Census drops couple estimate by 40%

The Census Bureau on Tuesday released a new estimate for the number of same-sex couple households in the United States in 2010, and it is almost 40 percent fewer than it actually counted. But it’s 80 percent higher than the number counted in the 2000 Census.

The Census Bureau on Tuesday released a new estimate for the number of same-sex couple households in the United States in 2010, and it is almost 40 percent fewer than it actually counted. But it’s 80 percent higher than the number counted in the 2000 Census. And the number of same-sex couple households represented less than one percent of all households in the United States.

These were some of the conclusions reported by Census Bureau officials in a telephone press conference with reporters September 27. The data is based on the Bureau’s own analysis of responses to household types on the 2010 Census from 50 states, the District of Columbia, but an analysis deemed credible by the Williams Institute.

According to the data, the Census Bureau counted 901,997 same-sex couple households in the 2010 survey, but it believes only 646,464 of those are really same-sex couples. The other 255,533, said Census Bureau official Martin O’Connell, are heterosexual couples whose Census forms inadvertently misidentified the gender of one of the partners.

O’Connell said the Census Bureau based its “preferred” estimate on a complicated analysis of the first names of the partners in same-sex couples. If both partners in a couple had very clearly male or very clearly female names—like Thomas and John or Deborah and Elizabeth—the same-sex couple designation was considered very reliable. But if one partner or spouse in a same-sex couple had a name like Leslie or Jessie, the same-sex designation was considered unreliable and the couple was re-classified as a heterosexual couple.

That’s because the Census Bureau discovered there were a great deal more unreliable gender-name designations on forms that were filled out by in-person “enumerators”—Census representatives who visited households that failed to mail back their standard Census form. The form used by these in-person enumerators, said O’Connell, were problematic and contributed to the likelihood that the enumerator might check off the wrong gender box while filling out the form.

“We only used names where 95 percent or more of the time that name was associated with being either a male or female,” said O’Connell, “so we tried to limit those [uncertain] areas by basically taking a very conservative aspect by only removing from the same-sex couple universe those names which had an extremely high probability of being of a sex that was opposite of what they reported.”

Responses reporting gender were considered most accurate in 12 states and the District of Columbia. Those 12 states included Massachusetts, Vermont, Connecticut, California, Oregon, Washington, Nevada, Arizona, New Mexico, Colorado, Minnesota, and New York. They had “inconsistent name-sex reporting” in 6 to 26 percent of same-sex couples.

Eight states had the worst accuracy (between 38 and 50 percent inconsistencies), including Arkansas, Alabama, Mississippi, West Virginia, Montana, Wyoming, and South and North Dakotas.

The correction process had a dramatic effect on the number of same-sex couple households counted in many individual states. For instance, California’s original data count was 125,516 same-sex couple households, but its corrected, or “preferred,” estimate totaled only 98,153 – a loss of 27,363, or almost 22 percent. Massachusetts’ number dropped from 26,049 in raw numbers to 20,256 in corrected numbers – a loss of 5,793 couples, or 22 percent. Florida dropped from 65,601 to 48,496 –a loss of 17,105 couples, or 26 percent. New York dropped from 65,303 to 48932 – a loss of 16,371 couples, or 25 percent. Georgia dropped from 29,844 to 21,318 –a loss of 8,526 couples or 28.5 percent. Michigan dropped from 21,782 to 14,598 –a loss of 7,184, or 33 percent. Texas dropped from 67,413 to 46,401 –a loss of 21,012 couples, or 31 percent.

The Census Bureau used data from Texas to illustrate how well first names corresponded with the gender identification and, therefore, how reliable the designation of same-sex couples held up. Of 31,763 households designated originally as a male-male couple, only 14,439 (45 percent) qualified as including “highly likely male” —that is, both partners or spouses had first names that are almost certainly male names, such as Thomas or John.

O’Connell said the problem with the in-person form wasn’t discovered until late in 2009— too late for the Census Bureau to correct and print out new forms in time for use in 2010.

Gary Gates, a respected expert in LGBT demographics at the Williams Institute, said the Census Bureau’s procedures are both “credible” and “substantially more accurate” than the numbers released on a state-by-state basis over the summer.

“I was part of a team that identified this problem with Census Bureau data collection procedures more than seven years ago,” said Gates, “and it is a positive step to see the Bureau release these new estimates.”

Of the 646,464 that the Census Bureau counts as same-sex couples, 514,735 (80 percent) were unmarried partners and 131,729 (20 percent) were married spouses.

In 2000, the Census Bureau’s “preferred estimate” of same-sex couple households was 358,390, meaning the number of same-sex couple households increased by 80 percent in the past decade. Of the 358,390 same-sex couple households identified in 2000, 88 percent identified as unmarried partners while 12 percent identified as married. Same-sex marriage did not become available anywhere in the world until 2001 (in the Netherlands). It became available in the U.S. (in Massachusetts) in 2004.

Using the uncorrected counts, the number of same-sex couple households increased by almost 52 percent between 2000 and 2010. There were 594,391 same-sex couple households counted in 2000, compared to 901,997 counted in 2010.

In the 2010 preferred data, the state with the highest percentage of same-sex couples in relation to the total number of households in the state was Vermont, with 1.091 percent. Massachusetts was second, with 1.023 percent, and California was third with 0.998 percent.

Gates said the 2010 effort, while credible, is only a “temporary solution.”

“Ultimately, they have to change the way the questions are asked in order to minimize these types of errors in the data,” said Gates. “Canada and the UK use procedures known to substantially minimize the problems observed in U.S. data. The Census Bureau has tested these possible revisions and should move quickly to change current surveys and collect more accurate data.”

Top Ten Same-sex Couple States
The following states have the highest percentage of same-sex couple households compared to the total number of households in the state. The number represents the percentage of same-sex couple households in the state based on a corrected, or “preferred,” estimate calculated by the Census Bureau from Census 2010 data. The District of Columbia, a city that has a population that exceeds that of several states and which is often regarded as a state-like territory, had a percentage of 1.929. New York came in 12th with 0.892 percent. Florida ranked 14th with 0.884 percent. Georgia ranked 16th with 0.832 percent. Illinois ranked 28th with 0.671 percent. North Dakota ranked 50th with 0.396 percent. The U.S. average was 0.773.

1. Vermont 1.091
2. Massachusetts 1.023
3. California 0.998
4. Oregon 0.986
5. New Mexico 0.984
6. Delaware 0.979
7. Maine 0.970
8. Hawaii 0.933
9. Washington State 0.927
10 Nevada 0.926

Senate to vote soon on court nominee

The full U.S. Senate is expected to take up the nomination of lesbian attorney Allison Nathan sometime on or before October 11, says a staffer for the Senate Judiciary Committee.

The full U.S. Senate is expected to take up the nomination of lesbian attorney Allison Nathan sometime on or before October 11, says a staffer for the Senate Judiciary Committee.

Some Republican senators have already expressed opposition to Nathan’s nomination to the U.S. District Court for the Southern District of New York. Senator Tom Coburn of Oklahoma of Oklahoma told the committee in July that Nathan lacks sufficient experience in litigation and sounds like she would be an “activist judge.” He and three other Republicans on the committee voted against sending her nomination to the full Senate for confirmation. The vote was 14 to 4.

