With children in need, states struggle over gay adoptive parents

Each year, over 100,000 children in the U.S. foster care system are waiting for adoptive homes. And over two million gay and lesbian people are interested in adopting a child. But legislative and court battles are being waged in several states over whether gay and lesbian people should be allowed to adopt.

Jennifer Chrisler

Second of Two Parts (Part One)

Each year, over 100,000 children in the United States foster care system are waiting for adoptive homes, according to the U.S. Department of Health and Human Services (HHS). And over two million gay and lesbian people are interested in adopting a child, according to a 2007 study by the Williams Institute of UCLA.

But legislative and court battles are being waged in several states over whether gay and lesbian people—individually or as couples—should be allowed to adopt. And the outcomes have been mixed.

Under a bill signed April 18 by Arizona Governor Jan Brewer (R), a married man and woman will receive “placement preference” in adoption over a single adult, if all relevant factors are equal. Unmarried individuals may adopt, but only a married husband and wife may adopt jointly. Marriages of same-sex couples are not recognized in the state.

And the Virginia State Board of Social Services voted 7-2 on April 20 to reject a proposal of former Governor Tim Kaine (D) that would have prohibited discrimination against potential adoptive parents on the basis of sexual orientation. Governor Bob McDonnell (R) recommended that they disapprove the proposal, although the Board was not obligated to follow him.

Two other senior state officials had also expressed their opposition to the proposal. Republican Attorney General Ken Cuccinelli II’s office issued a memo April 12, written by Senior Assistant Attorney General Allen Wilson. The memo said the proposed change goes against state law and public policy and the Board “lacks the authority to adopt this proposed language.” The memo “revises and amends” Wilson’s memo from December 2009 (during Kaine’s governorship), in which he said the Board did have that authority.

And Virginia Social Services Commissioner Martin Brown, a McDonnell appointee, also advised against the proposed regulations. Brown is the former executive director of The Family Foundation of Virginia, a conservative organization that includes among the partners listed on its Web site the Family Research Council, classified as an anti-gay hate group by the Southern Poverty Law Center.

In Illinois, however, a state Senate committee killed a bill April 11 that would have allowed religiously affiliated child welfare agencies to refuse a person’s adoption or foster home application if the person was in a civil union.

Court rulings on adoption by same-sex couples have varied. The Arkansas Supreme Court ruled April 7 that the state’s ban on adoption by unmarried, cohabiting couples violated the state constitution. Last September, a Florida appeals court overturned that state’s ban on adoption by gay and lesbian individuals.

But the U.S. 5th Circuit Court of Appeals ruled April 12 that the Louisiana state registrar did not violate the U.S. Constitution by refusing to issue a new birth certificate to a Louisiana-born child adopted in New York by a gay couple. Louisiana officials said to do so would violate the state’s public policy of not allowing joint adoptions by unmarried couples.

Utah also has a legislative ban against adoption by unmarried couples. Mississippi has a ban on adoption by same-sex couples. And while Michigan has no statutory ban, state courts have ruled that unmarried individuals may not jointly petition to adopt.

In Arizona, Virginia, Louisiana, Utah, Mississippi, and Michigan, nearly 12,000 children in foster care are eligible and waiting for adoptive homes, according to the most recent (2009) data from HHS.

Jennifer Chrisler, executive director of the Family Equality Council, said that “the overarching picture right now is looking a little gloomy at the state level.”

But Chrisler added that the adoption battles are in part because of “a growing awareness of the issue of LGBT people and their ways of creating family,” combined with an “opportunistic moment” for conservative politics. Conservatives are using the opportunity “to push through as much of their conservative agenda as they can.”

She sees their actions as “a serious threat” to finding homes for children who need them.

Ellen Kahn, director of the Human Rights Campaign’s (HRC) Family Project, said that society at a “threshold moment in child welfare,” when people have to move beyond old beliefs and traditions, just as they did with adoption by single parents and interracial couples, among others.

But she thinks the issue has hit “the tipping point” with regard to adoption by LGBT parents. Research has shown, she said, that “there’s absolutely no reason to discriminate.”

“Because this issue is so politicized,” however, she said, it gets pulled out of the context of child welfare. This slows down “a natural, organic progression” towards acceptance of LGBT adoptive parents among child welfare professionals.

Sarah Warbelow, HRC’s state legislative director, said the issue of adoption is also tied up with the issue of relationship recognition for same-sex couples, especially in states that ban all forms of relationship recognition—not only marriage—for such couples. Adoption agencies in those states, Warbelow said, are often then “reluctant to allow couples to even consider adopting, because they don’t know how to interpret the language.”

Currently, 18 states have such comprehensive bans. Only one of those, Arkansas, after its April 7 state Supreme Court decision, allows same-sex couples to jointly petition to adopt statewide.

And while only 16 plus the District of Columbia do allow same-sex couples to jointly petition to adopt, Kahn said she works with adoption agencies in states that do not permit joint adoptions by same-sex couples and that many of those agencies will nevertheless treat same-sex prospective parents like a couple, even though they know only one will become the legal parent.

That kind of attitude, she says, “keeps moving regardless of who’s in office” and, “over time, changes the landscape agency to agency and makes a big difference for families.”

On a federal level, the Family Equality Council announced in an e-mail to supporters April 22 that U.S. Rep. Pete Stark (D-Calif.) would on May 3 reintroduce the Every Child Deserves a Family Act, which would withhold federal adoption and foster care assistance funds from states that discriminate against LGBT people in foster placements or adoption. He introduced a similar bill last session, but it died in committee.

And the U.S. Department of Health and Human Services (HHS) issued a memo April 6 encouraging child welfare agencies to better serve the needs of “lesbian, gay, bisexual, transgender and questioning (LGBTQ) youth” in the foster care system, and calling LGBT prospective parents “a largely untapped resource” for providing foster or adoptive homes to LGBTQ young people.

Yes on 8: Gay judge’s ruling shouldn’t count

Proponents of Proposition 8 filed a motion Monday, April 25, in federal district court, seeking to vacate the August 2010 ruling by Judge Vaughn Walker that the initiative is unconstitutional, citing Walker’s recent disclosure that he is gay.

Vaughn Walker

Proponents of Proposition 8 filed a motion Monday, April 25, in federal district court, seeking to vacate the August 2010 ruling by Judge Vaughn Walker that the initiative is unconstitutional, citing Walker’s recent disclosure that he is gay and has been in a relationship with a man for 10 years.

Chad Griffin, founder of the American Foundation for Equal Rights (AFER), which sponsored the lawsuit that challenged Proposition 8, issued a statement saying the motion is another “desperate and absurd” tactic by the Yes on 8 coalition which campaigned for California’s ban on marriages between same-sex partners.

Shannon Minter, legal director for the National Center for Lesbian Rights, agreed.

“This is not likely to win them any points with the courts, who understandably do not appreciate having the integrity of judges called into question based on such outrageous grounds,” said Minter.  “This is part and parcel of the underhanded way the Prop 8 campaign itself was run—based on lies, insinuations, and unsupported innuendo.”

“This reeks of a ‘Hail Mary’ attempt to assail Judge Walker’s character because they are unable to rebut the extremely well reasoned ruling he issued last year,” said Jon Davidson, legal director for Lambda Legal.

In the 26-page motion filed with the U.S. District Court for the Northern District of California, where the case was originally tried, Charles Cooper, lead attorney for the Yes on 8 proponents cites the April 6 article from Reuters news service. That article first reported that Walker disclosed to a small group of reporters that he was gay and was in a relationship.

“Given that Chief Judge Walker was in a committed, long-term, same-sex relationship throughout this case (and for many years before the case commenced),” states Cooper, “it is clear that his ‘impartiality might reasonably [have been] questioned’ from the outset.”

The U.S. Code dealing with “Judiciary and Judicial Procedure” states that “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” It also states that a judge “shall also disqualify himself” if “He knows that he … has a financial interest in the subject matter in controversy … or any other interest that could be substantially affected by the outcome of the proceeding….”

According to Cooper, “if at any time while this case was pending before him, Chief Judge Walker and his partner determined that they desired, or might desire, to marry, Chief Judge Walker plainly had an ‘interest that could be substantially affected by the outcome of the proceeding’.”

Lambda’s Davidson said that reasoning, if applied, would presumably disqualify any judge –straight or gay.

NCLR Executive Director Kate Kendell noted that “judges of all races can sit in judgment on race cases and judges of all genders can preside over sex discrimination cases.” She called the motion to vacate an attempt “to have a ‘do-over’ on a case they botched so badly it will be a future primer for first-year law students on how not to litigate the most high-profile case in a generation.”

The Cooper motion asks for a hearing on the matter by Judge James Ware, the district court judge who replaced Walker when Walker retired in February.

They ask for a hearing on their request July 11. Davidson said attorneys typically check with a judge’s court calendar to suggest the first free date available, but a judge is not obligated to schedule a hearing for that date or to even grant a hearing.

There are now six legal proceedings pending with regard to the Perry v. Brown (formerly Perry v. Schwarzenegger case):

  • at the district court level, the Yes on 8 motion to vacate;
  • at the 9th Circuit Court of Appeals level: the Yes on 8 motion to sequester a videotape of the trial, the AFER attorneys’ motion to release the videotape to the public; Yes on 8’s appeal of Walker’s district court decision, and AFER attorneys’ challenge to Yes on 8’s standing to appeal to the 9th Circuit, and
  • at the California Supreme Court, the question of whether California law provides any authority that enables Yes on 8 to appeal the district court’s ruling to the 9th Circuit.

Before the 9th Circuit appeals panel heard arguments on the constitutional questions and the question of standing in the case, Yes on 8 attorneys filed a motion seeking to have one of the three judges removed from the case. The motion claimed that, because panel Judge Stephen Reinhardt was married to the executive director of the Southern California ACLU, which has opposed Proposition 8, Reinhardt should recuse himself. Reinhardt rejected the request, saying that a “reasonable person with knowledge of all the facts” could conclude he will be able to “rule impartially” on the appeal.

Yes on 8 attorneys did not file a motion questioning the partiality of another panel judge who graduated from two Mormon-run universities and is a Mormon, even though the Mormon Church was heavily involved in campaigning for Proposition 8.

“For most in the legal profession, suggestions that advocacy skill or judicial impartiality depend on race, ethnicity, religion, sex or sexual orientation, are relics of an embarrassing history out of which our profession has grown,” said Jenny Pizer, the Williams Institute’s new legal director. “Seeing such accusations launched now in this context is sad and disturbing, but it’s not grounds to anticipate they will find receptive ears among a judiciary that has seen similar assumptions made in the past about other minority colleagues on the bench, and has learned to rebuke such attitudes firmly.”

Law firm drops contract to defend DOMA

Less than a week after a law firm signed a contract to represent the U.S. House in defending DOMA in federal court, the law firm began to withdraw from the agreement.

Paul Clement

Less than a week after a law firm signed a contract to represent the U.S. House in defending DOMA in federal court, the law firm began to withdraw from the agreement.

