear majority, and some got cold feet in the days leading up to the House vote. On March 11, instead of voting for the bill, the House unanimously voted to send it back to committee. Even some LGBT activists conceded it was the thing to do.

The Maryland vote reduced to two the number of states that could possibly see marriage equality move through the state legislature this year—Rhode Island and New York. Iowa could lose existing marriage equality rights through actions in the legislature this year, and six states that already have statutes that prevent same-sex couples from obtaining marriage licenses—Indiana, Minnesota, New Mexico, North Carolina, Pennsylvania, and South Dakota—could add constitutional amendments to protect the bans from legal challenges. An attempt to do so in Wyoming died in committee in February.

Equality Maryland, the state’s leading LGBT advocacy group, said in a statement that, although they are “disappointed” the bill didn’t pass, sending it back to committee was “a strategic step that will allow us to fight and win in the future.” Board member David Lublin explained to Maryland Politics Watch that, if the bill failed in a vote on the merits, it would have been harder later to convert the delegates who had already voted no in public.

And a coalition of groups including Equality Maryland, the Human Rights Campaign, Freedom to Marry, and Gill Action released a joint statement after the vote, saying, “Over the past several days it has become clear that additional time to continue the marriage conversation in the state will better position the Civil Marriage Protection Act for success.”

The full Senate had passed its version of the bill on a vote of 25 to 22 February 24.

Action then moved to the House, where the Judiciary Committee had voted 12-10 on March 4 to send the bill to the floor, even though committee chair Joseph F. Vallario Jr. (D-Prince George’s), who cast the deciding vote to do so, indicated he would not support marriage equality on the floor.

Support for the bill had already grown shakier. Committee member Sam Arora (D-Montgomery), an original co-sponsor, had said March 3 he would vote against it on the floor, and he only wanted to send it to the full House so voters could have their say in a likely referendum. The state constitution allows voters to submit new laws to a referendum if they can collect the 55,736 signatures necessary to do so.

And Delegates Tiffany Alston (D-Prince George’s) and Jill Carter (D-Baltimore City)—both co-sponsors—were no-shows at the first scheduled committee vote. Alston said she wanted more time to weigh her decision based on diverse feedback from constituents and others. Carter said she was just trying to draw attention to other legislation. Alston eventually voted against sending the bill to the floor, but Carter voted in favor of doing so.

Sponsor Melvin Stukes (D-Baltimore City), who was not on the Judiciary committee, announced at the end of February that he was withdrawing his sponsorship. He said he had come to realize that the bill would grant full marriage equality instead of civil unions.

Three days before the full House vote, the bill was still “probably one to two short” of the 71 votes needed for passage, said Delegate Heather Mizeur (D-Montgomery) in an interview March 8, adding, “There is still a large block of undecided who will go to the floor undecided.”

Democrats hold a 98 to 43 majority in the chamber.

Even Governor Martin O’Malley (D), who has said he would sign the bill, appeared to shift towards the idea of a voter referendum—something equality advocates have shunned. He told reporters March 3 “We should let the people decide,” according to the Baltimore Sun. After the bill was recommitted, he told the Associated Press, “I would have hoped that we could have resolved this issue and then let the people decide.”

The full House vote came after nearly four hours of debate on March 9 and 11. Debate centered around religious beliefs regarding homosexuality, whether the LGBT community’s political movement for equal rights could be compared to that of African-Americans, and whether same-sex marriage would negatively impact children.

Delegate Mizeur, in one of the most personal speeches during debate, spoke of reconciling her deep Catholic faith with being a lesbian. She said that, if the bill failed, it would not stop her and her wife from loving each other, but the lack of legal protections would “make it really, really difficult for us in the worst, most challenging times.”

Committee Chair Vallario asked, “Where would Martin Luther King be on this issue?”

“I don’t know,” he said, but introduced a motion to recommit the bill to his Judiciary Committee. The House unanimously approved.

