Surprises embedded in Second Circuit ruling; may improve prospects at Supreme Court

The ruling by a Second Circuit U.S. Court of Appeals panel was not a big surprise. But the panel’s related ruling—that laws should be held to a heightened standard of review when they treat people differently because of their sexual orientation—was news.

There have been enough federal court rulings declaring the Defense of Marriage Act unconstitutional that the Thursday (October 18) ruling by a Second Circuit U.S. Court of Appeals panel was not a big surprise, in and of itself. But the panel’s related ruling—that laws should be held to a heightened standard of review when they treat people differently because of their sexual orientation—was news.

In Windsor v. U.S., a three-judge panel vote 2 to 1 that Section 3 of DOMA —which prohibits federal recognition of marriage licenses issued to same-sex couples—is unconstitutional. In doing so, it said that “homosexuals as a group have historically endured persecution and discrimination,” that “homosexuality has no relation to aptitude or ability to contribute to society,” that “homosexuals are a discernible group,” and that gay people, as a class, “remains a politically weakened minority.”

For those reasons, said the court, laws treating people differently because they are gay should be given a heightened level of scrutiny by the courts.

“This is the first federal appellate court ruling that heightened scrutiny—a presumption of unconstitutionality—applies in reviewing sexual orientation discrimination; that’s definitely a big deal,” said Evan Wolfson, head of the national Freedom to Marry group and a long-time legal activist for marriage equality.

“This is huge,” agreed Jon Davidson, legal director for Lambda Legal. “When any form of heightened scrutiny applies, it means that courts no longer presume that the law or government conduct that is challenged is constitutional. Instead, they look with suspicion at the government’s differential treatment of the minority group.

The decision, and the heightened review ruling, apply only to Second Circuit states for now, but Wolfson said it was an especially impressive find led by Chief Judge Dennis Jacobs, an appointee of President George H.W. Bush. Joining Jacobs in the decision was the appeals court’s newest member, Obama appointee Christopher Droney.

Dissenting from the majority was 75-year-old Clinton appointee Chester Straub.

Wolfson noted that the Windsor decision marks the tenth federal ruling that DOMA is unconstitutional.

“No matter how slice it, it’s time for the Supreme Court to swiftly strike down this discriminatory law and get the federal government back to treating married couples, gay or non-gay, as what they are: married,” said Wolfson.

James Esseks, director of the ACLU’s LGBT Project, represented Edith Windsor in the lawsuit. Windsor married her spouse, Thea Spyer, in Canada in 2007. Spyer died in 2009, following a long illness. But because Section 3 of DOMA prohibits the federal government from recognizing the marriages of same-sex couples, Windsor was not allowed to take the routine marital estate tax deduction. Instead, she paid more than $360,000 in taxes on the estate she shared with her spouse.

A legal team hired by the Republican-controlled Bipartisan Legal Advisory Group (BLAG) in the U.S. House argued that, at the time of Spyer’s death (in 2009), the state’s highest court had ruled (in Hernandez v. Robles, 2006) that the state constitution “does not compel recognition of marriages between members of the same sex.”

The Solicitor General appealed the case to the U.S. Supreme Court even before the Second Circuit issued its decision. And constitutional scholar Nan Hunter indicated in her blog hunterforjustice.com that the high court may be inclined to hear Windsor because all nine justices would be able to sit in on the case. Hunter speculated that Justice Elena Kagan would “likely” recuse herself from the Massachusetts cases because she “acknowledged at least limited involvement in discussions of the Gill litigation” while she was Solicitor General.

In its ruling in Windsor, the Second Circuit noted that, “For the purpose of federal estate taxes, the law of the state of domicile ordinarily determines whether two persons were married at the time of death.

In upholding the district court decision that DOMA violates the equal protection clause of the constitution, the majority opinion rejected an argument by BLAG that the U.S. Supreme Court’s summary dismissal of an appeal of a 1971 case from Minnesota of a gay couple whose request for a marriage license had been rejected.

“When Baker was decided in 1971, “intermediate scrutiny” was not yet in the Court’s vernacular,” wrote Jacobs. Citing the Supreme Court’s 1996 ruling in Romer v. Evans, he noted, “The Court had not yet ruled that “a classification of [homosexuals] undertaken for its own sake” actually lacked a rational basis.” And, referring to the Supreme Court’s 2003 ruling striking laws prohibiting same-sex sexual relations, he noted, “And, in 1971, the government could lawfully “demean [homosexuals’] existence or control their destiny by making their private sexual conduct a crime.”

The majority said DOMA could not survive an intermediate level of scrutiny. BLAG’s claim that DOMA preserves some uniformity in the definition of marriage, it said, failed because “DOMA is an unprecedented breach of longstanding deference to federalism that singles out same-sex marriage as the only inconsistency (among many) in state law that requires a federal rule to achieve uniformity….” And because DOMA affects more than 1,000 federal benefits, it said, BLAG could not persuasively argue that it is substantially related to fiscal matters. The government also failed to prove that DOMA was a means of preserving a traditional understanding of marriage and “responsible childrearing.”

The Supreme Court has not yet indicated when it will announce whether it will hear any of the DOMA cases pending before it. Many court observers have speculated the justices are holding off on their decision until after the November 6 election.

Five ballot battles promise nail-biters as opponents pull out the old scare tactics

Anti-gay activists opposing marriage equality for same-sex couples are counting in fives. They’re distributing videotapes to pastors laying out a five-step plan-of-action for each church. They’re distributing another video offering five reasons voters should defeat marriage equality ballot measures at the polls. And they’ve got their eyes on five votes November 6: four statewide ballot measures and one Iowa Supreme Court justice up for a retention vote. Here’s how things are stacking up:

Rick Santorum

Anti-gay activists opposing marriage equality for same-sex couples are counting in fives. They’re distributing videotapes to pastors laying out a five-step plan-of-action for each church. They’re distributing another video offering five reasons voters should defeat marriage equality ballot measures at the polls. And they’ve got their eyes on five votes November 6: four statewide ballot measures and one Iowa Supreme Court justice up for a retention vote. Here’s how things are stacking up:

MAINE

Tony Perkins of the national Family Research Council has distributed a video aimed specifically at pastors, giving them a five-point action plan to implement in their church to defeat Question 1. The five steps are: Recruit a leader, hold a voter registration event by October 14, deliver a “Vote No on 1 Sunday” sermon, collect an offering for ProtectMarriageMaine.com, and push to get congregants to the polls to vote No on November 6.

There are 19 political action committees in Maine listed as providing funds on the state’s same-sex marriage initiative, Question 1  — 12 in support of its passage, 7 opposed. To look at their totals, one might expect passage to be a slam dunk: $4.7 million in support of same-sex marriage, $697,000 against.

The latest poll by the Portland Press, September 12-16, looks good, too: 57 percent in favor, 36 percent opposed, seven percent undecided –numbers which were essentially unchanged since June. The latest poll by Public Policy Polling, September 17-18, showed 52 percent favor allowing same-sex marriage while 44 percent oppose, and four percent are undecided.

But the pollster says this is “a very close race.”

“Our experience in polling gay marriage is that if people say they’re undecided it usually means they’re opposed to it,” said Dean Debnam, President of Public Policy Polling, in a press release.

And many LGBT activists suspect that the National Organization for Marriage is pouring a lot more into the contest than they are indicating on state campaign reports. As of the latest of those reports, NOM claims to have given only $252,300. NOM has been in a court battle for several years now, seeking to circumvent Maine campaign reporting requirements. It lost its most recent battle before the U.S. Supreme Court, but the organization is still fighting the state law with the state ethics commission over the 2009 marriage ballot battle. In a statement released October, NOM chairman John Eastman said, “NOM has not solicited donations in order to contribute to the Protect Marriage Maine campaign.” But the statement also says, “NOM has made organizational contributions to the effort from our general treasury, and all those contributions have been fully disclosed by both NOM and Protect Marriage Maine.”

On the pro-marriage equality side, there are some new major money players this time around. The Freedom to Marry Maine group has pitched in more than $1 million and Gay & Lesbian Advocates & Defenders has raised $218,000, to supplement the $3.4 million raised by the pro-Question 1 group Mainers United for Marriage.

If they’re successful in passing Question 1, the marriage equality law would go into effect 30 days after the governor proclaims the results of the election.

MARYLAND

The latest poll in Maryland found that support among African American voters had increased significantly between January and September — from 33 percent then to 44 percent now. The Gonzales Research group that conducted both surveys noted that a majority of African Americans (52 percent) still say they’ll vote against marriage equality, but the improved numbers, it said, suggest “public pronouncements in the interim from the President and others have had an ameliorative impact for proponents.”

This matters in Maryland. Thirty percent of the state’s population is African American, compared to 13.5 percent of the population nationally, and low single digits in the other ballot battle states this year. And that’s why the support of the NAACP is seen as critical to preserving the legislative victory won for marriage equality in February. The group launched its own radio ad October 8, featuring its chairman emeritus Julian Bond telling voters that voting for Question 6 is “the right thing to do.”

“Maryland’s gay and lesbian families share the same values and they should share in the right to marry,” says Bond.

Overall, the polls in Maryland promise a tight contest. The latest indications are 51 percent for Question 6 (for marriage equality) and 43 percent against, with six percent undecided. That lead offers no real comfort. If the six percent undecided vote “No,” as Public Policy Polling warns, it’s a loss. And historically, most polling prior to similar ballot measures has shown a pro-equal rights position winning, only to have a flip-to-loss on election day.

MINNESOTA

Polls in Minnesota have been roller coastering on the issue. A Minnesota Star-Tribune poll of 806 likely voters in May 2011 found only 39 percent for and 55 percent against a constitutional amendment to ban same-sex marriage, with seven percent undecided. But by November of 2011, it was 48 percent for, 43 percent against, nine percent undecided.

The latest Star-Tribune survey of 800 likely voters, between September 17 and 19, showed a “statistical dead heat.” Forty-nine percent would vote “Yes” for the constitutional ban on same-sex marriage, 47 percent would vote “No,” and four percent said they were undecided. The margin of error was plus or minus 3.5 percent.

The Star-Tribune said the strongest support for the ban lies in the suburbs, a reality that seems to echo the tribulation of Proposition 8.

An exhaustive analysis of pre-election polls and voting on California’s same-sex marriage ban found that the votes of more than half-a-million parents with kids living at home were prepared to vote against Proposition 8, sending it to defeat. Then, in the last weeks of the 2008 campaign, proponents of the ban saturated the airwaves with advertisements that warned parents that the legalization of same-sex marriage would require public schools to teach children that same-sex marriage is a viable option for them. The No on 8 campaign failed to respond directly and quickly to that claim, said the study’s author David Fleischer, and the parents’ votes were converted to “Yes.” Proposition 8 passed 52 percent to 48 percent—or barely 600,000 votes in an election in which 13.7 million votes were cast.

But Minnesota’s constitution has a quirk. It requires that amendments must be passed by a number of votes that totals a majority of all ballots cast. That means that anyone who votes for president and some of the other offices on the ballot but does not vote on Proposed Amendment 1 will be counted as a “No” vote on Proposed Amendment 1. So, if 100 people go to the polls, it would need 51 “Yes” votes to pass, even if only 60 people voted on the marriage measure and a majority of 60 would total only 31.

WASHINGTON

In Washington State, the Preserve Marriage Washington coalition seeks to overturn the legislature’s approval of marriage equality by offering five reasons the state doesn’t need to approve same-sex marriage. They are:

  • “same-sex couples already have the same legal rights as married couples,”
  • “children do better when raised by a married mom and dad,”
  • “anyone who does not comply with the new definition of marriage will face legal consequences,”
  • “public schools will have no choice but to teach this new genderless institution,” and
  • businesses, like Chik Fil-A, doctors, and others “will risk their state licenses if they act on their beliefs” against same-sex marriage.

Anti-gay activists in Washington State are going for the Prop 8 jugular. In ads that began airing October 8, they claim passage of Referendum 74 will mean homosexuality will be taught in schools.

“Whenever schools educate children about marriage, they have no choice but to teach this new genderless institution,” says one ad, “Consequences of Redefining Marriage.”

“In Massachusetts, kids as young as the second grade have been taught homosexual marriage,” claims the ad, being aired by Preserve Marriage Washington.

“Everyone in Washington must comply with the new definition of marriage or face negative consequences.  Anyone who does not accept this new definition of marriage will soon find themselves at odds with the law and facing legal consequences.” Among those negative consequences, it claims, is Catholic Charities loss of “its adoption services” when Massachusetts legalized same-sex marriage.

In truth, of course, Catholic Charities voluntarily gave up its adoption services after the state government said it could no longer fund the organization because it was violating a state human rights law prohibiting sexual orientation discrimination.

But voters cannot be expected to know or look for the veracity of certain claims in a fast-moving television advertisement.

IOWA JUSTICE

Iowa Supreme Court Justice David Wiggins was one of seven justices who voted unanimously that the state constitution guarantees same-sex couples equal protection under the law. Three of those justices were up for their retention votes in 2010 and were ousted. Now, Wiggins is due a retention vote and press reports in Iowa say it’s a fierce fight once again –even three years beyond the landmark decision.