King & Spalding, an international firm that boasts of its commitment to diversity and non-discrimination for LGBT attorneys, issued a statement Monday, saying it was filing the necessary motion to withdraw as counsel.

“Today the firm filed a motion to withdraw from its engagement to represent the Bipartisan Legal Advisory Group of the House of Representatives on the constitutional issues regarding Section III of the 1996 Defense of Marriage Act,” said the statement, attributed to firm chairman Robert D. Hays Jr. “Last week we worked diligently through the process required for withdrawal.

“In reviewing this assignment further,” said Hays, “I determined that the process used for vetting this engagement was inadequate. Ultimately, I am responsible for any mistakes that occurred and apologize for the challenges this may have created.”

Hays’ statement raised as many questions as it may have answered. Would the firm re-vet the assignment in a more adequate way? What was the mistake? What challenged did the mistake create?

But Les Zuke, director of communications for the firm, said he could not provide any information beyond the statement.

And the lead attorney identified by the contract signed April 14 between the firm and the House’s General Counsel—Paul Clement—resigned immediately from the firm, saying the firm’s withdrawal from the case was due to the “extremely unpopular” position the firm had agreed to defend.

Clement’s resignation letter, published by the Atlanta Journal-Constitution, suggests he made the decision to take the case and that he will still represent the House in the case.

“I would have never undertaken this matter unless I believed I had the full backing of the firm,” wrote Clement. “…But having undertaken the representation, I believe there is no honorable course for me but to complete it.”

Some speculate that King & Spalding may have dropped the case not because the House’s position is “extremely unpopular.” Though news of the original contract triggered an immediate outpouring of criticism from LGBT organizations and others, some say a “gag” clause in the contract may have been a key factor.

“I think there were a number of different factors” for why King & Spalding withdrew from the case, said Jon Davidson, legal director for Lambda Legal.

The contract stipulates that King & Spalding partners and employees working on the case would be barred from “any lobbying or advocacy for or against any legislation” in the House during the litigation. The contract further states that these partners and employees would also be barred from “any lobbying or advocacy” specific to DOMA in either the House or Senate. Partners and employees not working on the case would be barred from lobbying and advocacy for legislation pending before the House committee and any legislation concerning DOMA in the House or Senate.

Davidson it was “remarkable” the contract promised “people at the firm, in their private capacity, could not call their legislator.”

“I imagine a lot of people inside the firm were unhappy about that,” said Davidson.

Clement, a former Solicitor General, signed the contract letter of engagement on April 14. It provided for him, and two associate attorneys—also former colleagues in the George W. Bush administration—to work on the case for a reduced hourly fee of $520 per hour. (Unconfirmed reports suggested the standard fee was closer to $900.) The contract called for the firm to represent the Bipartisan Legal Advisory Group as a party or intervenor in various federal lawsuits challenging the Defense of Marriage Act (DOMA). The initial ceiling on attorneys fees was set at $500,000.

The Human Rights Campaign and other LGBT groups praised King & Spalding for pulling out of the contract.

“King & Spalding has rightly chosen to put principle above politics in dropping its involvement in the defense of this discriminatory and patently unconstitutional law,” said HRC President Joe Solmonese in a statement. “We are pleased to see the firm has decided to stand on the right side of history and remain true to its core values.”

Alleged kidnap accomplice charged

A man accused of helping former lesbian Lisa Miller leave the United States in violation of a court order that she turn over custody of her daughter to the child’s other mother was arraigned in a federal court in Vermont on Monday, April 25.

A man accused of helping former lesbian Lisa Miller leave the United States in violation of a court order that she turn over custody of her daughter to the child’s other mother was arraigned in a federal court in Vermont on Monday, April 25.

The man, Timothy Miller (no relation to Lisa Miller), was charged with “international parental kidnapping,” a federal criminal charge. Magistrate Judge John M. Conroy required Miller, who spent time in Nicaragua as a missionary, to surrender his passport. He released Miller into the custody of a friend, Richard Huber of Pennsylvania, who posted a $25,000 unsecured bond.

Miller is ordered to appear again in federal district court in Burlington, Vermont, on May 10.

Specifically, Miller is charged with “aiding in removing a child from the United States …with intent to obstruct lawful exercise of parental right.”

An FBI statement filed with the federal district court in Burlington, Vermont, in relation to the arrest warrant for Timothy Miller indicated that Lisa Miller took her child to Mexico in September 2009 “with the intent to obstruct the lawful exercise of parental rights by Janet Jenkins,” her former civil union partner.

Miller was under increasing pressure, in September 2009, to allow Jenkins to exercise her right to visitation with their child. Miller had, with the help of a conservative legal group, Liberty Counsel, challenged court decisions in Vermont and Virginia, upholding Jenkins’ right to visitation.

By November 2009, a Vermont family court judge granted custody of the child to Jenkins, after Miller continued to resist the visitation orders. By February 2010, the judge issued a warrant for Miller’s arrest, saying she was in contempt of court. A judge in Virginia refused to issue an arrest warrant there, saying he could not be sure Miller was aware of the Vermont judge’s custody order. And Miller’s Liberty Counsel attorney, Mathew Staver, said he did not know where his client was.

FBI documents identify Timothy Miller as a pastor with an organization that supports charity missions by Amish, Mennonite, and Anabaptist groups and people. They also say Jenkins’ attorney, Sarah Star, received a call from someone who told her Timothy Miller sought supplies for Lisa Miller by sending a message through an administrative assistant at Liberty University Law School. The caller claimed Miller contacted the Liberty University staffer by going through the staffer’s father, conservative direct mail activist, Philip Zodhiates. The caller, who is not identified in the FBI document, said Lisa Miller and her daughter were staying at Zodhiates’ beach house in Nicaragua.

The Advocate magazine reached Zodhiates for comment and said he Lisa Miller and her daughter were not living at his home in Nicaragua and called the claim “absolutely absurd” before hanging up on the reporter.

Liberty Counsel attorney Staver, who is also dean of the Liberty University Law School, told the New York Times the Liberty Counsel firm had no contact with Lisa Miller since the fall of 2009 and that they knew nothing about the alleged communications between Timothy Miller and Zodhiates’ daughter.

Timothy Miller is due back in court on May 10.

Arrest made in Miller-Jenkins custody battle

A man accused of helping a former lesbian sneak a child out of the country, violating a court order that the mother turn the child over to her former same-sex partner, was arrested April 18 and will be arraigned in federal court in Vermont on Monday, April 25.

Undated photo of Isabella Miller-Jenkins

A man accused of helping a former lesbian sneak a child out of the country, violating a court order that the mother turn the child over to her former same-sex partner, was arrested April 18 and will be arraigned in federal court in Vermont on Monday, April 25.

According to court documents, the FBI arrested Timothy David Miller in Alexandria, Virginia, on charges that he aided in the international parental kidnapping of Isabella Miller-Jenkins by one of her two mothers, Lisa Miller.

The FBI statement says Lisa Miller took her child to Mexico in September 2009 “with the intent to obstruct the lawful exercise of parental rights by Janet Jenkins,” her former civil union partner. The statement says Timothy Miller provided assistance with Lisa Miller’s travel from the U.S. to Toronto and then to Mexico City, and provided shelter for her. The Millers then continued on to Managua, Nicaragua, later that month.

A warrant for Lisa Miller’s arrest was issued in April 2010.

Sarah Star, a Vermont attorney representing Jenkins, said Friday that, despite Timothy Miller’s arrest, “We still don’t know where they are now.”

Jenkins issued a statement saying she hopes “Isabella is safe and well” and that she is looking forward to “having my daughter home safe with me very soon.”

But Star said she was not sure what measures might be available to law enforcement officials to attempt to locate and extradite Lisa Miller back to the U.S.

The FBI indicated it has not established whether Lisa Miller is related to Timothy Miller. Timothy Miller reportedly lived in Crossville, Tennessee, and has a wife and four children. But evidence suggests he and the family were living in Nicaragua in November 2008. The Rutland Herald, a Vermont daily newspaper, said Timothy Miller worked as missionary in Nicaragua.

According to one FBI affidavit, the “Lynchburg Christian Academy Payroll Account” provided “multiple payroll checks to Lisa Miller. The Academy is an affiliate of the later Jerry Falwell’s Thomas Road Baptist Church.

The FBI documents indicate agents believe Lisa Miller was going by the name Sarah, and that her daughter was being referred to as Lydia.

A Vermont judge transferred full custody of the daughter to Jenkins in November 2009, after Lisa Miller failed to comply with a court order that she allow Jenkins visitation with the child.

The Miller-Jenkins case took on national prominence after Lisa Miller moved from Vermont to Virginia in an effort to use Virginia’s newly enacted law banning recognition of same-sex relationships as leverage in her battle to prevent Jenkins from having visitation. But Virginia courts, including the state supreme court, ruled that the federal kidnapping law trumps Virginia’s “Marriage Affirmation Act” and the federal Defense of Marriage Act.

Isabella Miller turned 9 this month.

Manning protest interrupts Obama fundraiser

They didn’t get a lot of publicity, but a small group of women at an Obama fundraiser in San Francisco staged a brief protest in support of Bradley Manning Thursday—through song.

They didn’t get a lot of publicity, but a small group of women at an Obama fundraiser in San Francisco staged a brief protest in support of Bradley Manning Thursday—through song.

Manning is the Army private being held in military detention pending trial on charges that he leaked thousands of secret documents, many relating to diplomatic concerns, to the WikiLeaks website. Many people have complained that the military detention—which has included solitary confinement and no access to clothing while he sleeps—has been unnecessarily harsh.

On Thursday morning, April 21, at a 200-person fundraiser at the St. Regis Hotel in San Francisco, a woman stood up at a table midway through the president’s remarks, interrupted him, and called out, “Mr. President, we’re going to do a song. Can we stand?”

According to an official transcript of the event, the president responded, “Well, let me—” and then the group began to sing.

“That’s very nice,” said the president, at some point. “Nancy, did you plan this?” he added, apparently to House Minority Leader Nancy Pelosi of San Francisco. After the group finished, the president continued with his remarks.

The Washington Post reported that the lyrics of the group of 10 singing protesters included “Dear Mr. President, we honor you today, sir; Each of us brought you $5,000…We’ll vote for you in 2012…Look at the Republicans, what else can we do? Even though we don’t know if we’ll retain our liberties…But at another location in this country, Alone in a 6X12 cell, sits Bradley, 23 hours a day is night. The 5th and 8th Amendments say this kind of thing ain’t right.”

The Post said the group also distributed signs that said, “Free Bradley Manning.” Only one of the women was escorted out of the event.

Some media reports said the song came across as heckling.

At least some attendees to the fundraiser reportedly paid $35,800 each for their seats.

Coincidentally, Defense officials announced they moved Manning from a facility in Quantico, Virginia, to one in Fort Leavenworth, Kansas, on Wednesday, April 20. According to Amnesty International, Manning was detained in a maximum security facility at Quantico. At Leavenworth, the group said, he will be in a medium security.