One other bill remaining in that committee seeks to ask voters to amend the state constitution to ban same-sex marriages. Spokespeople for both the bill’s sponsor, Delegate Don Dwyer (R-Anne Arundel), and Vallario could not say whether that bill would receive a vote before the session ends April 11.

In the remaining states, the Rhode Island House and Senate Judiciary Committees have held hearings on marriage equality bills in recent weeks, but neither chamber has yet scheduled a vote.

New York Governor Andrew Cuomo (D) has said he will urge the legislature to take up marriage equality this session. He met with LGBT advocates March 9 to discuss the matter.

Top State Dept. official resigns over impact of remarks on gay soldier’s WikiLeaks

The White House allegedly pressured the State Department’s top spokesperson to resign Sunday, over comments he made suggesting that the gay soldier arrested in the WikiLeaks scandal is being mistreated.

The White House allegedly pressured the State Department’s top spokesperson to resign Sunday, over comments he made suggesting that the gay soldier arrested in the WikiLeaks scandal is being mistreated.

P.J. Crowley was the Assistant Secretary of State, in charge of media relations, until Sunday, March 13. That’s when he resigned and speculation began that he had been forced out.

Why? Because Crowley told a university seminar in Boston last Thursday that the Defense Department’s treatment of WikiLeaks alleged informer Bradley Manning was “ridiculous and counterproductive and stupid.” He didn’t say much more than that and, in fact, added that he felt it was appropriate that Manning is still being detained. But his remarks were, nonetheless, seen as a harsh criticism of the Defense Department. When Crowley resigned Sunday, he acknowledged it was because of the “impact of my remarks.”

Manning, a 23-year-old Army private assigned to military intelligence analysis, has been in solitary confinement in a military jail in Virginia since July when he was charged with having turned over more than 250,000 internal State Department cables to WikiLeaks, an Internet site which has made them public. WikiLeaks claims that fewer than 16,000 of those documents were classified secret, but numerous officials in the Obama administration have said they could have significant consequences.

Secretary of State Hillary Clinton characterized the leaks as tantamount to “an attack on America’s foreign policy interests.” But they were also clearly an embarrassment, with the cables characterizing some heads of state as “thin-skinned” or using Botox, and with directives that State officials gather very personal information about various diplomats.

Manning, who identified himself as gay in a Facebook posting, has been charged with “aiding the enemy,” a charge suggesting the government is inclined to treat his activities as spying. He has also been charged with theft of public records and with causing intelligence data to be published on the Internet, among other charges.

During a press conference Friday, President Obama was asked about the Defense Department’s treatment of Manning.

“I’ve actually asked the Pentagon whether or not the procedures that have been taken in terms of his confinement are appropriate, and are meeting out basic standards,” said Obama. “And they assure me they are.”

Manning’s attorneys say he has been made to strip down to his underwear or naked every night. Obama did not confirm any particulars but hinted that some actions were being taken are for Manning’s own safety.

“I can’t go into details about some of their concerns. But some of this has to do with Private Manning’s safety as well,” said Obama.

Manning’s attorneys say he is also being denied his constitutional right to a speedy trial. Some reports suggest a pre-trial hearing isn’t likely until May at the earliest.

White House Calls for Coordinated Anti-Bullying Efforts

The White House held a high-visibility conference on bullying prevention March 10, with the President and First Lady calling on parents, teachers, students, and communities to address the problem together.

President Barack Obama

The White House held a high-visibility conference on bullying prevention March 10, with the President and First Lady calling on parents, teachers, students, and communities to address the problem together. Members of Congress also this week introduced several LGBT-inclusive bills designed to address bullying and harassment of students.

In his opening remarks, President Obama said the one overarching goal of the conference was “to dispel the myth that bullying is just a harmless rite of passage or an inevitable part of growing up.” Instead, he said, “Bullying can have destructive consequences for our young people.”

The President also noted that bullying is “more likely to affect kids that are seen as different, whether it’s because of the color of their skin, the clothes they wear, the disability they may have, or sexual orientation.”