The committee’s ranking minority leader, Senator Charles Grassley of Iowa voted to advance Nathan’s nomination to the full Senate but said he was doing so only to provide a “second opportunity to fully examine” her qualifications.

Nathan obtained her law degree from Cornell Law School in 2000 and was admitted to the bar of New York in 2003 and the bar of Washington, D.C. in 2004. She served as Associate White House Counsel from January 2009 to July 2010 and as special counsel to the New York State Solicitor General since September 2010. She was also a visiting assistant professor of law at Fordham University Law School from 2006 to 2008.

During Nathan’s confirmation hearing in June, Grassley said the American Bar Association recommends judicial candidates have “at least 12 years’ experience in the practice of law,” as well as “substantial courtroom trial experience.”

But the ABA Committee guidelines also suggest it sees merit in “experience that is similar to in-court trial work—such as appearing before or serving on administrative agencies or arbitration boards, or teaching trial advocacy or other clinical law school courses….” This similar experience, say the ABA guidelines, “may compensate for a prospective nominee’s lack of substantial courtroom experience.”

“In addition,” say the ABA guidelines, “in evaluating a prospective nominee’s professional experience, the Committee may take into consideration whether opportunities for advancement in the profession for women and members of minority groups were limited.”

The majority of ABA members who provide guidance to the Senate concerning nominees characterized Nathan as “qualified,” but a minority said she was “not qualified.”

The question of inexperience was one also raised against federal appeals court nominee Goodwin Liu. Republicans were able to block his nomination so effectively he eventually withdrew his own nomination and now serves on the California Supreme Court.

The Senate is in a “state work period” until October 3.

U.K. government announces move towards marriage equality

The government of the United Kingdom announced September 17 that it would begin a “consultation”–a formal process of soliciting input–on how to implement civil marriage for same-sex couples. But some LGBT activists have criticized what they see as delay over the issue.

The government of the United Kingdom announced September 17 that it would begin a “consultation”—a formal process of soliciting input—on how to implement civil marriage for same-sex couples. But some LGBT activists have criticized what they see as delay over the issue.

Minister for Equalities Lynne Featherstone said Saturday that “this Government will begin a formal consultation on how to implement equal civil marriage for same sex couples.”

Currently, same-sex couples in the U.K. can enter “civil partnerships,” with the rights of marriage but not the name.

Featherstone, a Liberal Democrat, made the announcement at her party’s fall conference. The Liberal Democrats form the current coalition government of the country, along with the Conservative Party of Prime Minister David Cameron.

The consultation has Cameron’s “strong backing,” according to the U.K. Press Association, citing several unnamed Conservative sources.

The Conservative’s 2010 manifesto stated that the party would “consider the case for changing the law to allow civil partnerships to be called and classified as marriage.”

And in 2009, Cameron issued an apology for his own and his party’s former support of Section 28, legislation implemented in 1988 under Prime Minister Margaret Thatcher. Section 28 prohibited the “promotion” of homosexuality in schools or by other public authorities. It was repealed in 2003.

The upcoming marriage consultation will include only civil marriages, and will not take up the issue of whether same-sex couples can marry on religious premises, even of denominations that wish to let them. Until earlier this year, same-sex couples could not have civil partnerships on the premises of willing denominations, either.

The consultation will also not address whether opposite-sex couples could enter civil partnerships.

Featherstone said the consultation would not begin until March 2012, and that legislative changes would likely not come until “the end of this Parliament”—in 2015.

That prompted Stonewall, the U.K.’s leading LGBT advocacy organization, to issue a statement saying that it welcomed the announcement “as warmly as we have welcomed the previous two announcements that consultation was shortly to begin.”

Featherstone had stated in February 2011 that she wished to start a consultation on marriage. In May, she said it would begin “over the summer.”

Stonewall said they “regret” the Government’s apparent delay, but that they “look forward to the Government honouring its pledge that this legislation will be passed by 2015.”

Peter Tatchell, a leading British LGBT activist, had harsher words, asking in an article on his Web site (petertatchell.net), “Why do we need any consultation at all?”

“The ban on same-sex marriage,” wrote Tatchell, “is homophobic discrimination and should be repealed immediately.”

A 2009 poll conducted for The Times newspaper by polling firm Populus found that 61 percent of voters surveyed felt that same-sex couples should have an equal right to marry.

The Scottish government, which retains independent jurisdiction over certain issues, including marriage, launched its own consultation on civil marriage for same-sex couples on September 2. That government is currently led by the center-left Scottish National Party.

One American marriage equality organization has used the U.K. announcement—and its support by the Conservative Cameron—to urge the United States government—led by a Democratic president—to move faster towards equality.

Marc Solomon, National Campaign Director of Freedom to Marry, said, “It’s particularly impressive that Prime Minister David Cameron, the leader of the British Conservative Party, is leading the charge to move to full marriage in the UK. We repeat our call on President Obama to join Cameron in offering principled leadership, finish his ‘evolution,’ and join the majority of Americans who support the freedom to marry.”

DADT repeal booed during GOP debate

The repeal of Don’t Ask, Don’t Tell was driven home before a national television audience Thursday, September 22. That’s when an active duty soldier in Iraq identified himself as being gay and asked Republican presidential hopefuls whether they would, as president, try to reinstate the ban on openly gay servicemembers.

The repeal of Don’t Ask, Don’t Tell gained a high profile —and boos—before a national television audience Thursday, September 22. That’s when an active duty soldier in Iraq identified himself as being gay and asked Republican presidential hopefuls whether they would, as president, try to reinstate the ban on openly gay servicemembers.

Fox News commentator Meg Kelly introduced a video from the soldier, identified only as Steven Hill, during the second hour of a two-hour debate among Republican candidates in Orlando. Hill, who submitted his question via YouTube, said that, prior to the repeal of the law banning openly gay people from the military—a repeal that took effect September 20—he “had to lie about who I was.” Without directing his question to any one candidate, he asked whether the candidates would try to “circumvent the progress” that has been made in allowing gays to serve.

A few voices in the debate audience in Orlando, which had been wildly vocal all evening, loudly booed. Then Kelly directed the question to former U.S. Senator Rick Santorum, one of the field’s most hostile candidates to any form of equal treatment of gays.

Santorum reiterated a position he’s stated publicly before: that he would seek to reinstate the ban. In doing so, he couched his concern as being about sex. He said he doesn’t think there should be “any type of sexual activity” in the military and that repeal of Don’t Ask, Don’t Tell amounts to “giving them a special privilege.” And he said DADT repeal “tries to inject social policy into the military,” a remark that triggered wild applause from the debate audience in Orlando.

“What would you do?” asked Kelly.

Santorum said he would stop “playing social experiments with our military” and “reinstate the policy, period.”

Santorum said he would not throw out gays now serving in the military, saying it would be “unfair” to them because it would penalize them for a “policy of this administration.”

“But sex should not be an issue,” said Santorum. “Keep it to yourself, whether you’re heterosexual or homosexual.” Again, there was wild applause from the audience.

None of the other eight candidates on the stage were asked to respond to Hill’s question.

This was third debate in five among the announced Republican candidates to include a question on an LGBT-related issue. The next debate is October 11 in New Hampshire on the campus of Dartmouth College. That debate will be sponsored by Bloomberg Television and the Washington Post.