Amnesty International said it would continue to monitor the conditions under which Manning is being held.

Last month, a top State Department official resigned after calling the military’s treatment of Manning “ridiculous and counterproductive and stupid.” P.J. Crowley, assistant secretary of State, made the remarks at an informal seminar at a university in Boston.

Manning, who has identified himself as gay, was assigned to military intelligence analysis, when he was charged last July with having turned over more than 250,000 internal State Department cables to WikiLeaks, an Internet site that 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 the leaks have had significant negative consequences for American diplomacy and security.

HHS urges child welfare agencies to better serve LGBTQ youth

The U.S. Department of Health and Human Services (HHS) issued a memo April 6 encouraging child welfare agencies to better serve the needs of “lesbian, gay, bisexual, transgender and questioning (LGBTQ) youth” in the foster care system.

Bryan Samuels

First of two parts (Part Two)

The U.S. Department of Health and Human Services (HHS) issued a memo April 6 encouraging child welfare agencies to better serve the needs of “lesbian, gay, bisexual, transgender and questioning (LGBTQ) youth” in the foster care system. It said such agencies should avail themselves of federal funds for training staff on how to better serve this community, and it called LGBT prospective parents “a largely untapped resource” for providing foster or adoptive homes to LGBTQ young people.

In the memo, which was issued without a press release, Bryan Samuels, commissioner of the HHS Administration on Children, Youth and Families (ACYF), said, “LGBT parents should be considered among the available options for States and jurisdictions to provide timely and safe placement of children in need of foster or adoptive homes.”

The memo was sent to state, tribal, and territorial agencies that administer federal child welfare funds under Title IV-E of the Social Security Act.

Title IV-E provides federal matching funds to states to help with adoption and foster care expenses for eligible children.

In the memo, Samuels states his “fundamental belief that every child and youth who is unable to live with his or her parents is entitled to a safe, loving and affirming foster care placement, irrespective of the young person’s sexual orientation, gender identity or gender expression.”

A higher percentage of LGBTQ youth, he wrote, exist in the child welfare system and among those living on the streets than would be expected based on the estimated percentage of LGBTQ people in the general population.

He noted that more and more child welfare agencies are addressing the needs of youth in foster care who are LGBTQ and said others should explore ways to do so.

Samuels also urged agencies, where appropriate, to “claim available title IV-E reimbursement for costs associated with training staff” to serve LGBTQ youth more effectively.

For FY 2010, the last year for which actual numbers are available, the budget authority for Title IV-E funds was $7.3 billion, enough to assist approximately 600,000 children with foster care, adoption, or guardianship assistance each month.

Samuels also said agencies must be “particularly attuned” to placing LGBTQ foster youth with families “committed to providing a safe, supportive and affirming environment.”

He called on agencies to “recruit, train and provide ongoing support to families, including LGBT individuals and families, who are able to provide a safe, loving family placement for these youth.”

He drew special attention to LGBT foster and adoptive parents, who “can provide a loving, stable home, responsive to the needs of LGBTQ youth in care, and are a largely untapped resource—an estimated 2 million LGB individuals are interested in adopting,” according to a 2007 study by the Williams Institute at UCLA.

And when a foster child’s case plan calls for reunification with his or her family, he said, agencies should support those families to help them “address the young person’s needs in a healthy, understanding manner.”

Adam Pertman, author of Adoption Nation and executive director of the Evan B. Donaldson Adoption Institute, a national, nonpartisan, nonprofit dedicated to improving adoption policy and practice, said in an interview that the memo is “very significant” and “further than I have seen federal instruction go” on the topic of LGBTQ adoptive children and parents.

“It’s not going to have the same impact as if it were enforced by law or regulation,” Pertman said, but “guidance means an enormous amount in the policy world. . . . What comes from the top really matters. It helps shape both practice and attitudes.”

Ellen Kahn, director of the Human Rights Campaign’s Family Project, agreed the memo was “a really important communication” that “outlines what the expectations are regarding LGBTQ youth in foster care, and emphasizes the importance of adequate services, cultural competence, etc., and then segues into inclusion of LGBT resource families and making the case for nondiscrimination,” even though it “doesn’t have the enforcement of law.”

The memo from Samuels is not the first step ACYF has taken to support LGBTQ youth and parents. In October 2010, ACYF awarded the L.A. Gay & Lesbian Center a $13.3 million, five-year grant to create a model program to support LGBTQ youth in the foster care system.

And in 2000, under President Clinton, the ACYF-run National Adoption Information Clearinghouse published a report on “Gay and Lesbian Adoptive Parents: Resources for Professionals and Parents.” It still exists at the ACYF’s Child Welfare Information Gateway (childwelfare.gov).

The older report debunked several myths about children of lesbian and gay parents, such as they were more likely to become gay themselves. At the same time, it stated that “the effects on children of being raised by lesbian and gay adoptive parents cannot be predicted”—an assertion more recently called into question by the social science evidence presented by LGBT advocates in a number of cases involving either adoption or marriage rights. The evidence showed no differences in adjustment or well being among children with LGBT parents.

A bill in Congress that would withhold federal funds from states that discriminate against LGBT people in foster placements or adoption died in committee last session, but U.S. Senator Kirsten Gillibrand (D-N.Y.) and U.S. Rep. Pete Stark (D-Calif.) are expected to introduce similar bills again this session.

In the past two weeks, three states—Arizona, Illinois, and Virginia—have considered bills or policies that would limit adoption rights for unmarried and/or same-sex couples. Arizona Governor Jan Brewer (R) on April 18 signed a measure giving “placement preference to a married man and woman” over a single adult if all relevant factors are equal. The Illinois measure failed to pass, and the outcome is still unknown in Virginia.

And two major court cases in the last two weeks have ruled in opposite ways on whether treating LGBT couples differently violates constitutional principles. The U.S. 5th Circuit Court of Appeals said “no” (based on the U.S. Constitution) and the Arkansas Supreme Court saying “yes” (based on the state constitution).

Part Two: What are the states doing to help or hinder adoption of children in need by LGBT adults who are seeking to provide homes for them? Why are so many states debating whether LGBT people should be allowed to apply to become foster or adoptive parents?

Back in Congress: Bills against bullies

Congresswoman Linda T. Sánchez on April 15 re-introduced legislation to address bullying and harassment of LGBT students, among others.

“No student should ever be afraid to come to school because they are being intimidated by bullies,” said Rep. Sánchez. “Every student has the right to a safe and comfortable learning environment. Bullying is violent and destructive behavior and we have to stop treating it as a minor nuisance: it is a serious problem that damages a student’s academic progress, not to mention overall mental health.”

Sánchez’ bill (H.R. 1648) is identical to the one introduced in the Senate by Senators Bob Casey (D-PA) and Mark Kirk (R-IL) on March 8 (S. 506). The Safe Schools Improvement Act (SSIA) would require schools and districts receiving federal funds to implement and report on anti-bullying programs. The programs must specifically address 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.

Under the bill, bullying and harassment would include actions conducted through electronic communication, such as e-mail or instant messages. The measure 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.

Both the House and Senate versions of the bills are structured as a set of revisions to the Elementary and Secondary Education Act (ESEA), the key federal statute governing primary and secondary education. Schools may use funds authorized by ESEA to implement the requirements of the SSIA.

The version of ESEA implemented by Congress at the behest of President George W. Bush was better known as “No Child Left Behind.” President Obama has said reform of ESEA is one of his highest priorities.

Sánchez also introduced the Safe Schools Improvement Act in the previous two sessions of Congress, and Casey introduced his version in the last one. The previous versions all died in committee.

Although both Sánchez and Casey called their bills “bipartisan,” only two of the House bill’s 70 original cosponsors are Republican: Rep. Todd Russell Platts (Penn.) and Rep. Don Young (Alaska).

Senator Kirk remains the only Republican among the 21 Senate sponsors of the SSIA. There is one Independent, Bernard Sanders (I-Vt.) The bill has gained one additional sponsor since its introduction, Jack Reed (D-R.I.)

Congress is also considering several related bills. Senator Frank Lautenberg (D-N.J.) and Rep. Rush Holt (D-N.J.), reintroduced on March 10 the Tyler Clementi Higher Education Anti-Harassment Act, which establishes anti-bullying requirements similar to the SSIA 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.) introduced the Student Nondiscrimination Act (SNDA) March 10 in their respective chambers. 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.

Rep. Polis said in an e-mail to supporters on April 7 that he would be trying to attach the SNDA, too, to the reauthorization of the Elementary and Secondary Education Act (ESEA).

House hired gun goes to work on DOMA; HRC attacks

The U.S. House has obligated itself to pay more than $500,000 for outside attorneys to defend the Defense of Marriage Act in federal courts. And the House has chosen a firm which clearly prides itself on including LGBT lawyers among its staff.

Paul Clement

The U.S. House has obligated itself to pay more than $500,000 for outside attorneys to defend the Defense of Marriage Act in federal courts. And, in what may a surprise to many, the House has chosen a firm which clearly prides itself on including LGBT lawyers among its staff.

The law firm, King & Spalding, has offices in Washington, D.C., New York, San Francisco, and Atlanta, as well as major cities around the world. It’s website notes that it “actively recruits LGBT law students and seeks opportunities to partner with LGBT student organizations….”

“The best talent is diverse in many ways, including gender, race, sexual orientation and national origin,” notes the website. The site includes a page specific to “LGBT Lawyers,” notes that it provides domestic partner benefits and has an LGBT Affinity Group, and says its “non-discrimination policy prohibits discrimination based on sexual orientation and gender identity.” It further notes that the Human Rights Campaign’s Corporate Equality Index has awarded it a rating of 95 out of 100 for the past four years. And it notes that it has “engaged with” such groups as Lambda Legal’s annual civil rights celebration in Atlanta and the ACLU’s LGBT and AIDS Project.

But HRC issued a press release Monday, calling King & Spalding’s decision to take the case “a shameful stain on the firm’s reputation.” And it issued a second press release Tuesday, saying it would wage a campaign to alert clients and potential employees about King & Spalding’s defense of DOMA.

The King & Spalding website mentions that one of its partners, Sam Griffin in the Atlanta office, is a member of the Stonewall Bar Association of Georgia. Griffin’s bio page indicates he is also a member of the National LGBT Bar Association. The website also notes that an associate in the Atlanta office, Brian Basinger, is president of the Stonewall Bar Association of Georgia.

The contract calls for the House to pay the firm $520 per hour in attorney time and $390 per hour in non-attorney time associated with litigation, plus “all reasonable expenses.” The contract also calls for the outside law firm to promise not to discriminate on the basis of “race, color, religion, sex, national origin, age, disability or any other prohibited basis, and shall comply with all applicable employment laws.”

The legal team specified by the agreement includes only former officials in the administration of President George W. Bush: Paul Clement, Daryl Joseffer, and Jeffrey Bucholtz.

