Another DADT trial, but a different DOJ tack

The story of Air Force Reserve Major Margaret Witt has some drama to it and that drama may well be trotted out this week as a U.S. District Court judge hears the lawsuit challenging her discharge under “Don’t Ask, Don’t Tell.”

Margaret Witt
Margaret Witt

The story of Air Force Reserve Major Margaret Witt has some drama to it and that drama may well be trotted out this week as a U.S. District Court judge hears the lawsuit challenging her discharge under “Don’t Ask, Don’t Tell.”

Judge Ronald Leighton, a George W. Bush appointee, has rejected a request by Witt’s attorneys to exclude from evidence any testimony or documents pertaining to the details of her early relationship with her partner of six years, Laurie McChesney. They say it is irrelevant to the reason why she was discharged from the military—for being gay.

But attorneys from the U.S. Department of Justice the evidence regarding Witt’s “admitted commission of adulterous acts” is “the very conduct that triggered her discharge.”

Hunh? What’s going on here? It is well known that Witt, 46, was discharged in 2006 for having acknowledged she had a relationship with a woman. Her case has received widespread attention. There was considerable discussion of it on the U.S. Senate floor this year by Republicans angry that U.S. Solicitor General Elena Kagan—now U.S. Supreme Court Justice Kagan—had not fought Witt’s lawsuit all the way to the Supreme Court. What do “adulterous acts” have to do with it?

Hardball. Witt won the right to a trial on the merits of the military’s application of the “Don’t Ask, Don’t Tell” (DADT) law against her. Now, she’s getting that trial, and the DOJ says there’s a price to pay.

“Having insisted at every turn that she is entitled to an as-applied analysis of the application of [DADT] to her specific circumstances,” said Assistant Attorney General Tony West in a brief opposing Witt attorneys’ request to exclude evidence regarding Witt’s early relationship with McChesney, “plaintiff cannot now plausibly argue that the Court should ignore evidence of the very conduct that triggered her discharge. Evidence of plaintiff’s conduct is directly relevant to what the [9th Circuit U.S.] Court of Appeals identified as the material questions at issue in this matter: “whether the application of [DADT] specifically to Major Witt significantly furthers the government’s interest and whether less intrusive means would achieve substantially the government’ s interest.”

In other words, if Witt has won—for herself and others in the 9th Circuit states—the right to a trial in federal court when the military seeks to discharge them for being gay, then gay servicemembers need to be prepared for whatever the government can put forward to justify that discharge.

In Witt’s case, what the government put forward is that the military first became aware of Witt’s homosexuality when McChesney’s then-husband emailed Witt’s superior officers and reported the affair. Prior to this revelation in court documents leading up to this week’s trial, most news reports had conveyed Witt’s story that she was discharged for having been in a long-term relationship with a civilian woman after that relationship had broken up.

“Instead,” said West, “it was plaintiff’s relationship, beginning in November 2003, with a different civilian woman” that led to her discharge. “This particular civilian woman was married at the time plaintiff began a relationship with her. The woman’s husband brought the relationship to the Air Force’s attention.”

According to West’s brief, Witt’s unit commander recommended Witt be separated from the service.

“Among the reasons for this recommendation: plaintiff ‘engaged in homosexual acts with . . . a married woman, on divers occasions from on or about November 2003 to on or about January 2004. . . .”

Because Judge Leighton has rejected Witt attorneys’ request to exclude the information that Witt’s relationship with Laurie McChesney was, for a time, taking place while McChesney was still married to her husband, the DOJ will apparently attempt to justify Witt’s discharge based on other conduct, in addition to her being gay.

“[A]n officer who engages in adultery risks compromising her stature as an officer,” wrote West in his August 23 brief. “The risks of such behavior were enunciated long ago by Congress in Articles 133 and 134 of the Uniform Code of Military Justice, which subjects officers regardless of sexual orientation to punishment for adultery in certain circumstances. By reducing those risks, plaintiff’s discharge furthers unit cohesion, morale, and good order and discipline.”

