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

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

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

John Boehner

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

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

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

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

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

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

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

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

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

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

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

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

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

New guidelines for same-sex parenting and custody

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

Mary Bonauto

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The standards are available via GLAD’s Web site.

New generations are advancing equality

A new national report provides data to back up what many have sensed for a long time: that the positive shift in America’s attitudes toward equal rights for LGBT people has a lot to do with age.

Robert Jones

A new national report provides data to back up what many have sensed for a long time: that the positive shift in America’s attitudes toward equal rights for LGBT people has a lot to do with age.

There is a 20-point gap between so-called “millennials” (adults 18 to 29 years old) and “seniors” (ages 65 and older) on a range of LGBT issues, including marriage, civil unions, adoption, and protections for employment discrimination.

That generation gap is the major finding in a report released August 29 by Public Religion Research Institute (PRRI), a nonprofit, non-partisan research and education organization, located in Washington, D. C. And the generation gap on marriage equality is especially eye opening.

Support for same-sex marriage among millennials has reached 62 percent, but among seniors, it is only 31 percent.

“It is certainly impossible to understand current public opinion on rights for gay and lesbian Americans without understanding the steady upward trend in support, which actually includes an acceleration over the last two years,” said Robert P. Jones, PRRI’s chief executive officer and leading author of the report, during a telephone conference call.

In 2011, public opinion polls for the first time began showing a slim majority of people in support of allowing same-sex couples to marry. And over the past five years, public support for marriage equality has registered double-digit increases.

“When you look at the overall trends, broader context, and the strongly supportive attitudes, particularly among the millennial generation,” said Jones, “it suggests that we will look back at 2011 as a year marking the sea change for gay and lesbian issues, a change that is largely driven by Americans ages 18 to 29.”

The PRRI report, Generations at Odds: The Millennial Generation and the Future of Gay and Lesbian Rights, is based on a random sample survey of 3,000 English and Spanish language telephone interviews (1,000 of which were to cell phones), conducted between July 14 and July 30. The margin of error is plus or minus two percentage points for the overall sample and plus or minus 4.5 percentage points for the sample of 18 to 29 year olds.

It is one of the largest public opinion surveys on religion and gay issues ever conducted. The Arcus Foundation, which works to advance LGBT equality, funded the survey. The report notes that the independent findings of the study are the sole responsibility of the authors and do not necessarily represent the views of Arcus.

Millennials and seniors are indeed a generation at odds. As the report states, “It is difficult to find another issue on which there is a deeper generational disagreement than on the issue of homosexuality and rights for gay and lesbian people.”

The report highlights other key findings, including that the generation gap on same-sex marriage is “striking and persists even among conservative religious and political groups.” For example, 44 percent of white young evangelicals favor marriage equality compared to 19 percent of white evangelicals overall and only 12 percent of white evangelical seniors.

The survey also found that the majority of respondents in two major American religious groups—white mainline Protestants (51 percent) and Catholics (52 percent)—favor same-sex marriage. But most black Protestants (60 percent) and most white evangelicals (76 percent) strongly oppose marriage equality.

Sixty-seven percent of non-Christian religiously affiliated Americans—a category that includes Jews, Muslims, Buddhists, Hindus and other smaller non-Christians—favor same-sex marriage.

The survey found that most Americans believe it is difficult to live openly gay, but they also believe more lesbian and gay people “coming out” is a good thing for society.

Sixty-nine percent of millennials say that religious groups alienate young people by being too judgmental about gay and lesbian people. But only 37 percent of seniors agree.

More than six in ten Americans believe that negative messages from America’s houses of worship contribute to higher rates of suicide among gay youth.

Joining Jones on the teleconference call to release the survey results were Daniel Cox, PRRI’s director of research; Karlyn Bowman, senior fellow at the American Enterprise Institute; and Laura Olson, a professor of political science at Clemson University—all of whom offered observations on key findings.

Cox pointed out that, in addition to age, four other powerfully important predictors that a person will oppose marriage equality are holding a literal interpretation of the Bible, attending religious services at least once a week, identifying as a political conservative, and being a white evangelical Protestant.

Professor Olson said one likely explanation for the millennials support for marriage equality and equal rights for gays is the “exposure hypothesis.”

“Young people today know gay people or they feel they know someone gay,” said Olson. “They see gay people who are portrayed by the media in importantly positive ways—Ellen Degeneres, characters on TV shows, reality shows, the movies.”

“Social science research indicates that the more exposure one has to a person with a characteristic different from their own,” said Olson, “the more likely that person is to be accepting of that characteristic.”

“Proximity” to gay people also leads to “increased tolerance or acceptance,” added Bowman.

The bottom line? The younger generation’s familiarity with gay people bodes well for the future of the LGBT civil rights movement.

“The relationship younger Americans have with gay and lesbian people is not going to change as they get a mortgage, raise kids, and attend religious services in higher rates,” said Jones.

And the survey also shows that “a number of people are willing to draw a line …making a distinction between support for public policy and what they believe in their own personal or religious lives,” said Jones.

Thirty-nine percent of Americans say sex between two adults of the same gender is morally acceptable, according to the PRRI report, but even more (47 percent) favor allowing gay people to marry and 64 percent say gay and lesbian relationships should be accepted by society.

Evan Wolfson, founder and president of the National Freedom to Marry (FTM) organization, said PRRI’s findings confirm “powerful support from young people.” He said the support is part of the “shifted political equation” towards “the national majority” for marriage equality.

Boston-based Charles Martel, co-chair of Catholics for Marriage Equality, said, “The current research on millennials shows that acceptance not tolerance is a hallmark of the shift in attitude towards gay persons.”

“From a religious perspective,” he said, “millennials find themselves questioning attitudes and teachings about homosexuality that do not reflect their own experiences and knowledge and therefore see these teachings as lacking substance based on reality.”

Executive director of Equality Illinois, Bernard Cherkasov, said, “The findings of the survey are encouraging across the board.”

“While it’s true that support for marriage equality among senior citizens lags that of millennials,” said Cherkasov, “a clear majority of seniors support [some kind of] relationship recognition for same-sex couples.”

The PRRI report found 51 percent of seniors support civil unions.

“We know from our work across the state that many seniors understand why equal protections for same-sex couples are necessary,” said Cherkasov, “but they are not accustomed to seeing married same-sex couples. Seniors may support equality for same-sex couples, but they are making a distinction as to the terminology through which equality would be granted.”

“The challenge is for us in the LGBT equality movement,” said Cherkasov, “is to make a clear case why the only way to have full equality for same-sex couples is to have marriage equality. A separate institution with a different name does not turn out to provide equal rights and protections.”

California court seems torn over Prop 8 standing issue

Proponents of Proposition 8 argued Tuesday that Yes on 8 must be granted standing to defend the California same-sex marriage ban in federal court; opponents argued Yes on 8 must be denied standing.

Tani Cantil-Sakauye

Proponents of Proposition 8 argued Tuesday that Yes on 8 must be granted standing to defend the California same-sex marriage ban in federal court to protect the power of the people to amend their constitution; opponents argued Yes on 8 must be denied standing in order to protect the power of the people to elected state officers, in accordance with the state constitution.

The seven-member California Supreme Court seemed troubled, in much the same way a federal appeals panel was troubled last January, to decide which power should prevail. And some LGBT activists were troubled by that.

The three-judge panel of the 9th Circuit U.S. Court of Appeals sent the difficult question about legal standing to the California Supreme Court. Until they receive the state court’s opinion on the matter, the federal appeals panel has postponed ruling on the legal authority of Yes on 8 to appeal a federal district court decision that struck down Proposition 8. And unless both courts agree that Yes on 8 does have standing, the federal appeals panel cannot rule on whether that federal district court ruling will stand.

The complicated question, in simple form, is this: If state legal officers, elected by the people, decide not to appeal a federal district court decision, can some other entity represent the people in defending a law approved by a majority of voters?

Ted Olson, the famed attorney representing the interests of same-sex couples in the case, Perry v. Brown (formerly Perry v. Schwarzenegger), argued no, “there is nothing” in the California constitution or laws that permit Yes on 8 to appeal when the government decides not to.

Justice Joyce Kennard told Olson she thinks that agreeing with his position would require the court to “nullify” the people’s power to pass initiatives, leaving the people “unrepresented.”

But Olson said that to grant Yes on 8 standing to appeal a decision that the state elected officers decided not to appeal amounts to the court amending the state constitution.

“Is your position that when the governor and the state attorney general don’t defend an initiative, then no one can defend it?” asked Justice Ming Chin.

Olson said yes; the constitution does not give anyone else authority to defend state law, including initiatives, in federal court.

“The proponents,” said Olson, “have taken no oath to represent the people.”

“Haven’t [Yes on 8 proponents] put in a substantial amount more time and effort?” asked Justice Goodwin Liu, who was just recently sworn into the court. “They are the ones most clearly invested” in the initiative.

But Olson said that “spending a lot of money” on an initiative should not grant proponents of an initiative the legal right to defend it.

But, like Kennard, many members of the California Supreme Court seemed worried about cutting into the right of the majority to defend an initiative. The 9th Circuit panel, in hearing arguments on the issue last December, suggested it amounted to giving the governor and/or attorney general a “veto” power over initiatives –a veto power that is not provided by the state constitution.

The 9th Circuit panel specifically asked the California high court to determine whether Yes on 8 proponents “possess either a particularized interest [specific to Yes on 8] in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity…when the public officials charged with that duty refuse to do so.”

Charles Cooper, attorney for Yes on 8, said the proponents have a “direct interest” in the case—in other words “both.” The “particularized” interest, he said, was to put initiatives on the ballot.

“There has never been a single case [in California],” said Cooper, “…in which the official proponents [of an initiative] have not been allowed to intervene or there’s been any objection to their being named as real parties in interest.”

Asked to identify some “injury” that would result if Yes on 8 was not allowed to appeal the decision striking down Proposition 8, Cooper said the injury would occur if the lower court had erred in declaring the initiative unconstitutional and no party was allowed to defend the initiative.

Chief Justice Tani Gorre Cantil-Sakauye suggested that the court would have to let Yes on 8 intervene if the coalition had taken the same position as the state. But the question here, she said, is whether the court must let Yes on 8 appeal when it takes a position different from the people’s elected state officials.

Then California Governor Arnold Schwarzenegger and Attorney General Jerry Brown declined to appeal an August 2010 decision from U.S. District Court Chief Judge Vaughn Walker. Walker ruled that Proposition 8 violated the U.S. Constitution’s guarantee of equal protection.

Cooper said the court should recognize Yes on 8’s legal standing to defend the initiative because to do so would “protect and defend their fundamental right” to propose and approve initiatives. He also argued that the state attorney general doesn’t have authority to refuse to represent state’s interest in validity of initiative.