Clement served as U.S. Solicitor General under President George W. Bush and was a clerk for Supreme Court Justice Antonin Scalia. Joseffer served under Clement in the Solicitor General’s office and has worked with him on a number of cases since joining the firm in 2009. Bucholtz served as Acting Assistant U.S. Attorney General in the civil division.

The news of the contract drew much criticism from other interested parties. Drew Hammill, a spokesman for House Minority Leader Nancy Pelosi said, “If Republicans were really interested in cutting spending, this should be at the top of the list.”

HRC President Joe Solmonese said the cost of the DOMA litigation would be “staggering” and called it “a jobs plan solely for high-priced lawyers bent on defending discrimination.”

HRC said it sent a letter to the largest law firms in the country just last month, “urging them not to take up DOMA’s defense.”

“In taking up DOMA’s defense,” said Solmonese, King & Spalding “is aiding and abetting an effort to score cheap political points on the backs of same-sex couples.”

“King & Spalding was not required to take up this defense,” said Solmonese, “and should be ashamed of associating themselves with an effort to deny rights to their fellow citizens.”

Fred Sainz, a spokesman for HRC, said Tuesday that his group is already reevaluating its score of King & Spalding from the 2011 index. He said the scores given to firms takes into consideration not only in-house policies concerning LGBT people, but also whether the firm takes on cases with a hurtful impact on LGBT people.

“If you take on a case that is hostile to LGBT people,” said Sainz, “that is an immediate grounds for points to be deducted from your score….And this particular case [defense of DOMA] is off the charts in terms of its impact on LGBT families.”

The conservative Family Research Council’s website said the House’s defense of DOMA is in the nation’s “economic interest.” Its reasoning?

“America spends $112 billion a year just from divorce and out-of-wedlock births” and “the U.S. budget would become a free-for-all for domestic partner benefits and other perks that the law currently prevents.”

“According to experts,” said FRC, “the price tag—just for same-sex paratner benefits—is roughly $670 million over the next ten years. Add that to the cost of family breakdown, and suddenly the legal fees don’t seem that much.”

The House signed the contract with King & Spalding on April 14. Clement and Bucholtz and a third attorney, Nicholas Nelson, signed a brief April 18 to the U.S. District Court for Southern New York in Windsor v. U.S., one of the lawsuits challenging DOMA in the 2nd Circuit. The brief asks that the House be allowed to participate in the lawsuit as a defendant.

4th issue erupts in Prop 8 case

The court battle over Proposition 8 has escalated yet another step—now over a First Amendment issue.

Two days after attorneys for proponents of California’s ban on same-sex marriage filed a motion seeking to have a videotape of the landmark Proposition 8 trial sequestered from public availability, attorneys for same-sex couples challenging the ban filed a motion seeking the tape’s “immediate release.”

The court battle over Proposition 8 has escalated yet another step—now over a First Amendment issue.

Two days after attorneys for proponents of California’s ban on same-sex marriage filed a motion seeking to have a videotape of the landmark Proposition 8 trial sequestered from public availability, attorneys for same-sex couples challenging the ban filed a motion seeking the tape’s “immediate release.”

Attorneys for the City of San Francisco and attorneys for a coalition of media organizations covering the case are also expected to file requests this week for immediate release of the tape.

This is just the latest round in an almost two-year-old court battle between attorneys for Yes on 8, which campaigned for passage of Proposition 8, and attorneys for the American Foundation for Equal Rights (AFER), which organized the so-far successful lawsuit against it. Ted Olson, David Boies, and Theodore Boutrous are the lead attorneys for AFER’s case.

The Olson-Boies team submitted a brief to the 9th Circuit U.S. Court of Appeals April 15 saying the request by Yes on 8 to “sequester and forever conceal” the videotape of the January 2010 trial against Proposition 8 “directly conflicts with this Nation’s constitutional commitment to public and open judicial process and serves no legitimate public end.”

The First Amendment, they argue, “guarantees free and open access to judicial proceedings in order to foster public confidence in the judicial system.”

The First Amendment question is now the fourth issue before the 9th Circuit in the Proposition 8 case, Perry v. Brown. (Under Governor Arnold Schwarzenegger, the case was known as Perry v. Schwarzenegger. Governor Jerry Brown took office in January of this year, so the case is now known as Perry v. Brown.) The other questions include whether Proposition 8 violates the equal protection and due process guarantees of the U.S. Constitution, and whether Yes on 8 has legal standing to bring an appeal of the district court ruling to the appeals court.

Yes on 8 attorneys filed their motion April 13 with the 9th Circuit, claiming that former U.S. District Court Chief Judge Vaughn Walker—who presided over last year’s trial—“defied” a U.S. Supreme Court decision in February of this year when he showed a college audience a video clip from the January 2010 trial.

Walker played a three-minute clip from the video recording of the trial, saying he wanted to illustrate to an audience of journalists and lawyers that actual court proceedings can be tedious for lay viewers because they can be fraught with long pauses and abstruse colloquies between lawyers and judges.

Yes on 8 attorneys, led by Charles Cooper, Anthony Pugno, and Alliance Defense Fund’s James Campbell, said Walker’s use of the clip violated an order from the U.S. Supreme Court and a policy of the 9th Circuit against broadcast of district court trial proceedings.

The Olson team’s brief countered, saying a 1982 U.S. Supreme Court ruling (Globe v. Superior Court) held that “public access to trials ‘protect[s] the free discussion of governmental affairs’ that is essential to the ability of ‘the individual citizen . . . [to] effectively participate in and contribute to our republican system of self-government’.” (In Globe, the Supreme Court ruled against a Massachusetts court order that had closed to the public and the press the trial of a man accused of raping three minor children.)

Judge Walker, who is now retired from the bench, ruled in August 2010 that Proposition 8, which was added to the California constitution by voters during a November 2008 initiative, violates the equal protection and due process guarantees of the federal constitution. The 9th Circuit put a stay on that ruling until it can rule on the appeal. But the 9th Circuit has delayed ruling on the federal constitutional questions until it gets a ruling from the California Supreme Court on whether there is any authority in state law that enables Yes on 8 to appeal the Perry decision even though the state’s governor and attorney general declined to appeal it.

The California Supreme Court is expected to hear oral argument on the standing question in September.

Yes on 8 wants videos out of circulation

Proponents of California’s Proposition 8 alleged in a court brief Wednesday, April 13, that former U.S. District Court Chief Judge Vaughn Walker “defied” a U.S. Supreme Court decision in February when he showed a college audience a video clip from the 2010 landmark trial, Perry v. Schwarzenegger.

Proponents of California’s Proposition 8 alleged in a court brief Wednesday, April 13, that former U.S. District Court Chief Judge Vaughn Walker “defied” a U.S. Supreme Court decision in February when he showed a college audience a video clip from the 2010 landmark trial, Perry v. Schwarzenegger.

Walker’s speech, which can be viewed on CSPAN at http://www.c-spanvideo.org/program/298109-3, covered the history of cameras in the courtroom and was co-sponsored by the American Bar Association and the Cronkite School of Journalism at the University of Arizona. It took place on February 18, 2011.

According to the brief, Walker played a portion of the video recording of the trial proceedings during a speech at the university in February. And though Yes on 8 attorneys concede that a Supreme Court order barring Walker from broadcasting the trial “expired,” the 9th Circuit has a long-standing policy that prohibits coverage of district court proceedings.

The brief acknowledges that anyone can view the full recording of Walker’s speech, with the excerpt from the trial, on CSPAN’s website. It does not make note that the trial was a public trial, open to reporters who reported on the proceedings, and that transcripts of the trial are available to the public, as well as re-enactments of the courtroom proceedings.

But the brief asks the 9th Circuit to order Walker “to cease further unlawful and improper disclosures of the trial recordings…and to return to this Court any copies of the trial recordings in his possession, custody, or control.”

It also asks the 9th Circuit to order that the legal team headed by Ted Olson and David Boies, challenging the constitutionality of California’s same-sex marriage ban, return their copies of the trial recordings as well. The Olson-Boies team was provided a copy of the videotape by Walker, says Yes on 8 attorneys, for use in preparing closing arguments in June 2010.

The Yes on 8 attorneys do not allege any injury has come from the showing of a portion of the court proceeding.

Judge Walker officially retired from the court on February 28th of this year. He told the University of Arizona audience that the 9th Circuit first allowed broadcast of a case 20 years ago and has approved the broadcasts of 259 appellate cases since then.

Walker said Perry v. Schwarzenegger was the “perfect case” for the 9th Circuit’s decision to begin broadcasting certain district court cases. The only issue at the time, said Walker, was a possibility of broadcasting and posting on the Internet and requests for transmission to remote courthouses.

Walker said Yes on 8 attorneys believed their witnesses would be intimidated by broadcast of the proceedings, and the U.S. Supreme Court upheld their objection. He showed a clip of Boies cross-examining political science professor Kenneth Miller, one of Yes on 8’s expert witnesses. During the two-minute clip, Miller was silent for a long period of time, pondering his response to a question from Boies.

Walker remarked, “The public ought to see that, in those moments, not much happens” and that trials often involve long, intricate lines of questioning and discussions with judges over points of law.

“You can see a train of argument, a train of thinking, a train of logic follows inextricably,” said Walker. “And so, if anything, and of course I disclose my bias here, I think a broadcast of a trial would be even more interesting than the broadcast of an appellate proceeding.”

He said that broadcasts also avert the possibility of re-enactments and even musicals. For the latter, he showed a clip from a musical about Proposition 8.

“What would you rather have people learn from about the court’s function? Reenactments or the real thing?” asked Walker.

“The real thing is far better, far more informative and far better for the public and for teaching people about how our institutions work than the kind of reenactments,” said Walker. “The real thing is always much better.”

Judge Walker was in the news last week, too, after having shared with a small group of reporters that he has, for the past 10 years, been in a relationship with a man. Interestingly, Walker began his University of Arizona speech with an anecdote about Broadway star Ethel Waters.

House hearing contentious on DOJ-DOMA decision

Democrats came out swinging Friday, April 15, during a House subcommittee hearing on the Department of Justice announcement that it would curtail its defense of the federal ban on recognition of same-sex marriages.

Trent Franks

Democrats came out swinging Friday, April 15, during a House subcommittee hearing on the Department of Justice announcement that it would curtail its defense of the federal ban on recognition of same-sex marriages.

The hearing, entitled “Defending Marriage,” was called by Rep. Trent Franks (R-Ariz.), the new Republican chairman of the subcommittee. Franks called only three witnesses—two of which have taken high-profile stances against same-sex marriage and the DOJ decision to limit its defense of the Defense of Marriage Act (DOMA).

One witness, Ed Whelan, head of a religious conservative think tank called the Ethics and Public Policy Center, claimed the Obama administration’s decision to limit its defense of DOMA was the culmination of a long-standing strategy by Obama to promote same-sex marriage.