“It will be tough on Major Witt because of the intrusive nature of the discussion,” said former Army Colonel Grethe Cammermeyer, who was in the U.S. District Court for Western Washington on Monday for the first day of the seven-day trial. Cammermeyer, whose story was the subject of a movie starring Glenn Close, was discharged from her position as Chief Nurse of the Washington State National Guard in 1989, for simply stating, “I am a lesbian.”

Also, in the court, said Cammermeyer, was Air Force Lt. Colonel Victor Fehrenbach, a highly decorated combat pilot who had a DADT investigation initiated against him based on information provided to the military by a civilian. His lawsuit fighting discharge is currently pending in the U.S. District Court for Idaho.

The beginning of Witt’s trial follows by less than a week a decision from the U.S. District Court in Riverside, California, declaring DADT to be a violation of the First and Fifth amendment rights of the federal constitution. The opinion in that case, Log Cabin Republicans v. U.S., will likely be appealed to the 9th Circuit U.S. Court of Appeals.

DADT unconstitutional, says federal judge

A U.S. District Court judge in California Thursday declared the military’s “Don’t Ask, Don’t Tell” policy unconstitutional, saying it violates both the First and Fifth Amendments.

R. Clarke Cooper
R. Clarke Cooper

A U.S. District Court judge in California Thursday declared the military’s “Don’t Ask, Don’t Tell” policy unconstitutional, saying it violates both the First Amendment rights to free speech and the Fifth Amendment right to due process in the federal constitution.

The 85-page memorandum opinion came in Log Cabin Republicans v. U.S., a six-year-old lawsuit that has received little media attention compared to most other gay-related trials. Its bench trial in Riverside, California, in July was overshadowed by a much more high-profile challenge of California’s ban on same-sex marriage, in federal court in San Francisco.

Judge Virginia A. Phillips presided over a two-week-long trial that began July 13 and included many witnesses testifying about the history of “Don’t Ask, Don’t Tell” (DADT) and the injury it has caused. Phillips, 52, was appointed to the federal bench in 1999 by President Clinton, who signed DADT into law in 1993. LCR filed its lawsuit against the policy in 2004.

The opinion strikes down the 1993 law that bars from the military any servicemember who engages in “homosexual conduct,” has a “propensity” to do so, or even just states that he or she is a “homosexual or bisexual.”

Phillips’ decision, which has not yet been officially “entered,” includes an injunction against further enforcement of the policy but will almost certainly be stayed and appealed to the 9th Circuit U.S. Court of Appeals.

Log Cabin Republicans (LCR), a national gay political group, brought the lawsuit on behalf of many of its members who it said are being denied their constitutional rights. The group specifically identified only two members at trial: Alexander Nicholson, a former U.S. Army Human Intelligence officer who was discharged under DADT and now serves as head of Servicemembers United; and John Doe, a lieutenant colonel in the Army Reserves concerned he may face discharge under the policy.

The U.S. Department of Justice tried repeatedly to have the lawsuit dismissed, claiming LCR has no legal standing to serve as plaintiffs. It also tried to have the judge decide the case without hearing testimony from LCR’s witnesses. And it tried to have the judge postpone the trial, arguing that Congress has a measure pending that could significantly affect the DADT law.

That measure is still awaiting action in the Senate as part of a Defense spending bill that is likely to see action later this month. There seems little doubt that the judge’s opinion will now be the subject of the debate around that measure. But Judge Phillips refused to delay action on LCR’s lawsuit, noting that the DADT repeal measure—as it is currently worded in Congress—does not guarantee repeal of DADT. Instead, the legislation requires a sign-off procedure involving the president, the secretary of defense, and the chairman of the Joint Chiefs of Staff. The likelihood the bill would lead to repeal, said Phillips at trial, is “remote, if not wholly speculative.”

Phillips noted that evidence considered at trial, including three historic studies concerning gays in the military, did not identify any legitimate reasons for barring gays. The 1957 Crittenden Report, she said, “is not evidence that discharge of homosexual servicemembers significantly furthers government interests in military readiness or troop cohesion. The 1988 PERSEREC Report “generally dismisses traditional objections to service by homosexuals in the military as abstract, intangible, and tradition-bound.” And the 1993 Rand Report concludes, “no empirical evidence exists demonstrating the impact of an openly homosexual servicemember on the cohesion of any military unit.”