Attending the event were senior administration officials and approximately 150 students, parents, teachers, advocates, and others, including representatives from the Gay, Lesbian and Straight Education Network (GLSEN), the Human Rights Campaign (HRC), the National Center for Transgender Equality, and the Trevor Project.

“No school can be a great school until it is first a safe school,” said Secretary of Education Arne Duncan.

And Secretary of Health and Human Services (HHS) Kathleen Sebelius asserted, “Bullying is not an education problem or a health problem—it is a community problem.”

Breakout sessions led by other administration officials discussed school policies and programs, campus and community programs, and cyberbullying. Although there were no sessions or speeches specific to anti-LGBT bullying, the need to address it came up numerous times in breakout sessions and speeches.

Kevin Jennings, the openly gay Assistant Deputy Secretary for the Office of Safe and Drug-Free Schools (OSDFS) at the Department of Education, and the founder of GLSEN, said in a call with reporters that bullying has reached a “tipping point” where it “is no longer tolerable.” What pushed it to that point, he said, was the media attention surrounding a string of five suicides last fall related to anti-LGBT bullying.

The event also served to launch the Web site StopBullying.gov, which consolidates federal anti-bullying resources for students, parents, educators, and others. On the homepage is a prominent rainbow-colored box titled “LGBT Bullying,” which links to LGBT-specific information and resources.

The conference also highlighted several private, national campaigns to address bullying, including ones from the National Education Association, the American Federation of Teachers, and the National PTA.

MTV said it will launch a new coalition—of which the Gay and Lesbian Alliance Against Defamation (GLAAD) will be part—to fight bullying and intolerance online.

And Facebook said it will soon enhance the anti-bullying resources in its online Safety Center. It will also create a “Social Reporting” system so that, when people report content that violates Facebook policies, harassing content can be removed quickly, and parents or teachers can be notified.

Already, the administration has taken several steps to address bullying:

  • The Departments of Education, Justice, HHS, Agriculture, Defense, and Interior formed a federal task force on bullying in 2009, and convened the first-ever National Summit on Bullying in August 2010.
  • The Department of Education’s Office of Safe and Drug-Free Schools awarded $38.8 million in grants to 11 states in October as part of a new Safe and Supportive Schools program. The program requires states to survey students, family, and staff about school safety issues, including bullying, and direct grant money where there is the greatest need.
  • The Department of Education issued guidance to all school officials in October 2010, reminding them that federal law requires schools to take action against bullying—including gender-based and sexual harassment of LGBT students.
  • The Department of Education issued a memo to all chief state school officers in December 2010, providing examples of effective state anti-bullying laws as a reference for developing or revising their own.
  • HHS launched a Stop Bullying Now! campaign for students five to eighteen years old, with tool kits to help youth mentor younger children about bullying prevention.

Members of Congress also announced several pieces of anti-bullying legislation this week.

Senators Bob Casey (D-PA) and Mark Kirk (R-IL) reintroduced the Safe Schools Improvement Act March 8, which would require schools and districts receiving federal funds to implement anti-bullying programs and to report data on incidents of bullying and harassment, including bullying done through electronic communication. The programs must specifically include bullying and harassment based on the actual or perceived sexual orientation and gender identity of students and those with whom they associate, among other attributes.

A spokesperson for U.S. Rep. Linda Sánchez (D-CA) said she will soon introduce a House version of the bill, as she did last session.

Senator Frank Lautenberg (D-N.J.) and Rep. Rush Holt (D-N.J.) on March 10 reintroduced the Tyler Clementi Higher Education Anti-Harassment Act, which establishes similar anti-bullying requirements for colleges and universities receiving federal student aid. The bill is named after a gay Rutgers University student who committed suicide in September 2010 after two other students videotaped him in an intimate encounter with another man and broadcast the video online.