Shannon Minter, legal director for the National Center for Lesbian Rights, said he was disappointed that “too many of the court’s questions” failed to address specific legal questions “but rather seemed to glorify the initiative process in the abstract and to abdicate a searching examination of the California Constitution in favor of emotional appeals to ‘the people’.”

“The initiative process is already frequently misused to target vulnerable groups, due in part to the Court’s past reluctance to enforce any meaningful limits on the process, even when those limits are mandated by the California Constitution,” said Minter. “I sincerely hope the Court does not compound that mistake by now giving initiative proponents an unprecedented new power to step outside of their proper legislative role and usurp the power that our Constitution gives only to elected state officials in the executive branch.”

Jenny Pizer, legal scholar at the Williams Institute, said she believes the court seems inclined to “give a couple members of the Ninth Circuit panel sufficient substance to find that the proponents have standing, and that the panel can reach the merits.”

Jon Davidson, legal director for Lambda Legal Defense, said his group hopes the court “will ultimately decide that small groups of unelected individuals who are answerable to no one should not be able to act on behalf of the state.”

The same-sex marriage controversy has been before the state supreme court four times now, most notably in May 2008. That’s when a 4 to 3 majority ruled that the state constitution prohibited the state from establishing a “statutory scheme” in which both opposite sex and same-sex couples are legally recognized relationships, but only opposite sex couples are designated as married. Three of the seven justices at the time—Justices Marvin Baxter, Ming Chin, and Carol Corrigan—dissented. Baxter’s dissent, which Chin joined, said such a “profound change” needed to be made by either the people or their elected representatives, not the courts.

‘History could repeat itself’ on DADT, warns Log Cabin attorney

“Don’t Ask, Don’t Tell” will be off the books September 20. But there is still concern among some that the removal of that specific law barring gays from the military will not stop discrimination against gays in the military.

Daniel Woods

“Don’t Ask, Don’t Tell” will be off the books September 20, when a 60-day review period has ticked away following certification of military readiness to implement repeal. But there is still concern among some that the removal of that specific law barring gays from the military will not stop discrimination against gays in the military.

Log Cabin Republicans’ attorney Dan Woods argued as much on September 1, when he urged a three-judge panel of the 9th Circuit U.S. Court of Appeals to uphold a district court ruling that found “Don’t Ask, Don’t Tell” unconstitutional.

Woods noted that, before passage of Don’t Ask, Don’t Tell (DADT) in 1993, there was a military regulation—not a federal law—that banned “homosexuals” from the military.

“That ban had existed for decades,” noted Woods.

And if the 9th Circuit panel does not affirm the lower court decision, said Woods, “the government will be completely unconstrained in its ability to again ban gay service in the military.”

Since the repeal was passed by Congress last December, he noted, there is a new Congress, there has already been a House vote to de-fund implementation of repeal, and there are “multiple candidates for president promising, as part of their campaign platforms, to repeal the repeal.”

One member of the panel, Judge Barry Silverman, suggested the latter concern, about presidential candidates, seemed a bit “speculative.”

“Well, there’s an election next year,” responded Wood.

“Come back next year,” the judge shot back, with a barely stifled laugh. “If any of these things come to pass, it’ll be a different story. But in the meantime, this is the situation we’re faced with.”

The situation is that the Department of Justice is urging the panel rule the Log Cabin Republicans v. U.S. lawsuit moot. That lawsuit –which won a powerful decision from U.S. District Court Judge Virginia Phillips last September—was largely responsible for prompting Congress to finally pass a bill repealing DADT in December. Phillips had ordered the military to immediately stop enforcing DADT and, though the 9th Circuit put that order on hold pending appeal of the decision to the 9th Circuit, military officials began warning Congress that it seemed inevitable the courts would strike down the law. The military wanted a smooth transition to a DADT-free force, and Congress agreed.

Henry Whitaker, attorney for the U.S. Department of Justice, urged the panel to declare the litigation moot Judge Phillips’ decision. He said the government would submit a motion after September 20 to vacate the ruling and have the case sent back to the district court for dismissal. He said that, if the 9th Circuit does issue a ruling, the government might even consider appealing it to the U.S. Supreme Court. And he stated several times that, until repeal takes effect, the government “is defending” DADT on its merits.

“The point I’m trying to make,” said Log Cabin’s attorney Woods, “is that the government has no constraints on it if this case is determined to be moot and the judgment is vacated, as counsel for the government argues. Then we’d have to start all over again to prove again that laws banning open gay servicemembers are unconstitutional. This case took seven years to get here today. And it would be inappropriate to have to have people go through that all over again.”

Woods urged the panel to affirm Judge Phillips’ decision, saying it would remedy “collateral consequences” caused by DADT. Among those concerns, he said, were loss of benefits under the G.I. bill and benefits from the Veterans Administration, inability to be buried in VA cemeteries. and requirement that discharged servicemembers pay back their student loans.

Whitaker said individuals discharged under DADT could seek these remedies through individual lawsuits, but Woods urged the panel that it, “ought not be necessary for every one of the thousands of people who have been discharged under this law to have to do that.”

Whitaker contended the decision in Log Cabin v. U.S. is needed to rectify the discharges of servicemembers kicked out under DADT.

“We’ve made clear that [DADT] discharge codes will not be respected once repeal becomes effective,” said Whitaker. “And even today, your honor, the Department of Defense is accepting and processing applications by gay and lesbian individuals to serve in the armed forces, including by gay and lesbian individuals who were previously discharged under Don’t Ask Don’t Tell.”

He said Log Cabin’s fear that a future Congress or president might re-enact DADT “does not pass the straight face test.”

“This case is and always has been about ending Don’t Ask Don’t Tell,” said Whitaker. “And so, once Don’t Ask Don’t Tell has been ended, in 19 days, that is the end of this case and there’s nothing left for the court to do.”

Judge Silverman seemed most inclined to agree with Whitaker’s argument, but for political reasons. In questioning Woods, Silverman said the public has an interest in judges overturning unconstitutional laws, “but it also seems to me the public has an interest in not having the courts reach out to decide controversial issues that have been resolved by the political branches.”

“We hear a lot about judicial activism, especially in the 9th Circuit, and the virtues of judicial restraint,” said Silverman. “And I just wonder if the public interest there isn’t a public interest in letting this repeal run its course, take effect, partly because it legitimizes repeal.”

But Woods reminded the judge that “the case is what prompted repeal of the statute.”

“If you vacate the judgment and take away the case,” said Woods, “the government is unconstrained and simply might do it again. History might repeat itself.”

Hearing Monday on release of Prop 8 videotapes

Even before the August 29 hearing takes place on whether to release to the public videotapes of the landmark trial challenging California’s same-sex marriage ban–Proposition 8–there has already been decision to prohibit the recording of the hearing on whether to release the trial videotapes.

Ted Olson
Ted Olson
First, there was a federal court trial. Then, there was a hearing on whether to sequester videotapes of the trial; Monday, there will be a hearing on whether to release the videotapes of the trial.

But even before the August 29 hearing takes place on whether to release to the public videotapes of the landmark trial challenging California’s same-sex marriage ban—Proposition 8—there has already been decision to prohibit the recording of the hearing on whether to release the trial videotapes.

Such has been the Proposition 8 trial—Perry v. Brown (formerly known as Perry v. Schwarzenegger). It is a court battle so contentious it has already involved 34 judges and the filing of over a thousand documents, said Chad Griffin. Griffin is head of the American Foundation for Equal Rights, an organization formed specifically to finance the legal challenge to Proposition 8.

That legal challenge has included not only a three-week long trial, in January 2010, that led to a U.S. District Court ruling that Proposition is unconstitutional. It has included an unsuccessful motion from Yes on 8 attorneys seeking to forever sequester the videotapes of that trial from public view.  And, in the next few weeks, it will include a hearing in the California Supreme Court to determine whether Yes on 8 has authority under any state law to press an appeal of the District Court decision in a federal appeals court, and it will include the hearing Monday in the U.S. District Court in San Francisco on AFER attorneys’ motion to have videotapes of the 2010 trial made publically available

On Thursday, August 25, U.S. District Court Chief Judge James Ware—who succeed the previous Chief Judge Vaughn Walker in February—granted a request by Yes on 8 attorneys to bar recording of the upcoming August 29 hearing to make the trial videotapes public.

Ted Boutrous, one of the lead attorneys for plaintiffs challenging Proposition 8, said in a phone conference call with reporters Thursday that he finds an irony in Yes on 8’s request to bar recording of the upcoming hearing.

“They want to hide the fact that they want to hide what happened in the trial,” said Boutrous.

Ted Olson, lead attorney on the AFER legal team, said he believes Yes on 8 attorneys are reluctant to let members of the public “see with their own eyes and hear with their own ears” how Yes on 8’s two witnesses gave testimony that undermined Yes on 8’s position.

Olson said support for the release of the videotapes is “grounded in the First Amendment” and in the traditions of the nation’s courts to provide open proceedings.

Judge Walker, who presided over the 2010 trial, initially sought to have the proceedings broadcast live in various federal courthouses around the country. But Yes on 8 attorneys quickly appealed that ruling and eventually won a ruling from the U.S. Supreme Court. The high court prohibited Walker from making a videotape or broadcast of the proceedings available beyond the San Francisco federal courthouse itself.

But Walker did videotape the trial himself, saying he wanted to use the videotapes for his own use in preparing the decision in the case. Walker also allowed AFER’s legal team to use clips from the videotape in preparing their closing arguments.

When Walker aired a clip from the videotapes himself before a live audience to which he was lecturing about the broadcast of public trials, Yes on 8 filed its motion seeking to sequester all tapes. Judge Ware, in June, denied that motion and Yes on 8 has appealed his decision to the 9th Circuit.

The 9th Circuit will rule on the matter of Yes on 8’s standing, after it receives an advisory opinion from the California Supreme Court. If both courts agree that Yes on 8 has legal standing to appeal even though the governor and state attorney general have chosen not to appeal, the 9th Circuit will also have to rule on the constitutionality of Proposition 8.

Boutrous will be representing the AFER legal team on Monday in the videotape release hearing. Olson will be representing the team on September 6 in the California Supreme Court hearing concerning Yes on 8’s legal standing.

Charles Cooper, the lead attorney for Yes on 8, said attorney David Thompson would present their team’s argument in favor of barring release of the videotapes.

AFER’s Griffin noted that a new play based on the written transcript of the Proposition 8 trial will premiere on Broadway next month and serve as a fundraiser for the continued legal challenge against Proposition 8.

The bathroom scare: Old tactics aimed anew at trans-equality bills

Opponents of equal rights for LGBT people have been using “bathroom scare” tactics for some years now to try and stop bills that would prohibit discrimination against transgender people, but fears about who can use public restrooms have a long history in the struggle for civil rights.