Using tables of data to demonstrate a point made at trial by DADT opponent Nathaniel Frank, Phillips showed how the military discharged increasing numbers of servicemembers for homosexuality from 1994 to 2001, but that the number “fell sharply” beginning in 2002 as the U.S. began fighting in Afghanistan. In 2001, according to the data, the military discharged 1,227 people for being gay—the largest number per year since DADT went into effect. But in 2002, the number of discharges dropped to 885. Last year, only 275 were discharged.

She also cited data submitted by Log Cabin Republicans’ attorneys showing the Defense Department often suspended investigations of servicemembers it believed to be gay until after the servicemembers had completed their tour of duty in Iraq and Afghanistan. DOD, she noted “deployed servicemembers under investigation… to combat missions or, if they were already so deployed, delayed the completion of the investigation until the end of the deployment.”

“This evidence, in particular, directly undermines any contention that [DADT] furthers the Government’s purpose of military readiness, as it shows [DOD officials] continue to deploy gay and lesbian members of the military into combat, waiting until they have returned before resolving the charges arising out of the suspected homosexual conduct.”

“Taken as a whole,” wrote Phillips, “the evidence introduced at trial shows that the effect of the Act has been, not to advance the Government’s interests of military readiness and unit cohesion, much less to do so significantly, but to harm that interest.“

In her decision, Phillips noted that the First Circuit U.S. Court of Appeals addressed a similar case, Cook v. Gates, and came to a different opinion and upheld the law. But Phillips said she found the First Circuit’s reasoning “unpersuasive” and noted that she, within a 9th Circuit court, is not bound to follow it.

Phillips, however, indicated she was bound to follow a precedent of her own 9th Circuit, rendered in another challenge to the DADT policy and brought by an Air Force nurse, Margaret Witt, in Seattle. On a preliminary matter in that case, the 9th Circuit ruled that the U.S. Supreme Court’s 2003 decision in Lawrence v. Texas recognized a fundamental right to “an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.” Infringement on a fundamental right requires a law to pass a “heightened” or more stringent judicial review.

The Witt v. U.S. case is scheduled for trial beginning September 13 in the U.S. District Court for Tacoma, Washington.

“As an American, a veteran and an Army reserve officer, I am proud the court ruled that the arcane Don’t Ask Don’t Tell statute violates the Constitution,” said Log Cabin Republicans Executive Director R. Clarke Cooper. “Today, the ruling is not just a win for Log Cabin Republican servicemembers, but all American servicemembers.”

Chad Griffin, president of the American Foundation for Equal Rights which is pressing the case against Proposition 8’s ban on same-sex marriage in California, said the Log Cabin decision “is yet another significant and long-overdue step toward full equality for all Americans.

“It is clear,” said Griffin, “that our nation is moving toward the day when every American will be treated equally under the law, as required by our Constitution.”

Schwarzenegger under pressure from Republicans to defend Prop 8

Supporters of Proposition 8 this month conjured up the ghost of Ronald Reagan to defend the voter-approved state constitutional amendment banning same-sex marriage. But, so far, it hasn’t worked.

Arnold Schwarzenegger
Arnold Schwarzenegger

Supporters of Proposition 8 this month conjured up the ghost of Ronald Reagan to defend the voter-approved state constitutional amendment banning same-sex marriage. But, so far, it hasn’t worked.

The Pacific Justice Institute, a conservative legal group, failed September 1 to get a California appeals court to force current Governor Arnold Schwarzenegger and Attorney General Jerry Brown to sponsor an appeal of the federal district court decision that struck down California’s same-sex marriage ban.

The 3rd Appellate District of California summarily dismissed the lawsuit, Beckley v. Schwarzenegger, without comment. The Pacific Justice Institute (PJI) appealed this decision to the California Supreme Court this week.

Brown and Schwarzenegger have until September 11 to enter a state-sponsored appeal in the 9th Circuit U.S. Court of Appeals of the landmark Perry v. Schwarzenegger decision. Brown has made clear he would not defend the law.

