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.

 

Judge rejects call to vacate decision in Proposition 8 case

As expected, a federal judge in San Francisco on Tuesday refused to vacate last year’s landmark ruling that Proposition 8 is unconstitutional.

James Ware

As expected, a federal judge in San Francisco on Tuesday refused to vacate last year’s landmark ruling that Proposition 8 is unconstitutional.

U.S. District Court Chief Judge James Ware of the Northern District of California issued a 19-page decision saying, “The sole fact that a federal judge shares the same circumstances or personal characteristics with other members of the general public, and that the judge could be affected by the outcome of a proceeding in the same way that other members of the general public would be affected, is not a basis for either recusal or disqualification” under federal laws governing the Judiciary. “Further,” said Ware, under the U.S. Code, “it is not reasonable to presume that a judge is incapable of making an impartial decision about the constitutionality of a law, solely because, as a citizen, the judge could be affected by the proceedings.”

The June 14 decision is yet another blow to the efforts of opponents to marriage equality to defend a constitutional amendment they convinced voters to pass in November 2008. In August 2010, Judge Vaughn Walker, then U.S. District Court Chief Judge, ruled that Proposition 8 violates the federal constitution’s guarantees of equal protection and due process. Though Yes on 8 proponents won a stay of Walker’s decision pending their appeal to the 9th Circuit U.S. Court of Appeals, they immediately stumbled on the question of standing.

The state’s governor and attorney general decided not to appeal Walker’s decision, and the legal team challenging Proposition 8 argued that Yes on 8 proponents have no right to appeal the decision on their own.

A 9th Circuit panel heard arguments on the standing issue and asked the California Supreme Court to indicate whether it thinks there is anything in California law that gives Yes on 8 authority to appeal Walker’s decision.

Opponents of Proposition 8 said they believed Yes on 8’s motion to vacate Walker’s ruling was an attempt to salvage some victory from their anticipated defeat on the question of standing.

But in court before Judge Ware Monday, Yes on 8 attorney Charles Cooper said his team genuinely believes that Walker should have disclosed to all parties to the Proposition 8 trial that he has been in a relationship with a man for the past 10 years. Cooper said Walker’s relationship put him in “precisely” the same shoes as the two plaintiff couples challenging Proposition 8. And, as such, he said, a “reasonable person” could believe the judge had a potential to benefit from his ruling striking down Proposition 8.

But Judge Ware seemed highly skeptical of the argument Monday and repeatedly asked for “evidence” that Walker had any interest in marrying. Cooper had none.

“It’s common sense, and a reasonable person would conclude that Judge Walker had an interest in marrying,” said Cooper.

“So, there are not facts to suggest Judge Walker wanted to change his relationship to marriage,” said Ware.

Ware rejected an argument from the team challenging Proposition 8—represented in court Monday by Ted Boutrous. Boutrous argued that Yes on 8 attorneys knew of Walker’s relationship long before he spoke of it to reporters in April this year.  Ware said he did not find articles in 2010 to provide “a basis for imputing to [Yes on 8 attorneys] knowledge of Judge Walker’s same-sex relationship.”

Ware said it is “inconsistent with the general principles of constitutional adjudication to presume that a member of a minority group reaps a greater benefit from application of the substantive protections of our Constitution than would a member of the majority…. [W]e all have an equal stake in a case that challenges the constitutionality of a restriction on a fundamental right.”

Ware did not buy Cooper’s argument that Walker’s failure to disclose his relationship to attorneys before the trial suggested he was hiding a potential conflict of interest.

“Absence of disclosure could equally connote ambivalence or uncertainty in the face of such a weighty question as whether one intends to marry now or in the future, especially when such an intent involves the willingness and participation of a partner for whom the judge cannot answer,” wrote Ware.

Boutrous told reporters Tuesday that Yes on 8 may try to appeal Ware’s decision, but that they could run into issues of standing once again.

Motion to vacate Proposition 8 ruling seems unlikely

SAN FRANCISCO – It now seems unlikely that a federal judge will vacate a landmark decision in which a gay judge ruled that Proposition 8 is unconstitutional.

Vaughn Walker

SAN FRANCISCO – It now seems unlikely that a federal judge will vacate a landmark decision in which a gay judge ruled that Proposition 8 is unconstitutional. The evidence? U.S. District Court Chief Judge James Ware said, following a three-hour hearing Monday, that he plans to issue his ruling concerning a motion to vacate within 24 hours.

Judges typically take months to write decisions of consequence, and a decision to vacate the August 2010 ruling from former Judge Vaughn Walker declaring Proposition 8 unconstitutional would be of enormous consequence. To expect that Judge Ware would write in 24 hours a decision that would undo two years of litigation—including issues pending now before the 9th Circuit U.S. Court of Appeals and the California Supreme Court—seems unlikely.