Melissa Sklarz

Second of two parts (Part One)

Opponents of equal rights for LGBT people have been using “bathroom scare” tactics for some years now to try and stop bills that would prohibit discrimination against transgender people, but fears about who can use public restrooms have a long history in the struggle for civil rights.

Going back to the late 1800s, Jim Crow laws in some states required separate public restrooms for “White people” and “Coloreds.” It was not until the Civil Rights Act of 1964 that the United States Congress outlawed segregation in “public accommodations,” which include public bathrooms, restaurants, hotels, libraries, and other public spaces.

In the 1970s, during the height of the women’s movement’s efforts to pass the Equal Rights Amendment to the federal constitution, opponents such as Phyllis Schafly claimed the law would lead to unisex bathrooms.

More recently, such fears have cropped up in debates about the military’s “Don’t Ask, Don’t Tell” ban on openly gay servicemembers. Supporters of the keeping the ban expressed concerns about gay and straight servicemembers showering together.

Jennifer Levi, director of the Gay and Lesbian Advocates and Defenders’ Transgender Rights Project, said that, in Connecticut, the most recent state to add gender identity and gender expression to its non-discrimination laws, opponents of the bill had raised the bathroom issue during hearings and floor debates, but “didn’t get any traction.”

The Family Institute of Connecticut, the leading group opposing the bill, consistently referred to it as the “Bathroom Bill” there, too, and ran Facebook advertising and robocall campaigns against it.

But the legislature passed the bill, and Governor Dannel Malloy (D) signed it July 6.

Bathroom scare tactics were also employed in Nevada last month against three bills prohibiting discrimination on the basis of gender identity or expression in public accommodations, housing, and employment. But the tactics failed there, too. And Nevada Governor Brian Sandoval, a Republican, signed the measure into law July 1.

GLAD’s Levi explained that the bathroom arguments failed in Connecticut and Nevada because, “they completely fall apart under any scrutiny.” When legislators really focus on the objections raised by our opponents, they realize that the bathroom issues are raised solely to tank the bill, not because they have any independent validity.”

She said advocates must take the time, though, to educate legislators, first “on who transgender people are and why we need a law to protect that vulnerable community,” and then to “[counter] specious objections raised by idealogues.”

Sarah Warbelow, state legislative director for the Human Rights Campaign, added that one of the reasons for the success of the anti-discrimination bills in Connecticut and Nevada was “a willingness from legislators to meet with transgender people and really listen to their stories.” She credits advocates in both states for “making sure legislators were constantly hearing from constituents on the importance of the bill.”

Levi noted that the Connecticut legislature also defeated several amendments that would have created a “bathroom exclusion” to the law—something no law regarding transgender protections has ever had.

“You can’t create an exception for bathrooms and come up with a workable bill,” she said.

In Maryland, Democrats supporting a bill to protect transgender people from discrimination took out protections for “public accommodations,” which include public restrooms. The measure failed to make it out of committee in April.

Dana Beyer, executive director of Gender Rights Maryland, said the failure of the transgender bill in Maryland was not the result of a right-wing campaign around bathroom fears. It was due, she said, to “internal leadership politics” in the legislature, in the aftermath of a failure to pass a high-profile marriage equality bill a month earlier.

Likewise, opponents of a New York transgender bill tried to scare away votes by warning about bathroom predators. The measure failed in June, said Melissa Sklarz, director of the New York Transgender Rights Organization, largely because of “internal, institutional” maneuverings in the state Senate and the “endless power struggle” in the capital.

Sklarz said conservatives are using the bathroom fears as leverage to “get something from the Democrats and Governor.” Republicans control the state Senate, but Democrats control the Assembly, and Governor Andrew Cuomo is a Democrat.

The New York transgender bill passed the Assembly but failed in the Senate when the Republican conference refused to let it go to the floor for a vote before the end of the session—a session fraught with political deal-making to secure marriage equality and resolve unrelated issues of rent control and property taxes.

In Massachusetts, where the legislature held a hearing June 8 on a proposed bill to prohibit discrimination against transgender people, the outcome a remains an open question. A poll conducted in November 2009 by Lake Research Partners found that over three-quarters of voters in Massachusetts—76 percent—had a positive reaction to the idea of protecting transgender people from discrimination in employment, housing, and public accommodations. This included a majority of Republicans (53 percent) as well as Democrats (90 percent), and independents (74 percent).

When asked about an earlier, but identical, version of the Massachusetts bill in 2009, 73 percent said they wanted their legislators to vote in favor of it, versus 18 percent against. Those in favor included 57 percent of Republicans, 83 percent of Democrats, and 71 percent of independents.

Half of voters (51 percent) said they would be more likely to vote for a legislator who voted for the bill, versus 14 percent who would vote against them. The remaining 35 percent said it would make no difference to their vote.

And yet an anti-gay organization in Massachusetts has employed a radio ad to characterize the legislation as “The Bathroom Bill.” The ad also borrows on the California formula used against Proposition 8—children—by suggesting parents soon won’t be able to allow their children to go into public restrooms alone.

There is no timetable yet for a committee vote on the bill in Massachusetts, said Michael Avitzur, counsel for the Joint Judiciary Committee, where the bill now sits. But all committee action for this session must be completed by March 2012.

In the meantime, the Massachusetts Transgender Political Coalition plans to continue educating legislators about transgender issues and the falsehoods in the “bathroom” ads, said executive director Gunner Scott. It is also gearing up to expand its own “I Am: Trans People Speak” public education campaign, a series of videos and written stories from transgender people talking about their lives, which it launched in November 2010. And it is raising money to run related ads in Boston-area transit locations this fall.

2010 Census trend: 50 percent more same-sex couples over 2000

With only 35 states and Puerto Rico counted, the 2010 Census has already topped the 2000 Census count of same-sex couples in all 50 states.

Photo credit: U.S. Census Bureau, Public Information Office (PIO)

With only 35 states and Puerto Rico counted, the 2010 Census has already topped the 2000 Census count of same-sex couples in all 50 states.

The latest data, released August 4, show 608,822 same-sex couples counted thus far, a total 14,431 above the total of 594,391 in all 50 states and Puerto Rico in 2000.

The 608,822 count thus far suggests the total count nationwide for 2010 will be about 50 percent higher than the total in 2000.

The latest data released by the U.S. Census Bureau includes Illinois, the fifth most populous state, which recorded 32,469 same-sex couple households, or 6.7 per 1,000 households. That rate is slightly below the current average of 7.3 same-sex households per 1,000 households overall. But it is still a 42 percent increase over the 22,887 same-sex couples identified in the 2000 Census.

Fifty-eight percent of Illinois same-sex couples are female, and 21 percent of Illinois same-sex couples are raising children, according to an analysis of the Census data by the Williams Institute, a nationally respected public policy research organization focused on issues related to sexual orientation. The jurisdiction with the highest density of same-sex couples in Illinois is the Village of Oak Park, a suburb of about 50,000 people just west of Chicago, with 18.06 same-sex couple households per 1,000 households overall.

Nationwide, thus far, about 64 percent of all same-sex couple households are female and about 22.5 percent of same-sex couple households are raising children.

Nevada appears to be one of the fastest growing states in terms of the number of same-sex couples to identify themselves on the Census surveys. It saw an 87 percent jump in the number between 2000, when 4,973 couples identified themselves, and 2010, when 9,321 did. Nevada recorded 9.3 same-sex couple households per 1,000 households overall in 2010. Of those, 54 percent are female and 22 percent are raising children. Enterprise, a Census-designated area of Clark County (which includes Las Vegas), has the highest density of same-sex households in the state –12.03 per 1,000 households overall, according to Williams Institute data.

Oregon, thus far, has posted one of the highest densities of same-sex couple households –9.9 per 1,000 households. That puts it just behind California (with 9.98 per 1,000 households) and the highest density state of Vermont (with 10.9 per 1,000 households).

Oregon also boasts the highest percentage, thus far, of same-sex couples raising children (29 percent), ahead of Wyoming and Alaska, with 28 percent. Sixty-five percent of Oregon’s same-sex couple households are female, and the highest density of same-sex couples was recorded in Portland, with 21.91 same-sex couple households per 1,000 households overall.

The Census Bureau has been rolling out data from the 2010 decennial survey on a state-by-state basis since mid-June. In the first week of the rollout, data from Alabama and Hawaii hinted at a dramatic increase in the number of same-sex couples identifying themselves on the 2010 Census compared to 2000. Hawaii showed a 78 percent uptick; Alabama a 39 percent increase. That surge has continued with the last 12 states. In addition to Nevada’s 87 percent increase, West Virginia showed an 80 percent increase, Idaho and Utah each showed a 73 percent increase, and Oregon and South Dakota each showed a 68 percent increase.

The lowest increase among the last 12 state reports was recorded in Ohio, where the number of same-sex couple households identified in 2010 was 51 percent higher than the number found in 2000.

Ohio recorded 28,602 same-sex couple households in 2010, compared to 18,937 in 2000. Sixty-four percent of those households are female and 22 percent are raising children—numbers that mirror the current national averages. Ohio’s numbers represent 6.2 same-sex couple households per 1,000 households overall, slightly below the national average, thus far, of 7.3.

Data from other states released during the past two weeks included:

  • Idaho, where the 2010 Census counted 3,245 same-sex couples—a 73 percent increase over the 1,873 reported in 2000. Twenty-four percent are raising children. Statewide, there are 5.6 same-sex couples per 1,000 households. Boise City has the highest density of same-sex couples, with 8.8 per 1,000 households.
  • Missouri, where the 2010 Census counted 15,242 same-sex couples—a 62 percent increase over the 9,428 reported in 2000. Twenty-one percent are raising children. Statewide, there are 6.4 same-sex couples per 1,000 households. St. Louis has the highest density of same-sex couples, with 15.95 per 1,000 households.
  • Utah, where the 2010 Census counted 5,814 same-sex couples—a 73 percent increase over the 3,370 reported in 2000. Twenty-four percent are raising children. Statewide, there are 6.6 same-sex couples per 1,000 households. Salt Lake City has the highest density of same-sex couples, with 17.31 per 1,000 households.
  • West Virginia, where the 2010 Census counted 5,240 same-sex couples—an 80 percent increase over the 2,916 reported in 2000. Twenty-four percent are raising children. Statewide, there are 6.9 same-sex couples per 1,000 households. The capital of Charleston has the highest density of same-sex couples, with 11.09 per 1,000 households.
  • Wisconsin, where the 2010 Census counted 13,630 same-sex couples—a 66 percent increase over the 8,232 reported in 2000. Eighteen percent are raising children. Statewide, there are 6 same-sex couples per 1,000 households. The capital city of Madison has the highest density of same-sex couples, with 15.84 per 1,000 households.
  • Indiana, where the 2010 Census counted 16,428 same-sex couples—a 61 percent increase over the 10,219 reported in 2000. Twenty-three percent are raising children. Statewide, there are 6.6 same-sex couples per 1,000 households. The capital city of Indianapolis has the highest density of same-sex couples, with 11.55 per 1,000 households.
  • South Dakota, where the 2010 Census counted 1,390 same-sex couples—a 68 percent increase over the 826 reported in 2000. Twenty-six percent are raising children. Statewide, there are 4.3 same-sex couples per 1,000 households, the lowest density state, thus far. Sioux Falls, the most populous city in the state, has the highest density of same-sex couples, with 5.83 per 1,000 households.
  • Washington State, where the 2010 Census counted 24,278 same-sex couples—a 53 percent increase over the 15,900 reported in 2000. Eighteen percent are raising children. Statewide, there are 9.3 same-sex couples per 1,000 households. Vashon, a Census-designated area of King’s County on an urban island just south of Seattle, has the highest density of same-sex couples, with 36.53 per 1,000 households.