The usual suspects are back to try and defeat the justices: Bob Vander Plaats, the National Organization for Marriage, and even failed Republican presidential candidate Rick Santorum. Santorum rode a “NO Wiggins” bus around the state late last month, and making stops to tell voters a vote against Wiggins is “vitally important.”

“Seven individuals decided to change the entire fabric of the state of Iowa,” said Santorum, at a stop in Des Moines September 24. He suggested that by removing Wiggins and having four new justices on the court, opponents of same-sex marriage could “maybe even reverse this horrific decision.”

The Des Moines Register reported October 3 that 49 percent of likely voters polled said they would vote to retain Wiggins, 41 percent would vote to remove him, and nine percent were undecided.

Debate fallout: 47 percent say vote unchanged, but 35 percent wooed by Romney

A CNN poll of 430 people who watched the first presidential debate Wednesday night found that 47 percent said the debate would not likely affect their vote. But 35 percent said the debate made them more likely to vote for Republican Mitt Romney and only 18 percent said it would make them more likely to vote for President Obama.

There was relatively little to change the minds of LGBT voters in the debate. No questions concerning LGBT issues were posed but President Obama made a direct reference to one.

A CNN poll of 430 people who watched the first presidential debate Wednesday night found that 47 percent said the debate would not likely affect their vote. But 35 percent said the debate made them more likely to vote for Republican Mitt Romney and only 18 percent said it would make them more likely to vote for President Obama.

There was relatively little to change the minds of LGBT voters in the debate. No questions concerning LGBT issues were posed but President Obama made a direct reference to one.

Near the end of the 90-minute debate, responding to a charge from Romney that the Obama administration has not worked well with Republicans, President Obama pointed to a number of examples where his administration did work with Republicans with success. One example he cited was repeal of the ban on gays in the military. The president’s continued willingness to identify gay people as part of his constituency.

But when Romney talked about protecting liberty and the “right to pursue happiness as we choose,” many LGBT-identified Twitter posts expressed their suspicion that Romney was not including gay people in his world view.

Immediate reaction from many commentators —mainstream and LGBT— were that Romney “won” the debate and that President Obama failed to take some political shots he had at his disposal. Some observers remarked that President Obama seemed tired and low-key and that Romney was assertive and energetic.

But Jerame Davis, executive director of the National Stonewall Democrats, faulted Romney for delivering “one well-practiced sound bite after another” but “failed to deliver a knock out punch against President Obama.”

“The President offered specific proposals and a clear vision for the next four years while Mitt Romney played attack dog and dodged any questions about the details of his own plans,” said Davis. “Romney went for style, the President went for substance; it speaks to the character of each man.”

R. Clarke Cooper, executive director of national Log Cabin Republicans, had a different view:

“One thing came through loud and clear tonight, and we hope our fellow Republicans take note: in a domestic debate without divisive and distracting social issues, conservative ideas resonate, moderates and independents listen, and the Republican wins.”

When PBS debate moderator Jim Lehrer asked the candidates to share their view of the role of government, Romney said, “The role of government is to promote and protect the principles” of the Constitution and the Declaration of Independence.

“First, life and liberty. We have a responsibility to protect the lives and liberties of our people, and that means a military second to none. I do not believe in cutting our military. I believe in maintaining the strength of America’s military,” said Romney.

“Second, in that line that says we are endowed by our creator with our rights, I believe we must maintain our commitment to religious tolerance and freedom in this country. That statement also says that we are endowed by our creator with the right to pursue happiness as we choose. I interpret that as, one, making sure that those people who are less fortunate and can’t care for themselves are cared by — by one another.”

“We’re a nation that believes that we’re all children of the same god and we care for those that have difficulties, those that are elderly and have problems and challenges, those that are disabled,” said Romney. “We care for them. And we — we look for discovery and innovation, all these things desired out of the American heart to provide the pursuit of happiness for our citizens.

“But we also believe in maintaining for individuals the right to pursue their dreams and not to have the government substitute itself for the rights of free individuals,” said Romney.

When Romney tried to portray President Obama has failing to work with both parties on important legislation, Obama gave examples of his work with Republicans.

“I will take ideas from anybody, Democrat or Republican, as long as they’re advancing the cause of making middle-class families stronger and giving ladders of opportunity to the middle class,” said President Obama. “That’s how we cut taxes for middle-class families and small businesses. That’s how we cut a trillion dollars of spending that wasn’t advancing that cause. That’s how we signed three trade deals into law that are helping us to double our exports and sell more American products around the world. That’s how we repealed “Don’t Ask/Don’t Tell.” That’s how we ended the war in Iraq, as I promised, and that’s how we’re going to wind down the war in Afghanistan. That’s how we went after Al Qaida and bin Laden.”

Baldwin edges into the lead

After trailing a popular former governor for weeks, U.S. Rep. Tammy Baldwin has now edged into the lead for the U.S. Senate seat from Wisconsin.

Tammy Baldwin

After trailing a popular former governor for weeks, U.S. Rep. Tammy Baldwin has now edged into the lead for the U.S. Senate seat from Wisconsin.

But there are still five long weeks to go before November 6, right-wing political groups are pouring millions into television ads that label Baldwin as “extreme” and “not in the mainstream.” And last Friday, September 28, the issue of same-sex marriage came up in the first debate.

The “debate” was more of a joint interview of the two candidates by a panel of reporters, and same-sex marriage was just one topic on which the two candidates showed themselves to be starkly different.

One of three panelists asking questions noted that different states are doing different things about same-sex marriage, then asked, “What’s your stand on that?”

Republican candidate Tommy Thompson went first and harkened back six years, to when voters approved a state constitutional amendment to prohibit recognition of same-sex marriages or civil unions, by a vote of 59 percent to 41 percent.

“Seventy-one out of the 72 counties voted for a constitutional amendment in Wisconsin. I support those 71 counties –that same-sex marriage is not legal in the state of Wisconsin, and I support that,” said Thompson, looking at the reporter. “It’s an issue that’s left up to the states and that’s the way it should be.”

In a commentary Sunday in the Milwaukee Journal, commentator Christian Schneider, a senior fellow at the Wisconsin Policy Research Institute, described Thompson’s response this way: “At one point during his answer, he paused for a good five seconds to navigate all the land mines that were likely lodged in his mind.  It was evident he had a vision of Tammy Baldwin dancing with Wonder Woman floating around in his head and needed a quiet moment to suppress it.”

But Baldwin appeared surprisingly guarded and stiff with her response on same-sex marriage during the debate. Looking straight into the camera and with an almost hushed tone and strained expression on her face, she said, “I believe in the principles of equality and I certainly support marriage equality. I recognize what the voters of Wisconsin decided in 2006. We know that, every year, people are thinking about this issue and changing their minds.” She noted she was “very moved” when President Obama explained to an ABC interviewer in May how he his personal opinion had evolved to support marriage equality.

Baldwin’s answer was expected. And Thompson’s answer was only marginally evolved from earlier responses he has given on same-sex marriage. During the Republican primary, he said, “I believe very strongly in the Defense of the Marriage Act (sic), that marriage is one man and one woman. I support that. That’s the federal law.”

In that interview August 3 with CBS affiliate WDJT, Thompson did express being a little “gun shy” about constitutional amendments, generally. Still, he said he favors DOMA and believes “marriage should be left up to the states.”

The race is very close and is beginning to turn nasty. In the debate September 28, Thompson said Baldwin is “not in the mainstream,” a seeming reference to her being gay, though it wasn’t at all clear that he intended it that way. He also claimed she was the “Number One Liberal” in the U.S. House, and the “Number One Spender.”

Pro-Thompson television ads label Baldwin as “extreme” –“too extreme for Wisconsin.” The Karl Rove group called Crossroads Grassroots Policy Strategies is pouring millions of dollars into the campaign to air television ads that also label Baldwin as “extreme” and show her angrily saying “You’re damn right we’re making a difference” about something.  Other big spenders opposing Baldwin include the U.S. Chamber of Commerce and the Club for Growth Action, according to Federal Elections Commission records.

Baldwin is also hoping to become the first openly gay person to be elected to the U.S. Senate. She and Thompson seek a seat being vacated by retiring Democrat Herb Kohl.

The New York Times election numbers cruncher, fivethirtyeight.com, currently gives Baldwin a 76 percent chance at winning the seat with 51 percent of the vote. Its average of polls shows Baldwin with a 2.6-point lead.

Two more debates are scheduled between the two –October 18 and October 26.

Court puts off deciding whether to hear Prop 8 case

On its first official day of the 2012-13 session, the U.S. Supreme Court on Monday did not include the Proposition 8 case on the list of cases it would or would not review.

Therese Stewart

On its first official day of the 2012-13 session, the U.S. Supreme Court on Monday did not include the Proposition 8 case on the list of cases it would or would not review.

Monday’s was the third list of cases released thus far by the Supreme Court for this session. The justices originally scheduled the case, Hollingsworth v. Perry, for discussion in their September 24 meeting, prompting many to speculate that the court would announce on either September 25 or October 1 whether it would take up the appeal from those seeking to preserve the ban on same-sex marriages in California.

But on Wednesday afternoon, September 26, a notice was posted in the press room at the Supreme Court, indicating the case was being “rescheduled” for a later conference meeting. As of deadline this week, the docket did not indicate a new conference date for the highly watched case.

Ted Olson, a lead attorney on the American Foundation for Equal Rights legal team that has won court victories striking down Proposition 8, said he assumes the court wants to discuss the Prop 8 case in the same conference with the Defense of Marriage Act cases.

Therese Stewart, Chief Deputy City Attorney for San Francisco, said the rescheduling of Hollingsworth may signal the high court is considering “whether it will take Perry and the DOMA cases together.” Or they may want to ensure their handling of the marriage cases don’t have “any impact on the election.”

“But I think the former is the more likely reason it was put over,” said Stewart.

The Supreme Court calendar indicates only three conference meeting dates for the justices in October –all Fridays—October 5, 12, 26. Typically, if a case is discussed in conference, its disposition is announced the following Monday (or if Monday is a holiday, then Tuesday).

Regardless of what the court decides to do, the news will be significant.

If the court takes review, then both sides will brace themselves for a decision that could make statewide same-sex marriage bans more difficult or easier to defend.

If the court decides not to take the appeal, then same-sex couples in California will soon be able to obtain marriage licenses again. Such a development on its own would boost momentum for a growing acceptance of marriage equality around the country, and make California the eighth state, plus the District of Columbia to provide for equal protection in marriage.

By not hearing the appeal of Prop 8 supporters, the court would be leaving as precedent, the Ninth Circuit’s decision that taking away the right to marry from an unpopular group, without a rational reason for doing so, violates the equal protection guarantee of the Constitution.

“The immediate effect of [not taking review] would be to allow marriage in California,” said Stewart, adding that, “once the Ninth Circuit issues its mandate, [that] should happen quickly.”

Leaving the Ninth Circuit decision as precedent would apply only to the Ninth Circuit states — California, Arizona, Nevada, Oregon, Idaho, Washington, Montana, Alaska, and Hawaii.

“The effect on other states would not be immediate,” said Stewart, “but the reasoning of the Ninth Circuit might be used in other cases.  The circumstances in California are somewhat unique, so whether another court or even another panel of the Ninth Circuit would apply all or some of the reasoning of the Perry panel to a different case probably depends on how similar or different the case is and who is on the panel deciding the case.”

Having Perry preserved in the Ninth Circuit may have some “persuasive effect” should Washington State voters reject a new marriage equality law there in November, prompting litigation, said Stewart, “especially because the situation would be closer to California’s than most.”

The Supreme Court announcements usually fall into one of two categories –“Cert granted” and “Cert denied.”

“Cert” is shorthand for “Petition for Writ of Certiorari,” a request that usually comes from a party who has lost litigation in a federal appeals court, asking the high court to review the lower court decision and change it. If the court “grants cert,” then at least four justices have voted to review the lower court decision and the case will be heard by the full bench. If the court “denies cert,” then the Supreme Court will not hear the case and the lower appeals court decision stands as precedent for the states in that Circuit. While these are the most frequent options, the high court can take other actions as well.

Stewart said that, if the Supreme Court decides not to review the Prop 8 decision, the Ninth Circuit would then issue its mandate requiring equal treatment of same-sex couples. Stewart said that typically takes about a week.

But here I think the court would get the mandate out very quickly, within a day,” said Stewart. “I am told that the state department of public health is all over this, i.e., ready to act promptly once the mandate issues.”

Historic Supreme Court session starts Monday; DOMA, Prop 8, and NOM on potential agenda

Perhaps the most historic U.S. Supreme Court session ever for the LGBT community gets underway officially October 1, with a record nine gay-related cases seeking review, all involving same-sex marriage.

Ted Olson
Ted Olson

Perhaps the most historic U.S. Supreme Court session ever for the LGBT community gets underway officially October 1, with a record eight gay-related cases seeking review, all involving same-sex marriage.