And, there was little in Judge Ware’s questioning of Yes on 8 attorney Charles Cooper during the June 13 hearing in federal court in San Francisco to give proponents of Proposition 8 much to hang their hopes upon.

Ware noted that it is an unusual event when a judge is put in the position of deciding whether a colleague should have recused himself. Judge Vaughn Walker, in August 2010, ruled that the state ban on marriage licenses for same-sex couples violates the federal constitutional guarantees to equal protection and due process. Eight months after that ruling and two months after retiring from the bench, Walker acknowledged to reporters that he himself is gay and that he has been in a relationship for the past 10 years with a man.

The courtroom erupted in laughter Monday morning when Yes on 8 attorney Cooper said that Walker should have disclosed to attorneys before the January 2010 trial on Proposition 8 not only that he had been in a relationship with a man but that he had no interest in marrying that man. Cooper argued that Walker’s longtime relationship was circumstantial proof that Walker would benefit from a ruling that enabled same-sex couples to marry.

Ware challenged Cooper to explain how a longtime relationship constitutes proof that Walker would benefit from such a ruling, noting, “you can be in a longtime relationship without being in it for purposes of marriage.”

But a “reasonable person,” said Cooper, could believe the judge had a potential to benefit from a ruling striking Proposition 8. And Walker’s relationship put him a position “precisely” the same as the two plaintiff couples in the case.

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

“What fact would you have court rely on to know that Judge Walker wanted to change his relationship [and marry, as the two plaintiff couples sought to do]?” asked Ware.

“It’s common sense,” said Cooper, “and a reasonable person would conclude that Judge Walker had an interest in marrying.”

“So, there are no facts to suggest Judge Walker wanted to change his relationship to marriage,” stated Ware.

Cooper then sought to persuade the judge that the very fact that Walker did not disclose his relationship to attorneys and did not disclose whether he had any interest in marrying the man reasonably called Walker’s impartiality into question.

“But how does failure to disclose serve as evidence that he wanted to change the relationship?” pressed Ware.

Ted Boutrous, an attorney on the legal team headed by high-profile political attorneys Ted Olson and David Boies, said Cooper had no evidence and that Walker was under no obligation to disclose either his sexual orientation or his relationship.

“Where would the disclosure requirements stop?” he asked.

Boutrous also refuted Cooper’s contention that it would be reasonable to presume Walker was “similarly situated” with plaintiffs and wanted to marry his longtime partner.

“Just because people are gay doesn’t mean they’re all alike,” said Boutrous. “Some do want to marry, some don’t…. There is no evidence that Judge Walker intended to get married.”

Judge Walker was not in the courtroom Monday. Judge Ware had excused him from appearing on a second motion before the court—one to require that all copies of the videotape of last year’s trial be turned over to the court. Walker turned over the videotapes and requested to be excused from appearing.

Interestingly, Ware started off discussion of the motion concerning the videotapes by disclosing that, as the court’s new chief judge, he had presented Walker, the retiring Chief Justice, with a personal copy of the trial’s videotape during Walker’s retirement ceremony. Ware started off discussion of the motion to vacate by informing Cooper that he had presided over the marriage of a same-sex couple. Cooper made no response to the same-sex marriage ceremony, but said he would not consider the presentation of the videotapes during the retirement ceremony to be grounds for Ware to recuse himself from this matter.

After hearing brief arguments, Ware ruled from the bench and rejected Yes on 8’s request to have all copies of the videotape turned over to the court. He indicated he would, at a later date, hear arguments on a motion from plaintiffs seeking to allow public release of the videotapes. Ware said he hoped to have a written decision concerning the motion to vacate on the court’s website within 24 hours.

Judicial neutrality on trial, with a Supreme backdrop

Openly gay Judge Vaughn Walker won’t be in the courtroom next Monday (June 13)—at least not physically. But he’ll certainly be there in name–and so may be U.S. Supreme Court Justice Samuel Alito.

Vaughn Walker

Openly gay Judge Vaughn Walker won’t be in the courtroom next Monday (June 13)—at least not physically. But he’ll certainly be there in name—and so may be U.S. Supreme Court Justice Samuel Alito.

Alito, in response to inquiries from reporters, acknowledged last week that he should have recused himself from a 2009 case he helped decide. The reason? His two children each held about $2,000 in stock in the Disney company, the parent corporation to the ABC network that was a party to the case Alito participated in. Alito, who had recused himself that same year from another case involving Disney, said that, in this case, his staff, which reportedly checks such matters for him, had simply not realized that ABC was affiliated with Disney.