Senator Al Franken (D-Minn.) and Rep. Jared Polis (D-Colo.) introduce the Student Nondiscrimination Act (SNDA) March 10, which states that elementary and secondary schools must not discriminate against students on the basis of real or perceived sexual orientation or gender identity in any program or activity receiving federal funds, or risk losing those funds. “Discrimination,” under SNDA, includes harassment, bullying, intimidation, and violence based on sexual orientation or gender identity.

Student anti-bullying, non-discrimination bills face uncertain path

Members of Congress are introducing a flurry of bills this week designed to address bullying and harassment of students, including LGBT students, and timed to coincide with a major White House conference on bullying prevention March 10.

Bob Casey

Members of Congress are introducing a flurry of bills this week designed to address bullying and harassment of students, including LGBT students, and timed to coincide with a major White House conference on bullying prevention March 10. And President Obama and the First Lady, in preparation for Thursday’s event, posted a video March 9 to the StopBullying.gov Facebook page, reaffirming their commitment to addressing the issue. Bullying “affects every single young person in our country,” the president said. “Putting a stop to bullying is a responsibility we all share.”

Bills aimed at doing that died in committee last session, however. And one LGBT leader worries that the anti-bullying legislation does not go far enough to provide effective protections.

The Safe Schools Improvement Act (SSIA) introduced March 8 by Senators Bob Casey (D-PA) and Mark Kirk (R-IL) would require schools and districts receiving federal funds to implement and report on anti-bullying programs. The programs must specifically include bullying and harassment based on the actual or perceived sexual orientation and gender identity of students and those with whom they associate, among other attributes.

Bullying and harassment under the Casey-Kirk bill would include actions conducted through electronic communication, such as e-mail or instant messages. The bill would also oblige states to report data on incidents of bullying and harassment to the U.S. Department of Education and make the data available to the public.

During a press call Tuesday, Casey noted that LGBT students, and those perceived to be, are among the most frequent targets of bullies. The recent media attention surrounding several cases of LGBT-related bullying, he said, has made bullying “much more of a national issue” and is one of the reasons people in Washington have paid more attention to bullying in general.

Casey called the SSIA “a strong and bipartisan bill designed to ensure that no child is afraid to go to school for fear of being bullied.”

But, so far, Kirk is the only Republican among the 20 original sponsors of the SSIA. There is one Independent, Bernard Sanders (I-Vt.) When the bill died in committee last session, it had 18 sponsors, also all Democrats except for Kirk and Sanders.

A spokesperson for U.S. Rep. Linda Sánchez (D-CA) said she will soon introduce a House version of the bill, as she did last session.

And Senator Frank Lautenberg (D-N.J.) and Rep. Rush Holt (D-N.J.), plan to reintroduce on March 10 the Tyler Clementi Higher Education Anti-Harassment Act, which establishes similar anti-bullying requirements for colleges and universities receiving federal student aid. The bill is named after a gay Rutgers University student who committed suicide in September 2010 after two other students videotaped him making out with another man and broadcast the videos online.

Senator Al Franken (D-Minn.) and Rep. Jared Polis (D-Colo.) will also introduce the Student Nondiscrimination Act (SNDA) March 10 in their respective chambers, according to spokespeople from their offices. SNDA states that elementary and secondary schools must not discriminate against students on the basis of real or perceived sexual orientation or gender identity in any program or activity receiving federal funds, or they will risk losing those funds. “Discrimination,” under SNDA, includes harassment, bullying, intimidation, and violence based on sexual orientation or gender identity.

A federal law could help students even though states have been passing their own anti-bullying laws, said Kara Suffredini, executive director of Mass Equality, the leading LGBT advocacy organization in Massachusetts. The SSIA, she said, goes further than most state laws in providing a specific enforcement mechanism—the withholding of funds. It also goes further than most states, including Massachusetts, in its reporting requirements and in prohibiting bullying based upon specific, enumerated characteristics, such as sexual orientation and gender identity.

A 2007 survey of students by GLSEN found that, where school policies enumerated bullying based on sexual orientation, students were more likely to report problems to staff and staff were more likely to help.