In response to U.S. District Court Judge Vaughn Walker’s decision in Perry, Schwarzenegger issued a statement saying the “decision affirms the full legal protections and safeguards I believe everyone deserves.” Two days later, he issued another statement, urging the judge not to delay enforcement of the decision, saying his administration “believes the public interest is best served by permitting the Court’s judgment to go into effect, thereby restoring the right of same-sex couples to marry in California.”

“Doing so is consistent with California’s long history of treating all people and their relationships with equal dignity and respect,” said the statement.

But Schwarzenegger has twice vetoed bills from the legislature that sought to allow marriage licenses for same-sex couples, and the Republican Caucus of the California Assembly sent a letter to him August 31, pressuring him to defend Proposition 8.

“The importance of this court case to millions of Californians and indeed to countless other Americans cannot be overstated,” stated the letter. The legislators, like the PJI, argued that the governor’s failure to appeal the decision would jeopardize the “rule of law.”

PJI put it much more dramatically, saying that, by refusing to defend Proposition 8 in court, Attorney General Jerry Brown is creating a “dictatorial precedent whereby he could simply refuse to defend a law in court for which he does not agree.” This, said the PJI, would make the attorney general “more powerful than the legislature, the governor, and the people.”

“We are witnessing what is essentially a coup,” said PJI.

In his brief, PJI attorney Kevin Snider included an affidavit from former U.S. Attorney General Edwin Meese stating, under oath, “Governor Reagan understood it to be his sworn duty to defend all laws and constitutional provisions of the State of California.” He also said Reagan, as governor, “never refused or declined to defend a state law or state constitutional provision, regardless of his own opposition or dislike for a challenged provision.”

The claim may not be untrue, but it ignores the well-known fact that Reagan opposed the 1978 Briggs Initiative that sought to ban gay people from teaching in public schools. And it ignores the irony that Reagan appointed Walker to his federal bench seat at Meese’s recommendation, according to the conservative Cato Institute.

And it ignores the reality that Governor Ronald Reagan criticized the California initiative process when voters rejected a proposition to reduce state income taxes. In an op-ed piece for the National Review in 1973, Reagan sounded very much like marriage equality supporters in 2008. He said opponents of the initiative to reduce taxes had waged a “campaign of distortion and falsehood” against the measure and that many people who voted “no” were “confused by the TV blitz and newspaper advertising campaign staged by the opposition.”

“It was a victory for political demagoguery,” wrote Reagan, “a triumph for the unsubstantiated charge that sounds convincing in a thirty-second television commercial but which does more to confuse than inform.”

Most political observers seem to think there is very little chance Governor Schwarzenegger will involve his administration in the 9th Circuit appeal of Walker’s decision on Proposition 8. The Sacramento Bee newspaper quoted a spokesman for the governor, Aaron McLear, as saying—in response to the Republican caucus letter—that the governor “”has been and will remain neutral in this case.”

Meanwhile, the Yes on 8 coalition’s appeal brief to the 9th Circuit is due September 17. A three-judge panel will hear the appeal—nd the question of whether Yes on 8 has standing to bring the appeal—during the week of December 6.

9th Circuit extends stay, expedites appeal

A three-judge panel of the 9th Circuit U.S. Court of Appeals issued an order granting Yes on 8’s request for a stay of Judge Vaughn Walker’s ruling that Proposition 8 is unconstitutional.

scalesA three-judge panel of the 9th Circuit U.S. Court of Appeals issued an order Monday, granting Yes on 8’s request for a stay of Judge Vaughn Walker’s ruling that Proposition 8 is unconstitutional. It also ordered, without being asked, that Yes on 8’s appeal of the Perry v. Schwarzenegger ruling be addressed by the court on an expedited basis.

The panel said it would hear arguments on appeal during the week of December 6, as well as arguments concerning whether Yes on 8 has legal standing to press the appeal.

The two-page order is a disappointment to many same-sex couples in California who were hoping that they would be able to obtain marriage licenses as soon as Judge Walker’s stay expired—at 5 p.m. Pacific time on Wednesday.

“We are very gratified that the Ninth Circuit has recognized the importance and pressing nature of this case and the need to resolve it as quickly as possible by issuing this extremely expedited briefing schedule,” said Ted Olson, one of the lead attorneys for plaintiffs challenging Proposition 8.