There has been no hue and cry over the revelation and, though this has all come out very recently, there’s been no indication the party against whom Alito voted, in a five-justice majority, plans to file a motion to vacate the ruling. That’s probably because Alito voted against ABC. But Alito’s reaction is an indication of how high he thinks the bar should be set for matters of potential judicial conflict. And that indication comes at an interesting time—just days before a federal judge in San Francisco must consider whether a former colleague, Vaughn Walker, had a conflict of interest when he ruled California’s ban on same-sex marriage to be unconstitutional.

The timing is almost certainly coincidental; Alito was prompted to acknowledge his conflict after probing reporters discovered it.

Alito’s agreement with those reporters—that what appears to be a relatively small and indirect financial interest in the parent company to one of four major networks involved in the case constitutes a conflict of interest—puts the bar for recusal at a difficult height to clear.

Former Chief Justice William Rehnquist did not recuse himself from hearing cases involving Microsoft, although his son was an attorney for Microsoft on a matter not before the court. John Roberts did not recuse himself from participating in a case, Citizens United v. Federal Election Commission, even though a beneficiary of his decision—the U.S. Chamber of Commerce—lobbied for his confirmation as Chief Justice.

9th Circuit U.S. Court of Appeals Judge Stephen Reinhardt rejected a motion that he recuse himself from hearing an appeal from Yes on 8 last December. Reinhardt is married to the executive director of the Southern California ACLU.  The motion filed by Yes on 8 attorney Charles Cooper asserted that, because the ACLU has been involved in challenging Proposition 8, Reinhardt should disqualify himself from hearing the appeal. Reinhardt and his 9th Circuit panel colleagues have yet to rule on Yes on 8’s appeal.

Now, it is up to U.S. District Court Chief Judge James Ware to decide where the recusal bar should have been set when Vaughn Walker heard the case challenging Proposition 8. At the time of the trial, Walker had given no public statement indicating that he was gay and in a relationship for 10 years with another man. And it is common for judges to look to the Supreme Court and other courts for guidance, in making their own rulings.

So, it won’t be a surprise next Monday if attorneys for the proponents of Proposition 8 trot out Justice Alito’s recent recusal statement in support of their argument that Walker should have recused himself from deciding the landmark case involving Proposition 8.

Walker, in August 2010, ruled that the constitutional amendment passed by voters to ban legal recognition of marriages between same-sex partners in California violates the federal constitutional guarantees to equal protection and due process. Eight months after that decision, in response to inquiries from reporters, Walker acknowledged being gay and in a 10-year relationship with a man. Also in response to a question from a reporter, Walker said that he did not believe his sexual orientation required him to recuse himself from the case.

Proposition 8 attorney Cooper and his team agree with that—that Walker needn’t have recused himself because he is gay. But they argue that Walker’s relationship with a man was grounds for recusal.

Why?

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

But Ted Olson, David Boies, and the team of lawyers who have challenged Proposition 8 through Perry v. Brown (formerly Perry v. Schwarzenegger) say Cooper’s argument is just another way of saying Walker should have recused himself because he is gay.

“If Judge Walker were not gay,” said the Olson-Boies brief, Yes on 8 “Proponents would have no objection to his presiding over this case. Similarly, if Judge Walker were gay and not in a long-term relationship, Proponents could nevertheless speculate that he might benefit from the right to marry in the future. Proponents cannot escape the fact that their motion is, at its core, about Judge Walker’s sexual orientation.”

Here’s what the U.S. Code says regarding the “Judiciary and Judicial Procedure”: a judge should recuse himself or herself “in any proceeding in which his [or her] impartiality might reasonably be questioned” or in any case where the judge “knows that he [or she]… has a financial interest in the subject matter in controversy … or any other interest that could be substantially affected by the outcome of the proceeding….”

For Justice Alito, his children’s $4,000 worth of stock in the parent company of a corporation with a case before him was, in his mind, a “financial interest” meriting recusal. Following the disclosure, he sold his children’s stock in Disney, according to various news reports. And that, according to many legal observers discussing the revelation, puts him in good position to rule on any future case concerning Disney or ABC.

“As a result of the stock sale,” said Legal Ethics reporter Debra Cassena Weiss of the American Bar Association’s ABA Journal, “Alito will be able to participate if the court accepts a new case involving a fine against ABC television stations that aired an NYPD Blue program showing a shot of a woman’s bare buttocks.” The case Alito participated in, FCC v. Fox Television, affected fines against television networks, including ABC, if they allow profanity—even fleeting outbursts—on the air.