Two of the eight cases include high-profile landmark decisions in federal appeals courts –one declaring the California’s ban on same-sex marriage unconstitutional, the other holding the core section of the Defense of Marriage Act (DOMA) to be unconstitutional. Whether the court refuses to hear the appeals or takes them, the result will set up another landmark in the LGBT civil rights struggle.

Five of the eight cases are direct challenges to DOMA, two concern ballot battles, and the eighth concerns a law in Arizona blocking gay employees of the state from obtaining benefits for their partners.

The DOMA cases

While there are eight cases of specific interest to the LGBT community, there are 11 petitions asking the Supreme Court to review their lower court decision. Of those 11 petitions, eight seek appeal on DOMA-related challenges — three from Massachusetts and the First Circuit, one from California through the Ninth Circuit, and two from New York and two from Connecticut in the Second Circuit.

The Massachusetts Cases – The three petitions from the First Circuit involve two cases that have been winding their way through the courts since March 2009. Gay & Lesbian Advocates & Defenders (GLAD) filed one of the lawsuits, while the Massachusetts Attorney General’s office filed the other. Both sought to strike down the core provision of DOMA –Section 3—that bars the federal government to recognize same-sex spouses for any federal purpose.

GLAD argued the law violates the equal protection rights of citizens with same-sex spouses; the Commonwealth argued that it violates state sovereignty. There is both a petition, by the Bipartisan Legal Advisory Group (BLAG) and the Solicitor General, and a cross-petition (from the Commonwealth) on this latter case. The fourth petition involves another GLAD case, Office of Personnel Management v. Pedersen.

OPM v. Gill and Health and Human Services v. Commonwealth are the preeminent legal challenges to DOMA. Both were carefully thought-out strategies, filed in federal court in Massachusetts, and consolidated on appeal to the First Circuit U.S. Court of Appeals.

Gill was filed by Gay & Lesbian Advocates & Defenders (GLAD),  the legal team which won the landmark 2003 decision for same-sex marriage in Massachusetts. GLAD argued below that DOMA violates the equal protection clause of the federal constitution. Commonwealth, brought by the Massachusetts attorney general’s office, says DOMA violates the spending clause or Tenth Amendment rights of states.

On May 31, the First Circuit, using a “a closer than usual” rational basis review in these cases, ruled Section 3 of DOMA violates the equal protection guarantee. And while it rejected the Commonwealth’s argument regarding the Tenth Amendment and spending clause, the state has asked that the Supreme Court review that aspect of the decision if it takes the cases for review.

Section 3 of DOMA prohibits the federal government from recognizing the marriages of same-sex couples. Although this began as two cases before the First Circuit, it now constitutes three petitions before the Supreme Court: BLAG’s appeal of the Gill ruling, and the appeals of HHS and the Massachusetts Attorney General in the Commonwealth decision.

Golinski v. OPM – Another important DOMA challenge pending before the Supreme Court for this session is Golinski v. OPM, brought by Lambda Legal Defense. It tests DOMA’s ability to deny a gay federal employee the same benefits enjoyed by straight federal employees.

The federal employee in this case is attorney Karen Golinski, who is employed as an attorney by the Ninth Circuit U.S. Court of Appeals and sought health insurance coverage for her same-sex spouse. U.S. District Court Judge Jeffrey White, an appointee of President George W. Bush, said the legislative history of DOMA is “replete with expressed animus toward gay men and lesbians,” but he said he was “persuaded that something short of animus may have motivated DOMA’s passage.” White’s February 2012 ruling said Congress failed to justify its disparate treatment of gays and lesbians, whether one used rational or heightened judicial review. The Ninth Circuit declined to hear BLAG’s appeal, so BLAG took its appeal to the U.S. Supreme Court.

Windsor v. U.S. – Two petitions have been filed in the Windsor case, originated by the ACLU. Unlike the other cases, Windsor has only just been argued to the federal appeals court (September 27) and has not yet received a circuit decision.

Judge Barbara Jones of the U.S. District Court for Southern New York ruled June 6 that DOMA violates the U.S. constitution’s guarantee of equal protection when it requires a same-sex spouse to pay a federal estate tax from which heterosexual spouses are exempt. Because of DOMA, plaintiff Edith Windsor was forced to pay more than $363,000 in estate taxes when her same-sex spouse, Thea Spyer, died in 2009 and left Windsor her estate. Jones used the lowest standard of judicial review—rational basis—in finding DOMA unconstitutional.

Solicitor General Donald Verrilli submitted a brief to the Supreme Court urging it to take the case in part because different lower courts were using different standards of review on the issue.

“This court has previously granted certiorari before judgment when necessary to provide expeditious resolution of exceptionally important legal questions,” said Verrilli. But ultimately, Verrilli urged the court to consider the petition to review Windsor only if it first decides that none of the Massachusetts cases nor Golinski should be reviewed.

Pedersen v. OPM – This is GLAD’s second DOMA challenge, essentially a twin to the Gill case in Massachusetts. This one was filed in federal court in Connecticut, with plaintiffs from several Second Circuit states.

The Supreme Court typically grants review when an appeals court declares a federal law unconstitutional. It also frequently grants review when various appeals courts are in conflict over a law’s constitutionality.

The circuit courts have declared DOMA unconstitutional, but there has been no conflict. A federal district court in the Second Circuit has declared it unconstitutional, but the Second Circuit itself has not yet weighed in.

But the fact that the U.S. House Bipartisan Legal Advisory Group (BLAG) has been aggressively defending DOMA (in 14 separate courts, at latest count) will no doubt weighed heavily on the Supreme Court’s willingness to take up the issue sooner rather than later. A ruling from the high court upholding the law may be the only way to slow the dramatically increasing support for same-sex marriage—in the courts and in public opinion.

Ongoing ballot battles

Brewer v. Diaz – In November 2008, voters in Arizona passed a DOMA-like amendment to the state constitution to prohibit state recognition of same-sex relationships. Governor Jan Brewer then signed into law a bill to officially redefine “spouses” of state employees to include only heterosexual ones. Lambda Legal filed this lawsuit, originally known as Brewer v. Collins, representing a group of gay Arizona state employees against a new state law barring them from signing up their domestic partners and children for family health insurance coverage. A federal judge ruled the state law violated the U.S. Constitution’s guarantee of equal protection. The Ninth Circuit upheld that ruling last year, another victory for Lambda Legal. The state, and Republican Governor Jan Brewer, is petitioning the high court to overturn the ruling.

 NOM v. McKee —NOM v. McKee appeals a decision rendered by Walter F. McKee, a member of the Maine Commission on Governmental Ethics and Election Practices. The Commission ruled that political action committees operating in the state had to comply with state election campaign requirements to identify their donors. That includes in campaigns taking sides on statewide ballot initiatives, of which many in recent years have concerned equal protection for LGBT people.

NOM’s challenge of those laws has failed before the U.S. Supreme Court once already. This is—as the First Circuit put it—“the second chapter of a lawsuit challenging the constitutionality of Maine laws imposing registration and disclosure requirements on entities that finance election-related advocacy.” The First Circuit upheld the state laws. NOM, again, appealed to the high court.

The Prop 8 climax —Hollingsworth v. Perry (formerly known as Brown v. Perry and Schwarzenegger v. Perry) is one of the most anticipated LGBT cases to reach the U.S. Supreme Court, for the LGBT community and for many others. It is a case that has been drenched with drama since the beginning, when the newcomer organization American Foundation for Equal Rights—against the advice of long-time gay legal activists—hired two of the country’s most prominent attorneys to challenge a voter-passed initiative in California to ban same-sex marriage.

As Ted Olson and David Boies staged their three-week long landmark trial in defense of equal rights for same-sex couples, gay legal activists marshaled behind them. And when, in August 2010, they won a comprehensive victory from U.S. District Court Judge Vaughn Walker (a Republican appointee who, after retirement, acknowledged having a same-sex partner), the momentum throughout the country seemed to begin shifting towards equality.

Then, in another victory, the Ninth Circuit U.S. Court of Appeals ruled in February 2012 that Proposition 8 was “remarkably similar” to Colorado’s anti-gay Amendment 2, which the Supreme Court had declared unconstitutional. Based on that, said the Ninth Circuit, Proposition 8 must also be declared unconstitutional—a violation of the equal protection guarantees of the U.S. Constitution.

The Ninth Circuit also quoted from the U.S. Supreme Court’s 2003 decision striking down sodomy laws, Lawrence v. Texas, and its 1967 decision, Loving v. Virginia, striking down bans on interracial marriage.

It was no surprise then, that supporters of Proposition 8, filed an appeal to the U.S. Supreme Court. Olson and Boies have opposed the petition, noting that the Ninth Circuit decision did “not conflict with any decision of this Court or any other court of appeals.” That’s the legal reason. In their brief, they also made clear that they were also motivated by a basic responsibility to their clients –two same-sex couples who want to marry in California.

“While there are circumstances that might make review of this obviously important issue attractive at this time—particularly the possibility of resolving this case in conjunction with the challenges to DOMA—those considerations,” said Olson and Boies, “must be weighed against the substantial and irreparable harm the period of additional review would impose on Plaintiffs and those situated similarly to them.”

The Supreme Court will release its next list of cases on Monday, October 1, at the start of its 2012-13 session.

Frank’s slam against GOP gays not likely to woo votes to Obama

The presidential finish line is eight weeks off, and there’s little indication that the LGBT vote in this year’s presidential election will divide up any differently than it has in the past several: 3 to 1 for the Democrat. But it is not an entirely civil divide.

Barney Frank

The presidential finish line is eight weeks off, and there’s little indication that the LGBT vote in this year’s presidential election will divide up any differently than it has in the past several: 3 to 1 for the Democrat. But it is not an entirely civil divide. A stinging barb from Rep. Barney Frank, characterizing Log Cabin Republicans as “Uncle Toms,” lingers on the LGBT body politic and will likely undermine efforts by the Obama campaign to win over gay Republicans.

Frank made his remark in at least two places during the Democratic National Convention and defended his view this week, despite reactions from other LGBT leaders who expressed disappointment in his harsh criticism of gay Republicans.

Speaking to the LGBT Caucus at the Democratic National Convention, Frank said, “When they tell us that they are happy to be Republicans because they are getting acceptance and civility, I gotta say that I am again inclined to think that they’re called the Log Cabin Club because their role model is Uncle Tom.” He made essentially the same remark during an interview at the convention with Sirius OutQ News interviewer Michelangelo Signorile.

After a number of LGBT leaders, including Human Rights Campaign President Chad Griffin, issued statements expressing disappointment in the harshness of Frank’s attack, National Stonewall Democrats Executive Director Jerame Davis punched back:

“The Log Cabin Republicans are the most weak-kneed, sycophantic apologists I’ve ever encountered. After their dismal performance at the RNC convention driving the GOP platform even farther to the right, they should give back all the money they’ve fleeced from their donors and close the doors.”

Keen News sent a question to Frank on September 10 via e-mail, asking whether his unhappiness with Log Cabin Republicans was just over their giving Republicans their money and votes and whether he saw any value in having LGBT people working inside the party to try and change it.

Frank issued a long written response September 11, saying “my use of ‘Uncle Tom’ was based not simply on this awful fact that they have chosen to be actively on the wrong side of an election that will have an enormous impact on our right to equality, both in fact and in the public perception of the popularity of that cause.”

“If the Log Cabin Republicans – or their even more outlandish cousins, the oddly-named GOProud –were honestly to acknowledge that they let their own economic interests, or their opposition to strong environmental policies, or their belief that we need to be spending far more on the military or some other reason ahead of any commitment to LGBT equality, and on that ground have decided to prefer the anti-LGBT candidate to the supportive one, I would disagree with the values expressed, but would have no complaint about their logic.”

“The damaging aspect of the Log Cabin argument, to repeat the most important point,” said Frank, “is that they may mislead people who do not share their view that tax cuts for the wealthy are more important than LGBT rights into thinking that they are somehow helping the latter by supporting Mitt Romney and his Rick Santorum platform.

“It is a good thing for Republicans to try to influence other Republicans to be supportive of LGBT rights,” said Frank. “The problem is when they pretend to be successful when they haven’t been, and urge people to join them in rewarding the Republicans when they have in fact continued their anti-LGBT stance.  I have been hearing the Log Cabin Republicans proclaim for years that they were improving the view of that party towards our legal equality.  In fact, over the past 20 years, things have gotten worse, not better.  Most recently, on DOMA, when the House Republicans offered an amendment to reaffirm it, they voted 98% in favor of it, while Democrats voted more than 90% against the amendment. And it is not surprising that they have not been successful. Giving strong political support to people who are maintaining their anti-LGBT stance is hardly an effective strategy for getting them to change it.”