Finally, the territory of Puerto Rico distinguished itself in the 2010 Census by being the only state or territory to show a decrease in the number of same-sex couples identifying themselves on the Census. A total of 6,614 same-sex couples identified on the 2010 Census, representing a three percent drop from the 6,818 who identified on the 2000 Census. Territory-wide, there are 4.8 same-sex couples per 1,000 households in Puerto Rico. The capital city of San Juan has the highest density of same-sex couples, with 8.17 per 1,000 households. Twenty-eight percent of the 2010 couples raising children.

The Census data reports all same-sex couple households who identified themselves as such on the Census, regardless of whether they identified their relationship as “husband or wife” or “unmarried partner.” The Census Bureau is expected to release a national count of same-sex couples for 2010 later this year. In 1990, when the Census Bureau first began separating out the data on same-sex couples from that on heterosexual couples who identified as unmarried partners, only 145,130 same-sex unmarried partners were identified in all 50 states. In 2000, 594,391 same-sex couples nationwide identified as unmarried partners. If the current average of a 50 percent increase over 2000 numbers continues, the number of same-sex couple households in the U.S. for 2010 could close in on 900,000 (Data from two of the most populous states—Texas and Florida—are yet to be released. Texas data is expected August 11.)

 

New York marriage equality spurs on other states

Just as the Stonewall Riots in New York City in 1969 gave a lift to the nascent movement for equal rights for gays across the country, marriage equality in the Empire State appears to be giving a boost to marriage equality efforts outside its borders.

Andrew Cuomo

Hundreds of same-sex couples married in New York on Sunday (July 24), the first day they could legally do so. And just as the Stonewall Riots in New York City in 1969 gave a lift to the nascent movement for equal rights for gays across the country, marriage equality in the Empire State appears to be giving a boost to marriage equality efforts outside its borders.

Activists in at least two states (Maine and Colorado) are pushing for 2012 ballot measures to seek marriage equality there, a lawsuit has been launched in New Jersey for full marriage rights, and in Maryland, a Democratic governor is prepared to follow the example of New York Governor Andrew Cuomo (D) in leading the state legislature to marriage equality.

With the addition of New York, the percentage of same-sex couples living in states that allow them to marry has now more than doubled—from 6.9 percent to 14.3 percent, according to an analysis of the U.S. Census Bureau’s 2009 American Community Survey by the Williams Institute of UCLA.

And the percentage of the U.S. population living in a state that allows same-sex couples to marry has more than doubled, from 5.1 to 11.4 percent, according to Census 2010 and the Williams Institute.

“Having New York end marriage discrimination is a turning point for the country,” said Evan Wolfson, executive director of the national Freedom to Marry group, in an essay on the group’s Web site June 27, three days after New York Governor Cuomo signed a marriage equality bill into law. “The world watches New York, and, as New Yorkers say, if we can make it here, we’ll make it anywhere.”

Wolfson noted that passage of the bill in New York was the first time a legislative chamber with a Republican majority—the state Senate—had “voted to advance a bill to end marriage discrimination, and Republican senators provided the winning margin.” He called the bipartisan vote “a major shift in the national political calculus for both parties” that “points the way to more victories.”

The New York legislature was also the first to pass a marriage bill without first passing civil unions or domestic partnerships, Wolfson said.

In New Jersey, which allows same-sex couples to enter civil unions, but not marriages, Steven Goldstein, the chair of the LGBT advocacy organization Garden State Equality, said in a statement June 24 that “the victory in New York, and its choice of marriage equality over civil union inequality, set the stage for our continuing fight for marriage for same-sex couples in New York’s sister state just a mile away.”

Four days after the New York bill became law, Garden State Equality and Lambda Legal, a national LGBT legal group, filed a lawsuit in a New Jersey Superior Court in Trenton on behalf of seven same-sex couples. They argue that the state’s existing civil union laws do not provide the couples with full equality—an equality the state Supreme Court said, in October 2006, is guaranteed by the state constitution.

Garden State Equality also held a rally on July 24, the first day of the New York marriages, at a New Jersey park closest to New York, with a view of the Manhattan skyline across the Hudson River.

In Maryland, where a marriage equality bill passed the state House but failed to pass the Senate in March, Governor Martin O’Malley (D) seems now to be following the example of New York Governor Cuomo, saying he will take a more active role in pushing for marriage equality next session.

Cuomo, whom Freedom to Marry’s Wolfson called the “indispensable champion” of the New York bill, had worked closely with marriage equality advocates and sent the initial version of the marriage bill to the legislature. He then met with legislative leaders to work out a final version of the bill that addressed some lawmakers’ concerns about additional protections for religious groups and the charities and educational institutions they operate.

Maryland’s O’Malley announced July 22 that he would sponsor marriage equality legislation in the 2012 legislative session. He tasked his director of legislative affairs, Joseph Bryce, with coordinating efforts among a broad coalition of LGBT, civil rights, and faith-based groups, as well as people across the state.

O’Malley said at a press conference that the law provides equal protection and the free exercise of religion to all, adding “Other states have found a way to protect both of these fundamental beliefs.”

And in Maine, the executive director of Equality Maine, Betsy Smith, said in a statement June 28 that the “victory in New York generates wind in the sails of the national movement to win marriage, and more specifically, of our efforts here in Maine.”

EqualityMaine and Gay and Lesbian Advocates and Defenders (GLAD) announced June 30 that they are taking steps to place a citizen’s initiative on the November 2012 ballot, asking Maine voters to approve a law giving same-sex couples the right to marry. The move comes after a referendum in November 2009 overturned a marriage equality law passed by the legislature and signed by Governor John Baldacci (D) in May 2009.

Colorado may also see a question on its 2012 ballot to approve marriage equality. The state Title Board on July 20 approved language for such a question. Supporters of marriage equality must now collect 86,105 signatures in order to place it on the ballot.

Similar measures could also appear in California and Oregon.

An exception to the trend comes in Minnesota, where the legislature has approved a ballot question that seeks to ban marriage of same-sex couples under the state constitution. It is already banned under state law. The same could happen in North Carolina, where the legislature is considering bills for such a ballot measure.

Cuomo, in a press conference after he signed the marriage equality bill, called New York “a beacon for social justice,” noting that the movements for equally for women, for protection of workers, for preservation of the environment, and for equality of gays each have roots in New York.

“New York,” he said, “made a powerful statement, not just for the people of New York, but the people all across this nation.”

Triad certifies military ready to repeal Don’t Ask, Don’t Tell

President Obama, Defense Secretary Leon Panetta, and Joint Chiefs of Staff Chairman Mike Mullen signed and submitted a one-page written certification to Congress Friday afternoon (July 22) that the military is ready to implement repeal of Don’t Ask, Don’t Tell.

President Obama

President Obama, Defense Secretary Leon Panetta, and Joint Chiefs of Staff Chairman Mike Mullen signed and submitted a one-page written certification to Congress Friday afternoon (July 22) that the military is ready to implement repeal of Don’t Ask, Don’t Tell. Following the required 60-day waiting period stipulated by the bill enacted by Congress last December, repeal of the federal law that banned openly gay people from military service for 18 years becomes a reality on September 20.

“Today, we have taken the final major step toward ending the discriminatory ‘Don’t Ask, Don’t Tell’ law that undermines our military readiness and violates American principles of fairness and equality,” said President Obama, in a statement. “In accordance with the legislation that I signed into law last December, I have certified and notified Congress that the requirements for repeal have been met.  ‘Don’t Ask, Don’t Tell’ will end, once and for all, in 60 days—on September 20, 2011.”

The president signed the statement after receiving written confirmation by Defense Secretary Leon Panetta and Joint Chiefs of Staff Chairman Admiral Mike Mullen on Thursday night that all conditions of the DADT repeal bill passed by Congress last December had been met.

During a press briefing at the Pentagon Friday afternoon, Clifford Stanley, Undersecretary of Defense for Personnel and Readiness, noted that almost two million troops had received training in preparation for repeal of DADT.

“It remains the policy of the Department of Defense that sexual orientation is a personal and private matter, to treat all members with dignity and respect and to ensure maintenance of good order and discipline,” said Stanley. “There will be zero tolerance for harassment, violence or discrimination of any kind.”

U.S. Marine Corps Major General Steven Hummer, head of the Repeal Implementation Team, said that eligibility for benefits “remain the same” as before passage of the repeal measure. He noted that servicemembers are able to choose their beneficiary for many benefits but that the Defense of Marriage Act, the federal law banning federal recognition of same-sex marriages, prohibits “extension of many military benefits to same-sex couples,” including health care and allowances for housing and transportation.

“The department will continue to study existing benefits to determine those, if any, that should be reviewed based on policy, fiscal, legal and feasibility considerations, to give the service member the discretion to designate persons of their own choosing as beneficiaries,” said Hummer.

Jeh Johnson, the Defense Department’s general counsel, said the administration on Friday also submitted a brief to the 9th Circuit U.S. Court of Appeals, which recently allowed for a temporary stay of an order to stop implementation of DADT. Johnson said the brief argues that, once repeal takes place, the existing legal challenge to DADT—Log Cabin Republicans v. U.S.—becomes moot.

Hummer also noted that there have been no reports of compromises in unit cohesion since Congress passed the repeal measure and that the response of the military has been “very, very positive.”

Approximately 14,000 servicemembers were discharged under Don’t Ask, Don’t Tell. Rep. Barney Frank issued a statement Friday saying that “it will soon be clear that there was never any basis for this discriminatory policy in the first place other than prejudice, and the gay, lesbian, bisexual and transgender servicemembers will soon demonstrate that there never was a good reason to keep them from serving our country.”