“I think one would have to be very naïve to think anything other than that [through] a stealth strategy, step-by-step, the administration is doing whatever it can to promote same-sex marriage and to induce the courts to adopt that approach.”

Whelan said the fact that President Obama was once a professor of constitutional law “makes all the more implausible that he suddenly discovered” that DOMA is unconstitutional. Whelan did not mention, nor did anyone else, that the DOJ made clear it would continue enforcing DOMA, that it would defend DOMA as meeting the simplest of judicial standards at least in the 1st Circuit U.S. Court of Appeals, and that it would assist Congress in its defense of the law.

Ranking Democrat Jerrold Nadler pointed out to witness Maggie Gallagher of the National Organization for Marriage that two children in the hearing room had same-sex parents.

“How would you explain to children like McKinley and Brianna who are here with us with their parents today that their family is not deserving and should be excluded from the protections and benefits of marriage, including the important confirmation that the federal government considers them a family,” asked Nadler. “Or do you consider these children expendable?”

Gallagher said no child is expendable and defended her position against same-sex marriage, saying she was an unwed mother and understands what it’s like to be in a “non-marital family.”

Rep. Mike Quigley (D-Ill.) asked Gallagher how people who claim they want government out of their lives could defend DOMA.

“What could be more personal than the decision on who you should love and how to express that love and raising children?” asked Quigley.

“We would agree on so much if we weren’t in a hotly contested political arena where its not in anyone’s interest to agree issue,” said Gallagher. “I believe there are gay people who are wonderful parents,” she added. “And it’s interesting to me that, no matter how hard I try to avoid it, people interpret what I say as a condemnation of gay people and their parenting skills—cause that’s not my intent.”

Gallagher said, “the enormous problem in this country”—concerning the survival of marriage—“wasn’t caused by gay people and it can’t be cured by them.”

“But if your concern is to defend marriage, don’t you see greater threats being infidelity, domestic violence, alcoholism, drug-use?” asked Quigley. “Those are the things that drive families apart.”

Gallagher said she still spends “some” of her time on some of those types of problems, “and if I could wave a magic wand” and eliminate divorce and have gay marriage, “I might wave that wand.” But gay marriage, like no-fault divorce, she said, changes the sense that marriage is a permanent commitment.

“Same-sex marriage is eventually going to affect everyone’s marriage,” said Gallagher, “…by changing the public understanding of what this institution is and what it’s for.”

The third witness, law professor Carlos Ball of Rutgers, got very little time to express his view, defending the Obama administration’s decision to curtail its defense of DOMA, saying it was a “careful and thorough” analysis of recent U.S. Supreme Court decisions.

Nadler and Rep. John Conyers (D-Mich.), who chaired the Judiciary Committee in the last Congressional session, also admonished Franks for holding a hearing about the DOJ decision without calling a witness from the DOJ. Franks later responded, saying that the House would hold a DOJ oversight hearing in May and invite the DOJ then.

Pro-LGBT bills outnumber hostile ones but little movement expected

U.S. Senator Jeff Merkley (D-Ore.) re-introduced the Employment Non-Discrimination Act (ENDA) to the Senate on Wednesday, and U.S. Rep. Jerrold Nadler (D-NY) and U.S. Senator Patrick Leahy (D-Vt.) each re-introduced a bill Thursday to help bi-national LGBT couples.

These latest measures bring to 15 the number of pro-LGBT bills introduced to the House and Senate thus far in the 112th Congress. The number of bills hostile to LGBT civil rights now totals seven.

U.S. Senator Jeff Merkley (D-Ore.) re-introduced the Employment Non-Discrimination Act (ENDA) to the Senate on Wednesday, and U.S. Rep. Jerrold Nadler (D-NY) and U.S. Senator Patrick Leahy (D-Vt.) each re-introduced a bill Thursday to help bi-national LGBT couples.

These latest measures bring to 15 the number of pro-LGBT bills introduced to the House and Senate thus far in the 112th Congress. The number of bills hostile to LGBT civil rights now totals seven.

In announcing ENDA’s re-introduction at a press conference on Thursday, Merkley was joined by one of his three co-sponsors, Republican Senator Mark Kirk of Illinois. A press release from Merkley’s office indicated Senators Tom Harkin (D-Iowa) and Susan Collins (R-Maine) were also signed no a original co-sponsors.

The text of this year’s ENDA (S. 811) is the same as last year’s, according to Merkley spokeswoman Julie Edwards. Last year’s version of the bill in the Senate eventually accumulated 45 co-sponsors; in the House, it eventually collected 203 co-sponsors.

Although he announced the re-introduction of this year’s House version late last month, U.S. Rep. Barney Frank (D-Mass.) “dropped” the Employment Non-Discrimination Act into the wooden “hopper” next to the House Clerk’s desk on April 6, officially starting the measure on its journey through the 112th Congress.

Neither the House nor Senate version of ENDA is expected to travel far during the 2011-12 Congressional session.

That’s because Republicans control the House, and very few Republicans seem convinced that there is a need to prohibit discrimination based on sexual orientation or gender identity. Without any real prospects of passing the House, Democrats in the Senate are unlikely to press for a vote there.

If there’s a silver lining to the way things stand for ENDA now, it’s that the LGBT community won’t be listening to every tick of the clock on this Congressional session, as it did in the last session, when there was some movement on the legislation. Both the House and Senate ENDAs received committee hearings during the last session, but neither got a committee vote nor a chance to reach the floor, despite repeated assurances for months from Democratic leaders that votes were imminent. No one is making such promises this time around.

A Frank spokesman, Harry Gural, said Frank is “realistic” about ENDA’s chances in a Republican-controlled House.

“It’s probably not going to happen,” said Gural. But, he said Frank “is optimistic in the long run.”

“You don’t just say, ‘Republicans are in power so we’re not going to do anything’,” said Gural.

Supporters of the legislation say its re-introduction makes it easier for advocates to get the attention of legislators who need to be lobbied to support the bills.

In the House, the key lobby effort will likely have to focus on Republicans. Only three Republicans were among the 111 members of the House to join Frank as original co-sponsors of the legislation before it was filed—chief co-sponsor Ileana Ros-Lehtinen of Florida, Todd Platts of Pennsylvania, and Judy Biggert of Illinois.

Biggert represents somewhat of a victory as an original co-sponsor. Although she was an original co-sponsor last session, she was one of the first Republicans to back off the bill when discussion erupted—as it often does—over the “gender identity” language. Biggert had voted for a “sexual orientation only” version of ENDA in 2007 but said last April that she was undecided about the 111th Congressional version that included gender identity. She said she was concerned about how adding that language could affect schools. A spokesman for her office did not return a reporter’s call to explain why she’s back on as a co-sponsor now.

The bill (identified as H.R. 1397 in the House) is “exactly” the same as last Congressional session, and it has been referred to the usual committees—four in the House, including the Committee on the Judiciary and the Committee on Education and the Workforce.

Some news reports last week suggested that support for ENDA had dropped dramatically. But the bill had 117 original co-sponsors when it was first introduced to the 111th Congress, and 111 in the 112th. Presumably, Frank could have delayed the actual introduction of the bill to gain the additional six co-sponsors.

There appears to be relatively few changes in language this year to the immigration bills of Senator Leahy and Rep. Nadler. Both versions were reintroduced Thursday, April 14, seeking to allow LGBT American citizens the ability to sponsor their “permanent partners” or spouses for legal residency in the United States.

Currently, immigration law provides a relatively easy route for heterosexual married Americans to obtain a green card for their foreign spouses. But the Defense of Marriage Act (DOMA), which prohibits federal recognition of marriage licenses to same-sex couples, prohibits immigration officials from using that same route for same-sex spouses.

Nadler held a press conference Thursday afternoon on Capitol Hill to announce the re-introduction. Joining him at the event were openly gay Reps. Tammy Baldwin (D-Wisc.) and Jared Polis (D-Colo.), as well as Rep. Luis Gutierrez (D-Ill.) and Jackie Speier (D-Calif.). A spokesman said the bill has 98 original co-sponsors.

Leahy issued a statement on his website, noting that this is the fourth session of Congress to which he has introduced the bill. The statement also says he has 17 co-sponsors thus far.

The T-shirt Wars: Courts struggle to find balance between free speech and harassment

A recent federal court decision–in a case stemming from a conservative response to GLSEN’s Day of Silence–has upheld the right of students to express certain anti-gay sentiments.

Richard Posner (Photo credit: University of Chicago Law School)

April 15 marks the 15th annual Day of Silence, a national event organized by the Gay, Lesbian, and Straight Education Network (GLSEN) to bring attention to anti-LGBT name-calling, bullying, and harassment in schools. But a recent federal court decision—in a case stemming from a conservative response to the Day of Silence—has upheld the right of students to express certain anti-gay sentiments.

A leading expert on LGBT youth and the law says the case and others like it show the courts are struggling to define just where the expression of hostile views becomes harassment. And so far, even when they have allowed anti-gay speech, the courts have shown some sympathy to the needs of gay students to be protected against harassment.

In a decision March 1 in Nuxoll v. Indian Prairie School District, a three-judge panel of the 7th U.S. Circuit Court of Appeals upheld a lower court ruling that students have a First Amendment right to wear shirts stating “Be Happy, Not Gay.” The school, the court said, had not demonstrated that wearing the shirts would cause “substantial disruption”—a metric the U.S. Supreme Court has used to evaluate permissible speech in schools.

Unlike more overtly confrontational slogans, such as “Homosexuals go to Hell,” wrote Judge Richard Posner for the panel, “Be Happy, Not Gay” is “only tepidly negative.”

“A school that permits advocacy of the rights of homosexual students cannot be allowed to stifle criticism of homosexuality,” Posner said. “People in our society do not have a legal right to prevent criticism of their beliefs or even their way of life.

The Nuxoll case began in 2006, when Heidi Zamecnik, a student at a public high school in Illinois, wore a t-shirt with “Be Happy, Not Gay” on the “Day of Truth,” an event developed by the Alliance Defense Fund (ADF), a conservative Christian legal organization. ADF sees a “Day of Truth” as a conservative response to GLSEN’s “Day of Silence,” and promotes the event on the school day following the “Day of Silence.”

School officials told Zamecnik that her t-shirt violated school policy forbidding “derogatory comments” referring to sexual orientation, among other characteristics. The following year, Zamecnik, now joined by fellow student Alexander Nuxoll, again wanted to wear the shirt on the Day of Truth. This time, school officials suggested alternatives, including the slogan, “Be Happy, Be Straight” and an ADF-produced “Day of Truth” shirt saying “The Truth Cannot Be Silenced.” Zamecnik and Nuxoll refused those options and, with the help of the ADF, filed a lawsuit challenging school officials’ actions.

A U.S. district court in April 2007 found in favor of the school, but the plaintiffs appealed.

The 7th Circuit overturned the first ruling, in 2008, saying the school had not shown that the t-shirt message “Be Happy, Not Gay” would cause “substantial disruption.” But the appeals panel denied ADF’s request that it declare the school’s “derogatory comments” policy unconstitutional.