There is no question but that the Republican Party at its presidential nominating convention in Tampa presented a carefully coded hostility to gays in the military, gays getting married, and gays being seen as citizens in the constitution. That could be seen as an improvement, if compared with the 1992 GOP convention when keynote speaker Pat Buchanan derided Democrats for allowing a “militant leader of the homosexual rights movement” call the Democratic presidential ticket (Clinton-Gore) the most pro-gay ticket in history. That’s the year Buchanan used his high profile speech to declare a religious and cultural war with Republicans on one side and “homosexuals” on the other.

Republican nominee Mitt Romney did not himself make an explicit statement against same-sex marriage or gays. Instead, he said, “I will honor the institution of marriage.” But the party’s platform and the nominee’s surrogates before a national television audience each took thinly veiled jabs at LGBT people whenever they had the chance. Running mate Paul Ryan praised Romney as “Not only a defender of marriage, he offers an example of marriage at its best.” Failed presidential contender Rick Santorum once again railed against what he perceives to be the “assault on marriage.”

A New York Times editorial characterized the GOP platform as, “more aggressive in its opposition to women’s reproductive rights and to gay rights than any in memory.”

By contrast, the Democratic Party, through its platform and convention speeches, took its strongest stand yet in support of equal rights for LGBT people. In his speech to the Democratic National Convention in Charlotte, President Obama essentially pushed back against Republican attacks on gays and other groups. He said, “we don’t think that government is the source of all our problems – any more than are welfare recipients, or corporations, or unions, or immigrants, or gays, or any other group we’re told to blame for our troubles.” And he applauded fellow Americans for being part of the change that has ensured that “selfless soldiers won’t be kicked out of the military because of who they are or who they love.”

Numerous prime-time Democratic speakers made similarly supportive statements, and First Lady Michelle Obama twice referenced same-sex marriage in her passionate address to the convention. The first mention was a fairly routine reference to the need for people to be able to love who they love.

“Barack knows the American Dream because he’s lived it and he wants everyone in this country to have that same opportunity, no matter who we are, or where we’re from, or what we look like, or who we love.”

The second mention was a gutsy juxtaposition that celebrated the courage of same-sex couples who marry with the likes of civil rights icon Martin Luther King Jr. and other American heroes.

“If farmers and blacksmiths could win independence from an empire, if immigrants could leave behind everything they knew for a better life on our shores, if women could be dragged to jail for seeking the vote, if a generation could defeat a depression and define greatness for all time, if a young preacher could lift us to the mountaintop with his righteous dream, and if proud Americans can be who they are and boldly stand at the altar with who they love, then surely,” said the First Lady, “surely we can give everyone in this country a fair chance at that great American Dream.”

The speech came on the same night the Democratic Party approved what Democratic LGBT activists say is the most pro-gay platform in history.

Jamie Citron, national LGBT Vote Director for the Obama for America re-election campaign, said in May that the Obama campaign would try to win over gay Republicans. But there is no indication yet that gay Republicans are being won over. And following Frank’s “Uncle Tom” remark, they could well be settling into a defensive posture.

R. Clarke Cooper, executive director of the national Log Cabin Republican group, said, in response to Frank’s remark, that “Leaders committed to LGBT equality know that every victory our community has achieved has required bipartisan advocacy and bipartisan votes, and winning support from Republicans will only be more important in the days ahead.”

Long-time Democratic gay activist David Mixner predicted this week that 75 percent of the LGBT vote will go to President Obama. The significance of that vote in the overall election depends largely on how close the election is, come November 6.

An ABC/Washington Post poll September 7-12 found Obama with a 50 to 44 percent edge over Romney, with a four percent margin of error. A CNN poll September 9-12 found the Obama-Romney race at 52 to 46 percent, with a four-point margin of error. A daily Gallup Poll as of September 12 also showed a 50-44 split, with a three-point margin of error.

BLAG appeals DOMA to Supreme Court

It’s not a surprise, but it is news: House Speaker John Boehner and his colleagues in the Republican leadership have given the go-ahead for an appeal to the U.S. Supreme Court in hopes of preserving the Defense of Marriage Act –DOMA.

It’s not a surprise, but it is news: House Speaker John Boehner and his colleagues in the Republican leadership have given the go-ahead for an appeal to the U.S. Supreme Court in hopes of preserving the Defense of Marriage Act –DOMA.

A First Circuit appeals court in May struck down the core provision of DOMA –a ban on any federal recognition of legitimately married same-sex couples. That was the first time a federal appeals court had weighed in on the law.

Boehner, Majority Leader Eric Cantor, and Majority Whip Kevin McCarthy voted to appeal that decision to the Supreme Court. The three make up a majority of the five-member Bipartisan Legal Advisory Group, which has the authority to approve legal action on behalf of the House. The Group, which includes the top two House Democratic leaders, voted 3 to 2 to hire an outside attorney to defend DOMA in February 2011 after the Obama administration announced it could not argue in court that the law is constitutional.

The appeal was anticipated and lawyers on both sides will now begin submitting briefs. The high court could announce as soon as October whether it will accept the appeal.

Roberts leads decision to uphold health reform law

In a dramatic move with significant political and economic implications, a majority of the U.S. Supreme Court on Thursday (June 28) voted to uphold President Obama’s landmark health care reform law.

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

In a dramatic move with significant political and economic implications, a majority of the U.S. Supreme Court on Thursday (June 28) voted to uphold President Obama’s landmark health care reform law. The vote, at least in regard to the key conflict, was 5 to 4, with Chief Justice John Roberts writing the opinion and joining the four justices on the liberal wing.

The decision is a big relief to people with costly illnesses, including people with HIV or breast cancer. It is an enormous political victory for the Obama administration, because health care reform was Obama’s signature achievement thus far in his first term. And it creates an awkward issue for Republican presidential nominee Mitt Romney to negotiate. Romney worked for a similar plan for Massachusetts, when he was governor, but has since joined the majority of Republicans in arguing vigorously against requiring citizens to buy coverage or pay a “tax” for not doing so.

The Affordable Care Act (ACA) “individual mandate” requires every citizen, by 2014, to either buy health coverage or pay a penalty that helps mitigate the burden on the health care system when they seek medical care without insurance.

All three of the nation’s major LGBT legal groups had signed onto a brief in support of the ACA, noting that 30 percent of people with HIV are not able to obtain health insurance.

Among other things, the ACA prohibits insurance companies from limiting or refusing coverage for a person with HIV, breast cancer, or any other disease. It also prohibits insurance companies from dropping a person’s coverage after the person became ill.

Justice Anthony Kennedy, writing for the dissent, said he believes the entire law is unconstitutional. He was joined by the court’s conservative wing, including Justices Antonin Scalia, Clarence Thomas, and Sam Alito.

Lambda Legal, Gay & Lesbian Advocates & Defenders, the National Center for Lesbian Rights, the National Center for Transgender Equality and others submitted a joint brief in support of the ACA. They argued the law ensures health coverage for people with HIV and, in doing so, stems the spread of the virus to others. That, they said, also helps contain the enormous burden that HIV infection puts on the health care system.

The 30-page brief was one of more than 130 briefs filed in HHS v. Florida and several other lawsuits seeking to strike down the ACA, signed into law two years ago by President Obama.

The gay groups’ brief, like most media reports, focused on the ACA individual mandate that everyone purchase health coverage. Under ACA, with some exceptions (including religious-based objections and poverty), everyone would have to obtain health coverage starting in 2014. Those who failed to do so would have to pay one percent of their income annually as a penalty. Over the years, the penalty rises, but there are limits to how high it can go.

With the individual mandates, argued the gay groups’ brief, “thousands of lives—and billions of dollars—could be saved each year, and the HIV/AIDS epidemic could be dramatically curbed.”

Carl Schmid, Deputy Executive Director of The AIDS Institute, said his group was “extremely pleased” with the upholding of the ACA.

The court upheld other points of contention in the law, including whether states can be required to cover the expanded number of people qualifying for Medicaid under the ACA. Some states opposed that expansion, saying it unfairly increases the state’s obligation to share the Medicaid costs. The majority opinion said the federal government could not withdraw existing Medicaid funding from states that were unable to fund the expanded pool.

In other Supreme Court news this week, the high court voted 5 to 3 (with Justice Elena Kagan recusing herself) to strike down three provisions and at least temporarily sustain one provision of Arizona’s controversial immigration law. Lambda Legal said the one provision retained—allowing law enforcement officers to stop any person they suspect is in the United States without the federal government’s permission—is especially harmful to LGBT people.

“LGBT immigrants and LGBT people of color remain particularly vulnerable because this provision… requires police to stop and question people based on their appearance,” said Lambda, in a statement released about the decision. “The LGBT community knows all too well how easily people who are perceived to ‘look different’ or ‘act different’ can be singled out for harassment and persecution.”

Lambda said it would join other groups in staging a constitutional challenge to the provision. The Supreme Court did not declare the provision to be constitutional but said it could be enforced until such time as a court does rule it to be unconstitutional.

The majority struck down three other controversial provisions of the Arizona law as overstepping state authority and encroaching on the purview of federal authority.

Justice Anthony Kennedy wrote the majority opinion, which was joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor.

ENDA: Now, it’s all about religion

Opposition to ENDA –the Employment Non-Discrimination Act– was all about the bathrooms in the last Congressional session. This time around, it’s about religion.
National Religious Broadcasters Association spokesman Craig Parshall told the Senate Committee on Health, Education, Labor & Pensions Tuesday (June 12) that ENDA would impose a “chilling effect” on religious organizations that would be monumental. He said ENDA poses a “substantial unconstitutional burden” on religious organizations that would “interfere with their ability to pursue their missions.”

Opposition to ENDA –the Employment Non-Discrimination Act– was all about the bathrooms in the last Congressional session. This time around, it’s about religion.
National Religious Broadcasters Association spokesman Craig Parshall told the Senate Committee on Health, Education, Labor & Pensions Tuesday (June 12) that ENDA would impose a “chilling effect” on religious organizations that would be monumental. He said ENDA poses a “substantial unconstitutional burden” on religious organizations that would “interfere with their ability to pursue their missions.”
Parshall was the only one of five witnesses at the hearing to testify against ENDA. He said the language of the bill would prohibit a religious employer from firing an employee who did not share the organization’s religious tenets. The employee, said Parshal, could sue under ENDA and claim he or she was fired, instead, for being gay or transgender.
Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating based on race, color, religion, sex, and national origin. It exempts “religious organizations” and “religious educational institutions” from the mandate concerning religion, enabling such organizations to give preference to employees who share their religion. But it doesn’t allow religious organizations to discriminate against employees based on race, sex, or the other covered categories and claim that as religiously-based.
Parshall claimed that ENDA Section 6, concerning “Exemption for Religious Organizations,” would create “huge problems” for courts by failing to provide a “clear” definition of who gets the exemption and in what circumstances.
Section 6 is a one-sentence paragraph stating: “This Act shall not apply to a corporation, association, educational institution or institution of learning, or society that is exempt from the religious discrimination provisions of title VII of the Civil Rights Act of 1964….”
Samuel Bagenstos, a professor of law at the University of Michigan, took issue with Parshal’s complaint, saying that the religious exemption is quite broad—so much so the ACLU has objected to the language.
“Once [courts] decide that this is a religious corporation, a religious association, educational institution, or society, for example, that’s the end of the matter. That institution gets an exemption under ENDA,” said Bagenstos.
Bagenstos also emphasized the need for ENDA, noting that while some courts have ruled that discrimination based on sex stereotypes is considered prohibited by Title 7, courts have not extended that to discrimination based on sexual orientation or gender identity.
“There is a need for a comprehensive, clear federal standard that applies across the country,” said Bagenstos.
Senator Tom Harkin, the Democrat chair of the committee, held his tongue until the very end of the 90-minute hearing, then made clear what he thought about Parshal’s claim:
“I want to be as protective as anyone of religious liberty in this country,” said Harkin, “but I’d also remind people that, in 1964, when we passed the Civil Rights Act, arguments were made that this would violate the religious liberty of employers— to ban discrimination on the basis of race. So we’ve been through this before.”
“This [discrimination] has no place in our society,” said Harkin.
Harkin noted that Tuesday’s hearing marked the first time that a transgender witness testified before the Senate. Kylar Broadus, founder of Trans People of Color Coalition, from Missouri, told lawmakers his personal story. He noted that his driver’s license indicated he was a female, but was thrown out of women’s bathrooms because of his male appearance. When he chose to begin living as “the real me,” he was harassed by his employer who refused to allow him to dress as a man.
ENDA, he said, would go a long way to protect people who suffer employment discrimination based on gender identity.
Other witnesses included M.V. Badgett, a demographic researcher at the Williams Institute for Sexual Orientation Law and Public Policy; and Ken Charles, vice president of diversity and inclusion of the General Mills Corporation.
U.S. Senator Jeff Merkley (D-Ore.) introduced ENDA in the current session of the Senate (S.811) and Rep. Barney Frank introduced it to the House (H.R. 1397). While the legislation got hearings in both chambers during the last Congressional session, it did not get a committee vote in either. That is the likely fate of the legislation again this Congressional session, as Republicans continue to hold the majority in the House.
The Senate bill this session currently has 41 co-sponsors, including Illinois senators Dick Durbin, a Democrat, and Mark Kirk, a Republican; California senators Dianne Feinstein and Barbara Boxer, both Democrats; Michigan senators Carl Levin and Debbie Stabenow, both Democrats; Massachusetts Senator John Kerry, a Democrat; Pennsylvania Senator Bob Casey, a Democrat; and Ohio Senator Sherrod Brown, a Democrat.