Walker’s situation differs from Alito’s in several ways. The biggest difference is that the losing party in Walker’s case, the Yes on 8 proponents, have filed a challenge to Walker’s decision, charging that Walker had a conflict of interest and should have recused himself. They want Chief Judge Ware to vacate Walker’s decision.

The Olson-Boies team argue against the Yes on 8 motion to vacate, noting that Walker and his partner demonstrated no apparent interest in taking advantage of any benefits of marriage when they opted not to marry in California between June and November of 2008. Yes on 8 attorneys argue, in their brief requesting Walker’s decision be vacated, that Walker never told the parties to Perry that he was in a 10-year same-sex relationship and “he has yet to disclose whether he has any interest in marrying his partner” should same-sex marriage become a possibility again in California.

But the Olson-Boies brief argues that if—as Yes on 8 attorneys argued at trial—that allowing same-sex couples to marry would harm heterosexual marriages, then “it would follow from their argument that judges married to a person of the opposite sex would also possess an ‘interest’ warranting recusal.”

“Such a standard,” argued the Olson-Boies team, “is plainly unworkable and unconstitutional.”

It is up to Chief Judge Ware to decide who’s right, after he hears oral arguments on the matter Monday, June 13, in a federal district court in San Francisco. Ware will also hear arguments Monday on a motion by Yes on 8 attorneys to permanently bar the public release of videotapes of the January 2010 trial.

It was on this latter issue—the videotapes—that Ware initially ordered Walker to appear in court Monday. The U.S. Supreme Court had barred Walker from broadcasting the trial proceedings outside the San Francisco courthouse, but he was allowed to broadcast it within the courthouse and to videotape the proceedings for his own use in constructing his decision.

Walker kept the videotapes as part of his own “chamber papers” and, through his attorneys, has said he considers them his property. But he turned the videotapes over to Judge Ware, and Ware has excused Walker from appearing in court Monday.

Gay court nominee distances himself from Lawrence brief

When openly gay federal district court nominee Paul Oetken went before the U.S. Senate Judiciary Committee in March, Senator Charles Grassley was the only Republican who showed up. He introduced Oetken, who was born in his home state of Iowa, but had no questions.

When openly gay federal district court nominee Paul Oetken went before the U.S. Senate Judiciary Committee in March, Senator Charles Grassley was the only Republican who showed up. He introduced Oetken, who was born in his home state of Iowa, but had no questions.

Not all questioning takes place in front of cameras. Some takes place on paper, and that’s where Grassley grilled Oetken over his positions on gay-related issues, and Oetken responded in a way that might make some LGBT activists cringe.

“Do you personally believe that government classifications based on sexual orientation deserve a heightened level of scrutiny?” asked Grassley, in one of 17 questions to Oetken.

Grassley’s question concerned a brief Oetken wrote for the National Gay and Lesbian Bar Association and submitted to the U.S. Supreme Court in support of overturning 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.

In responding to Grassley, Oetken put some distance between himself and the brief, saying, “I have not expressed a personal view on this subject. 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.

Oetken also put some distance between his brief and the Supreme Court’s decision, noting that, “The Supreme Court in Lawrence v. Texas did not decide that case under the Equal Protection Clause, but rather under the Due Process Clause, and it therefore did not decide the issues addressed in my amicus brief in that case.”

“If confirmed as a district judge, I would apply the applicable precedents of the Supreme Court and the Second Circuit,” he said.

Republican Senator Jeff Sessions also submitted written questions about Oetken’s brief in Lawrence. Sessions noted that Oetken had argued that the issue of physician-assisted suicide should be decided by each state legislature. He quoted Oetken saying, the issue of physician-assisted suicide “should stay where it belongs, in the legislatures” because the states’ “varied approaches to the issue may, over time, aid in forming a national consensus, making it possible for Congress to resolve it through national legislation.”

But Sessions was interested in how Oetken could argue, in 2002, to leave the suicide issue to the states and then argue, in 2003, “that Texas’ anti-sodomy law was something that warranted federal intervention….”

Oetken, again, noted that the Lawrence brief included “arguments made on behalf of clients.” His argument to leave the suicide issue to the states, he said, was appropriate given that there was no federal legislation addressing it.

Oetken’s nomination was reported out of Committee on April 7 and is awaiting a vote by the full Senate.

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

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

Vaughn Walker

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Law firm drops contract to defend DOMA

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

Paul Clement

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Arrest made in Miller-Jenkins custody battle

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

Undated photo of Isabella Miller-Jenkins

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

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

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

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

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

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

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

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

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

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

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

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

Isabella Miller turned 9 this month.

House hired gun goes to work on DOMA; HRC attacks

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

Paul Clement

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

House hearing contentious on DOJ-DOMA decision

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

Trent Franks

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

5th Circuit upholds Louisiana’s denial to gay dads

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

DOJ to married green card applicants: DOMA still applies

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

Eric Holder

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

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

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

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

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

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

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

Soloway characterized that “explanation” as “unacceptable.”