Don’t Ask, Don’t Tell was adopted by Congress and signed by President Clinton in 1996 as a compromise, but it was really an early political loss for the Clinton administration. Candidate Clinton had won much support from the LGBT community during his campaign, in part for his promise to end the military’s discriminatory policy against gays.

But a growing acceptance of openly gay people, coupled with the escalating strain on the military’s troops fighting multiple wars, moved the political climate toward allowing gays to serve openly. Candidate Obama also promised to repeal the law and, when elected, was under strong pressure from the LGBT community to do so. But the Obama administration appeared acutely aware of the missteps of the Clinton White House and President Obama directed a deliberate strategy of careful cooperation with Pentagon officials and Congress to forge a joint resolve to repeal the law.

In his statement Friday, President Obama commended Congress and the Pentagon for their “moving forward in the careful and deliberate manner that this change requires, especially with our nation at war.“ And he thanked servicemembers, “including those who are gay or lesbian,” for their “professionalism and patriotism during this transition.”

“Every American can be proud that our extraordinary troops and their families, like earlier generations that have adapted to other changes, will only grow stronger and remain the best fighting force in the world,” said Obama, “and a reflection of the values of justice and equality that the define us as Americans.”

Aubrey Sarvis, head of the Servicemembers Legal Defense Network group that worked vigorously for repeal, said Service members “celebrate this historic announcement, and they are ready for this change.”

Hearing on repeal of DOMA: It’s not just the economy

U.S. Rep. John Lewis (D-Ga.), a legendary civil rights activist, led off Wednesday’s historic hearing to discuss repealing the Defense of Marriage Act, likening it to laws decades ago that requires separate water fountains and restrooms for “whites” and “coloreds.”

John Lewis

U.S. Rep. John Lewis (D-Ga.), a legendary civil rights activist, led off Wednesday’s historic hearing to discuss repealing the Defense of Marriage Act, likening it to laws decades ago that requires separate water fountains and restrooms for “whites” and “coloreds.”

“I find it unbelievable in the year 2011,” said Lewis, “that there is still a need to hold hearings and debates about whether a human being should be able to marry the person they love.”

But there was a hearing, and there was debate. There was strong emotion.

Republican Senator Charles Grassley of Iowa and the ranking minority member on the Senate Judiciary Committee came well prepared to do battle, bringing in a full complement of his allowed witness, minus one whom he said was afraid to testify against repeal of the Defense of Marriage Act (DOMA) for fear of being harassed.

But no other Republican senator showed up to ask questions and Democratic senators in support of the Respect of Marriage Act (SB 598) were also well-prepared to do battle.

Senator Al Franken (D-Minn.) called DOMA an “immoral and discriminatory” law and he challenged Grassley’s chief witness, an official with the mammoth Focus on Family group. The witness, Thomas Minnery, had claimed a federal study found that children raised by a male-female married couple are happier and healthier than children raised by other families.

“I checked the study out,” said Franken, referring to a 2010 study published by the U.S. Department of Health and Human Services. “It doesn’t say what you said it does,” said Franken. The hearing room erupted in laughter. “It says ‘nuclear family,’ not opposite sex married families, are associated with those outcomes.”

Minnery said he understood “nuclear family” to mean heterosexual.

“It doesn’t,” said Franken, bluntly. “It says ‘two parents who are married to one another and are the adopted or biological’ parents of their children. I don’t know how we can trust the rest of your testimony if you are reading studies these ways.”

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) opened the hearing by saying he called the hearing to “assess the impact” of the law on American families. He said the 1996 law “goes well beyond the harm to a family’s dignity,” harming it economically, health-wise, and in other ways.

Several of Leahy’s seven witnesses provided personal, often dramatic, stories to illustrate those harms. Ron Wallen, a 77-year-old man from Indio, California, said his life was thrown into “financial chaos” after his life partner for 58 years succumbed after a long illness. Because he was not eligible to receive his same-sex spouse’s Social Security benefits and pension, said Wallen, his household income dropped from $3,050 per month to $900 per month.

Susan Murray, an attorney who help usher in Vermont’s landmark civil union law and who represents numerous same-sex couples, said many people simply did not understand what a civil union was. And she said she has found that many corporations believe DOMA prevents them from providing equal benefits to their employees.

“Companies think the law allows them to discriminate,” said Murray.

Andrew Sorbo, a history teacher in Catholic schools in Connecticut, talked about “always having to use the pronoun ‘I’” in his classroom.

“I could not say ‘we are going on vacation because the next question would be ‘Who is the other person’,” noted Sorbo, “and would lead to lots of other problems.”

“DOMA,” he said, is an insult to our dignity and our sense of equality.” He said he was “appalled and baffled” by those in Congress who oppose same-sex marriages “can’t understand how they are the philosophical descendants of those who defended slavery, who defended the laws against mixed race couples, and who defended the laws that allowed the separate but equal statutes that Rep. Lewis spoke of.”

The mainstream media gave some attention this week to a statement by White House Press Secretary Jay Carney, during a routine briefing on Tuesday, that President Obama supports the Respect for Marriage Act.

Carney, in response to a question, said Obama “has long called for a legislative repeal” of DOMA.

“He is proud to support the Respect for Marriage Act… which would take DOMA off the books once and for all,” said Carney.

Numerous LGBT groups issued statements, applauding the statement from Carney that the president supports the Respect of Marriage Act. They consider Obama’s support for the repeal measure specifically to be a significant step forward in his position.

During the 2008 presidential campaign, a spokesman for Obama said he had supported the repeal of DOMA—both sections—since 2004. But after he became president, his Department of Justice initially mounted a vigorous defense of the law in courts, arguing, among other things, “DOMA does not discriminate against homosexuals in the provision of federal benefits.”

After considerable outrage from the LGBT community, the DOJ softened its arguments in court briefs. And then, in a dramatic announcement in February of this year, Attorney General Eric Holder said that he and President Obama believe DOMA is unconstitutional and that laws disfavoring LGBT people should have to pass the strictest form of judicial scrutiny.

Rep. Lewis seemed to have been referring to President Obama when, in his remarks, he chastised those who are “comfortable sitting on the sidelines” and called on “elected officials…to lead, to be the headlights, not taillights.”

Ranking minority member Grassley was the only Republican senator to comment and ask questions during the hearing, saying –at times with the vigor of a preacher—that DOMA is “not an expression of dislike for gay and lesbian people.” He and other opponents of the bill pointed out that many of the Democrats on the Committee—including Chairman Leahy and Senators Dick Durbin of Illinois and Charles Schumer of New York—voted for DOMA in 1996. The fact that they voted for DOMA, said Ed Whelan of the Ethics and Public Policy Center, “refutes the empty revisionist claim that DOMA embodies an irrational bigotry against same-sex couples.”

Whelan said it is “a profound confusion to believe that the values of federalism somehow require the federal government to defer to or incorporate the marriage laws of the various states in determining what marriage means in the provision of federal benefits.”

Whelan also said that repealing DOMA would “have the federal government validate” same-sex marriage and “require taxpayers to subsidize the provisions of benefits. And, he said, repealing DOMA would “pave the way” for polygamists and other polyamorous unions to be recognized under federal law.

Bill sponsor Senator Dianne Feinstein (D-Calif.), who chaired the committee for a portion of the hearing, said DOMA denies rights and benefits to legally married same-sex couples. And she vowed that, “However long it takes” to repeal DOMA, “we will achieve it.”

The hearing was covered live by C-SPAN and will be rebroadcast from time to time.

Senate confirms first openly gay man to federal bench

The U.S. Senate Monday evening (July 18) approved the confirmation of openly gay attorney J. Paul Oetken to serve as a U.S. district court judge.

The U.S. Senate Monday evening (July 18) approved the confirmation of openly gay attorney J. Paul Oetken to serve as a U.S. district court judge.

Senate Judiciary Committee Chairman, Senator Patrick Leahy (D-Vt.) called Oetken a “superbly” qualified candidate and noted his nomination was historic in that he is the first openly gay man to be nominated a federal district court judge.

The vote was 80 to 13, with seven senators not voting.

Senator Charles Grassley (R-Iowa), ranking minority leader of the Senate Judiciary Committee, made clear from the beginning of his remarks on the floor that the Senate would “move forward” with another nomination to the federal court and that he would vote for Oetken.

Obama nominated Oetken to become one of 44 judges serving on the U.S. District Court for Southern District of New York, the federal district court that encompasses Manhattan. With his confirmation, he becomes the second openly gay judge in that federal district –along with Deborah Batts. He becomes the third openly gay federal judge in the country —along with Emily Hewitt of the U.S. Court of Federal Claims. Batts and Hewitt were both appointed by President Clinton.

Oetken is not President Obama’s first openly gay nominee to the federal bench. In April of last year, Obama nominated Edward DuMont to a position on the U.S. Court of Appeals for the Federal District. If approved, DuMont would be the first openly gay appointee to a federal appeals court. But DuMont’s nomination—along with that of many others—has been tied up by Republican opposition in the U.S. Senate.

But in his remarks on the Senate floor Monday, Grassley denied that Republicans are attempting to block Obama’s nominees to the federal court. He noted that the Committee has advanced the nominations of 62 of 86 nominees. But he did not mention that just last week, Grassley himself voted to advance the nomination of openly lesbian attorney Alison Nathan, saying it would give the full Senate another opportunity to scrutinize her qualifications. Republican colleague, Senator Tom Coburn (R-Okla.) submitted a statement saying he would oppose Nathan’s nomination.

Oetken was rated as qualified by a unanimous vote of the American Bar Association committee that provides to the Senate its recommendations concerning judicial nominees. Nathan received a “qualified” rating from a majority of the ABA committee, but an “unqualified” rating from a minority.

When Oetken went before the Judiciary Committee in March, he received no questions from Republican senators and no questions about anything gay-related. Grassley did submit a question to Oetken in writing, asking him about a brief he wrote for the National Gay and Lesbian Bar Association. The brief, submitted to the U.S. Supreme Court, supported the overturning of laws prohibiting same-sex sexual relations. The case was Lawrence v. Texas and, in 2003, a majority of the Supreme Court did overturn such laws. Oetken’s brief argued that the courts should use the strictest form of scrutiny when examining laws that treat gay people differently.

“Do you personally believe that government classifications based on sexual orientation deserve a heightened level of scrutiny?” asked Grassley.

Oetken responded that he had “not expressed a personal view on this subject” and that the “arguments in the amicus brief that I co-authored in Lawrence v. Texas were arguments made on behalf of clients.”

“Although I believed that there was a good faith basis in Supreme Court precedent for making those arguments [in the brief], they do not necessarily reflect how I would approach these issues as a district judge,” wrote Oetken.