And, in Romer v. Evans, a landmark 1996 U.S. Supreme Court decision that struck down Colorado’s anti-gay Amendment 2, the high court noted, “Enumeration is the essential device used to make the duty not to discriminate concrete and to provide guidance for those who must comply.”

But enumeration has been a stumbling block in passing anti-bullying legislation in several states. A Texas House committee recently removed enumerated categories from an anti-bullying bill in an effort to mollify those who say enumeration creates special rights for people in the listed groups. And competing bills—enumerated and not—were reintroduced into the Michigan legislature this year after legislators failed last session to resolve whether to include enumerated categories.

Steven Goldstein, chair of Garden State Equality, New Jersey’s leading LGBT advocacy group, cautions that, while enumeration of sexual orientation and gender identity is absolutely necessary, it is not sufficient for truly effective anti-bullying protections. Goldstein helped lead the fight for New Jersey’s Anti-Bullying Bill of Rights, the country’s most sweeping anti-bullying law, enacted in January 2011.

He said that, while he supports the SSIA, it does not go far enough in “specifying what [state] policies should be,” such as “what the deadlines should be for reporting and resolving an incident of school bullying.” The New Jersey law, in contrast, requires bullying incidents to be reported by teachers, investigated, and resolved within specific timeframes.

The SSIA and SNDA’s likelihood of passage remains unclear. Casey said he is not sure yet whether the SSIA will progress as an independent piece of legislation or attached to a larger bill, such as the reauthorization of Elementary and Secondary Education Act (ESEA), the key federal statute governing primary and secondary education. And a spokesperson for Rep. Polis said last session that the Congressman hoped SNDA would also become part of ESEA, but that he would push for it as a standalone bill if necessary.

Marriage Equality Hanging Tough in Md., N.H.

Proponents of marriage equality are holding their own this week in two battleground states, despite tough skirmishes that threatened ground they had previously gained. But in both states–Maryland and New Hampshire–more critical battles seem almost inevitable, perhaps on the ballot in 2012.

Heather Mizeur (Photo credit: Maryland State Archives)

Proponents of marriage equality are holding their own this week in two battleground states, despite tough skirmishes that threatened ground they had previously gained. But in both states—Maryland and New Hampshire—more critical battles seem almost inevitable, perhaps on the ballot in 2012.

In Maryland, a House committee passed a marriage equality bill by a narrow margin on March 4, even though key supporters—including some co-sponsors—appeared ready to cave in to opponents. The full House is now debating the measure and will likely vote on it this week. But opponents have promised to petition for a voter referendum in November 2012, if the bill passes.

In New Hampshire, the House Judiciary Committee voted March 3 to table a bill that seeks to repeal the state’s existing marriage equality law. That action postpones further consideration of the repeal bill until January 2012. But opponents of marriage equality in the Granite State have said they, too, will introduce a bill next year—one seeking to place a question on the ballot in November 2012, asking voters to amend the state constitution to ban same-sex marriages.

The struggle in Maryland grew especially fierce in the House Judiciary Committee, when a vote scheduled for March 1 was delayed because Delegates Tiffany Alston (D-Prince George’s) and Jill Carter (D-Baltimore City)—both co-sponsors—failed to appear. Alston issued a statement saying she wanted more time to weigh her decision based on “the diverse and diametrically opposed feedback” from constituents and others. Carter, in an interview with WBAL-TV, claimed her absence was an effort to draw attention to other legislation.

Then, on March 3, Delegate Sam Arora (D-Montgomery), an original co-sponsor of the marriage equality bill, told House Majority Leader Kumar Barve (D-Montgomery) that he would vote against the bill on the floor. The turnabout was especially stinging for Equality Maryland, the statewide LGBT group that endorsed Arora in the last general election.

“I wrestled with this issue in a way I never had before,” said Arora, in a statement posted to his Web site. He said he would vote support the bill in committee but now believes Maryland should offer same-sex couples civil unions only.

In the final committee vote, with all members present, Arora and Carter were among the 12 delegates, all Democrats, who voted for the bill. Alston was among the 10 voting against it.