 

Yes on 8 appeals videotape ruling

Attorneys for the proponents of California’s same-sex marriage ban filed notice Thursday, September 22, that they intend to ask a federal appeals court to overturn a recent decision to make public videotapes of the landmark trial.

Attorneys for the proponents of California’s same-sex marriage ban filed notice Thursday, September 22, that they intend to ask a federal appeals court to overturn a recent decision to make public videotapes of the landmark trial.

The appeal is not really a surprise. Proponents of Proposition 8 have appealed virtually every decision they have lost during the past two years of litigation over the 2008 initiative.

This latest appeal challenges the September 19 a ruling by U.S. District Court Judge James Ware that the videotape of the January 2010 Perry v. Schwarzenegger case (now Perry v. Brown) is part of the official record and, therefore, should be made available to the public.

Other issues still pending on appeal by Yes on 8 attorneys include a challenge to the outcome of the Perry trial and whether Yes on 8 has legal standing to make that appeal.

 

 

FY 2012 AIDS budget: up, down, flat

The current fiscal year’s budget was cut to the bone; next year’s will be cut to the marrow, said Senator Tom Harkin (D-Iowa), chairman of the U.S. Senate subcommittee on appropriations for the departments of Labor, Health and Human Services, and Education.

The current fiscal year’s budget was cut to the bone; next year’s will be cut to the marrow, said Senator Tom Harkin (D-Iowa), chairman of the U.S. Senate subcommittee on appropriations for the departments of Labor, Health and Human Services, and Education.

Harkin made his prediction Tuesday, September 20, during the subcommittee’s one and only mark-up of the appropriations bill to fund the three major departments for Fiscal Year 2012. On Wednesday, the full Senate Appropriations Committee voted to begin debate on the measure in committee. That vote was 16 to 14, along party lines.

Fiscal Year 2012 begins on October 1, meaning, like last year, the appropriations won’t be finalized until well into the fiscal year. But previous legislation regarding the nation’s debt ceiling has already prescribed some tough limits in funding. That includes a reduction of $300 million from these three departments collectively, to a total of $157 billion.

The good news, relatively speaking, is that AIDS-related funding –so far— is flat.

“While overall spending in the bill was cut by over $300 million compared to last year,” noted a press release from The AIDS Institute, a national non-profit group that advocates for AIDS programs, “most domestic HIV/AIDS programs were flat funded, including HIV prevention at the CDC and the Ryan White HIV/AIDS Program.”

And the AIDS Drug Assistance Program (ADAP), which helps fund medication for people with HIV/AIDS, was given a $15 million increase over last year’s $885 million to $900 million, said The AIDS Institute. But the amount, if approved, will still leave thousands of people on waiting lists to get help.

Even though that’s an increase in a time of dramatic cuts, Carl Schmid, deputy executive director of The AIDS Institute, called the ADAP level “extremely disappointing.”

“Without the necessary resources, the goals of the [Obama administration’s national AIDS] Strategy will not be achieved, and thousands of more people in the United States will needlessly become infected with HIV,” said Schmid.

Last year, about 7,900 people were on ADAP waiting lists in 11 states. Today, said Schmid, more than 8,800 people are on such lists in 10 states and another 445 have been dropped from the rolls in six states, due to budget constraints.

Last year’s budget ended 46 programs, noted Harkin, and the FY 12 budget eliminates funding of 15 more.

Despite the cuts, the real sticking point, politically, seems to be that the FY 12 bill includes full funding –$4.5 billion– for the Affordable Care Act, President Obama’s landmark bill to provide health care for all citizens. Republicans have made clear they want to defund the entire Act.

Senator Richard Shelby (R-Alabama), the ranking minority member of the appropriations subcommittee, said the U.S. “simply cannot afford another massive expansion of government through Obamacare.” “Obamacare” is the name Republicans have consistently used to describe the Affordable Care Act.

And, according to The Hill, a Capitol Hill newspaper, two Republican members of the House are holding up the FY12 appropriations bill in that chamber in an effort to cut the total for the three departments back from $157 billion to $139 billion.

During Tuesday’s Senate subcommittee vote, Harkin noted that Republican leaders of the House Labor-HHS subcommittee “couldn’t muster enough votes” to pass an FY12 bill there and have “abandoned all attempts to do so.”

But Republicans are not entirely hostile to all funding or even AIDS funding. U.S. Rep. Trent Franks (R-Ariz.) held a hearing in April to chastise the Obama administration for saying it would not defend the Defense of Marriage Act as constitutional in court. But, as of this month, Franks is co-chairing the Congressional HIV/AIDS Caucus, along with Rep. Jim McDermott (D-Calif.). The Caucus formed this month, with 59 original members, including Franks and three other Republicans.

The other Republicans in the Caucus include Reps. John Carter of Texas, David McKinley of West Virginia, Ileana Ros-Lehtinen of Florida.

 

President to keynote HRC dinner

President Obama has agreed to deliver the keynote address to this year’s annual Human Rights Campaign dinner October 1 in Washington, D.C.

President Obama has agreed to deliver the keynote address to this year’s annual Human Rights Campaign dinner October 1 in Washington, D.C.

This is not the first time President Obama has addressed the black tie gathering, a fundraising and political event for the national LGBT political group. He spoke at the dinner in October 2009, just prior to a national March on Washington by LGBT supporters.

“We are honored to share this night with President Obama who has a tremendous record of accomplishment for LGBT people,” said Human Rights Campaign President Joe Solmonese. “On the heels of the end to ‘Don’t Ask, Don’t Tell,’ we look forward to celebrating our victories and redoubling our efforts for the fights that remain ahead.”

At his appearance before HRC in 2009, President Obama promised he would end “Don’t Ask, Don’t Tell,” the federal law that has prohibited openly gay people from serving in the military since 1993. On September 20, that promise became reality, with enactment of a repeal bill President Obama helped push through Congress.

HRC said in a press release it expects about 3,000 people to attend its dinner, which is already sold out.

 

DADT repeal benefits servicemembers’ children, though inequalities remain

When repeal of “Don’t Ask, Don’t Tell” goes into effect September 20, children of gay servicemembers will reap many benefits. But they will still lack many of the protections available to children with opposite-sex parents because of the federal Defense of Marriage Act.

David McKean

When repeal of the military’s “Don’t Ask, Don’t Tell” (DADT) ban on openly gay and lesbian servicemembers goes into effect September 20, children of those servicemembers will reap many benefits. But they will still lack many of the protections available to children with opposite-sex parents because of the federal Defense of Marriage Act, which prevents recognition of same-sex spouses by the federal government.

All children with legal parents or guardians in the military are entitled to an array of benefits, including health care, on-base schools, and a variety of recreation and support services, regardless of the sexual orientation of their parents.

And all servicemembers with dependents receive additional housing and moving allowances.

But gay servicemembers with a partner or spouse and children have not been as free to access those benefits. Prior to repeal of DADT, they had reason to fear that revealing anything about their families could lead to dismissal, said David McKean, legal director for the Servicemembers Legal Defense Network (SLDN).

McKean explained that gay servicemembers have sometimes even hesitated to register their children as dependents, out of fear that the military would ask questions about the other parent.

“They’ve often decided that the non-military spouse will be the one to execute the formal adoption or to be the biological mother and therefore not run into problems with DADT.”