“The Supreme Court in Lawrence v. Texas did not decide that case under the Equal Protection Clause but rather under the Due Process Clause,” continued Oetken, “and it therefore did not decide the issues addressed in my amicus brief in that case.”

Oetken, 46, was born in Kentucky and grew up in Iowa. He graduated from the University of Iowa and Yale Law School. He served as associate counsel to the President in the Clinton White House and served as an attorney-advisor with the Clinton Justice Department’s Office of Legal Counsel. He currently works as senior vice president and associate general counsel for Cablevisions Systems Corporation. Oetkin served as a clerk for former Justice Harry Blackmun, one of the U.S. Supreme Court’s more liberal justices.

Retired U.S. District Court Chief Judge Vaughn Walker recently revealed that he has been in a relationship with a man for the past 10 years. He retired from the bench in February of this year after serving 22 years and presiding over one of the most highly publicized gay-related trials in history, over California’s same-sex marriage ban. Walker did not publicly confirm his sexual orientation until after he retired, in response to a question from reporters.

The 13 no votes were all Republicans, as were six of the seven senators who did not cast a vote on the nomination. Texas Senator Kay Bailey Hutchison initially voted aye, but then came back a few minutes later and changed her vote to no.

Among the Republican Senators voting for Oetken were Scott Brown of Massachusetts, Mark Kirk of Illinois, John Cornyn of Texas, Saxby Chambliss and Johnny Isakson of Georgia, Rob Portman of Ohio, and Susan Collins and Olympia Snowe of Maine.

9th Circuit: DADT in place but no investigations or discharges

The 9th Circuit U.S. Court of Appeals granted an emergency order Friday night (July 15) temporarily reinstating its original stay of an order that had prohibited the government from enforcing Don’t Ask, Don’t Tell.

The 9th Circuit U.S. Court of Appeals granted an emergency order Friday night (July 15) temporarily reinstating its original stay of an order that had prohibited the government from enforcing Don’t Ask, Don’t Tell. But the three-judge panel, led by 9th Circuit Chief Judge Alex Kozinski, prohibited the government from “investigating, penalizing, or discharging anyone from the military pursuant to the Don’t Ask, Don’t Tell policy” and indicated it would rule later this month on whether to extend the stay.

The temporary re-instatement of the stay continues the extraordinary state of flux in the status of the federal law banning openly gay people from the military.

Last September, a federal district court judge ruled Don’t Ask, Don’t Tell (DADT) to be unconstitutional and ordered the government to stop enforcement of the law immediately and worldwide. The 9th Circuit granted a stay of that order on November 1. Congress, in December, passed a law providing for DADT to be repealed—but only after an indefinite period of training, written certification by the President, the Secretary of Defense, and the chairman of the Joint Chiefs of Staff, and a 60-day delay. Then, July 6, in a move that Lambda Legal Defense characterized as “stunning,” the 9th Circuit issued an order lifting its stay. The Pentagon said it would comply, but then, on July 11, the 9th Circuit gave the government 10 days to “show cause” why the court should not dismiss as moot an appeal seeking to defend “Don’t Ask, Don’t Tell.”

U.S. Assistant Attorney General Tony West filed the DOJ’s response July 14 (and a slightly amended version July 15), asking for an emergency order to reinstate the original stay “and permit the orderly process for repealing [DADT] to resume.” In doing so, DOJ essentially reiterated the 9th Circuit’s own reasoning in granting the original stay. DOJ said “an abrupt, court-ordered end to [DADT] would undermine carefully crafted efforts of the political Branches to bring about an orderly transition in policy.”

But DOJ also provided new information that appears to have made a difference to the 9th Circuit panel. It submitted a statement from Major General Steven A. Hummer, Chief of Staff of the Repeal Implementation Team of the Office of the Undersecretary of Defense for Personnel and Readiness. The statement, among other things, said the military expects certification “will be presented for decision” to the Secretary of Defense and the Chairman of the Joint Chiefs of staff “in late July or early August.”

“In the meantime,” said the amended request, “a new, more rigorous process was put in place for evaluating discharges under [DADT].” And it noted that, since the DADT repeal measure was passed, “one Service member has been discharged under [DADT] and that individual requested an expedited discharge.”

DOJ also responded July 14 to the 9th Circuit July 11 order that it “show cause” why the court should not dismiss as moot the government’s appeal in Log Cabin Republicans v. U.S.

The government argued that the 9th Circuit should not find the appeal moot “because a live controversy remains regarding the constitutionality of the statute as it now exists.”

“But even that controversy will become moot once repeal of [DADT] becomes effective 60 days following the President’s certification; and,” said DOJ, “once this case becomes moot, under the Court’s established practice it would vacate the district court’s judgment and global injunction, and remand with instructions for the district court to dismiss the complaint.”

 

Grassley hints at trouble ahead for lesbian judicial nominee

There was a hint of trouble ahead for the nomination of lesbian attorney Alison Nathan to the U.S. District Court for Southern New York.

Charles Grassley

There was a hint of trouble ahead for the nomination of lesbian attorney Alison Nathan to the U.S. District Court for Southern New York. The U.S. Senate Judiciary Committee voted 14 to 4 Thursday (July 14) to advance her nomination, but Senator Charles Grassley, the ranking Republican on the Committee, said he was voting to advance the nomination only because there was a “second opportunity to fully examine” her record, and that of one other nominee.

Grassley said he was “concerned” about Nathan’s view of the death penalty, her reliance on foreign law, and her handling of terrorism cases. Neither he nor any other senator on the Committee spoke about her being one of only three openly gay nominees put forward by the Obama administration.

In written questions to the candidate, Grassley noted that Nathan has been “very critical of the lethal injection method” in carrying out death sentences. Nathan has written that the three-drug protocol inflicts “severe pain,” violating the 8th Amendment’s guarantee that the federal government will not inflict “cruel or unusual punishment.”

Nathan responded, in writing, that she would follow Chief Justice John Roberts’ majority opinion in Baze v. Rees. The opinion, from 2008, held that two men seeking to avoid the three-drug protocol had failed to show that “the risk of pain from maladministration of a concededly humane lethal injection protocol, and the failure to adopt untried and untested alternatives, constitute cruel and unusual punishment.” To qualify as violating the 8th Amendment, said Roberts, the method would have to present a risk that was ‘sure or very likely to cause serious illness and needless suffering,’ and give rise to ‘sufficiently imminent dangers.’”

Concerning foreign law, Grassley noted, in writing, that she seemed to support the use of “foreign law sources” in Supreme Court decisions and asked her when she believes it is relevant to interpreting the U.S. Constitution. Nathan said foreign law would have “no relevance to my interpretation of the U.S. Constitution.” But she acknowledged that there is “an important debate” on “what role the Supreme Court’s reference to foreign law is playing in the Court’s decision….”

“If confirmed,” responded Nathan, “I would follow binding Supreme Court precedent in this and all areas.”

The four votes against Nathan’s nomination came from Republicans only. Senator Tom Coburn (R-Okla.) asked to submit a written statement concerning his vote against Nathan. His office could not provide a copy of that statement before deadline.

At Thursday’s committee meeting, Grassley asked for roll call votes only for Nathan and Susan Hickey, a nominee to the U.S. District Court for Western Arkansas. He said they both “failed to meet” the American Bar Association’s proposed standards for qualification to the federal bench. Grassley noted during Nathan’s hearing in June and again Thursday that the ABA suggests “at least 12 years’ experience in the practice of law” and “substantial courtroom and trial experience.”

“I’m not sure I can get 12 years of legal and judicial experience” out of Nathan’s resume,” said Grassley.

And Grassley admonished President Obama to “refrain from sending us nominees who have limited experience or who fail to meet the ABA guidelines.”

In fact, the majority of ABA members who provide guidance to the Senate concerning nominees characterized Nathan as “qualified,” but a minority said she was “not qualified.” And the ABA standards also note that there is merit in “experience that is similar to in-court trial work—such as appearing before or serving on administrative agencies or arbitration boards, or teaching trial advocacy or other clinical law school courses….” This similar experience, say the ABA guidelines, “may compensate for a prospective nominee’s lack of substantial courtroom experience.”

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

In April, the Committee voted to advance the nomination of openly gay attorney Paul Oetken and three other federal district court nominees by unanimous voice vote. The full Senate has yet to take up those nomination.

Meanwhile, there continues to be no movement at all on the nomination of openly gay attorney Edward DuMont. DuMont was nominated to the Federal Circuit appeals court bench in April 2010. He has not yet received a confirmation hearing.

Lambda takes family case to the U.S. Supreme Court

Lambda Legal Defense is taking its fight for same-sex families to the U.S. Supreme Court. The case, Adar v. Darlene Smith, involves a gay male couple–Oren Adar and Mickey Ray Smith–who sought an amended birth certificate for the boy they adopted in the state of New York.

Ken Upton

Lambda Legal Defense is taking its fight for same-sex families to the U.S. Supreme Court.

The case, Adar v. Darlene Smith, involves a gay male couple—Oren Adar and Mickey Ray Smith—who sought an amended birth certificate for the boy they adopted in the state of New York. The boy was born in 2005 in Louisiana, so the couple had to seek an amended birth certificate from the state of Louisiana. Revised birth certificates identifying a child’s adoptive parents are often needed to verify family relationships to schools, medical providers, insurers, and even law enforcement officials.

Although Louisiana has a statute that entitles an adopted child to receive a revised birth certificate with the names of their adoptive parents, the state’s registrar and director of vital records, Darlene Smith, refused to issue one for the gay couple’s son. Registrar Smith said she could not do so because the state also has a law prohibiting unmarried couples from adopting.

The 5th Circuit U.S. Court of Appeals agreed with the state, ruling that the U.S. Constitution’s “full faith and credit” clause does not require a state official to accept the legitimacy of an adoption granted in another state.

The legal question is whether a state’s “public policy”—in this case, a public policy against allowing unmarried couples to adopt—trumps the U.S. Constitution’s “full faith and credit clause.” In its petition to the Supreme Court, Lambda also urges that Louisiana’s treatment of the Adar-Smith family violates the equal protection clause.

Gay legal activists have long expected the issue of the “full faith and credit” clause to come up in a gay-related case before the U.S. Supreme Court, but most probably expected it would be on a case involving one state’s refusal to recognize a marriage license granted by another state.

Instead, notes Lambda, the issue is coming before the court in a case involving the rights of a child.

“Louisiana may not treat adopted children themselves differently based on the marital status of their legal parents,” said Ken Upton, the Lambda attorney representing the couple out of Lambda’s South Central Regional office in Dallas. “We have long since abandoned the notion that the government can punish children to express disapproval of their parents or their families.”