LGBT gold rush to Obama: Racing against the tie

President Obama has been greeted with thunderous ovations and thousands of dollars in LGBT contributions since his May 9 announcement that he supports allowing same-sex couples to marry.

President Obama

President Obama has been greeted with thunderous ovations and thousands of dollars in LGBT contributions since his May 9 announcement that he supports allowing same-sex couples to marry.

A Huffington Post offshoot, BuzzFeed.com, reported that “a Democrat” claimed $1 million poured into the Obama for America campaign within 90 minutes of President Obama’s interview saying he supports the rights of same-sex couples to marry. An unidentified campaign spokesman later told NPR that wasn’t true but “one source” said the surge in contributions was “astounding.”

Whatever the number of gay dollars tallied, the money was part of a $60 million haul for the re-election campaign in May.

During that same month, however, the coffers of Republican nominee Mitt Romney grew $76 million. It marked the first month in which the Romney camp outraised the Obama camp.

Did Obama’s same-sex marriage support have any influence on that? Probably not. A wide variety of independent surveys by news and polling groups showed the two major party candidates tied since the beginning of May—trading the lead but almost always within the margin of error. And an NBC-Wall Street Journal poll of 1,000 registered voters May 16-20 found that 62 percent of registered voters surveyed said the two candidates’ positions on same-sex marriage—Obama for, Romney against—made no difference in their expected votes.

“When it comes to your decision to support Barack Obama, does his position favoring same-sex marriage reinforce the reason to support him, give you concern about supporting him, or really not make much difference either way?” asked the poll of those respondents who said they were leaning toward Obama. Sixty-two percent said it didn’t make much difference either way, 31 percent said it reinforced their support, and seven percent said it gave them some concern. When the pollsters asked Romney supporters how the Republican’s position opposing same-sex marriage affected them, the responses were nearly the same: 59 percent said it didn’t matter, 32 percent said it reinforced their support, eight percent had concerns (and one percent was unsure).

An ABC-Washington Post poll of 1,004 adults May 17-20 found only one percent considered “gay marriage/gay rights” to be the “most important issue” in their choice for president. Ditto, a CNN poll of 1,009 adults May 29-31.

Still, gay money in the campaign has been getting a lot of attention. A CNN analysis published June 6 credited gay donors with raising at least $8 million for the Obama re-election campaign even before the president’s May 9 announcement. It said its analysis of Obama’s biggest donors showed “at least 33—o r about one in every 16 bundlers—is openly gay.”

A Washington Post article May 7 estimated one in six of Obama’s contribution bundlers were gay. (The paper did not reveal how it came to that estimate, other than to say it reviewed donor lists, and, as CNN noted, Federal Election Commission rules do not require donors to indicate their sexual orientation. CNN said it based its estimate on “bundlers who have disclosed their orientation in past CNN reporting or in trusted LGBT publications were counted as gay.” CNN did not disclose which publications it relied on, but noted that openly gay software millionaire Tim Gill and his partner have contributed $672,800 to the Obama for America campaign, and Chicago Newsweb Corporation owner Fred Eychaner has contributed $1.2 million.)

OpenSecrets.org, an independent organization tracking the flow of campaign funding, posted a chart of 27 LGBT bundlers—13 of whom had raised more than $500,000 each. Among those 13 were Sally Susman, an executive vice president at the pharmaceutical giant Pfizer; Joseph Falk, past president of the National Association of Mortgage Brokers; James Costos, a vice president at HBO, and his partner, designer Michael Smith; Kathy Levinson, former president of E-Trade; and Chicago Cubs co-owner Laura Ricketts.

To put the bundlers’ role in perspective, the Human Rights Campaign political action committee reported that, through April 30, it had received contributions totaling $218,816. The national gay conservative group GOProud and the political action committee of Log Cabin Republicans show no money raised for campaign financing.

President Obama appeared before several high-profile, big-ticket LGBT fundraisers in the past few weeks. On Wednesday (June 6), he spoke to a fundraiser sponsored by the Democratic National Committee’s LGBT Leadership Council in Los Angeles. Then, he spoke to a fundraiser nearby at the private home of Ryan Murphy, the creator of Glee, a television series popular with many in the LGBT community.

An estimated 600 people attended the DNC-LGBT gala at the Regent Beverly Wilshire, paying somewhere between $1,000 and $5,000 each. According to a White House pool reporter, the audience there gave President Obama a “prolonged standing ovation, chanting “Four more years!”

The more private reception at Glee creator Murphy’s cost the estimated 70 attendees $38,500 each. According to the White House pool reporter, the president spoke for about 12 minutes then took questions but the reporter was not allowed to stay for the question-and-answer period. Although the pool reporter did not recognize anyone in the crowd, he said a campaign official told him it included actors Julia Roberts, Reese Witherspoon, and Jane Lynch. It also included Jack Calhoun, the president of Banana Republic/Gap Inc., and Michael Lombardo, another HBO executive.

The two events were expected to raise several million dollars for the president’s re-election campaign.

“I could not be prouder of the work that we’ve done on behalf of the LGBT community,” said President Obama, in front of the DNC-LGBT Leadership Council gala. “From the work we did to facilitate hospital visitations to ending the HIV/AIDS ban, to the work we did to pass the Matthew Shepard law, to repealing “don’t ask, don’t tell,” to all the administrative work that’s been done by agencies to make sure that folks are fully recognized is something that I’m personally very proud of.”

The DNC’s LGBT Leadership Council, founded in 2000, works to ensure the Democratic Party’s platform includes and respects the rights of LGBT Americans. At its gala last year in New York, some in the audience criticized President Obama for not endorsing passage of the then-pending legislation in the New York legislature to allow same-sex couples to marry.

The Leadership Council also held fundraiser for Obama in New York last month, with entertainer Ricky Martin as host. That fundraiser sold out after President Obama gave his interview in support of same-sex marriage, according to OpenSecrets.org.

But whatever millions the LGBT community has chipped into the Obama re-election coffers, it pales in contrast to the money piling up on Republican nominee Mitt Romney’s side.

Politico.com reported last month that Republican political strategist Karl Rove and allies have promised to raise $1 billion in pro-Romney communications.

They are aided in large part by the U.S. Supreme Court’s 2010 decision in Citizens United v. FEC. In that decision, a split court ruled that the First Amendment prohibits the federal government from limiting how much corporations and unions can spend on “electioneering communications.” Through so-called “Super PACs,” corporations quickly began pouring money into such communications to support pro-corporate candidates. One prominent pro-Romney super PAC, Restore Our Future, reported raising more than $26 million through April 30, compared to the $4.7 million raised by the prominent pro-Obama super PAC “Priorities USA Action.”

One prominent donor to the pro-Romney super PAC was Paul Singer, a billionaire investor whose son is gay. Ironically, the New York Times reported last weekend that Singer has also just announced forming his own super PAC—the American Unity PAC—with plans to direct $1 million toward Republicans who support same-sex marriage.

Another federal court strikes DOMA

For the second time in a week, a federal court has declared the core section of the Defense of Marriage Act (DOMA) to be unconstitutional.

Judge Barbara Jones of the U.S. District Court for Southern New York, which includes Manhattan, issued a ruling Wednesday (June 6), saying DOMA violates the constitution’s guarantee of equal protection when it requires a same-sex spouse to pay a federal estate tax that heterosexual spouses are exempt from.

For the second time in a week, a federal court has declared the core section of the Defense of Marriage Act (DOMA) to be unconstitutional.

Judge Barbara Jones of the U.S. District Court for Southern New York, which includes Manhattan, issued a ruling Wednesday (June 6), saying DOMA violates the constitution’s guarantee of equal protection when it requires a same-sex spouse to pay a federal estate tax that heterosexual spouses are exempt from.

On May 31, the First Circuit U.S. Court of Appeals, using a “a closer than usual” rational basis review, also struck down Section 3 of DOMA as a violation of equal protection. That case is now headed for the U.S. Supreme Court.

The June 6 decision came in Windsor v. U.S., a case brought by the ACLU on behalf of Edie Windsor. Windsor married her spouse, Thea Spyer, in Canada in 2007. Spyer died in 2009, following a long illness. But because Section 3 of DOMA prohibits the federal government from recognizing the marriages of same-sex couples, Windsor was not able to claim the estate tax deduction available to the spouses of straight married couples.

The ACLU filed suit, arguing that DOMA violates the equal protection rights of gay people whose spouses die. It asked the court to refund to Windsor federal estate tax she was required to pay following Spyer’s death.

Attorneys for the Bipartisan Legal Advisory Group (BLAG) in the U.S. House urged the court to dismiss the lawsuit. BLAG argued that, at the time of Spyer’s death (in 2009), the state’s highest court had ruled (in Hernandez v. Robles, 2006) that the state constitution “does not compel recognition of marriages between members of the same sex.”

But Jones, a Clinton appointee, rejected that argument, noting that, in 2009, the New York governor, attorney general, and comptroller had each “endorsed the recognition of Windsor’s marriage.” And she noted that, since 2006, state appellate courts had upheld as valid marriage licenses from other jurisdictions, including Canada.

In her decision, Judge Jones noted that Windsor and Spyer had been together for 44 years and had obtained a domestic partnership from New York City and a marriage license from Toronto, Canada. Although New York State did not recognize their marriage at the time of Spyer’s death, in 2009, Spyer left Windsor her entire estate in her will.

“Because of the operation of DOMA,” wrote Jones, “Windso did not qualify for the unlimited marital deduction [available under federal law to heterosexual widows] and was required to pay $363,053 in federal estate tax on Spyer’s estate, which Windsor paid in her capacity as executor of the estate.”

In explaining the U.S. Department of Justice’s position concerning DOMA, Jones misstated that the executive branch decided “not to enforce DOMA.” In fact, the Obama administration said it would continue enforcing DOMA but would not defend it in court as being constitutional.

Jones declined to agree with the ACLU that DOMA should be held to the highest scrutiny of judicial review, noting that 11 courts of appeal have also declined to do so and that the U.S. Supreme Court “conspicuously has not designated homosexuals as a suspect class, even though it has had the opportunity to do so.” When a group of people have been designated a “suspect class,” laws putting them at disadvantage are held to the highest level of judicial scrutiny.

But Jones found that DOMA Section 3, which bars the federal government from recognizing legitimate marriage licenses for same-sex couples seeking federal benefits tied to marriage, “does not pass constitutional muster” even under the simplest level of judicial review —rational basis. She took the reasons offered by BLAG to explain treating same-sex couples differently—reasons offered and dismissed in other federal rulings on DOMA thus far—and agreed they did not justify DOMA. For instance, while Congress may have had a “legitimate” hope to promote traditional marriage, she said, “it is unclear how DOMA advances it.” And while Jones said she “does not disagree that promoting family values and responsible parenting are legitimate governmental goals,” she could not “discern a logical relationship between DOMA and those goals.”

She declared DOMA Section 3 unconstitutional as applied to Windsor and ordered the government to repay Windsor the estate taxes she paid with interest.

Windsor, in a statement released through the ACLU, said, “It’s thrilling to have a court finally recognize how unfair it is for the government to have treated us as though we were strangers.”

ACLU attorney James Esseks, Director of the ACLU Lesbian Gay Bisexual and Transgender Project, said the decision “adds to what has become an avalanche of decisions that DOMA can’t survive even the lowest level of scrutiny by the courts.”

Human Rights Campaign President Joe Solmonese praised Windsor, the ACLU and their cooperating attorneys at the law firm of Paul, Weiss, Rifkind, Wharton & Garrison for their “incredible efforts on behalf of gay and lesbian couples across the nation.”

“The dominoes continue to fall on DOMA with yet another federal court rightly calling it unconstitutional,” said Solmonese in a statement released by HRC. “All loving and committed married couples should be recognized by the federal government yet we continue to see the terrible pain DOMA inflicts on real families. The real question is when Speaker Boehner will see the writing on the wall and stop wasting taxpayer dollars defending this outrageous law and instead work to repeal it.  Paul Clement’s record of zero for four speaks for itself.”

House Speaker John Boehner (R-Ohio) had BLAG vote on hiring an outside attorney, former Solicitor General Clement, to defend DOMA after the Obama administration said it believes DOMA unconstitutional. So far, Clement and his team have lost decisions in Golinski v. OPM, Dragovich v. Treasury, Gill v. OPM, and Windsor.

            House minority leader Nancy Pelosi’s office issued a statement noting that Clement has “spent over $700,000 in taxpayer funds” while working on 14 DOMA-related cases.

Ninth Circuit refuses full court review; Prop 8 headed to Supreme Court

A glimmer of politics showed through Tuesday (June 5) when the full 9th Circuit U.S. Court of Appeals declined a request from supporters of California’s ban on same-sex marriage to review a circuit panel’s decision that Proposition 8 is unconstitutional.