But if the servicemember is not a legal parent or guardian, the child gets no military benefits, and the family does not get the housing and moving allowances due to servicemembers with dependents.

Jane Smith, a major in the U.S. Army, is raising young twins with her same-sex spouse, to whom she is legally married. (Smith asked that her real name not be used, so that she could come out to her colleagues at her own time.) Although both women are legal parents, they have still encountered problems because of DADT.

The greatest hardship for her has been not being able to speak openly about her family without risking her job—the family’s sole means of support.

It has been “a real challenge” having twins under DADT, she said. “Twins are dramatic,” she explained, and people often want to talk about them with her.

“I have to reduce my wife to being some type of clinical surrogate to describe how I got these babies,” she said.

And as an officer, said Smith, “I have soldiers who look to me for guidance.” It has been difficult to offer family advice, such as how she and her spouse deal with newborns, “and actually give them a truthful description of the dynamics in the house.”

As her children have gotten older, the problems have increased.

“My little girl just said ‘Mama’ for the first time—but then I thought, imagine if I played this out and DADT were not being repealed.”

If someone overheard the children calling both her and her spouse “Mama” while the family was at the base commissary buying groceries, she could have lost her job under DADT, she said.

The biggest impact of repeal for her, said Smith, will be not having to worry that “my job’s at risk every day for reasons that have nothing to do with my performance.”

McKean also noted that gay servicemembers with older children have sometimes been reluctant to enroll them in on-base schools, for fear they would talk about their home lives and spark an investigation or discharge under DADT.

After repeal, the fact that children of same-sex couples won’t be “in constant fear” of outing one or both parents, is “going to be enormous,” McKean said.

A continuing problem, however, is that, because of the Defense of Marriage Act, the military will still not recognize same-sex spouses, nor issue them military IDs like it does for opposite-sex spouses. They cannot live in base housing or get health coverage, moving allowances, job placement assistance, or other spousal benefits that help the entire family.

And without a military ID, Smith’s spouse cannot even bring their children on base for medical appointments. Because Smith is working full-time, she cannot easily take time off herself to do so. So she has had to resort to expensive private medical insurance for her children as well as her spouse.

Smith is also unable to obtain life insurance through the military for her spouse, which would provide money to cover child care if her spouse—who now stays home with the children—died.

Another problem for some families is that, whereas stepchildren of straight servicemembers become eligible for military benefits, stepchildren gained when a servicemember marries a same-sex spouse do not.

Same-sex parents have had to resort to creative ways to get around some of these issues. If the spouse is appointed as the child’s caregiver, for example, he or she might, depending on base policy, be able to live in base housing, “not as the spouse, but as the child’s caregiver, the same way you could have a nanny come live with you,” said McKean.

But DADT repeal will make it easier for the non-military parent to gain some on-base access at critical times. A servicemember will be freer to name a same-sex spouse or partner as a child’s caregiver on a “Family Care Plan” stating who will take care of the children when a servicemember is deployed or dies. This gives the person access to shopping, counseling, and other on-base services on behalf of the children during the servicemember’s deployment.

Prior to repeal, gay servicemembers could name a same-sex partner on a Family Care Plan, but they had to be “very careful” in doing so, for fear of triggering a DADT investigation, McKean said. “Having that conversation be out in the open and fully inclusive will be an enormous relief to same-sex families.”

Should the Supreme Court sync a ruling on marriage to public opinion?

U.S. Justice Antonin Scalia has already conceded that laws banning same-sex marriage are unconstitutional, according to one constitutional scholar. And the U.S. Supreme Court is “very likely” to invalidate the federal Defense of Marriage Act once it reaches the U.S. Supreme Court, says another, generally conservative, expert.

These are just two of the conclusions from more than a dozen constitutional law jurists who participated in a recent two-week long discussion of what most consider an inevitable case before the nation’s highest court.

U.S. Justice Antonin Scalia has already conceded that laws banning same-sex marriage are unconstitutional, according to one constitutional scholar. And the U.S. Supreme Court is “very likely” to invalidate the federal Defense of Marriage Act once it reaches the U.S. Supreme Court, says another, generally conservative, expert.

These are just two of the conclusions from more than a dozen constitutional law jurists who participated in a recent two-week long discussion of what most consider an inevitable case before the nation’s highest court. And most of the opinions bet heavily that the Supreme Court will have to acknowledge that bans on same-sex marriage –or laws limiting same-sex couples to a license for a civil union or domestic partnership—do violate the U.S. Constitution’s guarantee of equal protection.

If they are right, then gay legal activists should be demonstrating a sort of “bring-it-on” attitude about putting a question before the Supreme Court, which holds its first conference meeting for the 2011-12 session on September 26.

But here’s a surprise: Not every gay legal expert is in favor of putting such a question to the Supreme Court right now.

Gay law professor William Eskridge Jr. was one of several essayists in the scotusblog.com symposium last month to argue that the same-sex marriage conflict “ought not be resolved one way or the other [by the Supreme Court] until public preferences become more settled.”

“The Supreme Court ought to avoid a final judgment on the constitutionality of marriage law’s discrimination against lesbian and gay couples until the nation is substantially at rest on the issue,” wrote Eskridge in his August 15 post in the scotusblog symposium. “Admittedly, that moment is coming more rapidly than anyone predicted, but that moment has not yet arrived.”

His argument is that, when the Supreme Court issues a monumental ruling too soon on an intensely controversial issue –such as the right to abortion or the right to private, sexual relations between same-sex adults— it raises “the stakes of politically intense issues to the detriment of our pluralism.”

Former Reagan era Solicitor General Charles Fried expressed a similar position in the scotusblog symposium. He said he worries that a Supreme Court ruling on the issue would “abort” a gradual acceptance of same-sex marriage that is already taking place.

“I believe that a strong liberty, equality and association claim can be made for allowing same-sex couples to form civil unions with the same legal effects as marriage,” wrote Fried on August 25. “Marriage is different only in that it traditionally symbolizes the citizenry’s celebration of the union, and I do not believe people should be forced by a Supreme Court ruling to celebrate what they deplore.” But even Fried suggests a victory for same-sex marriage is likely.

“Ideally, Congress would repeal DOMA before the case reaches the Court,” said Fried, “but with the dysfunctional Congress we enjoy today that is most unlikely to happen. Thus a ruling is unavoidable and its outcome is very likely to be invalidation of DOMA.”

The symposium included essays from some of the most respected legal scholars in the country, examining “the future of the Defense of Marriage Act and Proposition 8” at the Supreme Court. Although a case involving the merits of either law has not yet reached the high court, two or three “are likely to reach the Court soon, even if not this Term,” said scotusblog symposium manager Kali Borkoski.

The essays, 21 in all, provided a glimpse into the sorts of arguments that will almost certainly be made when Perry v. Brown, (the California Proposition 8 case) and/or one of several cases challenging DOMA make their ways to the high court.

Not everyone agreed with Eskridge and Fried. IN The last post of the symposium, famed Harvard law professor Laurence Tribe argued that it was “perverse” to make gay couples “wait a bit longer for their rights.”

“Those who advance this essentially gradualist view ground it in hard-nosed realism and assure us that, even though they recognize the justice of the case for same-sex marriage, legislative change is simply preferable as a matter of democratic legitimacy or of some strategic consideration such as avoidance of socio-political backlash,” wrote Tribe.