Olson, one of the most prominent conservative attorneys in the country, launched the high-profile challenge of California’s voter-approved constitutional ban on same-sex marriage with liberal attorney icon David Boies. Walker, chief judge of the U.S. District Court for Northern California (San Francisco), heard three weeks of testimony by the plaintiffs and Proposition 8 supporters in January.

In a dramatic 136-page ruling on August 4, Walker declared the same-sex marriage ban in the state constitution violates the U.S. Constitution’s guarantees of equal protection and due process. Walker agreed to stay—or delay enforcement—of his decision until August 18, giving the 9th Circuit time to decide whether to grant a more extended appeal.

Evan Wolfson, who was a lead attorney on the first same-sex marriage case—in Hawaii in 1996—called the 9th Circuit panel’s decision to continue Walker’s stay “disappointing.”

“But there are many twists in the road to justice,” said Wolfson, “and we are encouraged by the court’s setting a fast pace for the appeal, revealing that the judges understand how important a quick end to the exclusion from marriage is to gay couples, their loved ones, and all Americans who believe in equality under the law.

“The 9th Circuit panel includes two Clinton appointees—Judge Sidney Thomas and Michael Hawkins—and Reagan appointee, Edward Leavey.

The panel set September 17 as the date Yes on 8’s initial argument brief is due.

The response brief from the Ted Olson-David Boies legal team challenging Proposition 8 is due October 18. And Yes on 8 may reply to plaintiffs’ brief by November 1.

Today’s order means the same-sex marriage ban will stay intact for at least until December, when the 9th Circuit will hear arguments on both the issue of Yes on 8’s standing to appeal and, perhaps, on the merits of Walker’s decision.

Meanwhile, on the east coast, where U.S. District Court Judge Joseph Tauro ruled—in two separate cases—July 9 that the ban on federal benefits to same-sex couples—part of the Defense of Marriage Act—is unconstitutional, the clock is still ticking down the 60 days the U.S. Department of Justice has to appeal the decisions to the 1st Circuit U.S. Court of Appeals.

Judge gives six more days on delay for Prop 8 appeal

There were cheers outside San Francisco City Hall as news emerged that Judge Vaughn Walker had denied a request to delay enforcement of his ruling against Proposition 8. But those cheers were mitigated when details of the judge’s order were revealed: Walker continued to delay enforcement of his decision until August 18.

Judge Vaughn Walker
Judge Vaughn Walker

There were cheers outside San Francisco City Hall at 12:24 Pacific time Thursday afternoon as news emerged that U.S. District Court Judge Vaughn Walker had denied a request to delay enforcement of his ruling against Proposition 8. But those cheers were mitigated a few minutes later when details of the judge’s order were revealed: Walker continued to delay enforcement of his decision until August 18, giving the Yes on 8 supporters of the measure ample time to seek a stay from the 9th Circuit or even the U.S. Supreme Court, if necessary.

The order essentially “split the baby”—giving both sides of the same-sex marriage lawsuit something. Attorneys challenging the anti-gay marriage constitutional amendment wanted Walker to deny the stay and bar the government from enforcing Proposition 8 immediately. Attorneys defending Proposition 8 wanted Walker to grant an extended stay until the 9th Circuit U.S. Court of Appeals could rule on the merits of the case.

Many same-sex couples—who had gathered outside San Francisco city hall and elsewhere around the state since before dawn—attempted to apply for marriage licenses following news of Walker’s order, but news reports from CBS and others indicated that city officials were not yet processing the applications, saying they had not yet received Walker’s ruling.

Parties interested in Proposition 8, which was passed by voters in November 2008, have been waiting since August 4, when Walker issued his ruling that the voter-passed amendment to the state constitution violated the federal constitution’s guarantees of equal protection and due process. Immediately after issuing that ruling, Walker granted a request for a temporary stay—meaning he would not officially “enter” his judgment in Perry v. Schwarzenegger until he had a chance to consider the request for an extended stay.

Many observers believed Walker would issue an extended stay pending a 9th Circuit ruling in the case. But last week’s decision by California Governor Arnold Schwarzenegger and Attorney General Jerry Brown to oppose a stay was seen by many as tipping the balance in favor of denying the extended stay.