In its petition to the Supreme Court, filed July 11, Lambda says non-judicial officials of a state should not be able to deny rights to a child by selectively disregarding court judgments issued in other states “based on policy assessments about the merits of those judgments.” And it said the 5th Circuit majority was wrong to say that only state courts—not state officials—owe full faith and credit to court rulings in other states.

Lambda also argues that the 5th Circuit majority “plainly analyzed the wrong statute” in rendering its decision. Adar v. Smith, it says, was not a challenge to Louisiana’s law barring adoption by unmarried couples. It was a challenge to the state’s law concerning vital records.

“The two are not the same,” writes Upton in the petition. “Louisiana’s goals of promoting its view of stable parental relationships in deciding who can adopt in the state is irrelevant because Petitioners are already the adoptive parents and Louisiana cannot change that.”

Church supports rights of LGBT parents and their children

The United Church of Christ (UCC), the denomination to which President Obama belonged for two decades, resoundingly approved two resolutions support of civil rights for LGBT people–including the first-ever resolution by a major Christian denomination affirming the right of LGBT parents to adopt and raise children.

Bob Bauer, executive director emeritus of Evangelical Children's Home in St. Louis, speaks in favor of a resolution titled "The Right of LBGT Parents to Adopt and Raise Children" at the United Church of Christ's 28th General Synod held in Tampa, Fla., July 1-5, 2011. Photo Dan Hazard/United Church News.

The United Church of Christ (UCC), the denomination to which President Obama belonged for two decades, resoundingly approved two resolutions on July 5 in support of civil rights for LGBT people—including the first-ever resolution by a major Christian denomination affirming the right of LGBT parents to adopt and raise children.

Some say the UCC’s actions could have a significant impact in widening support for LGBT equality in other denominations and among legislators.

The parenting measure passed in a rare unanimous vote by representative delegates to the UCC’s biannual General Synod, said Rev. Michael Schuenemeyer, UCC Executive for Health and Wholeness Advocacy, making it “about as strong a statement as you can get from a church body.”

The resolution says care of children is “a moral responsibility for families, the church and the community.” It calls on the church “to defend the rights of all children to have loving parents without regard to sexual orientation or gender expression, and to recognize a family to be any loving, nurturing, ethical relationship between a child and one or more parents.”

In addition, it calls on all states “to evaluate prospective adoptive parents solely on the basis of their individual character and ability to parent, not on their sexual orientation or gender identity, and to grant second-parent or joint adoptions when it is in the child’s best interests.”

More than 460,000 children in the United States live in group or foster homes, nearly one quarter of them wait five years or more before being adopted, and nearly 20,000 turn 18 each year without ever having had an adoptive home, the resolution notes.

The resolution also observes that many states do not permit same-sex couples to adopt, either as a couple or as individuals, even though 65,500 adopted children are already living in LGBT households nationwide, and several major medical associations support the right of LGBT couples to adopt.

The resolution requests the church’s Justice and Witness Ministries “communicate this resolution to local, state and national legislators.”

Local UCC congregations are largely autonomous and are not required to follow resolutions of the General Synod. But Schuenemeyer said, “That doesn’t mean it’s not paid attention to” and “doesn’t mean there isn’t a strong consensus in the life of the church that supports the right of LGBT people to adopt,” as evidenced by the unanimous approval of the measure. He said he expects church leaders will speak out as needed at the state and federal levels about LGBT parenting rights as they have done for marriage equality in Maine, Maryland, Vermont, and elsewhere.

A second resolution passed the same day also calls for the UCC to advocate at all levels of government for the application of human rights principles to prevent “international instances of systematic discrimination, violence and abuse targeting persons based on their sexual orientation or gender identity.” That resolution passed with a 98 percent favorable vote.

While other denominations, such as the Episcopal Church, have issued statements similar to the human rights resolution, no other mainstream Christian denomination has approved a resolution similar to that of the UCC on adoption and parenting by LGBT people. In 1993, however, the Union for Reform Judaism (then called the Union of American Hebrew Congregations) approved a more limited resolution stating that “individual lesbian or gay parents have been adjudged unfit to raise their own children because they are lesbian or gay” and calling on all levels of government to enact legislation to stop such judicial bias.

Sharon Groves, director of the Religion and Faith Program of the Human Rights Campaign, said it is “absolutely huge” for legislators who are LGBT allies to have religious backing like the UCC’s resolutions. Legislators are “regularly bombarded by the religious right,” who have “used religion consistently as a way to oppose us. It’s really critical for our legislators to both feel the support and understand that no one owns religion.”

For anti-LGBT legislators, she added, religious support of LGBT equality is “a wake-up call that they can’t just assume that the religious community is a monolith against LGBT issues.”

“The UCC has been the leader in the Christian faith world around LGBT issues,” Groves said. “They have had enormous impact politically in terms of changing what’s happened in other denominations.” For example, she said the phrase “open and affirming,” meaning a church that welcomes LGBT people, was a concept developed by the UCC that has been taken up by other denominations.

The UCC was the first mainline Protestant denomination to ordain an openly gay minister (in 1972); an openly lesbian minister (in 1977); and to approve a resolution supporting marriage for same-sex couples (in 2005).

In its latest resolutions, Grove said, the UCC is “again leading the way and providing a kind of vocabulary and an urgency of concern that will have an impact in other denominations.”

The UCC has nearly 5,300 member churches and over a million members, according to the National Council of Churches’ 2011 Yearbook of American & Canadian Churches.

President Obama was a member of the Trinity United Church of Christ in Chicago from 1988 until 2008, when inflammatory political comments by the minister, Rev. Jeremiah Wright, Jr., caused him to choose to leave the congregation.

In related news, a measure took effect in the Presbyterian Church (U.S.A.) on July 10, allowing non-celibate, openly gay men and lesbians to be ordained as clergy, one of the few denominations—including the UCC and the Episcopal Church—to do so.

9th Circuit orders end to DADT enforcement

A 9th Circuit U.S. Court of Appeals panel on Wednesday issued an order that the Defense Department stop enforcing Don’t Ask, Don’t Tell, and the Pentagon quickly announced that it will comply.

A 9th Circuit U.S. Court of Appeals panel on Wednesday issued an order that the Defense Department stop enforcing Don’t Ask, Don’t Tell, and the Pentagon quickly announced that it will comply.

Lambda Legal Defense called it a “stunning development.” The Human Rights Campaign said it puts Don’t Ask, Don’t Tell “on its last legs.” And nearly everyone congratulated the group that made it happen: Log Cabin Republicans.

The order came in Log Cabin Republicans v. U.S., a class action lawsuit challenging Don’t Ask, Don’t Tell, (DADT), the federal law banning openly gay people from serving in the military.

Log Cabin won the lawsuit last September when U.S. District Court Judge Virginia Phillips in California ruled that DADT violated both First and Fifth amendments of the federal constitution. She then ordered the Defense Department immediately to stop enforcing the ban. But the 9th Circuit granted the Department of Justice’s request to stay the judge’s order until the merits of her decision could be appealed to the 9th Circuit.

Log Cabin asked the 9th Circuit to lift its stay of the judge’s order and, on July 6, a three-judge panel of the 9th Circuit agreed to do so.

The panel, led by 9th Circuit Chief Justice Alex Kozinski, noted that much had changed in the eight months since it initially granted the stay of Judge Phillips’ order.

Congress passed a law last December to overturn the law, but the repeal measure will not take effect until the president, the Defense secretary, and the Chairman of the Joint Chiefs of Staff submit written certification that the military is ready to implement repeal. Then, following a 60-day wait, repeal takes place.

But the panel also noted that the Obama administration, in February, indicated it believes that laws treating LGBT people differently should be given the strongest level of scrutiny by the courts. And earlier this month, the DOJ –in a Defense of Marriage Act challenge, Golinski v. OPM— repeated that argument.

The panel also noted that “the process of repealing” DADT “is well underway… and the preponderance of the armed forces are expected to have been trained by mid-summer.”

Because the “circumstances and balance of hardships have changed,” said the panel, the government “can no longer satisfy the demanding standard for issuance of a stay.”

“This is a stunning development,” said Jon Davidson, legal director for Lambda Legal Defense, which filed a brief in the case. “It shows how important it is that the Department of Justice now recognizes that sexual orientation discrimination should be presumed to be unconstitutional and that courts should examine such discrimination carefully.” Lambda represents attorney Karen Golinski in the Golinski v. OPM case the 9th Circuit panel referred to in its order.

Davidson urged caution, saying the DOJ could ask the full 9th Circuit to reimpose the stay until the repeal of DADT is certified and through its 60-day waiting period.

“While it is yet to be determined whether the final decision will be made by the courts or the Congressionally-mandated certification process, the end of ‘don’t ask, don’t tell’ is close at hand,” said Aaron Belkin, director of The Palm Center, a part of the UCLA Williams Institute.

“We congratulate the Log Cabin Republicans who have never given up fighting to make sure that DADT is finally ended,” said Davidson.

The court noted that the government’s appeal of the lower court decision is still slated for oral argument before the 9th Circuit August 29 in Pasadena.

DOJ comes out swinging against DOMA

The Department of Justice on July 1 recommended a federal appeals court in California dismiss a motion promoted by the House of Representatives to dismiss a challenge to the Defense of Marriage Act (DOMA).

The Department of Justice on July 1 recommended a federal appeals court in California dismiss a motion promoted by the House of Representatives to dismiss a challenge to the Defense of Marriage Act (DOMA).

The argument came Golinski v. Office of Personnel Management, a case filed by Lambda Legal Defense in which the DOJ initially tried to dismiss the case itself.

Williams Institute Legal Director Jenny Pizer, a former Lambda attorney, noted that, “while this step is fully consistent with the position taken back in February, it was not at all assumed that the Administration would participate actively in the pending DOMA cases.”

Attorney General Eric Holder, on February 23, sent a letter to House Speaker John Boehner, alerting him that the administration considers Section 3 of DOMA to be unconstitutional. Section 3 states that the federal government will not, for any federal purposes, recognize any same-sex marriage. Holder’s letter said the administration would not defend it beyond the First Circuit U.S. Court of Appeals. (The First Circuit, noted Holder, has said that laws treating people differently on the basis of sexual orientation should be examined using the lowest level of judicial scrutiny—rational basis—under which almost any reason can pass muster.)

Holder’s letter said the administration believes laws disfavoring persons based on sexual orientation should have to pass the most stringent judicial review—heightened scrutiny. And it said the administration would argue so in two cases challenging DOMA in the 2nd Circuit.

The Golinski case is in the 9th Circuit. And though the DOJ acknowledges that the 9th Circuit, like the First, has previously held that rational basis review is appropriate for sexual orientation, “we respectfully submit that this decision no longer withstands scrutiny.”