“The most obvious historical analogy” to this sort of strategy, said Tribe, is the Supreme Court’s “disgraceful and widely condemned decision to duck the issue of interracial marriage when it first presented itself in Naim v. Naim.”

Naim v. Naim was a 1955 decision in which the Virginia Supreme Court ruled it permissible for state law to ban interracial marriage. The U.S. Supreme Court refused to hear an appeal. It wasn’t until 1967 that the U.S. Supreme Court took the better-known Loving v. Virginia that it ruled the ban on interracial marriage in Virginia and other states was unconstitutional.

Refusing to hear a case challenging a ban on same-sex marriage, as it refused Naim, said tribe, “is hardly the kind of precedent that any Justice would wish to follow.”

“And, to make matters worse,” said Tribe, “the Court would have to perform legal acrobatics far more painful to behold than those employed in Naim, because Lawrence laid the groundwork for striking down bans on same-sex marriage in … terms so stark that Justice Scalia, in his ferocious Lawrence dissent, as much as conceded that a rejection of the federal constitutional right to same-sex marriage could not be reconciled with the Lawrence holding or with its underlying rationale.”

Tribe may be right, but there is ample evidence of the high court’s ability and willingness to perform “legal acrobatics” to avoid being where the Constitution demands it must go. To wit: Bowers v. Hardwick, 1986. In that case, a majority of the Supreme Court upheld state laws banning consensual sex between same-sex partners by simply declaring that there is, in the Constitution, no fundamental right to engage in homosexual sodomy.

But as Justice Harry Blackmun said in his dissent, the case wasn’t really about whether there was a “right to engage in homosexual sodomy.”

That was essentially the tact used by New York’s highest court in 2006, when it ruled the state constitution “does not compel recognition of marriages between members of the same sex.”

“Whether such marriages should be recognized,” said the state court, “is a question to be addressed by the Legislature.”

The Washington State Supreme Court then issued a similar ruling, saying it was a question for either the legislature or a popular vote.

So, the legal acrobatics have already been invented and exercised. The question is whether the public’s comfort level has advanced far enough toward accepting marriage between same-sex couples to embolden the Supreme Court to do its job.

Eskridge says “not yet.

But here’s an interesting thought: In 1967, when the U.S. Supreme Court ruled that states could not bar interracial marriage, only about 20 percent of Americans (according to a Gallup Poll) “approved” of interracial marriage. Today, polls are consistently showing more than 51 percent of Americans support the right of same-sex couples to obtain a marriage license.

Baldwin: Labeled with the other ‘L-word’

U.S. Rep. Tammy Baldwin has had to address the “L word” in recent interviews, now that she’s running for the U.S. Senate. Not just because she’s a lesbian, but because she’s a liberal.

Tammy Baldwin

U.S. Rep. Tammy Baldwin has had to address the “L word” in recent interviews, now that she’s running for the U.S. Senate. Not just because she’s a lesbian, but because she’s a liberal.

Former Republican Governor Tommy Thompson, who has not yet announced a bid for that same Senate seat, and former U.S. Rep. Mark Neumann, who has, both criticized Baldwin in recent days for being a liberal. The National Journal says Baldwin’s liberal profile is her “biggest general election question mark.”

PolitiFact.com, which delves into various political statements to determine whether they are based in fact, says Baldwin has a perfect record of zero with the American Conservative Union and a perfect record of 100 with Americans for Democratic Action.

VoteView.com, which looked at House members’ votes, found her to be the 19th most liberal member of the House for the 2009-2010 session and the 12th most liberal during the past year.

Wisconsin Eye interviewer Steve Walters, in a September 16 interview, joked, “Are you a liberal? And is that a bad thing?”

“What I am is a fighter,” said Baldwin. She said she was also compared to Wisconsin’s former U.S. Senator William Proxmire and said she would not run from that comparison.

But it’s not been all fighting since Baldwin announced her bid to replace retiring Senator Herb Kohl.

An editorial in the Madison, Wisconsin, newspaper Capital Times says Baldwin earned early backing from the state’s farm community. The support comes in the form of an award from a national group—the National Farmer’s Union—but it recognized Baldwin’s work on behalf of Wisconsin family farmers and rural communities. That recognition is seen as a good sign that Baldwin has a chance to win over the more blue collar regions of the state.

Baldwin also got news last week that one of her likely Democratic primary rivals will not run against her for the seat. U.S. Rep. Ron Kind (D-Wisc.) said September 16 said he did not want to be part of a divisive race for the nomination.

In early polling this summer, Kind was Baldwin’s closest rival for the nomination—and he was 20 points behind her. Baldwin’s next closest rival is former U.S. Rep. Steve Kagen, and he was 25 points behind her in July. But a very large fraction of voters—about a third of them—were undecided.

The July survey, conducted by the independent firm of Magellan Data and Mapping Strategies, polled 627 likely Wisconsin Democratic primary voters. The survey showed Baldwin has strong name recognition (82 percent) among Democrats, and 45 percent already have a favorable opinion of her. Only 10 percent had an “unfavorable” opinion, and 27 percent had no opinion.

Early polling also suggested that Republicans are likely to name a fairly conservative nominee, and not the more moderate and popular former governor Thompson. Many had thought U.S. Rep. Paul Ryan might be a Republican choice, but Ryan said “no” last month to a bid. The only announced candidate on the Republican side currently is former U.S. Rep. Mark Neumann, a Tea Party favorite.

A poll by Public Policy Polling in August found Neumann could beat Baldwin, 44 percent to 40 percent.

Fed judge says Prop 8 videos should be released

On the same day a Broadway play is to premiere to highlight the transcripts from the landmark Proposition 8 trial, a federal judge has ordered release of videotapes of the trial.

James Ware

On the same day a Broadway play is to premiere to highlight the transcripts from the landmark Proposition 8 trial, a federal judge has ordered release of videotapes of the trial.

The September 19 order from U.S. District Court Chief Judge James Ware enables public release of the videotapes beginning September 30, unless there is stay of the order from a higher court.

But proponents of Proposition 8 have appealed every other conflict they have lost and are likely to appeal this one, too, meaning the videotapes may not necessarily be available to the public on September 30.

Attorneys for two same-sex couples challenging California’s same-sex marriage ban filed a motion seeking release of the videotapes publicly, even though they were originally created for use by then District Court Chief Judge Vaughn Walker. Walker used the videotapes in preparing his decision, in August 2010, declaring Proposition 8 in violation of the U.S. Constitution. But the U.S. Supreme Court had prohibited any public broadcast of the trial proceedings outside the San Francisco federal courthouse.

Judge Ware, in acting on the plaintiff couples’ request to release the videotapes, asked attorneys during an August 29 court hearing whether the videotapes could be released now that the trial is over. And, importantly, he asked whether the videotapes should be considered part of the judicial record of the trial.

In his ruling September 19, Ware said the videotapes are part of the official record of the trial and that, “once an item is placed in the record of judicial proceedings, there must be compelling reasons for keeping that item secret.” He said “no compelling reasons exist” to continue barring public release of the videotapes.