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

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

Green card applications for married gays on hold awaiting DOJ guidance

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

Lavi Soloway

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

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

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

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

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

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

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

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

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

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

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

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

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

Court loss with a silver lining

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

Jennifer Pizer

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

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

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

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

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

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

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

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

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

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

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

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

Supreme Court rules Phelps hate protests are protected speech

The U.S. Supreme Court ruled Wednesday that an anti-gay protester’s demonstrations in close proximity to a private funeral service are protected by the First Amendment.

The U.S. Supreme Court ruled Wednesday that the First Amendment protects an anti-gay protester’s demonstrations in close proximity to a private funeral service.

The case, Snyder v. Phelps, arose out of a conflict around anti-gay activist Fred Phelps and his followers staging loud and hate-filled protests near the funerals of American soldiers killed in Iraq. The protest signs claimed the soldiers deserved to die because American society was tolerating homosexuality.

One soldier’s family decided to take action to stop the protests and filed suit in federal court, claiming the protests amounted to intentional infliction of emotional distress, a violation of the family’s right to privacy, and civil conspiracy.

In an 8 to 1 decision, with only Justice Samuel Alito dissenting, the high court ruled that the free speech clause of the First Amendment protects public speech, which includes speech related to “any matter of political, social, or other concern to the community.”

The decision upheld a ruling by the 4th Circuit U.S. Court of Appeals.

The vote was somewhat of a surprise. At oral argument in October, most of the justices seemed to challenge Phelps’ attorney, his daughter Margie Phelps, about their “outrageous conduct” and “exploiting” a family’s time of grief.

Sotomayor had said she had trouble with Phelps’ claim that the protests were simply engaging in public discourse about a public issue, given that some of their speech was “directed at the Snyders” and “talking about them raising Matthew for the devil, teaching him to defy the creator, to divorce and commit adultery.”

Chief Justice John Roberts said the case largely turned on whether the Phelps’ protests were “of public or private concern, as determined by all the circumstances in the case.” Citing several Supreme Court precedents, he noted that speech on public concerns is entitled to “special protection.” Roberts said the content of the Phelps protest “plainly relates to broad issues of interest to society at large….” He reiterated the messages on several posters, including “God Hates Fags” and “Semper Fi Fags,” “Fags Doom Nations,” and “Fag Troops.”

“While these messages may fall short of refined social or political commentary,” wrote Roberts, “the issues they highlight –the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy—are matters of public import.”

In evaluating the context of the messages, Roberts said that, although the protest was staged outside a private funeral, it took place “peacefully on matters of public concern at a public place adjacent to a public street.”

Such speech, he wrote, “cannot be restricted simply because it is upsetting or arouses contempt.” The majority also held that the funeral site did not justify the charge that the Westboro group had violated the family’s privacy, given that the protest was only barely visible to the family.

Interestingly, Roberts referred to a 1995 Supreme Court decision in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, to support his argument. In that decision, the Supreme Court said a St. Patrick’s Day Parade organizer had the right to exclude an openly gay contingent from the annual event, which took place on a public street. But in that case, the high court ruled that the parade organizer was a private party and that the parade was, in essence, the organizer’s speech.

The conflict began in March 2006 when the family of Matthew Snyder, a Marine killed in Iraq, held a funeral service him in Maryland. Later that day, they saw television news reports of the funeral being picketed by Phelps and his followers carrying signs, saying such things as “Fag troops,” “Semper fi fags,” “God Hates Fags,” and “Thank God for dead soldiers.” Phelps had also posted his comments on his website.

“Westboro believes that America is morally flawed;” wrote Roberts; “many Americans might feel the same about Westboro. Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. But Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials.”

Justice Stephen Breyer concurred with the decision but added his own statement saying he felt the opinion did not address other important aspects of the case—such as the fact that the protests were broadcast on television and that the messages were also posted on the Internet.

Justice Alito said he does not believe the First Amendment is “a license for the vicious verbal assault that occurred in this case.” Alito said Westboro members have “almost limitless opportunities to express their views” but that that doesn’t mean “they may intentionally inflict severe emotional injury on private persons at a time of intense emotional sensitivity by launching vicious verbal attacks that make no contribution to public debate.”

Alito said he believes Westboro has “devised a strategy” to maximize publicity for their messages by targeting specific funerals and sending out press releases to “ensure that their protests will attract public attention.”