To justify its argument, the DOJ notes that, in 2003 with Lawrence v. Texas, the U.S. Supreme Court struck down laws prohibiting private consensual sex between same-sex partners. And it says “gay and lesbian individuals” fit the bill as a long-oppressed minority—or suspect class. It has been frequently targeted by discrimination, it is a class with limited political power, and it is a class defined by an immutable trait that bears no relationship to the individuals’ ability to contribute to and participate in society.

The brief argues that there is no justification for DOMA’s treating same-sex couples differently and that the record surrounding the law “evidences the kind of animus and stereotype-based type thinking that the Equal Protection Clause is designed to guard against.”

“The Obama Administration is putting very welcome additional flesh on the important bones of Attorney General Holder’s February letter to John Boehner explaining why the Administration won’t defend DOMA any longer,” said Pizer.

Signing the July 1 DOJ brief were Michael Hertz, a deputy assistant attorney general; Melinda Haag, a U.S. attorney; and Arthur Goldberg, assistant branch director.

Pizer said the Hertz brief “gives a detailed and immensely persuasive examination of why antigay laws should be subjected to rigorous constitutional review, including with a very substantial documenting of the systematic mistreatment of gay people by government, the religious and other legally improper reasons for that mistreatment, and further reinforcement of the point that the needs of children are served by equal treatment of all married parents, rather than federal discrimination against some of them.”

Human Rights Campaign President Joe Solmonese said the brief “represents real leadership from the Obama administration and further hastens the day in which we will leave this odious law in the dustbin of history.”

The brief, which typically takes weeks, if not months, to complete, was filed as President Obama was coming under increasing pressure from the LGBT community and the media to speak out in favor of same-sex marriages and marriage equality laws.

In Golinski v. OPM, an employee of the 9th Circuit federal appeals court, is suing to obtain health coverage for her spouse. The federal court provides such benefits to the spouses of straight employees and was prepared to offer them to Golinski. But the Office of Personnel Management, headed by openly gay appointee John Berry, instructed the court’s insurance company, Blue Cross/Blue Shield, to deny the claim, citing DOMA.

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

In March, a federal district court judge granted the DOJ’s initial request that Golinski’s lawsuit be dismissed, agreeing that OPM had a duty to enforce DOMA that trumped the 9th Circuit’s agreement to provide benefits to Golinski.

Lambda has filed an amended complaint and the DOJ brief was submitted to that pending litigation in the U.S. District Court for Northern California. The House’s Bipartisan Legal Advisory Group (BLAG) has filed a motion to intervene in the Golinski case to defend DOMA.

 

Governor signs Rhode Island civil union law, but pleases no one

Rhode Island Governor Lincoln Chafee (I) signed a civil union bill into law on Saturday, July 2–but LGBT civil rights advocates are not happy with his decision to do so. And Chafee himself said the bill “fails to fully achieve” the goal of providing same-sex couples with equal rights.

Rhode Island Governor Lincoln Chafee (I) signed a civil union bill into law on Saturday, July 2—but LGBT civil rights advocates are not happy with his decision to do so. And Chafee himself said the bill “fails to fully achieve” the goal of providing same-sex couples with equal rights.

The bill, passed by the state Senate June 29 and the House in May, states that it gives same-sex couples the same rights, benefits, and responsibilities as married opposite-sex couples. But LGBT groups say an amendment providing extensive exemptions on religious grounds “legalizes discrimination against the very status and protections it creates.”

Marriage Equality Rhode Island and several leading LGBT advocacy organizations sent a letter to Chafee June 28, asking him to veto the civil union legislation if it included the amendment. They said the amendment would allow religiously-affiliated “hospitals, day care centers, schools or cemeteries to openly and intentionally discriminate against civil union spouses.” Hospitals, they say, “could refuse to allow a spouse to visit their dying partner or make medical decisions in an emergency situation.”

Fourteen state representatives sent a similar letter to Chafee the day before.

Chafee, in a signing statement, called the bill “a step forward,” but added that it “fails to extend full marriage equality to all Rhode Islanders, a civil right that I strongly support and urged the general assembly to enact.” He added that he believes one of the bill’s religious exemptions is too broad.

The civil union bill has been a disappointment to many LGBT advocates from the start because a bill for full marriage equality was on the legislature’s agenda. It was dropped in April after it failed to gain enough support, even though Democrats hold large majorities in both chambers and Chafee, a long-time supporter of LGBT equality, said he would back it.

But one of the marriage equality bill’s sponsors, openly gay House Speaker Gordon Fox (D), announced in April that “there is no realistic chance for passage of the bill in the Senate,” where Senate President M. Teresa Paiva Weed (D-Newport) opposed it. Fox said he would not move forward with a vote in the House.

The Providence Journal newspaper also reported that Fox said he did not have the votes to pass the bill even in the House, where Democrats hold 65 seats to Republicans’ 10.

Fox instead sponsored the bill for civil unions, a decision that did not go over well with LGBT groups, even before the religious exemption amendment. Marriage Equality Rhode Island (MERI) held a rally at the State House to protest Fox’s decision to drop the marriage equality bill. Gay & Lesbian Advocates & Defenders and other groups issued statements criticizing Fox’s decision and calling it “completely unacceptable.”

But the civil union bill went to the House floor on May 19, where Rep. Arthur Corvese (D-North Providence) introduced the amendment regarding religious exemptions.

The amendment exempts religious organizations, religiously affiliated charitable or educational organizations, and their employees, from solemnizing civil unions and from providing related services, facilities, or accommodations.

Religious exemptions were included in New York’s recently passed marriage equality bill, but the Rhode Island amendment goes further and exempts the organizations and individuals from treating civil unions as valid in any way, if to do so goes against their “sincerely held religious beliefs.”

Chafee called that language “a religious exemption of unparalleled and alarming scope” that “eviscerates the important rights that enacting a civil union law was meant to guarantee for same sex couples in the first place.”

At the same time, he said, the bill “brings tangible rights and benefits to thousands of Rhode Islanders” and “provides a foundation from which we will continue to fight for full marriage equality.”

Martha Holt, board chair of Marriage Equality Rhode Island, said in a statement that her organization is “remarkably disappointed” that the governor signed the bill, and hopes that he “will soon return” to his commitment to push for marriage equality.

Interestingly, even opponents of marriage equality oppose the civil union bill, albeit for different reasons. Chris Plante, executive director of the National Organization for Marriage chapter in Rhode Island, issued a statement, saying that civil unions were “a clear threat to the definition of marriage” and to religious liberties.

On June 29, the same day that the civil union bill passed the final legislative hurdle in Rhode Island, Lambda Legal and Garden State Equality, New Jersey’s leading LGBT political group, filed a lawsuit in New Jersey Superior Court on behalf of seven same-sex couples, claiming that the state’s existing civil union laws do not provide them with full equality.

Two other states—Connecticut and Vermont—also won marriage equality after their highest courts ruled that civil unions were insufficient in providing equal rights and benefits.

Maine seeks to regain marriage equality

For the first time in history, LGBT activists are initiating a ballot measure to win marriage equality. EqualityMaine and Gay and Lesbian Advocates and Defenders (GLAD) announced that they are taking steps to place a citizen’s initiative on the November 2012 ballot.

For the first time in history, LGBT activists are initiating a ballot measure to win marriage equality.

EqualityMaine and Gay and Lesbian Advocates and Defenders (GLAD) announced Thursday, June 30, that they are taking steps to place a citizen’s initiative on the November 2012 ballot. The measure will ask Maine voters to approve a law giving same-sex couples the right to marry.

The move comes a year and a half after a referendum in November 2009 overturned a law passed by the legislature and signed by Governor John Baldacci (D) in May 2009. Because repeal activists immediately began petitioning for a “People’s Veto” against the law, the law was put on hold and ballot Question 1 asked voters if they would like to repeal that law.

Fifty-three percent of voters cast ballots in favor of repeal, with forty-seven percent against.

But LGBT advocates say they have been working since that time—canvassing, phone banking, and more—to change people’s attitudes. Betsy Smith, executive director of EqualityMaine, said, “We have been going door to door talking to them and hearing their journey towards support.”

They seem to be succeeding. Two recent polls show 53 percent of likely 2012 voters now say they support marriage equality.

To begin the initiative process, GLAD and EqualityMaine submitted an application to the Maine Secretary of State, Charles Summers Jr., on June 30. Once he approves the wording of the initiative, EqualityMaine will begin collecting the more than 57,000 signatures currently required to put it on the November 2012 ballot.

The proposed language of the ballot question reads, “Do you favor a law allowing marriage licenses for same-sex couples that protects religious freedom by ensuring no religion or clergy be required to perform such a marriage in violation of their religious beliefs?”

EqualityMaine and GLAD will also be ramping up their public education efforts in the coming months, tailored by findings of research they have been conducting to test various persuasive messages.

This summer, they will continue going door to door throughout the state to have one-on-one conversations with voters. Amy Mello, field director of EqualityMaine, said at a press briefing that they believe “this is the most effective and strategic way to change minds.”

They have also launched a new Web site, whymarriagemattersmaine.com, that includes created videos of Mainers—LGBT and straight—telling their personal stories of what marriage equality means to them.

“In the coming months, we’re going to continue to help same-sex couples, their family members, and their friends share their stories and talk about why marriage matters to them,” said Matt McTighe, Maine director of public education for GLAD, in a statement. “We know that, as more people come to understand the love and commitment that gay and lesbian couples share, we will continue to change hearts and minds.”

A leading face of the campaign will be United Methodist Pastor Michael Gray of Old Orchard Beach, Maine. Gray said he used to hold “a very traditional view of what marriage meant,” but after meeting same-sex couples in his parish and beyond, he said, “I now realize that the love and commitment in their relationships is as strong as the love and commitment my wife and I share, and I support their right to marry if they are lucky enough to find someone they love.”

McTighe said at a press briefing that the purpose of the new pro-equality campaigns was not only to build support, but to “inoculate against” opponents’ attacks and be prepared to respond to them.

In the earlier campaign to rescind marriage equality for same-sex couples, opponents launched a heavy barrage of television and radio ads warning that approval of same-sex marriage would lead to public schools teaching children about gay marriage.

Equality Maine field director Mello said the door-to-door campaigners are taking on some of the “hard subjects,” such as what children will learn in school, and why marriages are better than civil unions. They will be discussing these topics even with supporters, “to ensure they really are with us and that we can count on their support.”

Demographics may also play a role in the outcome of the initiative. Presidential election years garner a larger portion of voters under age 40 than in off-year elections such as 2009, according to Goodwin Simon Strategic Research, one of the firms that conducted a poll for EqualityMaine. And younger voters are much more likely to support marriage equality than the oldest voting cohort.