Ted Olson
Ted Olson

A glimmer of politics showed through Tuesday (June 5) when the full Ninth Circuit U.S. Court of Appeals declined a request from supporters of California’s ban on same-sex marriage to review a circuit panel’s decision that Proposition 8 is unconstitutional.

In a dissent from the order refusing to have the full Ninth Circuit hear the landmark Perry v. Brown case, three judges signed onto a dissent, noting that just a few weeks ago, President Obama had “ignited a media firestorm by announcing that he supports same-sex marriage as a policy matter.” The three said the refusal to review the circuit panel’s decision “silenced” President Obama’s suggestion that the nation continue its “conversation” about same-sex marriage “in a respectful way.”

All three dissenters were appointees of Republican presidents.

But politics or not, the refusal to give Perry v. Brown full circuit court review is a major victory for supporters of marriage equality and means almost certainly that the “final chapter” in the historic litigation can now begin, says Chad Griffin, co-founder of the American Foundation for Equal Rights which organized and funded the lawsuit.

Attorneys for Proposition 8 supporters said they will now file a petition to the U.S. Supreme Court to review the Ninth Circuit decisions. Ted Olson, a lead attorney for the gay couples in Perry, said that, even if the Supreme Court refuses to hear that appeal, the litigation would be a “complete victory” for the plaintiff couples.

One looming question for the Perry case is whether the Supreme Court, if it accepts the case, would review the Ninth Circuit panel’s very narrow reasoning to strike down Proposition 8 or the federal district court’s more sweeping reasoning concerning equal protection, due process, and the fundamental right to marry. While Olson said upholding a narrow reasoning might still affect same-sex marriage in some states beyond California, upholding the broader reasoning could affect every state.

With last week’s First Circuit decision striking a core section of the Defense of Marriage Act (DOMA) also heading to the nation’s highest court, it is now likely the Supreme Court will have two major same-sex marriage cases on its docket in October.

The Ninth Circuit case, if accepted, could ask whether states can take away the right to marry from same-sex couples or whether same-sex couples have a fundamental right to marriage and to be treated equally under marriage laws. The First Circuit case, if accepted, would ask whether the federal government can refuse to recognize marriages licensed by states to same-sex couples.

David Boies, the other lead attorney for the Perry couples, said that, while the questions in each case are very “distinct,” the issues are closely related and could—if both are accepted—be heard very close together.

The three-paragraph order June 5 stated that the request for a full court review “failed to receive a majority of the votes” of active judges. It also noted that the order would be stayed for 90 days to enable proponents of Proposition 8 to file an appeal to the U.S. Supreme Court.

The dissenting judges did not mince words in their three-paragraph dissent. They said the circuit panel’s 2 to 1 decision striking Proposition 8 was a “gross misapplication” of the U.S. Supreme Court’s decision in Romer v. Evans. In that 1996 case, the Supreme Court said states could not pass laws that excluded gays from protection based on animus against the group.

The dissenters said refusing to give full Ninth Circuit review to Perry v. Brown means the Ninth Circuit judges “have now declared that animus must have been the only conceivable motivation for a sovereign state to have remained committed to a definition of marriage that has existed for millennia.”

Proponents of Proposition 8, known as Yes on 8, filed the Ninth Circuit full court appeal, asking it to overturn a decision by the panel last February. That panel decision found that California’s ban on same-sex marriage violates the federal constitution by stripping from same-sex couples a right they had (to marry) prior to passage of Proposition 8. In order for a limited full court review to have been granted, at least 14 of the circuit’s 26 active judges would have had to say another review is warranted.

The Perry v. Brown lawsuit is led by famed conservative attorney Ted Olson and preeminent liberal attorney David Boies and organized and funded by the American Foundation for Equal Rights.

In the case, two same-sex couples sued the state after being denied marriage licenses after the voter-approved constitutional ban on same-sex marriage went into effect in November 2008.

U.S. District Court Judge Vaughn Walker ruled, in August 2010, that banning same-sex couples from obtaining marriage licenses violates the federal constitution’s guarantees of equal protection and due process. He agreed to delay enforcement of the decision, pending an appeal by Yes on 8 attorneys to the Ninth Circuit.

In February 2012, a three-judge panel of the Ninth Circuit, in a 2 to 1 vote, upheld Walker’s decision but on much more narrow grounds. The panel majority—Judges Stephen Reinhardt and Michael Hawkins—said Proposition 8 improperly removed from a group of citizens (gays) a right they already enjoyed (marriage) without sufficient justification.

Reinhardt and Hawkins submitted a paragraph with the June 5 refusal order, saying they were “puzzled” by their dissenting colleagues’ “unusual reliance on the President’s views regarding the Constitution, especially as the President did not discuss the narrow issue that we decided in our opinion.”

“We,” said Reinhardt and Hawkins, “held only that under the particular circumstances relating to California’s Proposition 8, that measure was invalid. In line with the rules governing judicial resolution of constitutional issues, we did not resolve the fundamental question that both sides asked us to: whether the Constitution prohibits the states from banning same-sex marriage. That question,” they said, “may be decided in the near future, but if so, it should be in some other case, at some other time.”

The “particular circumstances” they referred to were that the California Supreme Court had ruled, in May 2008, that the state constitution required that same-sex couples be able to obtain marriage licenses the same as straight couples. Thousands of couples did begin obtaining marriage licenses, but, in November of that year, voters approved Proposition 8, amending the state constitution to explicitly ban the recognition of same-sex marriage.

While attorneys and activists uniformly called the February 7 panel decision a major victory, they acknowledged that the decision did stop short of saying that same-sex partners, like straight partners, have a “fundamental right to marry.” Instead, it said Proposition 8 deprived same-sex partners only of the “right to use the designation of ‘marriage.’” If it had ruled same-sex couples had a fundamental right to marry, said Lambda Legal Defense’s legal director Jon Davidson, “the marriage laws of 44 states would have been cast into doubt….” And by rendering such a relatively narrow ruling, said Davidson and others, the panel reduced the likelihood the U.S. Supreme Court would take the case.

“The fundamental right to marry, as protected by the US Constitution,” said Williams Institute legal scholar Jenny Pizer, “has to have the same contours throughout the country. So a decision concluding that same-sex couples have the same fundamental right as different-sex couples would call into question all the marriage restrictions states currently impose.”

First Circuit: DOMA unconstitutional; next stop: Supreme Court

A unanimous three-judge panel of the First Circuit U.S. Court of Appeals ruled today (Thursday, May 31) that the core part of the Defense of Marriage Act, barring federal recognition of marriages of same-sex couples, is unconstitutional.

Mary Bonauto

A unanimous three-judge panel of the First Circuit U.S. Court of Appeals ruled today (Thursday, May 31) that the core part of the Defense of Marriage Act, barring federal recognition of marriages of same-sex couples, is unconstitutional. An appeal of that decision is expected to be filed fairly quickly with the U.S. Supreme Court and is likely be before the high court this fall.

The First Circuit panel said that, under simple rational review of the law, the same-sex couples seeking to overturn DOMA “cannot prevail.” But, importantly, the panel also said that, because DOMA implicates both equal protection and federalism, the law requires “a closer than usual review based in part on discrepant impact among married couples and in part on the importance of state interests in regulating marriage.”

In its 33-page decision, the judges affirmed the U.S. District Court ruling that DOMA violates the equal protection rights guaranteed by the U.S. Constitution. It did not agree that DOMA also violates the spending clause or Tenth Amendment rights of states. While DOMA does “intrude” into a realm of law “primarily confided to state regulations,” said the panel, “Nevertheless, Congress surely has an interest in who counts as married.”

“That Congress has traditionally looked to state law to determine the answer [to what defines marriage] does not mean that the Tenth Amendment or Spending Clause require it to do so.”

“However,” said the panel, “the denial of federal benefits to same-sex couples lawfully married does burden the choice of states like Massachusetts to regulate the rules and incidents of marriage….These consequences do not violate the Tenth Amendment or Spending Clause, but Congress’ effort to put a thumb on the scales and influence a state’s decision as to how to shape its own marriage laws does bear on how the justifications are assessed.”

It then proceeded to reject—using an “intensified scrutiny”—each of the arguments put forth by the Bipartisan Legal Advisory Group (BLAG), a Republican-dominated Congressional committee that authorized an outside attorney to defend DOMA in federal lawsuits around the country. Those arguments included such things as “preserving scarce government resources,” “support child rearing,” and to preserve the traditional definition of marriage.

“For 150 years, this desire to maintain tradition would alone have been justification enough for almost any statute,” said the panel. “… But Supreme Court decisions in the last fifty years call for closer scrutiny of government action touching upon minority group interests and of federal action in areas of traditional state concern.”

“To conclude, many Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today,” said the panel. “One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage. Under current Supreme Court authority, Congress’ denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.”

“We think that this is a fantastic decision that is crisp and solid and well-reasoned,” said GLAD’s Bonauto. “And it’s really rooted in the last 50 years of equal protection jurisprudence and federalism jurisprudence.”

U.S. Rep. Barney Frank (D-Mass.) said the ruling “vindicates the decision by the Obama administration not to defend the “Defense of Marriage Act,” which denies rights to millions of Americans. It is also a tribute to the thoughtful, principled legal strategy by Mary Bonauto and her associates at Gay & Lesbian Advocates & Defenders.”

“I am confident that the U.S. Supreme Court will add its support for this decision which is so firmly grounded in long-standing American constitutional principles,” said Frank.

The universal reaction among LGBT civil rights groups was similar.

“Whether it is California’s Proposition 8 or the so-called Defense of Marriage Act, court after court has affirmed that marriage discrimination against gay and lesbian Americans is unfair, unjust, and unconstitutional,” said Adam Umhoefer, executive director of the American Foundation for Equal Rights which has been pressing the challenge to California’s same-sex marriage ban. That challenge has succeeded at the U.S. district court and Ninth Circuit panel levels. It is now awaiting word on whether the full Ninth Circuit will hear an appeal of those lower court decisions.

In coming to its decision, the panel decided that an earlier First Circuit decision on a case challenging “Don’t Ask, Don’t Tell”  “has already declined” to grant “suspect classification” to laws based on “sexual preference.” And the panel said it was neither empowered nor willing to “create such a new suspect classification for same-sex relationships.”

It also ruled that, while a 1972 U.S. Supreme Court dismissal of Baker v. Nelson is “precedent binding on us,” subsequent U.S. Supreme Court decisions, in such cases as Romer v. Evans and Lawrence v. Texas, make its usefulness in the current cases limited. In Baker, a gay couple in Minnesota appealed a ruling of their state’s supreme court that held the state could deny them a marriage license. The U.S. Supreme Court, in 1972, dismissed the couple’s appeal. BLAG attorney Paul Clement had argued the First Circuit was bound to do the same with the DOMA challenge.

The panel stayed its decision, meaning the federal government is not obliged to immediately begin recognizing same-sex marriages. But Mary Bonauto, lead attorney for same-sex couples on the case, said she expects the decision will be appealed in short order.

The decision was written by Judge Michael Boudin and joined by Chief Judge Sandra Lynch and Judge Juan Torruella. The panel heard oral arguments in the two cases —Gill v. Office of Personnel Management and Massachusetts v. Health and Human Services—on April 4.

The “case” before the panel was a consolidation of three cases, brought by Gay & Lesbian Advocates & Defenders (GLAD) and by the Commonwealth of Massachusetts. They are generally referred to as Gill v. Office of Personnel Management.

In Gill, GLAD argued that DOMA’s ban on federal recognition of same-sex marriages violates the equal protection of same-sex couples. In Massachusetts v. HHS, the state argued that it interfered with the state’s authority to regulate marriage. In Hara v. OPM, GLAD argued a very narrow case involving the benefits due to one plaintiff, Dean Hara, the widow of the late U.S. Rep. Gerry Studds.

 U.S. District Court Judge Joseph Tauro ruled in July 2010 that Section 3 of DOMA violates the U.S. Constitution’s guarantee of equal protection, its Spending Clause, and the Tenth Amendment right of states to sovereignty.

Section 3 of the federal law, passed in 1996, states that, for federal government purposes, “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” None of the First Circuit lawsuits challenged the section of DOMA that enables any state to ignore valid marriage licenses issued to a same-sex couple in other states.

Lawsuits seek marriage rights in Illinois

Lambda Legal Defense and the ACLU filed separate lawsuits Wednesday (May 30), seeking the right to marry for same-sex couples in Illinois.

Lambda Legal Defense and the ACLU filed separate lawsuits Wednesday (May 30), seeking the right to marry for same-sex couples in Illinois.

In Darby v. Orr in the circuit court for Cook County, Lambda argues that a state law banning same-sex marriages violates the state constitution’s guarantee of due process and equal protection. The lawsuit also says the ban violates the state constitution’s prohibition against creating laws that affect just one group when a law “is or can be made” that applies generally to everyone, such as marriage laws.