Committee Chair Joseph F. Vallario Jr. (D-Prince George’s and Calvert), who has indicated he does not support marriage equality, cast the last–and deciding–vote to send the bill to full House.

Arora clarified that he voted for the bill in committee, and will support it on the House floor, only because he expects voters will have a chance to weigh in on the issue in November 2012, should the full House pass the bill and Governor Martin O’Malley (D) signs it, as promised.

On his Web site, he said the issue “has such impact on the people of Maryland that they should have a direct say. . . . On the floor, I will vote to send the bill to the governor so that Marylanders can ultimately decide this issue at the polls.”

Arora’s position echoed that expressed by several state senators during their deliberation of the Senate bill February 24. State Senator Nancy Jacobs told the chamber that opponents of marriage equality have already been meeting with “people all around the country who have run successful referendums on this issue.”

The state constitution allows voters to submit laws to a referendum if they can collect enough signatures: 55,736. Collection can start as soon as a bill passes the legislature. One-third of the signatures must be submitted by June 1, and the rest by June 30.

If enough signatures are collected for a referendum, no same-sex marriage licenses could be issued until 30 days after the November 2012 referendum—at which point, the results of the referendum would determine whether they could begin. If there is no referendum, the state could begin issuing marriage licenses to same-sex couples as early as October 1, 2011.

A 2001 attempt to hold a referendum to repeal the state’s new law banning discrimination based on sexual orientation failed after the ACLU of Maryland won a lawsuit charging that referendum proponents had failed to collect enough valid signatures.

Two other states have rescinded marriage equality through voter referenda: Maine, in 2009, repealed a law newly passed by the state legislature; California, in 2008, turned back a state supreme court ruling that the state constitution required marriage equality. In the latter case, Proposition 8 amended the state constitution to establish a ban on same-sex marriage. That measure is under challenge in federal court.

Passage in the Maryland House remains uncertain, however. As of Tuesday, the marriage equality bill had 58 sponsors in the House, but was still “probably one to two short” of the 71 votes needed for passage, said Delegate Heather Mizeur (D-Montgomery), in an interview March 8. “There is still a large block of undecided who will go to the floor undecided.”

Last week, Delegate Melvin Stukes (D-Baltimore City) said he would withdraw as a sponsor (he had been No. 59), after realizing the bill would grant full marriage equality instead of civil unions.

Mizeur said supporters in the House hope to pass an identical bill to the one passed by the Senate, allowing it to go directly to the governor for his signature. If the House bill is amended in any way, a House and Senate conference committee would need to agree on a final version to be voted on again in each chamber.

Gay federal appeals nominee: 11 months and still waiting for hearing

Republican members of the U.S. Senate Judiciary Committee have been holding up the nomination of President Obama’s only openly gay nominee to a federal appeals bench.

Edward DuMont

Republican members of the U.S. Senate Judiciary Committee have been holding up the nomination of President Obama’s only openly gay nominee to a federal appeals bench.

President Obama nominated Washington, D.C., attorney Ed DuMont to the Federal Circuit bench on April 14 last year, but the nomination has not progressed through the usual Committee hearing and vote to move to the Senate floor. At the end of the last Congressional session, the Committee “returned” DuMont’s nomination to the president, along with those of several other appeals court nominees who had not gained confirmation. The president re-nominated those candidates at the start of the new congressional session and several have seen movement–either their first hearing or even a second one.

But DuMont’s nomination alone has not received even one hearing.

In fact, only one other nominee on the Committee’s list of pending federal appeals court nominees has waited longer than DuMont for a confirmation vote: controversial liberal nominee Goodwin Liu.

Liu was first nominated in February 2010 and was reported favorably out of committee in May. But his nomination never reached the floor.

Liu, however, has already received a second confirmation hearing just this month. And the committee has hearings scheduled for this Thursday (March 10) for two federal appeals candidates who were nominated months after DuMont was. One of those two nominees, Jimmie Reyna, was nominated to the Federal Circuit five months after DuMont.