“This strategy works,” he said, “because it is expected that respondents’ verbal assaults will wound the family and friends of the deceased and because the media is irresistibly drawn to the sight of persons who are visibly in grief.” He pointed to the Westboro church’s recent protests around the funeral for a nine-year-old girl in the Tucson shootings this year and around the funerals for five Amish girls killed by a gunman in 2006.

In Matthew Snyder’s case, said Alito, the Westboro’s picket signs “would most naturally have been understood as suggesting—falsely—that Matthew was gay. Homosexuality was the theme of many of the signs,” he noted. “A bystander seeing those signs would have likely concluded that they were meant to suggest that the deceased was a homosexual.” He noted that the church members followed up with statements on their website, saying that Matthew’s parents “sent him to fight for the United States of Sodom.”

Such comments, said Alito, go “far beyond commentary on matters of public concern.” He said he would allow the Snyder family to recover damages for the intentional infliction of emotional distress caused by speech on a matter of private concern.”

“In order to have a society in which public issues can be openly and vigorously debated,” said Alito, “it is not necessary to allow the brutalization of innocent victims like petitioner.”

Obama DOJ says DOMA is unconstitutional

The Obama administration made a blockbuster announcement Wednesday, saying it has concluded that one part of the Defense of Marriage Act will not be able to pass constitutional muster in the 2nd Circuit and that DOJ would not defend that part of the law in two pending cases in that circuit.

Eric Holder

The Obama administration made a blockbuster announcement Wednesday, saying it has concluded that one part of the Defense of Marriage Act will not be able to pass constitutional muster in the 2nd Circuit and that DOJ would not defend that part of the law in two pending cases in that circuit.

It was a dramatic, unexpected, and significant move by the Obama administration and one that could trigger maneuvers by DOMA supporters to appoint an intervenor to defend the law. But beyond the eventual legal consequences of the announcement, the political impact was characterized by most LGBT leaders as historic and monumental.

“This is a monumental turning point in the history of the quest for equality for lesbian, gay and bisexual people,” said Jon Davidson, legal director for Lambda Legal Defense and Education Fund.

NCLR Executive Director Kate Kendell put it even more strongly.

“The President’s leadership on this issue has forever changed the landscape for LGBT people in this country,” said Kendell. “For the first time, the President and the Department of Justice have recognized that laws that harm same-sex couples cannot be justified. This is the beginning of the end, not just for the mean-spirited and indefensible Defense of Marriage Act, but for the entire panoply of laws that discriminate against same-sex couples.”

Attorney General Eric Holder announced Wednesday that the Department of Justice would not defend the constitutionality of Section 3 of the Defense of Marriage Act (DOMA) in two of the four cases where that section of the law is currently under challenge. Those two cases are Pedersen v. OPM, filed by Gay & Lesbian Advocates & Defenders, and Windsor v. United States, filed by the ACLU.

Two other cases—in the First Circuit—also challenge Section 3, which prohibits federal recognition of any same-sex marriage, as does a more narrow case, Golinski v. OPM, in the 9th Circuit, at the district court level.

DOMA Section 2, which enables states to ignore valid marriage licenses issued to same-sex couples from other states, has not yet been challenged in court and Holder made no reference to it.

Since entering the White House, President Obama has said that DOMA should be repealed, but his administration continued to defend the law, saying, through various spokespersons, that Obama was concerned about setting a precedent that would make it easier for some future administration to pick and choose which laws it would defend.

Last summer, asked whether there isn’t a difference between enforcing existing laws and defending them in court, his Domestic Policy chief, Melody Barnes, said the president believed DOMA and Don’t Ask, Don’t Tell to be “discriminatory” but that he had not yet “made an argument” concerning their constitutionality.

“[W]e believe we have an obligation to defend the law if Congress had a rational basis for passing the law,” said Barnes.

In his announcement Wednesday, Attorney General Holder noted that the administration would still defend DOMA Section 3 in the two First Circuit cases because the First Circuit has ruled that rational basis is sufficient justification for treating people differently based on their sexual orientation. (He was apparently referring to the unsuccessful class action case challenging Don’t Ask, Don’t Tell). But Holder also noted that DOJ attorneys would argue that the court should, instead, apply a stricter test for DOMA.

Lambda Marriage Project Director Jenny Pizer said the First Circuit would make its own decision about whether to adopt Holder’s view.

“Any court is going to make its own determination about what the law requires,” said Pizer. “The government is usually given particular credence, but it is always court’s job to decide what the law requires.” But Pizer noted that the increasing volume of voices declaring the injustice of DOMA can have an influence, particularly given that the arguments made in support of DOMA “are not even coherent.”