The 7th Circuit then sent the case back to the lower court with instructions to enter a preliminary injunction allowing the wearing of the t-shirts. It noted that “the district judge will be required to strike a careful balance between the limited constitutional right of a high-school student to campaign inside the school against the sexual orientation of other students and the school’s interest in maintaining an atmosphere in which students are not distracted from their studies by wrenching debates over issues of personal identity.”

On remand, the district judge granted the preliminary injunction allowing the two students to wear their t-shirts, then granted a summary judgment in their favor, awarding them each $25 in damages, and issuing a permanent injunction allowing any student to display the slogan on clothing or “personal items.”

This time, the school appealed, claiming in its brief that the district court improperly issued a summary judgment because the school had presented evidence—“numerous examples of emotional, violent and/or threatening reactions of students to the phrase ‘Be Happy, Not Gay’”—that should have warranted a trial.

The 7th Circuit issued its second opinion on the case on March 1, 2011, and said the school had not presented enough evidence that it had “a reasonable belief” the t-shirt would cause “substantial disruption.” It therefore ruled the summary judgment was valid.

Jack Canna, principal attorney of Canna and Canna, which represented the school, said in an interview that he thought “the court should have provided us with a trial into the problems the schools face.”

“A summary judgment presumes no issues of material fact,” he explained. “We felt there were issues related to the impact these messages have on kids,” but the court “just wasn’t impressed with the severity or derogatory nature of this piece of expression.”

Stuart Biegel, a member of the faculty at the UCLA School of Law and UCLA Graduate School of Education and Information Studies, analyzed the early stages of the Nuxoll case in his 2010 book, The Right to Be Out: Sexual Orientation and Gender Identity in America’s Schools. He said in an interview that Posner did show some “sensitivity to what LGBT youth were going through,” as he did in the earlier ruling, while he also “set forth some guidelines that try to respect everybody’s free speech rights.”

The Nuxoll case is only latest of several cases in which courts have been charting the boundary between harassment and free speech with regard to anti-gay sentiments expressed at school.

In the 2001 case Chambers v. Babbitt, a Minnesota high school told a student he could not wear a t-shirt saying, “Straight Pride.” The U.S. District Court for the District of Minnesota found that the t-shirt was unlikely to be disruptive, and therefore, the student had the right to wear it.

Biegel noted in his book that the court in Chambers still “went out of its way” to indicate the opinion was not anti-gay—and parts of Judge Donovan Frank’s opinion may be “among the most supportive of LGBT students” in a federal court decision. Frank noted, for instance, the challenges faced by LGBT youth and praised the school for its efforts to be inclusive.

And in a 2004 case, Harper v. Poway Unified School District, Tyler Chase Harper, a student at a San Diego area high school, wore a t-shirt to school on the Day of Silence saying, “Homosexuality Is Shameful” and that the school “had accepted what God has condemned.”

The school tried to ban the shirt, and Harper sued. In this case, however, the U.S. District Court for the Southern District of California and (on appeal) a panel of the 9th U.S. Circuit Court of Appeals ruled that the t-shirt went too far. Judge Stephen Reinhardt of the 9th Circuit wrote that the slogan interfered with the right of other students to be free from “verbal assaults on the basis of a core identifying characteristic such as race, religion, or sexual orientation.”

Harper appealed to the U.S. Supreme Court, which vacated the 9th Circuit’s ruling and remanded the case to the 9th Circuit with instructions to dismiss the appeal to the 9th Circuit as moot, since the district court had, by then, entered a final judgment, stating that because Harper had graduated, his claims were now moot. The Harper case, however, spurred the ADF to create the Day of Truth as a counterpoint to the Day of Silence, Biegel noted.

The Day of Truth is now sponsored by the conservative Christian group Focus on the Family and has been renamed the “Day of Dialogue.” ADF is continuing to provide free legal assistance to participating students.

5th Circuit upholds Louisiana’s denial to gay dads

In a case that calls into question the responsibility of states to recognize adoptions granted in other states, a federal circuit court said Louisiana does not have to put the names of two gay fathers on the birth certificate of a Louisiana-born boy whom they adopted in New York.

In a case that calls into question the responsibility of states to recognize adoptions granted in other states, a federal circuit court on Tuesday, April 12, said the state of Louisiana does not have to put the names of two gay fathers on the birth certificate of a Louisiana-born boy whom they adopted in New York.

A ten-member majority of the full 16-member 5th U.S. Circuit Court of Appeals ruled in Adar v. Smith that Louisiana State Registrar Darlene Smith did not violate the Full Faith and Credit Clause and Equal Protection Clauses of the U.S. Constitution by refusing to issue a new birth certificate to a child born in Louisiana in 2006 but adopted in New York by a gay couple, Oren Adar and Mickey Smith.

The men had requested a new birth certificate from Louisiana listing them both as the boy’s parents. It is a common procedure for children adopted outside their birth states. But Louisiana officials said to do so would violate Louisiana’s public policy of not allowing joint adoptions by unmarried couples.

The fathers, assisted by Lambda Legal Defense and Education Fund, filed a lawsuit in a federal district court. Without the revised birth certificate, said Adar and Smith, it had been difficult for Smith to add their son to his health insurance. The couple also had difficulties with airline personnel, who suspected they might be kidnapping the child.

The federal district court ordered the registrar to issue a new birth certificate identifying both men as the boy’s parents. The state appealed to the 5th Circuit Court of Appeals, which covers Texas, Louisiana, and Mississippi, and a three-judge panel affirmed the district court ruling. The state then appealed to the full 5th Circuit Court.

The full court ruled that the Full Faith and Credit clause of the U.S. Constitution cannot be used to make states act contrary to their own laws in enforcing judgments from other states. Obtaining a birth certificate falls into the realm of enforcement, it said, “and therefore outside the full faith and credit obligation of recognition.”

It also noted that the Louisiana Registrar agreed the state “is bound by the New York adoption decree, such that the parental relationship of Adar and Smith with Infant J cannot be relitigated in Louisiana,” and thus, “There is no legal basis on which to conclude that failure to issue a revised birth certificate denies ‘recognition’ to the New York adoption decree.”

On the issue of Equal Protection, the court noted that the gay couple claimed Louisiana treats adoptive children of unmarried parents differently from adoptive children with married parents, “and this differential treatment does not serve any legitimate governmental interest.”

The court disagreed, saying the state has a “rational preference for stable adoptive families,” and its birth certificate requirements “flow from its domestic adoption law.”

Lambda Legal issued a statement Tuesday evening, saying it is “astonished” at the ruling, saying “this court seems willing to turn away from the full faith and credit clause of the Constitution just to deny an accurate birth certificate for this child adopted by his two fathers.”

The court also refused to evaluate the case based on “heightened scrutiny,” which requires a higher justification to uphold a law, using instead the lower “rational basis” standard.

“Since adoption is not a fundamental right,” said the majority, “the Louisiana law will be upheld if it is rationally related to a legitimate state interest.”

It explained, “Louisiana may rationally conclude that having parenthood focused on a married couple or single individual–not on the freely severable relationship of unmarried partners–furthers the interests of adopted children.”

In support of this assertion, the court said Louisiana has “a legitimate interest in encouraging a stable and nurturing environment for the education and socialization of its adopted children”—a quotation from Lofton v. Secretary of the Department of Children and Family Services. That was a 2005 case in which the federal 11th U.S. Circuit Court of Appeals said a Florida ban on adoption by gay men and lesbians violated no federal constitutional rights. The ban was later challenged again and overturned in state court in 2010.

The majority also cited a 2002 article “Marriage from a Child’s Perspective,” by University of Michigan sociologist Kristin Anderson Moore, which “noted that marriage, when compared to cohabitation, ‘is associated with better outcomes for children,’ since marriage is more likely to provide the stability necessary for the healthy development of children.”

“This fact alone,” said the court, “provides a rational basis for Louisiana’s adoption regime and corresponding vital statistics registry.”

Moore’s paper discussed only opposite-sex couples, not same-sex ones.

Chief Judge Edith Jones, who was nominated to the 5th Circuit by President Ronald Reagan and appeared on President George W. Bush’s “short list” of potential Supreme Court nominees, wrote the opinion.

Of the nine other concurring judges, three others were Reagan nominees, one was a nominee of President George H. W. Bush, four were nominees of President George W. Bush, and one was a nominee of President Jimmy Carter.

One judge, a nominee of George W. Bush, concurred in part and dissented in part.

Of the five dissenting judges, Jacques Wiener, Jr., who wrote the dissent, was a nominee of George H.W. Bush. Three were nominees of President Bill Clinton, and one of George W. Bush.

In the dissent, Wiener said the ruling sets up a “circuit split” between the 5th and 10th Circuit Courts. In 2007, the 10th Circuit Court ruled, in Finstuen v. Crutcher, that an Oklahoma law refusing to recognize adoptions by same-sex couples was unconstitutional.

A circuit split may mean the U.S. Supreme Court will be more likely to hear the case, should it be appealed. A spokesperson for Lambda Legal said they would need to do more analysis of the opinion before making the decision on whether to appeal.

Budget battle: LGBT and HIV programs escape the axe

There was a lot of talk during the final days of the federal budget negotiations that House Republican leaders were trying to insert policy amendments about “social issues” into the budget. And since the White House and Republicans struck a deal April 8 on the Fiscal Year 2011 budget, there has been a lot of talk that President Obama gave up too much to Republicans.

As Congress votes this week on a final budget bill to complete funding for the fiscal year that ends September 30, both LGBT people and people focused on helping fight HIV can breathe a sigh of relief. There are no social issue riders seeking some policy concession to put LGBT people at a disadvantage. And it appears there are no dramatic cuts in HIV funding.

But both groups suffered scrapes and bruises in the budget battle.

President Obama

There was a lot of talk during the final days of the federal budget negotiations that House Republican leaders were trying to insert policy amendments about “social issues” into the budget. And since the White House and Republicans struck a deal April 8 on the Fiscal Year 2011 budget, there has been a lot of talk that President Obama gave up too much to Republicans.

As Congress votes this week on a final budget bill to complete funding for the fiscal year that ends September 30, both LGBT people and people focused on helping fight HIV can breathe a sigh of relief. There are no social issue riders seeking some policy concession to put LGBT people at a disadvantage. And it appears there are no dramatic cuts in HIV funding.

But both groups suffered scrapes and bruises in the budget battle.

The details of the FY 11 budget, posted Tuesday, call for the federal government to spend almost $39 billion less than the $3.5 trillion it spent in FY 10. Here’s a look at just a few of those cuts, compared to FY 10 levels:

  • $942 million cut for the Community Development Fund
  • $104 million for Safe Schools and Citizenship Education
  • $43 million cut for Community Block Grant Programs
  • $16 million cut for Administration on Aging
  • $13 million cut in the National Endowment for the Arts

The Community Development Fund, through the Department of Housing and Urban Development, is a program to provide housing assistance to families with low incomes. Some LGBT centers around the country have been able to tap into those grants to help clients who have low incomes.