Judge Walker’s decision on the merits of the case and on whether to limit the stay until August 18 are likely to be the final words. Attorneys for Yes on 8 have already begun the process of appealing the merits of the decision; they are likely today to appeal Walker’s ruling concerning a stay.

Prop 8 update – a triple waiting game

The waiting game around the Proposition 8 challenge in a federal court in San Francisco grows curiouser and curiouser.

U.S. District Court Judge Vaughn Walker has issued his decision in the case. Now, people interested in the case are waiting again—this time, for Judge Walker’s decision on whether to approve a permanent “stay” until the 9th Circuit U.S. Court of Appeals can weigh in on the merits of the case.

Jon Davidson
Jon Davidson

The waiting game around the Proposition 8 challenge in a federal court in San Francisco grows curiouser and curiouser.

U.S. District Court Judge Vaughn Walker has issued his decision in the case. On August 4, he said the voter-approved amendment to the state constitution that barred same-sex marriages in California is unconstitutional. He said it violates the federal constitution’s guarantees of equal protection and due process. He also issued a temporary “stay”—or delay of the enforcement of his decision.

Now, people interested in the case are waiting again—this time, for Judge Walker’s decision on whether to approve a permanent “stay” until the 9th Circuit U.S. Court of Appeals can weigh in on the merits of the case.

That decision—on whether to extend the stay on when to make his ruling enforceable—could come any day now. Some thought it might come as early as Friday, when briefs were due from attorneys challenging Proposition 8. Those attorneys—from the Ted Olson-David Boies legal team and the city of San Francisco—did not support a stay.

But the bigger surprise Friday was that California Governor Arnold Schwarzenegger and state Attorney General Jerry Brown also opposed the stay. Schwarzenegger had twice vetoed bills from the legislature that sought to allow marriage licenses for same-sex couples. As governor, he and the attorney general are, technically speaking, the defenders of the state constitution, including Proposition 8. In court, they were identified as the defendants.

In the Perry v. Schwarzenegger lawsuit, however, the state declined to defend Proposition 8. And in the governor’s brief concerning the stay, his attorneys say there is no burden on the state to implement Walker’s ruling now and that “implementing the Court’s order now, without further delay, serves the public interest.” A briefer document from Attorney General Brown essentially agrees.

If Walker denies the request for the extended stay, then same-sex couples can begin seeking marriage licenses again in California—at least until a higher court reverses Walker’s ruling—something that may or may not happen.

Jon Davidson, legal director for Lambda Legal Defense and Education Fund, told reporter Karen Ocamb (at LGBTPOV.com) that Schwarzenegger and Brown’s filings opposing a stay “have dramatically changed the likelihood” that Walker will grant the stay.

“This is an unusual situation,” said Davidson, because the state, which Walker’s ruling orders to stop enforcing Proposition 8, has asked Walker to deny the stay.

More importantly, noted Davidson, the Olson-Boies team and San Francisco argue that Yes on 8 may have no right to appeal Walker’s ruling.

When the California government declined to defend Proposition 8, Yes on 8, the coalition that campaigned for the amendment, took over that role. Yes on 8 was identified in court as “defendant-intervenor” and “proponents.”

Because the government-defendants, California’s government, are apparently not going to appeal Walker’s decision, said Davidson, “there will be a legal question of whether, when those who are ordered to do something don’t appeal, someone not ordered to do anything has any right to appeal.”

“To understand this,” Davidson told Ocamb, “one has to appreciate a few things about federal courts.”

“Federal courts can only hear cases where there is what’s called a ‘case or controversy’,” explained Davidson. So, to have an appeal heard, the party that requests the appeal must show that it has a “direct stake in the outcome” of the appeal decision. And, said Davidson, it must also show that it has been “injured” by the lower court ruling in a “concrete manner that is particularized to that party and different from citizens at large who may not like the judge’s ruling.”

In a case involving Arizona’s constitutional amendment declaring English the ‘official language’ of the state, noted Davidson, the U.S. Supreme Court said it had “grave doubts” about whether proponents of that ballot initiative could appeal lower court decisions that found the initiative unconstitutional. The Arizona government did not appeal. In that case, Arizonans for Official English v. Arizona, the Supreme Court, in 1997, decided the case on other grounds, “but its comments,” said Davidson, “strongly indicate that the proponents may have no right to appeal if the other defendants do not.”