It is possible –just as happened in California— that some other entity might attempt to mount its own defense of DOMA in the pending cases. Last October, U.S. Rep. Lamar Smith (R-Texas) filed a motion in the two First Circuit cases, seeking to be named intervenor-defendant. Smith, aided by the right-wing Alliance Defense Fund, said at the time that the Justice Department was providing “no defense at all” for DOMA. He withdrew his motion a few weeks later, without comment.

Lambda’s Pizer said she thinks it is “very likely” someone will ask the First Circuit for permission to serve as a defendant-intervenor in the DOMA cases. And she noted Congress has the authority to appoint its own counsel to defend the law. Such was the development in the California same-sex marriage case, Perry v. Schwarzenegger. The federal district court allowed the group that sought passage of Proposition 8, Yes on 8, to defend the law at trial. The 9th Circuit recently asked the California Supreme Court to determine whether any state law gives Yes on 8 the authority to appeal that district court decision in the federal appeals court.

A three-judge panel of the First Circuit is currently receiving written briefs from both sides in the DOMA cases and, presumably, will now receive a written brief from DOJ arguing that DOMA Section 3 should meet a heightened standard of review.

NCLR’s Minter said he believes the law “can’t survive” that standard.

Mary Bonauto, lead attorney on the DOMA cases for GLAD, could not be reached for comment. But ACLU Executive Director Anthony Romero, executive director of the ACLU, which has filed one of the Second Circuit cases, praised President Obama doing “the right thing.” Romero said President Obama’s action has “just propelled gay rights into the 21st century, where it belongs. Our government finally recognizes what we knew 14 years ago—that the so-called ‘Defense of Marriage Act’ is a gross violation of the Constitution’s guarantee of equal protection before the law. DOMA betrays core American values of fairness, justice and dignity for all, and has no place in America.”

Olson-Boies ask 9th Circuit to lift stay on lower court ruling

Ted Olson, lead attorney for the lawsuit challenging California’s same-sex marriage ban, announced Wednesday that he is asking the 9th Circuit U.S. Court of Appeals to lift a stay on a district court ruling that found Proposition 8 unconstitutional.

Ted Olson
Ted Olson

Ted Olson, lead attorney for the lawsuit challenging California’s same-sex marriage ban, announced Wednesday that he is asking the 9th Circuit U.S. Court of Appeals to lift a stay on a district court ruling that found Proposition 8 unconstitutional.

The request, if granted, would enable same-sex couples to marry immediately.

Olson said he filed a motion last Thursday with the California Supreme Court to schedule oral arguments sooner than September on an issue of standing it has been asked to decide for the 9th Circuit.

He said they filed a motion Wednesday, February 23, to ask that the 9th Circuit’s previous order staying the district court decision be lifted.

“Further delay is intolerable,” said Olson.

“We’re going on almost a year since it was held unconstitutional,” noted Boies, referring to the August 4, 2010, ruling by U.S. District Court Judge Vaughn Walker’s ruling that Proposition 8 is unconstitutional.

Olson said he and co-counsel David Boies are “very gratified by the developments today from the Department of Justice but did not make clear whether the request to lift the stay on the California ruling was triggered by the DOJ statement. However, he clearly feels the DOJ announcement enhances the possibility the 9th Circuit might consider lifting the stay.

“These bans are clearly unconstitutional,” said Boies, referring not only to California’s Proposition 8 but similar bans in other states.

“We would hope that states would recognize the unconstitutionality of those bans and establish marriage equality without the necessity of litigation state by state…. It is now overwhelmingly clear that these discriminatory laws are unconstitutional.”

HHS rescinds Bush era reg that gave doctors a broad religious excuse to to refuse care

The Dept. of Health and Human Services said it “strongly supports” regulations which protect the rights of health care providers from being “compelled to perform or assist in an abortion.” But what it did not say was of greater interest to the LGBT community.

Kathleen Sebelius

The U.S. Department of Health and Human Services last Friday issued a statement saying it “strongly supports” regulations which protect the rights of health care providers from being “compelled to perform or assist in an abortion.” But what the February 18 press release did not say was of even greater interest to the LGBT community.

The press release did not say that the department was rescinding a regulation, forged under President George W. Bush, to enable doctors to refuse services to LGBT people by claiming a religious objection.

The Bush rule was called the “Ensuring That Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law.” It was added in the final days of the Bush administration to an existing set of laws called the “Regulation for the Enforcement of Federal Health Care Provider Conscience Protection Laws.”

The Federal Health Care Provider Conscience Protection Laws have been in effect since the 1970s to prohibit recipients of federal funds from discriminating against health care providers who refused to perform certain services they find religiously or morally objectionable. They were mainly aimed at protecting doctors who refused to perform abortions and sterilizations.