The Safe Schools and Citizenship Education program of the Department of Education includes the Safe and Drug-Free Schools program to address such issues as bullying, including LGBT-related bullying. While President Obama’s proposal would have kept the office flat-funded, compared to FY 10, the budget deal cuts the FY 11 budget by $104 million. It’s uncertain just what that means for the Safe and Drug-Free Schools program, but it seems unlikely the program will get the four percent increase it hoped for.

Activists concerned about HIV-related funded were on a rollercoaster this week, after first hearing that nearly the entire $1 billion budget for programs to prevent HIV, Hepatitis, sexually transmitted diseases, and tuberculosis was being cut. That turned out not to be true, said Ronald Johnson, spokesman for AIDS United, an organization that has consolidated the work of the former AIDS Action Council and the National AIDS Fund. But it’s not clear what the actual number will be.

Still, “on the whole,” said Johnson, “we feel the domestic HIV program has fared generally well.”

Carl Schmid, deputy executive director of The AIDS Institute, had a similar reaction.

“We congratulate the Congress and the Obama Administration for rejecting many of the massive cuts to domestic and global HIV/AIDS programs that were initially proposed by Republicans in the House,” said Schmid.

But the numbers aren’t all happy. The AIDS Drug Assistance Program (ADAP), which provides funds to help ensure people with HIV and low incomes can afford life-saving medications, will be funded at $885 million for FY 11. Donna Crews of AIDS United says that’s the number President Obama proposed, but she and Johnson note that the amount is still not enough to help all those who need help. As of last week, said Johnson, there were 7,900 individuals on waiting lists in 11 states who need coverage.

“There’s still a gap,” said Johnson. “This still doesn’t meet the need for ADAP.” The community, said Johnson, hoped for $1.2 billion in ADAP.

A dozen HIV protesters were arrested Monday for staging a demonstration at House Majority Leader Eric Cantor’s office on Capitol Hill, reportedly over concerns that budget cuts would harm HIV funding.

President Obama, speaking Friday night, April 8, just before midnight, said the administration “made sure that, at the end of the day, this was a debate about spending cuts, not social issues like women’s health and the protection of our air and water.”

Given that Republicans in the U.S. House have already held two hearings on “Don’t Ask, Don’t Tell” and have scheduled a hearing for Friday, April 15, on the Defense of Marriage Act, one might suspect that something on those two issues would have been one of the “social issue” riders on the table during the furious budget negotiations last week. But there is no indication that any such effort emerged.

The most publicized “social issue” on the Republican hit list for the budget negotiations was Planned Parenthood, an organization that provides reproductive health services. While many people seem to read and hear “abortion” when they see “Planned Parenthood,” the organization’s most recently available annual report online (2008-2009) indicates that abortion services comprise only about 3 percent of its work. Testing for sexually transmitted diseases, including HIV testing and counseling, comprise 34 percent of its work. The remaining services include contraception (35 percent), cancer screening and prevention (17 percent), and other services (11 percent). The majority of its clients are women with low incomes.

According to the New York Times, Planned Parenthood gets about one-third of its $1 billion annual budget from federal funding. But a federal law that has been in place since 1976 prohibits any of those funds to be used on abortions.

Rep. Barney Frank voted against the tentative deal struck between the White House and Republicans late Friday night to avert a government shut down. The House and Senate both had to take immediate votes to enable funding of the government to continue until the final budget bill could be printed up and voted on.

Frank told the Boston Globe his vote last Friday night was symbolic. He knew the deal had the votes to pass and, thus, avert the government shut down. Knowing that, he told the Globe, he voted against it to protest increases in defense spending and decreases in social spending.

New ad campaign promotes equal access to housing for LGBTs

The U.S. Department of Housing and Urban Development (HUD) announced that it is launching a national media campaign to promote equal access to housing regardless of sexual orientation and gender identity, among other characteristics.

HUD Secretary Shaun Donovan

The U.S. Department of Housing and Urban Development (HUD) announced Friday, April 8, that it is launching a national media campaign to promote equal access to housing regardless of sexual orientation and gender identity, among other characteristics. And new data shows a marked increase in the number of LGBT housing discrimination complaints filed under existing law.

The ad campaign is the latest in a series of moves HUD has made to address discrimination against LGBT people or those perceived to be.

The new campaign, “Live Free,” will run throughout the year and include “Facebook ads, targeted print ads, digital videos, and podcasts,” according to a HUD press release.

One print ad asks, “Should Gender Stereotypes Influence Where You Live?” and directs people to learn more about HUD’s LGBT initiatives at HUD’s Fair Housing Web site, www.hud.gov/fairhousing.

Last July, HUD issued a clarification of existing policy, stating that, although the Fair Housing Act—a pivotal civil rights act that prohibits discrimination based on race, color, religion, national origin, sex, disability, and familial status—does not specifically cover sexual orientation- or gender identity-based discrimination, it may still cover it in other ways. For example, gender-identity discrimination may be seen as sex discrimination.

Since that guidance was issued, the number of complaints from LGBT individuals to HUD about housing discrimination has increased, according to HUD. From July 1, 2010 to February 28, 2011, LGBT individuals filed 47 complaints of gender-based housing discrimination. During the same date range in 2009 and 2010, before the guidance was issued, there were only three such complaints.

No national study has quantified how many LGBT people have faced housing discrimination, although several smaller studies and examples have indicated pervasive discrimination, especially against transgender people and LGBT seniors.

HUD has been preparing a national study to fill this gap, with a target date for reporting findings in late 2012. It may also include LGBT discrimination in its decennial study of housing discrimination, which has, in the past, looked at racial- and ethnic-based discrimination, according to a HUD spokesperson.

HUD has also instructed staff to inform individuals about state and local LGBT protections that may apply to them. And HUD has told its grant applicants—who seek a total of $3.25 billion in federal funding—they must comply with such state and local laws, where they exist.

Additionally, in January 2011, HUD announced a proposed new rule intended to ban discrimination on the basis of sexual orientation or gender identity in its core housing programs—programs that impact 4.4 million units of housing in the country.

The proposed rule would prohibit owners and operators of HUD-assisted or -financed housing from inquiring about applicants’ sexual orientation or gender identity, and prevent them from excluding otherwise eligible families if one or more members is or is perceived to be LGBT. It would also prevent lenders from using sexual orientation or gender identity of an applicant as a basis to determine eligibility for Federal Housing Administration (FHA) mortgages, which represent one-third of all new mortgages in the country.

A period for public comment on the proposed rule closed on March 25, with nearly 370 comments submitted. HUD must now review them and create the final rule, which a HUD spokeperson said would likely happen by the end of the calendar year.

Many comments on the HUD rule simply expressed support—including a letter representing the 1.1 million members of the National Association of Realtors.

Other comments included specific suggestions. Maya Rupert, Federal Policy Attorney at the National Center for Lesbian Rights, urged “a more explicit definition of who qualifies as a ‘child’ in the definition of ‘family’” under the rule. Rupert suggested specifying “biological or adopted children, stepchildren, children for whom anyone in the family is standing in loco parentis, and foster children,” thus providing protection to families where one parent may not be legally recognized as such.

And several commenters, including Kristina Wertz of the Transgender Law Center, suggested modifying the proposed rule to clarify that housing providers “may only inquire about an individual’s gender identity for the purpose of placing them in a gender- specific accommodation,” but not “regarding a person’s birth sex, anatomy or medical history.”

There are currently no explicit federal protections that ban housing discrimination based on sexual orientation or gender identity. Twenty states plus the District of Columbia have housing protections specific to sexual orientation, and 13 states plus the District have protections specific to gender identity. Approximately 150 cities, towns, and counties have LGBT protections as well, according to HUD.

At the end of the last session of Congress, Reps. Jerrold Nadler (D-N.Y.), John Conyers (D-Mich.), and Edolphus Towns (D-N.Y.) introduced the Housing Opportunities Made Equal (HOME) Act, which would amend the Fair Housing Act to prohibit discrimination in housing, not just HUD housing, on the basis of sexual orientation, gender identity, source of income, or marital status. Individuals seeking redress under the Fair Housing Act may bring a lawsuit in federal district court or file an administrative complaint with HUD.

The bill would also expand the Fair Housing Act’s definition of “familial status” to include “anyone standing in loco parentis” to a minor.

A spokesperson for Rep. Jerrold Nadler (D-N.Y.) said Nadler hopes to reintroduce the bill “soon,” although he did not have an exact date.

With Republican control of the House this session, however, Nadler lost his chairmanship of the Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties. The new chair for the renamed Subcommittee on the Constitution is Rep. Trent Franks (R-Ariz.). Trent received a 0 percent score from the Human Rights Campaign for each of the past two Congresses, indicating he never voted in favor of legislation to further LGBT equality.

Senate committee advances one gay court nominee

The Senate Judiciary Committee Thursday, April 7, voted unanimously by voice vote to recommend to the full Senate the nomination of openly gay attorney Paul Oetken to a seat on the U.S. District Court for Southern New York.

The Senate Judiciary Committee Thursday, April 7, voted unanimously by voice vote to recommend to the full Senate the nomination of openly gay attorney Paul Oetken to a seat on the U.S. District Court for Southern New York.

The committee did not discuss Oetken’s nomination either this week or last week, when it first came up for a vote. Last week’s vote was postponed at the request of Republicans on the Committee.

The Committee also voted by unanimous voice vote to recommend to the full Senate three other district court nominees, including Paul Engelmayer, who—like Oetken—has been nominated to serve on the U.S. District Court for 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.

Before taking up the Oetken and other nominations, the Committee discussed at length the nomination of progressive law professor Goodwin Liu to serve on the 9th Circuit U.S. Court of Appeals bench. The Committee, voting along party lines, recommended Liu’s nomination to the full Senate also.

Thursday’s vote was its third on the Liu nomination. On both occasions previously, the nomination was never taken up on the Senate floor, reportedly due to Republicans exercising their right to put a hold on the vote.

Senator Dianne Feinstein (D-Calif.) vigorously defended Liu as a “moderate liberal” and said his writings have not warranted the sort of criticism they have received by some Committee members.

Interestingly, Republicans on the Committee, who were again critical of Liu Thursday, said nothing specifically of his alleged support for same-sex marriage.

Senator Jeff Sessions (R-Ala.) said he would not support Liu’s nomination because he would try to “promote his own progressive views” on the bench. Sessions and other Republicans had grilled Liu repeatedly about the issue during earlier meetings.

Liu’s articles and briefs around California’s Proposition 8 have been interpreted by some as supporting recognition of same-sex marriage. But Liu said during his confirmation hearings that those papers had been mischaracterized.

“Despite whatever other views I might have had about Proposition 8 on the merits – my personal views, whatever, and even my legal views of the past,” said Liu, during a confirmation hearing last April. “I testified before [a California legislative] committee that the California Supreme Court should uphold that proposition in deference to the democratic process.”