“A definitive ruling on whether the proponents have a right to appeal if the defendants do not,” said Davidson, “is not likely to be made in connection with” the ruling about the Proposition 8 stay. But, he said, “Judge Walker or a higher court may comment on the issue” and “…if [Yes on 8 has] no right to appeal, they obviously can’t show they likely would prevail on an appeal.”

So, if the California government—the defendants—do not appeal Walker’s ruling on the merits of the case within 30 days from the day the judge actually “enters” his judgment in the case (which has not yet happened), “then the plaintiffs and San Francisco could file a motion to dismiss the appeal that has already been filed by [Yes on 8] on the ground that the proponents have no right to appeal.”

Therefore, three issues are now in waiting: whether Walker will issue a more extended stay, whether the government will file an appeal on the merits, and whether the 9th Circuit will take the appeal filed by Yes on 8.

If the 9th Circuit does take Yes on 8’s appeal, it will first be heard by a three-judge panel and then, almost certainly, by the 9th Circuit sitting en banc. While, in some circuits, sitting en banc means every judge of the circuit hears the case, in the 9th’s unusually large circuit, said Davidson, it means “a panel of 11 randomly assigned” judges.

If the 9th Circuit refused to hear an appeal from Yes on 8, the group could appeal to the U.S. Supreme Court. The group, said Davidson, “could ask the Supreme Court to decide whether they have a right to appeal. ”

“If the Supreme Court declines to hear that,” said Davidson, “the case is over. If the Supreme Court agrees to consider the question, it could decide that [Yes on 8 has] no right to appeal and, again, the case would be over.”

But if the Supreme Court said Yes on 8 does have a right to appeal, said Davidson, it would “likely” send the case back to the 9th Circuit for three judges to rule on the merits of the appeal, “resulting in a delay of the final determination of the validity of Prop 8 for some time.”

Davidson said that, even if Walker does deny Yes on 8’s request for a stay, he could extend his temporary stay for a brief period of time (a week or so) in order to give the proponents time to ask for a stay from the Ninth Circuit while there’s a temporary stay in place.

“The Ninth Circuit would then apply the same test as Judge Walker did in deciding whether or not to issue a stay of Judge Walker’s order pending the appeal,” said Davidson. “If they deny a stay as well, the proponents could ask Supreme Court Justice Anthony Kennedy (who reviews such matters arising out of the Ninth Circuit) to issue a stay pending the appeal. If he also denies a stay, the proponents could seek a stay from the full Supreme Court.”

Meanwhile, at least a couple of dates are penciled in. The 9th Circuit has given Yes on 8 until November 12 to file its appeal brief, and given the plaintiffs until December 13 to file their response. Davidson said Yes on 8 would then have until January 12 to file any brief in response to plaintiffs.

Any oral argument of the appeal, said Davidson, would “not likely” happen until late 2011.

“It is not unusual for it to take more than a year from the date of argument until the appeal is decided by the Ninth Circuit,” said Davidson. “Once the case is decided, the losing party can seek review” en banc, and “that could add another year or more before the case is even in a position for a party to seek Supreme Court review.”

“Thus, if the appeal is not dismissed, it is possible that a request to the Supreme Court to hear the case might not even have been made by the time of the November 2012 elections,” said Davidson. “If an effort to repeal Prop 8 is made that year and succeeds, it could ‘moot’ the case (meaning that there would no longer be any “live” dispute because Prop 8 would no longer be in effect) and the appeal could be dismissed for that reason.

Walker: Same-sex marriage ban is ‘an artifact’ of the past

In an historic, potent, and eloquent decision, U.S. District Court Judge Vaughn Walker ruled Wednesday, August 4, that California’s constitutional amendment banning same-sex marriage violates the federal constitution’s guarantees to equal protection and due process of law.