Asked why DuMont’s nomination has not been scheduled for a hearing, a spokeswoman for Judiciary Committee Chairman Patrick Leahy (D-Vt.) said only that “Committee Republicans are still reviewing information about the nomination….”

A spokeswoman for the Committee’s ranking minority member, Senator Charles Grassley (R-Iowa), did not respond to a request for comment, nor did a spokeswoman for DuMont.

If ultimately confirmed, DuMont would be the first openly gay person to be appointed to a federal appeals bench. The Federal Circuit, located in Washington, D.C., is the only federal appeals court with national jurisdiction and hears cases involving government contracts, patents, trademarks, customs issues, and veterans’ benefits.

DuMont’s responses to the Committee’s routine questionnaire included responses that would seem to please members of both sides of the partisan aisle. He noted having made contributions to a large number of gay and progressive groups, but he also signed onto a letter of support for one of President George W. Bush’s controversial conservative appeals court nominee, Miguel Estrada. DuMont also clerked for an appointee of President Reagan, 7th Circuit Court Judge Richard Posner.

Meanwhile, openly gay district court nominee J. Paul Oetken has not yet been scheduled for a hearing, but President Obama nominated him only January 26 of this year.

Oetken is nominated for the U.S. District Court for the Southern District of New York, covering much of Manhattan.

In response to questions from the Senate Judiciary Committee’s standard questionnaire, Oetken indicated that he co-authored a friend-of-the-court brief in support of overturning sodomy laws, in Lawrence v. Texas. The U.S. Supreme Court struck down sodomy laws in that case, with a decision issued in 2003. Oetken also noted he holds memberships in the Human Rights Campaign, Lambda Legal, and the ACLU’s LGBT Project.

Oetken served as Associate Counsel to President Clinton from 1999 to 2001.

If approved, Oetken would become the second openly gay judge in that federal district—along with Deborah Batts. He would be the third openly gay federal judge in the country—along with Emily Hewitt of the U.S. Court of Federal Claims. Batts and Hewitt were both appointed by President Clinton.

Name No. of months since first nominated Hearing held? Committee vote Full senate vote
Goodwin Liu 13 Yes – 2 Yes – 1 No
Edward DuMont 11 No No No
Susan Carney 10 Yes – 2 Yes – 2 No
James Graves 9 Yes – 2 Yes – 2 Feb. 12, 2011
Victoria Nourse 8 No No No
Jimmie Reyna 6 Yes Sch. Mar. 10 No
Caitlin Halligan 6 Yes Sch. Mar. 10 No
Bernice Donald 3 No No No
Henry Floyd 2 No No No

Boehner calls for House group to defend DOMA

House Speaker John Boehner announced March 4 that the House would take some action to defend the federal law that prohibits recognition of same-sex marriages. Meanwhile, at least three bills were introduced this week to either defend or expand the reach of the Defense of Marriage Act (DOMA).

House Speaker John Boehner announced March 4 that the House would take some action to defend the federal law that prohibits recognition of same-sex marriages. Meanwhile, at least three bills were introduced this week to either defend or expand the reach of the Defense of Marriage Act (DOMA).

Boehner’s statement did not specify what the House would do to defend the DOMA. It said only that he would convene a meeting of the Bipartisan Legal Advisory Group “for the purpose of initiating action by the House to defend this law….”

“It is regrettable that the Obama Administration has opened this divisive issue at a time when Americans want their leaders to focus on jobs and the challenges facing our economy,” said the statement. “The constitutionality of this law should be determined by the courts –not by the president unilaterally—and this action by the House will ensure the matter is addressed in a manner consistent with our Constitution.”

In fact, the Department of Justice made clear, when it announced it would no longer defend DOMA in court, that it was up to the courts to make the final determination of whether the law is constitutional. The administration also made clear it intended to continue enforcing the law until the law is determined to be unconstitutional by the courts.