The change made under the Bush era HHS came just months after the California Supreme Court had ruled that a clinic violated state law when he refused to provide insemination services to a lesbian couple. Doctors at the clinic claimed their religious beliefs that no one should have a child outside heterosexual marriage prevented them from treating the lesbian couple.

The Human Rights Campaign said it urged the Obama administration to rescind the Bush era regulation and that the administration began work toward that change shortly after President Obama took office.

“This blanket right to refuse posed a real threat to, and could have severely impaired, the LGBT community’s ability to obtain health services,” noted HRC Friday in its own press release.

HHS received comments from more than 97,000 individuals and groups on its proposed rule change, and it said an “overwhelming number” complained that the Bush era rule “unacceptably impacted patient rights and restricted access to health care and conflicted with federal law, state law, and other guidelines addressing informed consent.”

“The Department received several comments suggesting that the 2008 Final Rule could limit access to reproductive health services and information, including contraception, and could impact a wide range of medical services, including care for sexual assault victims, provision of HIV/AIDS treatment, and emergency services,” noted HHS in its final rule, which will be published in the Federal Register February 23. “Additionally, a number of commenters expressed concern that the 2008 Final Rule could disproportionately affect access to health care by certain sub-populations, including low income patients, minorities, the uninsured, patients in rural areas, Medicaid beneficiaries, or other medically-underserved populations.”

The new rule change designates the HHS Office of Civil Rights to receive complaints regarding health care providers misusing the conscience protection regulations.

“Protecting the free exercise of one’s personal religious beliefs is an important public policy goal,” said HRC in its statement. “No American however, should face discrimination in the healthcare system simply because of his or her sexual orientation or gender identity.  We extend our heartfelt thanks to [HHS] Secretary [Kathleen] Sebelius and others in the Administration for finding an appropriate balance and protecting the rights of all Americans.”

California high court will weigh in on Yes on 8 standing issue

The road to marriage equality in California just got a little longer. The California Supreme Court said today it would make ruling on whether Yes on 8 proponents have authority, under California law, to appeal a federal court ruling that the initiative is unconstitutional.

The road to marriage equality in California just got a little longer.

The California Supreme Court said today it would make ruling on whether Yes on 8 proponents have authority, under California law, to appeal a federal court ruling that the initiative is unconstitutional.

The announcement, at 5:20 p.m. EDT Wednesday, means the California court will soon hear arguments in the landmark Perry v. Schwarzenegger case. But the question will be a procedural one only: whether there is any authority under California law that would provide Yes on 8 proponents with standing to defend Proposition 8 in a federal appeals court.

The court’s brief announcement said it would hear arguments on an expedited schedule and asked that the first briefs be due March 14 and that oral argument take place as early as September.

Once the California Supreme Court decides whether state law provides any right to Yes on 8 to represent voters on appeal, the 9th Circuit U.S. Court of Appeals panel will then make its final determination as to whether Yes on 8 has standing to appeal. And, if the 9th Circuit says Yes on 8 does have standing, it will also rule on the constitutionality of Proposition 8.

The question before the California Supreme Court was whether there is any authority under California law that would enable Yes on 8 proponents to represent voters who approved Proposition 8. The answer mattered to the 9th Circuit Court of Appeals panel. Without any authority under state law, the appeals panel suggested, the group might not have any “standing” at all to appeal the decision. If a party has “standing,” they are sufficiently affected by a conflict to justify having a court hear their lawsuit or appeal on the matter.

When the legal team of Ted Olson and David Boies filed a legal challenge to California’s Proposition 8 in federal district court, the state, under Governor Arnold Schwarzenegger and Attorney General Jerry Brown, had standing to defend the law. But neither provided a defense and, instead, the Yes on 8 coalition that campaigned for the initiative did so.

When the district court found Proposition 8 unconstitutional, the state officers said they would not appeal the decision, so Yes on 8 once again sought to defend the law, this time in the federal appeals court. But both Schwarzenegger and Brown urged the 9th Circuit not to accept the appeal, saying the best thing for California was to abide by the district court ruling.

So, when the 9th Circuit panel heard oral arguments on the appeal last December, one of the first and most pressing issues it had to wrestle with was whether Yes on 8 still had “standing” to bring the appeal when the state government had decided it wanted to honor the district court decision.

What bothered the panel was their belief that the state officers—Schwarzenegger and Brown—were acquiring veto power by simply refusing to defend a voter-approved law with which they disagreed. The panel asked the California Supreme Court to say whether there might be some authority under state law that would provide Yes on 8 with standing to bring the appeal.

The legal team challenging Proposition 8, led by Ted Olson and David Boies, filed briefs with the California Supreme Court, saying the state court should not provide such a determination because the standing issue in a federal appeals court is essentially a matter of federal law.