In Lazro v. Orr in that same court, the ACLU made those arguments and more, saying the marriage ban law violated the right to equal protection based on sexual orientation and based on gender, as well as the right to privacy of same-sex couples.

Lambda’s lawsuit is the second marriage lawsuit the group has filed in less than two months. In April, Lambda filed a federal lawsuit in Nevada, Sevcik vs. Sandoval, arguing that the state’s denial of marriage licenses to same-sex couples violates their U.S. Constitutional right to equal protection under the 14th Amendment. But, unlike Nevada, which bans same-sex marriage through a state constitutional amendment, Illinois bars same-sex marriage through a state law only. Lambda also led the successful lawsuit, Varnum v. Brien, in Iowa that led to a state supreme court ruling in 2009 that said the state constitution guarantees equal treatment of same-sex couples under the state’s marriage laws.

The Lambda lawsuit in Illinois involves 16 same-sex couples, including 80-year-old Korean War veteran James Darby and his companion of 48 years Patrick Bova, 73, who live in Chicago. David Orr is the Cook County Clerk, who is authorized to issue marriage licenses.

The ACLU lawsuit in Illinois involves nine same-sex couples, including Chicago police detective Tanya Lazro and her partner of 15 years, Elizabeth Matos.

The two lawsuits were apparently developed separately, but the groups are coordinating the announcement of them.

The Illinois legislature passed a law permitting same-sex couples to obtain civil union licenses and that law went into effect in June 2011. But Windy City Times, the state’s gay newspaper, has documented a number of instances in which “government entities, hospitals, organizations and employers either failed or struggled” to afford due recognition to civil unions. A bill in the state legislature seeking to repeal the same-sex marriage ban, reports Windy City, has not moved this session.

The two lawsuits in Illinois now join almost many others around the country, in state and federal courts, seeking to undo laws that block same-sex couples from equal treatment under marriage laws. In addition to Nevada, Lambda has a third marriage lawsuit, Garden State Equality v. Dow, pending in New Jersey state court, and that case includes some federal law issues. The ACLU has a lawsuit challenging the federal Defense of Marriage Act (DOMA), pending in federal court in New York. That lawsuit, Windsor v. U.S., and two by Gay & Lesbian Advocates & Defenders (GLAD), challenges Section 3 of DOMA, which bans, for any federal purpose, the recognition of a legal marriage from any state or other jurisdiction. One of the GLAD lawsuits, Gill v. OPM, is consolidated with a lawsuit from the state of Massachusetts, Commonwealth v. HHS, and is awaiting a decision from the First Circuit U.S. Court of Appeals. The other, Pedersen v. OPM, is pending in Connecticut federal district court.

And in California, a high-profile case, Perry v. Brown, challenging the Proposition 8 ban on same-sex marriages, has succeeded in federal district court and before a three-judge panel of the Ninth Circuit U.S. Court of Appeals. The panel decision has been appealed but the full circuit has not yet indicated whether it will hear the case.

Obama LGBT camp hopes to persuade GOP gays to cross party lines

The Obama campaign Wednesday (May 23) said it would be making a determined effort to turn out LGBT Americans in November “regardless of their political affiliation.”

Jamie Citron, National LGBT Vote Director for the Obama for America re-election campaign, made the statement Wednesday (May 23) during a telephone press conference with reporters. Citron introduced outgoing Human Rights Campaign President Joe Solmonese as co-chairman of the LGBT arm of the Obama for America campaign.

The Obama campaign Wednesday (May 23) said it would be making a determined effort to turn out LGBT Americans in November “regardless of their political affiliation.”

Jamie Citron, National LGBT Vote Director for the Obama for America re-election campaign, made the statement Wednesday (May 23) during a telephone press conference with reporters. Citron introduced outgoing Human Rights Campaign President Joe Solmonese as co-chairman of the LGBT arm of the Obama for America campaign.

Solmonese, too, said the campaign would attempt to convince “every member” of the LGBT community and “Republicans in particular” to support the president’s re-election.

Solmonese said that HRC has and will put a “big focus” on helping members of the LGBT community “understand the distinction” between President Obama and Republican presidential nominee-apparent Mitt Romney.

While there was “some confusion” about Republican presidential nominee John McCain’s positions on gay issues in 2008, said Solmonese, Governor Romney “has very clearly committed” to pushing for a federal constitutional amendment to ban same-sex marriage. President Obama opposes such an amendment and has called for repeal of the federal Defense of Marriage Act (DOMA), which bans federal recognition of same-sex marriages licensed in the states.

The constitutional amendment, said Solmonese, is “the ultimate deal-breaker for us.”

“It’s absolutely the last line in terms of really discriminating against this community,” said Solmonese. “So it’s incredibly important that every member of our community—including Republicans—understand that distinction.”

In 2010, between 26 percent and 29 percent of LGBT voters supported Republican candidates, according to mainstream exit polls and a Keen News Service examination of heavily gay precinct records. Looking at data going back to 1990, the lowest gay vote for Republicans came in 2008, when only 19 percent of gay voters supported Republican McCain. The lowest gay Republican vote prior to that came in 1990, the first year the National Election Pool exit poll sought to identify “gay, lesbian, and bisexual” voters. All voters gave only a slight edge to Democrats that year (52 to 48 percent), while gay voters issued a 78 to 22 percent preference for Democrats.

Jimmy LaSalvia, executive director of the gay conservative group GOProud, scoffed at the idea the Obama campaign could win over LGBT Republicans.

“If the left believes that President Obama has the gay vote locked up, they are sadly mistaken,” said LaSalvia, in an email response to reporter. “The truth is that gay people, like all other Americans, are living in the failed Obama economy.”

Citron predicted a “rollercoaster ride” for the campaign, “particularly in battleground states,” such as Florida. He said the LGBT Obama campaign would be doing numerous events at gay pride events around the country next month. There is a “San Francisco East Bay Area LGBT family and friends” event planned for June 17. To find events in your area, go to LGBT.barackobama.com/lgbt/events.

Judge hands Rutgers web cam student 30 days for ‘colossal insensitivity’

A New Jersey state judge Monday (May 21) sentenced the Rutgers student convicted of a bias crime in relation to the suicide death of his gay dorm roommate to 30 days in jail, 300 hours of community service, and a $10,000 fine.

A New Jersey state judge Monday (May 21) sentenced the Rutgers student convicted of a bias crime in relation to the suicide death of his gay dorm roommate to 30 days in jail, 300 hours of community service, and a $10,000 fine.

A jury in New Brunswick in March found Rutgers student Dharun Ravi guilty of a bias crime against his gay roommate, Tyler Clementi, for using a web cam to spy on Clementi’s intimate encounters with another man. The jury also found Ravi guilty of a number of other charges, including invasion of privacy and witness tampering. The charges could have resulted in a sentence of up to 10 years.

But Middlesex County Superior Court Judge Glen Berman said he did not believe Ravi acted out of hate for gay roommate Tyler Clement. Instead, said Berman, he believed Ravi acted out of “colossal insensitivity.”

Berman ordered 20-year-old Ravi to report May 31 to an adult correctional facility in the county, but Ravi’s attorneys said they plan to appeal the conviction and prosecutors say they’ll appeal the sentence.             Berman also sentenced Ravi to three years probation and mandatory counseling programs about cyber bullying and “alternate lifestyles.” Berman did not recommend deportation for Ravi, who is in this country from his native India on a student visa.

Berman chastised Ravi for not apologizing for his actions, but Ravi did not take an opportunity to make a statement to the court.

Clementi’s mother Jane, who was allowed to speak before the sentencing, recalled that Ravi had treated Tyler Clementi rudely when Clementi arrived at his dorm room on the first day of school.

“He never even paused to acknowledge that Tyler was in the room,” said Jane Clementi, according to a video of Monday’s proceedings posted by ABC News. “He never stopped what he was doing, no greeting, no smile, no recognition, no nothing.” Tyler’s father thanked the court for refusing Ravi’s defense attorney’s “indecent effort” to gain access to Tyler’s computer and personal writings.

Ravi’s mother Sabitha spoke, too, tearfully explaining how her son was “devastated” by the media “ripping him apart” with “misleading facts” and “wrongful statements.” And his father, Ravi Pazhani, assured the judge that his was “not a homophobic family.”

“Dahrun was not raised to hate gays,” said Pazhani. The belief of many that his son acted out of bias against gays, he said, “is all in the imagination of people who want to further their agenda at any cost….”             Pazhani contended his son did apologize to Tyler, through an email, but “no one has ever accepted the apology.” He did not mention that police believe Tyler had already jumped off the George Washington Bridge minutes before Ravi sent his email apology.

Pazhani also said his family “tried to reach” Tyler’s family “but the doors were shut on us.”

The New Jersey Star-Ledger reported that Dharun Ravi’s attorney, Steve Altman, blamed the gay community for having “demonized” Ravi.

Judge Berman said the $10,000 fine would be directed into a state-sanctioned program to assist victims of bias crime.

NAACP: Marriage equality ‘won’t be a wedge issue’

Saying that the NAACP has “always stood against laws that demean, dehumanize, and discriminate against people,” NAACP Board Chairman Roslyn Brock formally announced Monday (May 21) the board’s vote in favor of a resolution supporting marriage equality.

Ben Jealous

Saying that the NAACP has “always stood against laws that demean, dehumanize, and discriminate against people,” NAACP Board Chairman Roslyn Brock formally announced Monday (May 21) the board’s vote in favor of a resolution supporting marriage equality.

Joining Brock at a press conference at the group’s headquarters in Baltimore, NAACP President Ben Jealous noted that this is the first time the organization has taken a position on same-sex marriage generally, and not in the context of opposing a specific law, such as Proposition 8.

LGBT groups were understandably excited to hear the news because the announcement can be considered a major advancement in the general population’s support for marriage equality. Anti-gay activists have tried hard for years to drive a wedge between the black and gay movements for civil rights, and many polls have shown African-Americans generally have shown less support for allowing gay couples to marry.

“We could not be more pleased with the NAACP’s history-making vote today,” said Human Rights Campaign President Joe Solmonese. “It’s time the shameful myth that the African-American community is somehow out of lockstep with the rest of the country on marriage equality is retired, once and for all.”

HRC recently released copies of internal memos it discovered from court documents, illustrating that the anti-gay National Organization for Marriage was deliberately trying to organize African American opposition to same-sex marriage.

Rea Carey, executive director of the National Gay and Lesbian Task Force, called the NAACP board vote “a truly historic moment,” adding that NGLTF “couldn’t be more thrilled.”

Carey said her group is not surprised by the vote. NAACP National President Ben Jealous had delivered a keynote address to NGLTF’s national conference, reminding attendees that famed civil rights activist Bayard Rustin, who was gay, helped planned the historic 1963 civil rights march on Washington.

In his keynote, Jealous told the audience at NGLTF’s annual Creating Change conference, held last in January in Baltimore, of a close friend he had since the age of four. The friend has been like a brother to him. Jealous shared how he and his friend—the only other black child his age in his Carmel, California, neighborhood—stuck together when being discriminated against because they were black. And Jealous also stood together with his friend when his friend was being bullied because he was gay.

The NAACP announcement comes just 10 days after President Obama made headlines by affirming that he believes same-sex couples should be allowed to marry—a statement he has been reluctant to make since running for the White House.

The board of the 103-year-old civil rights group passed a resolution stating: “The NAACP Constitution affirmatively states our objective to ensure the ‘political, educational, social and economic equality’ of all people. Therefore, the NAACP has opposed and will continue to oppose any national, state, local policy or legislative initiative that seeks to codify discrimination or hatred into the law or to remove the Constitutional rights of LGBT citizens. We support marriage equality consistent with equal protection under the law provided under the Fourteenth Amendment of the United States Constitution.  Further, we strongly affirm the religious freedoms of all people as protected by the First Amendment.”

In releasing the statement, NAACP board Chair Roslyn Brock said that the NAACP’s mission “has always been to ensure the political, social and economic equality of all people.” And she promised the NAACP would “oppose efforts to codify discrimination into law.”

The New York Times reported that its sources indicated only two board members failed to support the resolution. The board includes 69 people.

The organization’s press release about the board’s vote explained that its support for marriage equality was “deeply rooted” in the constitutional guarantee of equal protection of the law. At Monday’s press conference, Jealous said the NAACP would “firmly oppose all efforts to restrict marriage equality,” including attempts to amend budgetary bills in Congress with language intended to exclude gay couples.

Asked whether he was concerned there might be a backlash against the NAACP by black churches, Jealous gave an emphatic response. He said some clergy might feel differently than the board, but that the NAACP does this work “because of our faith, not despite it.”

“This will not,” he said, “be used as a wedge issue in our own community.”

White House threatens veto as House omits LGBTs in two bills

Despite a warning that President Obama may exercise his veto power, the U.S. House Wednesday (May 16) approved a version of the Violence Against Women Act that omits provisions, approved in the Senate, to help LGBT victims of domestic violence.