In addition to Oetken, there are two other openly gay nominees whose names are awaiting action. Edward DuMont was nominated to the Federal Circuit appeals court bench in April 2010. He has not yet received a confirmation hearing and a spokesperson for the committee has indicated Republicans are holding up the hearing, saying they need more time to review his qualifications. Lesbian attorney Alison Nathan was nominated by President Obama March 31 to serve on the U.S. District Court for Southern New York.

LGBTs comprise 3.5 percent of U.S. adult population

Remember this number: 9 million. And this percentage: 3.5. The former is the current best estimate of the number of adults in the U.S. who identify as LGBT; the latter is the percentage that number represents within the total number of adults in the U.S.

Gary Gates

Remember this number: 9 million.

And this percentage: 3.5.

The former is the current best estimate of the number of adults in the United States who identify as lesbian, gay, bisexual, or transgender; the latter is the percentage that number represents within the total number of adults in the United States.

But read carefully: These are estimates for adults who identify themselves as LGBT.

The number of adults who report having had sex with a same-sex partner is estimated at “nearly 19 million,” or 8.2 percent of the adult population. And the number of adults who acknowledge being attracted to a person of the same sex is estimated to be 25.6 million (11 percent of the adult population).

The estimates are part of a report released Thursday, April 7, by the Williams Institute, a well-respected law and public policy think tank within the UCLA School of Law. The Institute focuses on issues related to sexual orientation.

The report is entitled “How many people are lesbian, gay, bisexual and transgender?” and estimates more than 8 million adults in the United States identify as lesbian, gay, or bisexual, and about 700,000 identify as transgender.

The report based the percentages on the U.S. adult population (18 and older) as estimated through the 2009 American Community Survey, an annual a survey conducted by the Census Bureau. That total was 232 million adults.

The report also noted that a slight majority of those adults who self-identify as lesbian, gay, or bisexual are bisexual, and women are “substantially more likely than men to identify as bisexual.”

“[N]o single survey offers a definitive estimate for the size of the LGBT community in the United States,” says the report, authored by Gary Gates, a prominent scholar on LGBT-related demographics.

Interestingly, the report’s findings concerning same-sex attraction and behavior are not too far off from the famed Kinsey Institute studies of the 1940s-1960s, and its estimates for self-identifying LGBs is close to that of recent exit polling data collected during national elections.

The sexual behavior studies of Alfred Kinsey found, among other things, that, “Ten percent of males are more or less exclusively homosexual for at least three years between the ages of 16 and 55.” The recent surveys analyzed by the Williams Institute found 8 percent of adults reported having had sex with a same-sex partner at some point in their lives and 11 percent had been attracted to a person of the same sex.

Many historians have suggested that the Kinsey studies were the origin of the one-time consensus that gay people comprise about 10 percent of the population. Demographic experts today are much more cautious when trying to estimate the size of the LGBT community, observing that more people are willing to acknowledge a same-sex attraction or behavior than are prepared to self-identify as gay, lesbian, or bisexual.

And Gates is quick to urge caution in making comparisons between the Kinsey data and the surveys used by the Williams Institute. For one thing, he noted, Kinsey was not using large, population-based data, but rather interviews with several thousand participants in a study of human sexual behavior. And even the Kinsey reports did not conclude that 10 percent of U.S. adults are gay.

The Williams Institute analysis conclusion that about 3.5 percent of the adult population in the United States identifies as LGBT also closely approximates data collected by a major media coalition during recent national elections. The National Election Pool has found that about 3 percent to 4 percent of people answering exit poll surveys when leaving the voting place have identified themselves as gay, lesbian, or bisexual.

The fact that both the surveys analyzed by the Williams Institute and the numbers found by the exit polling are so similar “gives us some real confidence that this [3.5 percent] is a number we can rely on,” said political demographer Patrick Egan.

“We now have a number that measures identity that just didn’t exist when I first started doing this work 10 years ago,” said Egan. “The data back then was much more scant, and we had to rely on proxies for different measures.”

The Williams Institute analyzed information from several population-based surveys. The estimate for sexual orientation identity was derived by averaging results from five U.S. surveys, including the mammoth General Social Survey of 2008 and the National Survey of Sexual Health and Behavior of 2009.

The estimate for adults identifying as transgender came from an average between numbers found on surveys in Massachusetts and California.

Estimates concerning same-sex attraction came from the National Survey of Family Growth between 2006 and 2008, sponsored by the U.S. Centers for Disease Control and Prevention. And estimates concerning same-sex behavior came from both the General Social Survey and the Family Growth survey.

Gates said his analysis also examined relevant surveys from four other countries —Canada, Norway, Australia, and the United Kingdom—“mostly to show that LGBT data inclusion is not simply a U.S. issue.”

“Some of the international surveys,” he said, “are conducted in ways similar to how the U.S. conducts many of its large surveys. For example, the UK survey is roughly akin to the American Community Survey. It is important for folks to see that surveys like this can successfully include these questions.”

The Williams Institute report suggests that the estimates provided by its study are not intended to be the final word on the size of the LGBT community but rather a demonstration of “the viability of sexual orientation and gender identity questions on large-scale national population-based surveys.”

“States and municipal governments are often testing grounds for the implementation of new LGBT-related public policies or can be directly affected by national-level policies,” concludes the study. “Adding sexual orientation and gender identity questions to national data sources that can provide local-level estimates and to state and municipal surveys is critical to assessing the potential efficacy and impact of such policies.”

Having reliable estimates of the population can help direct government resources and programs to help meet the needs of that population, a point underscored just last week by Kathleen Sebelius, Secretary of the U.S. Department of Health and Human Services.

Sebelius issued a lengthy press statement April 1 saying her department would work to increase the “number of federally funded health and demographic surveys that collect and report sexual orientation and gender identity data.”

And an Institute of Medicine report, commissioned by the National Institutes of Health and released March 31, recommended that NIH conduct more research to “advance knowledge and understanding of LGBT health” and that HHS surveys collect data “on sexual orientation and gender identity.”

Estimates also have a political value, persuading elected officials that a constituency is large enough to make a difference in elections. The nine million LGBT estimate from the Williams Institute report is equal to the number of people 65 and older who are military veterans; and it’s greater than the number of teachers (7 million) and the estimated number of stay-at-home moms in the U.S. (5 million). The 3.5 percent LGBT population is twice that of the percent of adults who identify as Mormon (1.7 percent)

The U.S. Census Bureau estimated there were 565,000 same-sex partner households in 2008. They represented 9 percent of the 6.2 million unmarried partner households overall in 2008.

Gates noted that data concerning same-sex couples collected during the 2010 U.S. Census will be released in June and will be rolled out on a state-by-state basis over the course of the summer.

Arkansas Supreme Court strikes down adoption ban

The Arkansas Supreme Court unanimously upheld a lower court ruling that struck down the state’s ban on adoption and foster parenting by any person cohabiting with a sexual partner outside of marriage. The state high court said the law violates “fundamental privacy rights implicit in the Arkansas Constitution.”

The Arkansas Supreme Court on Thursday, April 7, unanimously upheld a lower court ruling that struck down the state’s ban on adoption and foster parenting by any person cohabiting with a sexual partner outside of marriage. The state high court said the law violates “fundamental privacy rights implicit in the Arkansas Constitution.”

Because the ruling was made on state constitutional claims, the case cannot be appealed further.

The Arkansas law, Initiated Act 1, was passed in a 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 (FCAC)—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.

The state Supreme Court ruled, in the opinion written by Associate Justice Robert Brown (an appointee of then-Governor Bill Clinton), that Act 1 “directly and substantially burdens the privacy rights” of both opposite- sex and same-sex couples.

The choice faced by these couples is “dramatic,” said the court. “They must chose either to lead a life of private, sexual intimacy with a partner without the opportunity to adopt or foster children or forego sexual cohabitation and, thereby, attain eligibility to adopt or foster.”

The court explained that state agencies would have to “police” couples to “determine whether they are sexually involved in the event those couples represent that they are celibate.” That is an intrusion “into a couple’s bedroom to enforce a sexual prohibition,” an act found unconstitutional in the 2002 Arkansas Supreme Court case Jegley v. Picado.

Because the Cole case involved a fundamental right, the court upheld the circuit court’s use of “heightened scrutiny” to evaluate it. This meant that Act 1 could only be constitutional if it used “the least restrictive method available narrowly tailored to accomplish a compelling state interest”—that interest being protecting the best interests of children.

Act 1, however, was a “categorical ban against all cohabiting couples engaged in sexual conduct,” and thus not “narrowly tailored,” said the court.

The individualized assessments of prospective foster and adoptive parents by the state are effective in determining whether applicants would be suitable, said the court—and those are the “least restrictive” means to serve the State’s interest in protecting children.

The court noted that “several of the State ’s and FCAC’s own witnesses testified that they did not believe Act 1 promoted the welfare interests of the child by its categorical ban” and that attorneys for the State and FCAC admitted during oral arguments that some cohabiting adults would be suitable foster or adoptive parents.

The court also confronted the defendants’ argument that Arkansas courts often place a restriction on cohabitation on a parent following a divorce, as a condition of child custody. The court said that in those cases, the third party cohabiting with the parent has not undergone the extensive screening of people applying to foster or adopt.

The court said that because it found Act 1 unconstitutional based on privacy claims, it would not address the issues of whether it also violated due process and equal protection under the state constitution, or whether it violated the federal constitution.

Christine Sun, lead counsel for the ACLU on the case, said in an interview Thursday that she was “ecstatic” about the ruling.

“We’re relieved for our plaintiffs. Now the child welfare professionals of Arkansas can do their job and do what’s in the best interests of children.”

Plaintiffs included 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 unanimity of the court, Sun said, “indicates our case was very strong.”

She noted that the ruling “should not only have an effect in Arkansas, but on other states that may be considering similar types of bans.” While the ruling is limited to Arkansas, she hopes other states will follow the same legal analysis.

Sun also noted that the federal constitution also has “a robust right to privacy,” and “the same analysis should apply to a claim under the federal constitution.”

Utah also has a legislative ban against adoption by unmarried couples. Mississippi has a ban on adoption by same-sex couples. And while Michigan has no statutory ban, state courts have ruled that unmarried individuals may not jointly petition to adopt.

A Florida appeals court in September 2010 overturned that state’s ban on adoption by gay and lesbian individuals, and the state declined to appeal it to the state supreme court.

And Virginia Governor Robert McDonnell (R) is now considering whether to enact a proposal from former Governor Tim Kaine (D) to change state policies prohibiting adoption by unmarried (and by definition, same-sex) couples. McDonnell has indicated he is opposed to the change, concerned about the impact on faith-based adoption agencies. He must make his recommendation to the State Board of Social Services by April 16.

On March 18, U.S. Senator Kirsten Gillibrand (D-N.Y.) and U.S. 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.