While Boehner said last week he had a number of options on the table concerning DOMA, the announcement that he was calling a meeting of the Advisory Group suggests a somewhat measured response given the level of vitriol on the conservative right concerning DOJ’s decision.

One Republican congressman from Arizona, Trent Franks, said “absolutely” when a blogger from the liberal think tank Think Progress asked him whether he supported an idea from Newt Gingrich President Obama and Attorney General Eric Holder over their decision.

Rep. Dan Burton (R-Ind.) introduced a bill (HR 875) March 2 to prevent any federal court from deciding “any question pertaining to the interpretation of, or the validity under the Constitution” of DOMA. The bill has 13 sponsors, including four members of the Texas delegation (Reps. Joe Barton, Ralph Hall, Jeb Hensarling, and Ron Paul), and one member of the Florida delegation (Rep. Dennis Ross).

Rep. Paul Broun of Georgia introduced a bill (HJ Res. 45) to amend the U.S. Constitution to prohibit the U.S. Constitution and the constitution of any state from recognizing marriages other than “a man and a woman.” The bill has 21 co-sponsors, including Reps. Joe Barton, Louie Gohmert, Randy Neugebauer of Texas, Rep. Phil Gingrey and Lynn Westmoreland of Georgia, and Rep. Jeff Miller of Florida.

And Rep. Louie Gohmert of Texas introduced a bill (HRes. 143) directing the Speaker to take “any and all actions necessary” to defend DOMA. The bill has 26 co-sponsors, including Reps. Bill Flores and Pete Olson of Texas, Rep. Phil Gingrey of Georgia, Rep. Dan Lungren of California, Reps. Donald Manzullo and Joe Walsh of Illinois, and Reps. Jeff Miller, Richard Nugent and Steve Southerland of Florida.

The Advisory Group, noted the Speaker’s press release, is a five-member panel consisting of the House Speaker, the Majority and Minority Leaders, and the Majority and Minority Whips.

“Under House rules, the advisory group has the authority to instruct the non-partisan office of the House General Counsel to take legal action on behalf of the House of Representatives,” noted the press release.

Gingrich 2012: Batting or baiting?

Educated people who know someone gay are often the most likely to stand up for gay people and support their right to be treated the same as everyone else.

Not so Newt Gingrich. The former Speaker of the House, who has a Ph.D in history and a half-sister who is gay, has taken a leading role in opposing equal rights for gays.

Educated people who know someone gay are often the most likely to stand up for gay people and support their right to be treated the same as everyone else.

Not so Newt Gingrich. The former Speaker of the House, who has a Ph.D in history and a half-sister who is gay, has taken a leading role in opposing equal rights for gays.

The Los Angeles Times reported this week that Gingrich was a key player in last November’s campaign to oust three supreme court justices in Iowa. The three justices voted to uphold the state constitution’s equal protection clause with regards to same-sex marriages.

Gingrich also found $200,000 in seed money for the effort and one of the campaign organizers told the Times, “It wouldn’t have happened without” Gingrich.

The other irony not lost on the LGBT community, of course, is that Gingrich himself is on his third marriage. He had his wife by his side Thursday when he announced he was creating a website to raise money to “explore” a bid for the Republican presidential nomination.       But at least some political observers believe Gingrich is just stoking the presidential bid speculation to keep conservative money flowing into his coffers. MSNBC talk show host Rachel Maddow told her viewers this week that “he’s faking it,” nothing that his non-profit group has spent $13.8 million of the $14.5 million it raised in 2010. Maddow said Gingrich isn’t announcing a campaign or an exploratory committee because that would invoke strict campaign funding rules.

But the Christian Science Monitor quoted aides to Gingrich as saying the potential candidate has various business entities that he has to make sure are untangled in any campaign organization. But even the Monitor suggested that “Thursday’s semi-announcement could just be a way of drawing out the media coverage of the possible GOP candidate’s intentions.”

One thing seems clear: If Gingrich does decide to run, same-sex marriage will almost certainly be a front-burner issue in the 2012 presidential primaries.