Mike Quigley

Despite a warning that President Obama may exercise his veto power, the U.S. House Wednesday (May 16) approved a version of the Violence Against Women Act that omits provisions, approved in the Senate, to help LGBT victims of domestic violence.

The vote was 221 to 205.

R. Clarke Cooper, head of the national Log Cabin Republican group, issued a statement prior to the vote urging rejection of the House VAWA bill.

“Nobody should be able to get away with domestic abuse just because their victim is gay, transgender, an immigrant or Native American,” said Cooper, “and nobody should be denied help in recovering from abuse.”

Cooper noted that at least three Republican representatives tried to push for inclusion of LGBT provisions. They include Judy Biggert and Bob Dold of Illinois, and Tom Cole of Oklahoma.

But on the floor of the House Wednesday, Cole said nothing about elimination of LGBT protections and urged support of the House VAWA.

Rep. Trey Gowdy (R-S.C.) told a story about a female victim of domestic abuse, noting, among other things, that the woman’s husband had called their oldest son “a sexual orientation epithet and put beer in the baby bottle of their youngest child.” But Gowdy, refusing to yield the floor when his time was up, passionately urged the House bill to “stop the manufactured wars that pit one group of Americans against another group of Americans” and pass the House bill.

Opposition to the House version and concern about elimination of provisions for LGBT victims came from Democrats.

Rep. Jerrold Nadler (D-NY) urged rejection of the bill, noting that it failed to include language to allow grants to groups focusing on the underserved population of LGBT victims.

Rep. Sandy Adams (R-Fla.), the author of the House VAWA, acknowledged being called “homophobic” but said the bill’s gender neutral language protects “all victims” of domestic abuse.

But Rep. Mike Quigley (D-Ill.) made an impassioned argument that “gender neutral language is not sufficient.”

“Gay men are not turned away from shelters because they are men,” said Quigley. “They’re turned away because of discrimination based on their sexual orientation.”

“I know there are folks who don’t in any way possibly have a pro-gay vote on it,” said Quigley, “but this is protecting human beings. It’s the right thing to do.”

Rep. Linda Sanchez (D-Calif.) also lambasted exclusion of LGBT language in the House version.

“My Republican friends in this body have insisted on taking back crucial protections for abused victims, said Sanchez. “This Republican bill,” she said, “pretends the LGBT community doesn’t exist and would allow victim service organizations to discriminate against LGBT victims when they seek help.”

House Minority Leader Nancy Pelosi (D-Calif.) of San Francisco and Rep. Xavier Becerra (D-Calif.) of Los Angeles also faulted the House VAWA for leaving out language to help LGBT victims.

The VAWA has been a popular piece of legislation with both political parties since 1994, when it was first passed. But this year, the Senate version of the bill to reauthorize the program includes language specifying that VAWA-funded programs cannot discriminate based on the sexual orientation or gender identity of a victim. It includes funding for “underserved” populations “who face barriers in accessing and using victim services because of various reasons, including because of sexual orientation and gender identity.” And it provides that certain grants under the Omnibus Crime Control and Safe Streets Act can be used for “developing, enlarging, or strengthening programs and projects to provide services and responses targeting male and female victims of domestic violence… whose ability to access traditional services and responses is affected by their sexual orientation or gender identity.”

Democrats see the Senate version as an attempt to expand protections for more victims of domestic abuse and victims, including LGBT people, immigrants, and Native Americans, who are disadvantaged under the current law. Republicans see the Senate version as an attempt to funnel federal funds to progressive groups, such as LGBT health clinics. Both see it as an important tool in attracting support from women voters.

VAWA provides $650 million annually for programs to prevent domestic abuse, to train law enforcement personnel on how to handle incidents, and provide shelter and other services to victims.

According to a 2010 report from According to the National Coalition of Anti-Violence Programs, almost 45 percent of LGBT people and people with HIV who sought help from domestic violence shelters in 2010 were turned away because of “institutionalized anti-LGBTQH discrimination.”

The next step for VAWA reauthorization is a Senate-House conference committee to hammer out a final version of the bill to be sent back to each floor for final approval.

The White House issued a statement May 15, identifying President Obama’s objections to the House bill, including that “The bill also fails to include language that would prohibit discrimination against LGBT victims in VAWA grant programs.” The statement indicated that, if Congress sends President Obama the House version of the legislation, his senior advisors “would recommend that he veto the bill.”

The White House also issued a statement opposing language in a House bill reauthorizing Department of Defense spending. Among its 31 specifically identified objections to H.R. 4310 was an objection to language, introduced by Rep. Todd Akin (R-Mo.), prohibiting the use of base facilities for wedding ceremonies by same-sex couples. One section, 536, states, “The Armed Forces shall accommodate the conscience and sincerely held moral principles and religious beliefs of members of the Armed Forces concerning the appropriate and inappropriate expression of human sexuality.” Section 537 prohibits the use of military property for “a marriage or marriage-like ceremony involving anything other than the union of one man with one woman.”

“The Administration strongly objects to sections 536 and 537,” said the May 15 White House statement, “because those provisions adopt unnecessary and ill-advised policies that would inhibit the ability of same-sex couples to marry or enter a recognized relationship under State law.”

The statement threatened to veto the Defense authorization bill only on three of the 31 objections. The LGBT objections were not among the veto threats.

The defense authorization bill passed the House Armed Services Committee on May 9. Debate began on the House floor following the VAWA vote.

Loud clash over same-sex marriage: Where personal and political meet

It has been a dizzying week for same-sex marriage.

Consider this: The front cover of Newsweek magazine on Monday (May 14) carried a photograph of President Obama with the caption “The First Gay President.” The president appeared on a nationally televised group talk show to discuss his position. Republican presidential nominee-apparent Mitt Romney reiterated his opposition to allowing gays to marry at a speech before Jerry Falwell’s university. The Washington Post ran a well-sourced story reporting that, in high school, Romney had led an assault on a fellow student that many believed to be gay.

President Obama

It has been a dizzying week for same-sex marriage.

Consider this: The front cover of Newsweek magazine on Monday (May 14) carried a photograph of President Obama with the caption “The First Gay President.” The president appeared on a nationally televised group talk show to discuss his position. Republican presidential nominee-apparent Mitt Romney reiterated his opposition to allowing gays to marry at a speech before Jerry Falwell’s university. The Washington Post ran a well-sourced story reporting that, in high school, Romney had led an assault on a fellow student that many believed to be gay.

Senate Majority Leader Harry Reid said May 10 that, because “the president’s in favor of it—I’m sure” a plank that supports the legal right of gays to marry will be part of the Democratic Party platform this year. Reid, a Mormon, told reporters that, while his “personal belief” is that marriage is between a man and a woman, he now believes “people should be able to marry whomever they want, and it’s no business of mine if two men or two women want to get married.”

Asked in a press conference to comment on the president’s remarks, House Speaker John Boehner said he believes marriage is between one man and one woman, but quickly ignored related questions and said the focus needs to be on the economy and jobs. And yet the Republican-dominated House passed an amendment to the Department of Justice appropriations bill the night after Obama’s ABC interview to “prohibit the use of funds to be used in contravention of the Defense of Marriage Act.” And the House Armed Services Committee on that same day passed an amendment to the defense authorization bill to ban “marriage or marriage-like ceremonies” between same-sex couples on American military bases. These and other Congressional measures—including a bill to repeal DOMA—will serve as individual battlegrounds over same-sex marriage.

On The View May 14 (broadcast May 15) Barbara Walters repeatedly pressed President Obama whether he would personally fight to repeal DOMA and secure equal rights for gays through Congress. Obama sidestepped, saying simply that “Congress is clearly on notice that I think it’s a bad idea.”

The president explained that his administration had come to conclusion that DOMA was unconstitutional and that he was troubled about the inequities in Social Security and estate taxes. But what really motivated him to make his remarks May 9, said Obama, was “knowing friends and family, people that I’d gotten to know who had these wonderful relationships.”

“And they’d say to me, ‘You know what: The words matter. So, even though you’re a strong supporter of civil unions, somehow it still says we’re different.’ And that particular set of conversations that I had is ultimately what led me to this conclusion.”

In an interview with Fox News Thursday (May 10), Romney suggested President Obama’s position in support of same-sex marriage is a political calculation.

“You don’t change your positions to try and win states, or certain subgroups of Americans,” said Romney. “You have the positions you have. And, as you know, for a long time, I think from the beginning of my political career, I made it very clear that I believe marriage should be a relationship between a man and a woman. I know other people have differing views, but that’s my view.”

When Fox News anchor Neil Cavuoto suggested there has been at least some confusion over Romney’s position, Romney thanked him for the opportunity to make it clear: He would prefer there be “a national standard that defines marriage as a relationship between a man and a woman.”

“That would then allow states to determine what rights would be provided for people of the same gender that wanted to have a relationship,” said Romney. “There could be domestic partnership benefits, for instance, where one state might decide to provide hospital visitation rights, another state might decide to provide that, as well as benefits of other kinds. States could have their own decisions with regard to the domestic partnership rights, but my preference would be to have a national standard for marriage and that marriage will be defined as being between a man and a woman.”

Cavuto noted that many gay people would consider it discriminatory “that a President Romney would etch in the Constitution something that discriminates against a large swathe of people in this country, gays. What do you say?”

“You know, we, as a society, take action which we believe strengthens the nation,” said Romney. “I happen to believe that the best setting for raising a child is where there’s the opportunity for a mom and a dad to be in the home. I know there are many circumstances where that is not possible—through death or divorce. I also know many gay couples are able to adopt children. That’s fine. But my preference is we encourage the marriage of a man and a woman and that we continue to define marriage as a relationship between a man and a woman.”

Cavuto also asked Romney whether he considers the push for marriage equality to be “sort of like the civil rights movement all over again”?

“I don’t see it in that light,” said Romney. “I believe my record as a person who has supported civil rights is strong and powerful. At the same time, I believe that marriage has been defined the same way for literally thousands of years, by virtually every civilization in history, and that marriage is literally, by its definition, a relationship between a man and a woman. And if two people of the same gender want to live together, want to have a loving relationship, and even want to adopt a child in my state—individuals of the same sex were able to adopt children—in my view, that’s something which people have the right to do. But to call that marriage, is, in my view, a departure from the real meaning of that word.”

A flurry of quick polls was inconclusive on whether President Obama will lose, gain, or break even politically in regards to stating his personal support for allowing gays to marry. A Pew Research Center poll released Monday (May 14) showed 52 percent indicated his support would have “no effect” on their vote in November, while 25 percent said it would make them less likely to vote for him, 19 percent said more likely, and four percent didn’t know. A CBS-New York Times poll showed 58 percent would not be affected by the president’s position; 25 percent were less likely to vote for him; 16 percent more likely; and one percent didn’t know.

“Asked if they had to decide if same-sex marriage should be legal,” noted a CBS news report on the poll, “51 percent said no, including 81 percent of Republicans, 25 percent of Democrats and 54 percent of independents. Forty-two percent said yes, including 13 percent of Republicans, 63 percent of Democrats and 43 percent of independents.”

Before President Obama’s ABC interview, a Gallup poll found 54 percent of Americans consider gay relationships “morally acceptable.” After the interview, 60 percent said Obama’s position would have no effect on their vote.

And an ABC-Washington Post poll found respondents evenly split in their reaction to President Obama’s remarks on same-sex marriage: 46 percent “favorable,” 47 percent “unfavorable.”

“The unfortunate part here,” said Democratic political commentator Krystal Ball, appearing on MSNBC Monday and commenting on what she believes will be the political fallout of Obama’s support for same-sex marriage, “is now the [Republicans are] trying to push this narrative that Obama is going to be crusading on gay rights issues. …That image on the Newsweek cover is the visual depiction of the Republican narrative.”

And it was a dramatic image —a play on the moniker “First Black President” that bestowed on President Clinton by novelist Toni Morrison in the New Yorker magazine in 1998. The Newsweek cover, including a rainbow halo hovering above President Obama, was a provocative exaggeration of the thesis in an article by gay political writer Andrew Sullivan in praise of Obama’s announcement last week that he thinks gay couples should have the right to marry.

“To have the president of the United States affirm my humanity—and the humanity of all gay Americans—was,” wrote Sullivan, “unexpectedly, a watershed.”

Like for Sullivan, the reaction of many in the LGBT community to Obama’s statement went beyond trying to gauge the political impact.

Gay author Armistead Maupin, speaking to Weekend Edition Saturday on National Public Radio, said his reaction was more “something I felt in my heart,” than political.

“As a gay man who’s been an activist for almost 40 years now, it was an extraordinarily moving thing to hear an unequivocal statement to the effect that gay love was the equal to opposite sex attraction. Gay people are used to hearing something, you know, especially from Democrats some little nod toward ‘I’m with you folks’ but usually in some private dinner, never publicly, never without equivocation like this, so it was a big moment, whatever the reason for it, it was a big, big moment.”

Sullivan said the consequences of Obama’s affirmation “are simply impossible to judge.”

Maupin said he thinks the president’s remark, coming as they are “from the top, from the very top” of society, “will filter down, it can’t help but filter down.”