Ware said the Supreme Court’s order in January 2010, barring broadcast of the trial proceeding, was limited to a narrow procedural question implicating new rules for the 9th Circuit’s pilot program of allowing some trials to be broadcast. The Supreme Court’s order barring broadcast then, said Ware, “does not provide ‘compelling reasons’ to overcome the strong presumption in favor of public access” to the videorecording “now that the trial is over and the digital recording has entered the court record.”

Ware completely rejected Yes on 8 attorneys’ arguments that public availability of the videotapes would have a chilling effect on the free speech of potential witnesses opposed to same-sex marriage.

“[T]he Court finds that this contention is mere ‘unsupported hypothesis or conjecture,’ which may not be used by the Court as a basis for overcoming the strong presumption in favor of access to court records.”

DOD rebuffs House GOP attempt to delay DADT repeal

In a request that seems more like political theatre than political combat, the House Armed Services Committee sent a plea to Defense Secretary Leon Panetta asking that repeal of Don’t Ask, Don’t Tell be delayed.

Buck McKeon

In a request that seems more like political theatre than political combat, the House Armed Services Committee sent a plea to Defense Secretary Leon Panetta asking that repeal of Don’t Ask, Don’t Tell be delayed.

The repeal of Don’t Ask, Don’t Tell, the federal law which has barred openly gay people from the military for 18 years, is scheduled to be enacted on Tuesday, September 20—60 days after military officials and President Obama certified to Congress that the military is ready to repeal the law.

But in a September 12 letter, Rep. Buck McKeon (R-Calif.), chairman of the House Armed Services, Rep. Joe Wilson (R-SC), chairman of the Military Personnel Subcommittee, urge Panetta to delay repeal.

“The Department is not ready to implement repeal because all the policies and regulations necessary for the transition are not yet final,” states the letter.

Specifically, McKeon and Wilson claim that they have not received from the DOD “revised regulations and a summary of all the specific policy changes, especially with regard to benefits, that will take effect upon repeal.”

A Defense spokeswoman said Thursday, September 14, “The repeal of Don’t Ask Don’t Tell will occur, in accordance with the law and after a rigorous certification process, on September 20. Senior Department of Defense officials have advised Congress of changes to regulations and policies associated with repeal. We take that obligation seriously.”

A spokesman for the House Armed Services Committee downplayed the significance of the letter, saying its point was simply to “highlight” that, with any big change, it’s important that regulations are in place “and things go smoothly.”

“We haven’t seen any evidence those things have happened,” said the spokesman.

Specifically, the letter asked Panetta that memoranda from senior military leaders regarding repeal of DADT be “made public and transmitted” to the Committee.

But the Defense spokeswoman said, “Senior Department officials, including the General Counsel, have met with House Armed Services Committee staff and shared with them all of the proposed revisions to the regulations and new policies to be promulgated.”

And another senior Defense official said, “The service secretaries, service chiefs, and combatant commanders submitted their recommendations months ago, and none of them suggested that repeal be postponed.”

McKeon and Wilson’s request to make public memoranda from senior military leaders came at a particularly ironic time. Just three days earlier, the Republican-led House Bipartisan Legal Advisory Group (BLAG) informed a federal judge that BLAG did not consent to being videotaped during its defense of the Defense of Marriage Act (DOMA) in court next month. The court had asked to videotape the proceedings in order to make them available to the public.

Republican Congressional leaders published a Pledge to America in September 2010, promising to make their actions “more transparent.”

Aubrey Sarvis, head of the Servicemembers Legal Defense Network (SLDN), said the House committee’s letter was “another example of the hardcore opposition attempting to delay or undo” DADT repeal.

“I expect they will continue to look for openings to deny gay and lesbian service members the same rights and dignity as their straight counterparts,” said Sarvis. Sarvis said the law passed by Congress last December and signed by President Obama, “only requires that the new regulations be prepared—not issued—before certification.”

President Obama, Secretary Panetta, and Joint Chiefs of Staff Chairman Mike Mullen sent Congress written notice July 22 that the military is prepared to implement repeal of the ban.

Human Rights Campaign President Joe Solmonese called the House Armed Services Committee letter “a desperate move by extremist House members to continue to discriminate against gay and lesbian service members in our military.”

HRC noted that gay and lesbian servicemembers would still be denied a wide variety of benefits, even after repeal of DADT. The federal Defense of Marriage Act, it said, bars the DOD from providing benefits, such as health insurance coverage, to the spouses of gay servicemembers. And gay servicemembers will still be denied access to housing for military families, relocation services, and other aid.

“It is time to finally end this discriminatory law,” said Solmonese, “and moves to stall will be seen by Americans for what they are—homophobic attempts to prevent the military from continuing down the path of full equality.”

 

North Carolina latest state to put marriage on ballot

The North Carolina legislature approved a ballot question this week that seeks to amend the state constitution to ban marriage of same-sex couples.

The North Carolina legislature approved a ballot question this week that seeks to amend the state constitution to ban marriage of same-sex couples. The language of the proposed amendment—which could also ban civil unions and domestic partnerships—would make the measure “among the most restrictive in the country,” according to prominent LGBT advocacy groups.

North Carolina already bans marriage of same-sex couples by statute, but supporters of the ballot measure say a constitutional amendment is needed so that the courts cannot overturn the ban.

The House passed the bill 75-42 on Monday, September 12, with ten House Democrats joining 65 Republicans to give the measure three more than the 72 needed for passage.

The party-line Senate vote came a day later, with 30 Republicans giving it the minimum needed for passage, versus 16 Democrats.

The proposed amendment will now appear on the May 2012 primary ballot, not on the November 2012 ballot as sought in an earlier version of the bill.

House Speaker Thom Tillis (R-Mecklenburg) told a press conference that the date change was made to “remove politics” from the issue. Some Democrats had accused Republicans of using the bill to draw conservative voters to the polls in November.

North Carolina is expected to be a key state for President Barack Obama in next year’s presidential elections. He won it by fewer than 14,000 votes in 2008. North Carolina is hosting the Democratic National Convention in September 2012.

But the major contested primaries in May will be the Republican ones for president and governor, meaning the spring turnout will likely be largely Republican.

Marc Solomon, National Campaign Director of Freedom to Marry, said in a statement that supporters of the bill were “politically scheming” to put the measure “on a low-turnout Republican presidential primary ballot.” He called the move “a sham designed to circumvent the majority of North Carolina voters.”

A poll released September 7 by Public Policy Polling found 55 percent of state voters polled would vote against the amendment, versus 30 percent for it. Among Democrats, the ratio was 63 to 23 percent against it, among independents, 52 to 35 percent, and among Republicans, 47 to 37 percent.

LGBT advocates fear the proposed amendment could also ban domestic partnerships and civil unions. The language states that “marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this state.”

While 29 states have constitutional bans on marriage for same-sex couples, only 18 also ban other forms of relationship recognition.

But Sarah Warbelow, state legislative director for the Human Rights Campaign, said that, while the language of the North Carolina bill will likely be interpreted to prohibit civil unions and domestic partnerships, courts in the other 18 states “have been all over the map” in how they’ve interpreted the similar language of their bans.

In Michigan, for example, the language has been interpreted so broadly as to prohibit public universities from offering health benefits to the same-sex partners of employees.

But in Ohio, cities may still have domestic partner registries.

In North Carolina, several jurisdictions, including the cities of Asheville, Carrboro, Chapel Hill, and Durham, and the counties of Durham, Orange, and Mecklenburg (the state’s largest), currently offer benefits to the same-sex partners of employees.

Warbelow said the proposed amendment “definitely puts those benefits at risk.”

The North Carolina amendment also states that it “does not prohibit a private party from entering into contracts with another private party” and will not prohibit courts from adjudicating such contracts.

Warbelow said the language was likely included to “assuage the fears” of businesses that they wouldn’t be able to offer benefits to employee’s domestic partners if the amendment passes.

But she said that, even without the contract language, private parties would still be able to enter into contracts under the law, and private businesses would be able to offer domestic partner benefits.

She said that, even in the 18 states with the most restrictive amendments, no private business has been prevented from offering such benefits.

Including the contract language, she said, may also help proponents “confuse the public about what potentially is available to same-sex couples.” Many conservatives, she said, like to suggest that same-sex couples can contract for everything they need, and do not need further relationship recognition—even though that is not true.

Several other states are also currently considering ballot measures related to marriage for same-sex couples.

In Minnesota, the legislature has also approved a ballot question for November 2012 that seeks to ban marriage of same-sex couples under the state constitution.

And in Indiana, a proposed constitutional ban on marriage or other relationship recognition for same-sex couples passed the legislature earlier this year. If it passes again in 2013 or 2014, it will be on the ballot in 2014.

Both states already have statutory bans on marriage for same-sex couples.

In Maine, however, LGBT advocates are taking steps to place a citizen’s initiative on the November 2012 ballot, asking voters to approve a law giving same-sex couples the right to marry. LGBT advocates in California and Oregon are also considering similar measures.

But a similar effort in Colorado was dropped this week by the college student who had launched it. He told Out Front Colorado that he was unable to get sufficient financial support for the initiative. The leading LGBT rights group in the state, One Colorado, had never supported the measure, saying that while they applauded the intention, they were focused on legislative solutions.

AP: marriage equality support continues

A new national poll demonstrates once again that a majority of Americans now favor giving legal recognition to marriages between same-sex partners.

A new national poll demonstrates once again that a majority of Americans now favor giving legal recognition to marriages between same-sex partners.

According to Associated Press, which conducted the poll with the National Constitution Center, 53 percent of 1,000 adults said they favor allowing legal recognition for same-sex marriages, 44 percent opposed. AP said its results were “about the same as last year.” The AP-NCC poll in August 2010 found 52 percent supported legal recognition for same-sex marriage.

With one exception, polls have been in fairly close agreement, with a bare majority favoring legal recognition of same-sex marriages.  A CNN poll in April found 51 percent support allowing same-sex marriages. A Gallup poll in May found 53 percent did so. An ABC/Washington Post poll in July found 51 percent support allowing same-sex marriages.

Only the Quinnipac University poll in July found 48 percent opposed and 46 percent supported legal recognition for same-sex marriage. The Quinnipac poll surveyed the largest number of people –2,311 registered voters—more than twice most of the other polls. But Quinnipac asked the questions specific to each state: “Would you support or oppose a law in your state that would allow same-sex couples to get married?”

 

 

Bill seeks to repeal NH marriage equality

A subcommittee in the New Hampshire House passed a bill September 14 that will seek to repeal the marriage equality law enacted there in January 2010. While the bill does not seek to amend the state constitution and would not invalidate existing marriage licenses for same-sex couples, it would ban future such licenses and leave same-sex couples with the option of civil unions only.

A seed of discontent has been sown: A subcommittee in the New Hampshire House passed a bill September 14 that will seek to repeal the marriage equality law enacted there in January 2010. While the bill does not seek to amend the state constitution and would not invalidate existing marriage licenses for same-sex couples, it would ban future such licenses and leave same-sex couples with the option of civil unions only.

The move has been anticipated since last November when Republicans won a veto-proof majority in both chambers of the state legislature and threatened to use that new power to repeal the law allowing same-sex couples to marry.

Republican leaders initially promised not to pursue a repeal bill, saying the state had many more serious issues before it, including the troubled economy. And in March, the House Judiciary Committee tabled a bill that sought repeal.

But opponents of same-sex marriage are pushing for action this year. The House Judiciary subcommittee approved the measure on a 3 to 1 vote September 14 and the full House Judiciary Committee is expected to vote on the measure later this month.

According to the Nashua Telegraph newspaper, about 1,600 same-sex couples have obtained marriage licenses in New Hampshire.

 

GOP abandons ‘transparency’ vow; blocks videotape of DOMA proceeding

Remember last year’s Pledge to America from the Republican Party? It promised three times to make government “more transparent.”

Well, apparently, that pledge had a hidden expiration date.

John Boehner

Remember last year’s Pledge to America from the Republican Party? It promised three times to make government “more transparent.”

Well, apparently, that pledge had a hidden expiration date. Attorneys for Republican House Speaker John Boehner’s Bipartisan Legal Advisory Group (BLAG) informed a federal judge September 9 that BLAG “prefers not to participate” and “declines to consent” to videotaping of courtroom proceedings of its attorneys defending the Defense of Marriage Act (DOMA) in court.

The case in question is Golinski v. OPM, in which Karen Golinski, an employee of the 9th Circuit federal appeals court, is suing to obtain health coverage for her spouse. The federal court provides such benefits to the spouses of straight employees and was prepared to provide them to Golinski. But the U.S. Office of Personnel Management, headed by openly gay appointee John Berry, instructed the court’s insurance company, Blue Cross/Blue Shield, to deny Golinski’s claim. OPM reasoned, at the time, that DOMA prevented it from providing the benefits to Golinski’s same-sex spouse.

Since then, of course, the Obama administration announced that it believes the federal law banning any recognition of legitimate marriages between same-sex partners is unconstitutional. That prompted Speaker Boehner to exercise the House’s option to defend the law itself. He hired an outside attorney—former Solicitor General Paul Clement—to do so and BLAG became an “intervenor-defendant” in the case. That means that, while OPM is technically the primary defendant, the court is allowing the BLAG attorney to argue in defense of the law.

But it was House General Counsel Kerry Kircher who submitted the two-sentence response to the court request to videotape the proceedings and make the available on the court’s website. Kircher offered no explanation for his response. And even though other parties to the litigation agreed to the videotaping—including the U.S. Department of Justice—U.S. District Court Judge Jeffrey White said the recording would not be made.

Tara Borelli, an attorney for Lambda Legal Defense that is representing an employee challenging DOMA, called the BLAG response “outrageous.”

“It is outrageous that the leadership of the U.S. House of Representatives wants to shroud in secrecy their use of tax dollars to try to defend discrimination,” Borelli said. “…”We believe the harm DOMA causes daily deserves an open and public hearing, as do the arguments put forth by those using taxpayer dollars to try to perpetuate this discrimination. It is telling that the proponents of discrimination are unwilling to subject their arguments to a full and public airing.”

There are two issues in the case when it is taken up in a federal district courtroom in San Francisco October 21. First, there is BLAG’s motion to have Golinski’s lawsuit dismissed. Second, there’s the motion by Lambda to have the judge declare, on summary judgment, that Golinski should be able to receive the benefits.

OPM, represented by the U.S. Department of Justice, has argued that the court should not dismiss Golinski’s lawsuit and that it believes DOMA is unconstitutional.

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

Golinski v. OPM is one of about a dozen federal lawsuits challenging DOMA in whole or in part.

Kircher’s refusal to consent to videotaping of the court proceedings contradicts one of many pledges the Republican Party included in its Pledge to America, released in September 2010. The pledge expressed the party’s commitment to “fight to ensure transparency and accountability in Congress and throughout government.”

“We pledge to make government more transparent in its actions, careful in its stewardship, and honest in its dealings,” stated the Pledge, in another section. And, on a third occasion, the Pledge promised “make Congress more open and transparent.”

LGBT issues again absent from Tea Party debate

There were no LGBT-related questions during Monday night’s Republican presidential debate (September 12), even though the driving interest behind the debate was the Republican Party’s far right-wing.

Rick Perry

There were no LGBT-related questions during Monday night’s Republican presidential debate (September 12), even though the driving interest behind the debate was the Republican Party’s far right-wing.

The debate took place on the Florida State Fairgrounds in Tampa, with the same eight candidates as the most recent debate on MSNBC. About half the questions were posed by CNN news anchor Wolf Blitzer; the other half came from members of the Tea Party wing of the Republican Party.

There was considerable sparring on such issues as the survival of Social Security, how to deal will illegal immigrants, and whether the government can require vaccination for a sexually transmitted cancer.

There were a lot of boos. The audience at the Fairgrounds repeatedly booed U.S. Rep. Ron Paul of Texas for saying the U.S. is threatened by terrorists because the U.S. occupies and bombs so many Muslim nations. Texas Governor Rick Perry was booed for defending his state’s offer of in-state tuition breaks for immigrants who are not yet citizens.

And there was a lot of cheering, primarily when the Republican candidates placed the blame for anything on President Obama—including the recession and the deficit.

This was the fourth nationally televised debate among announced Republican presidential hopefuls since August 11, when Fox News broadcast the first just prior to the Iowa straw poll.

And this was CNN’s second debate. Its first was one in which it turned the questioning over to right-wing activists who posed questions that asserted their anti-gay political views as accepted fact.

There was some anticipation that the members of the Tea Party, also known as the Taxed Enough Already (Tea) party, would focus on controversial “social issues,” such as abortion and marriage for same-sex couples. That’s because the Tea Party has—despite its tax-focused identity—established itself as the far right wing of the party on social issues.

The next Republican presidential debate takes place September 22 (9 p.m. Eastern) and is sponsored by Fox News and Google in Orlando, along with the Florida Republican Party. The debate will take the form of 2008’s infamous “YouTube debate” in which ordinary citizens submitted questions via YouTube.com and some of those were played back during the debate for candidates to answer. To submit a question for the September 22 debate, go to youtube.com/foxnews.

New guidelines for same-sex parenting and custody

Many contentious lawsuits involving the rights of LGBT people have occurred when a biological parent uses anti-LGBT laws to try and deny a child’s non-biological parent custody or visitation. Several LGBT organizations have published a revised set of standards aimed at stopping such behavior.

Mary Bonauto

Some of the most contentious lawsuits involving the rights of LGBT people have occurred when the biological parent of a child uses anti-LGBT laws to try and deny the child’s non-biological parent custody or visitation. But several LGBT legal organizations have published a revised set of standards aimed at stopping such behavior, and they’re hoping parents and attorneys will take a pledge to abide by them.

The publication is “Protecting Families: Standards for LGBT Families,” produced by Gay and Lesbian Advocates and Defenders (GLAD), the National Center for Lesbian Rights (NCLR), and NCLR’s National Family Law Advisory Council. It encourages lawyers to support and respect LGBT parents even when legal rights do not, and advises parents and lawyers to honor children’s relationships with both parents, seek custody resolutions that minimize conflict, and use litigation only as a last resort.

Mary Bonauto, the director of GLAD’s Civil Rights Project, authored the original version of the standards in 1999. She said the intent of the document is to urge same-sex parents to use whatever parental protections are available in their states, “for the sake of your children.”

These protections may assist with issues such as medical decision-making, but may also help maintain both parents’ relationships with the children when the couple breaks up.

The revised document is updated to reflect new laws in several states recognizing the relationships of same-sex couples, whether through marriage, civil unions, or domestic partnerships. But it cautions that same-sex parents should not rely on such laws to protect their parental relationships with their children.

“[W]e still have a huge architecture of discrimination” against same-sex relationships,” said Bonauto. Many states do not recognize them at all or may not treat them in the same way as opposite-sex relationships. This may jeopardize the relationships of non-biological, non-adoptive parents to their children.

Even in Massachusetts, the first state to allow same-sex couples to marry, courts may not look favorably upon a non-biological parent who has not also done a “second-parent adoption” of a spouse’s biological child, she said.

“There are still very parent-specific protections you should try to avail yourself of,” said Bonauto. Some protections may be available even in states that have constitutional bans against marriage for same-sex couples.

If parents do break up, she said, going to court is damaging financially and emotionally. And it can destroy the couple’s ability to work together as parents.

There have been a number of recent cases across the country in which a biological or adoptive parent tries to claim the other parent has no parental rights. Best known among them is the case of Janet Jenkins and Lisa Miller, which has grabbed national headlines. Miller, the biological mother, asked courts in both Virginia and Vermont to deny Jenkins visitation and custody, and has taken issues to the U.S. Supreme Court five times, without success each time.

Miller was eventually ruled in contempt of court for defying a Vermont court order that she allow Jenkins visitation. The court then granted legal custody to Jenkins. But Miller went hiding with the girl at the end of 2009, and a man accused of helping her leave the U.S. was arraigned in a federal court in April.

Many similar cases exist, and the outcomes have been mixed.

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

The Nebraska Supreme Court in August ruled that a non-biological mom has a right, under the doctrine of in loco parentis—which recognizes a person who acts as a parent—to a custody and visitation hearing regarding the child she and her former partner were raising together.

But the North Carolina Supreme Court in December 2010 voided a lesbian mother’s second-parent adoption. The majority on the court said state statutes permit adoptions only if the existing parent gives up all parental rights or is married to the person seeking to adopt, as in the case of a stepparent.

Other cases with biological mothers trying to deny parental rights to non-biological mothers have reached the appellate or state supreme court levels in the past few years in states including Arizona, Arkansas, California, Florida, Indiana, Kentucky, Louisiana, Minnesota, Missouri, Montana, New Mexico, New York, Ohio, Oregon, Texas, Utah, and Wisconsin—again with mixed results.

In several of these cases, notably Miller v. Jenkins, attorneys from conservative legal organizations such as Liberty Counsel and the Alliance Defense Fund have represented the biological mothers.

“They are making an industry of it,” Bonauto noted of the groups. But many individual, private attorneys, including ones in the LGBT community, are also representing biological mothers against non-biological mothers in such cases.

GLAD will soon be launching an online pledge where attorneys can promise not to take these cases and to endorse the revised standards. Parents, too, can pledge to uphold them.

New Jersey attorney William Singer, a member of the Family Law Advisory Council, said he hopes attorneys will discuss the standards with parents, not just at the time of breakups, but also at the time of family creation, “to try and impress upon both parents why it’s so important to maintain continuity of relationships for their children.”

The standards are available via GLAD’s Web site.