Judge Vaughn Walker
Judge Vaughn Walker

In an historic, potent, and eloquent decision, U.S. District Court Judge Vaughn Walker ruled Wednesday, August 4, that California’s constitutional amendment banning same-sex marriage violates the federal constitution’s guarantees to equal protection and due process of law. The opinion represents the first major victory for legal challenges against state bans on same-sex marriage in any federal court.

“Race and gender restrictions shaped marriage during eras of race and gender inequality,” wrote Walker, in his 136-page opinion, “but such restrictions were never part of the historical core of the institution of marriage. Today, gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. Gender no longer forms an essential part of marriage; marriage under law is a union of equals.”

“[T]he exclusion [of same-sex couples from marriage] exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage,” wrote Walker. “That time has passed.”

A few minutes after issuing the decision, Walker also approved a temporary stay of its impact and gave attorneys challenging Proposition 8 until August 6 to submit their reasons for opposing the continuation of the stay until a federal appeals court can weigh in on the case.

The decision in Perry v. Schwarzenegger, which has been much anticipated by both sides of the same-sex marriage debate, says supporters of the November 2008 ballot measure failed to establish any rational reason for prohibiting same-sex couples from having marriage licenses.

Judge Walker, an appointee of Republican President George H.W. Bush, said Proposition 8, because it burdens the fundamental right to marry, must pass the most difficult judicial standard—known as strict scrutiny. But he said the law failed to pass even the simplest standard—that of identifying at least one rational reason for treating a group of people differently.

“Even if California had an interest in preferring opposite-sex parents to same-sex parents,” wrote Walker, “…Proposition 8 is not rationally related to that interest, because Proposition 8 does not affect who can or should become a parent under California law.”

Shannon Minter, legal director for the National Center for Lesbian Rights, called the decision “a tour de force—a grand slam on every count.”

“The court held that Prop 8 violates the fundamental right to marry and discriminates on the basis of both sex and sexual orientation in violation of the equal protection clause.”

“The court,” said Minter, “held that laws that discriminate based on sexual orientation must be subject to the highest level of constitutional review, but that Prop 8 would fail even the lowest test, because it is based solely on moral disapproval of gay people.”

“This is without a doubt a game-changing ruling,” said Minter. “Today’s decision is the most comprehensive, detailed decision addressing the constitutional rights of same-sex couples to affirmative recognition and support ever to be issued by a federal court.”

Longtime lesbian legal activist and law professor Nan Hunter was somewhat more reserved in her reaction.

“It’s a thorough analysis and a comprehensive review of the factual and quasi-factual bases for each side’s arguments in the marriage debates,” said Hunter.

“Is it a watershed, either legally or culturally?” asked Hunter in her blog Hunter of Justice. “Too soon to know.”

Two other lawsuits challenged state bans on same-sex marriage in federal courts but both were dismissed and were not appealed.

Two federal cases challenging part of the federal Defense of Marriage Act (DOMA) won critical district court victories just last month in Boston and both are expected to be appealed to the 1st Circuit U.S. Court of Appeals. Perry and these two cases are expected to eventually reach the U.S. Supreme Court and are on track to arrive at approximately the same time.

There is little doubt that Judge Walker was keenly aware of how important his decision would be, and he seemed to make a concerted effort, during trial, to allow supporters of Proposition 8 to enter whatever evidence they could to defend the law. The State of California declined to defend the law, so the group that campaigned for the initiative—Yes on 8—hired a legal team to do so. But that legal team relied primarily on “legal conclusions and cross-examinations of some of plaintiffs’ witnesses,” noted Walker, “eschewing all but a rather limited factual presentation.”

“At trial,” said Walker, Yes on 8 attorneys, led by conservative Charles Cooper, “presented only one witness, David Blankenhorn, to address the government interest in marriage.” Walker said Blankenhorn’s testimony “provided no credible evidence to support any of the claimed adverse effects” of allowing same-sex couples to obtain marriage licenses.

Walker said, “California has no interest in differentiating between same-sex and opposite-sex unions” and that “domestic partnerships lack the social meaning associated with marriage” and do not provide gays and lesbians with “a status equivalent to marriage….”

The absence of Proposition 8 does not require any religious group to recognize marriage for same-sex couples, but the existence of “Proposition 8 places the force of law behind stigmas against gays and lesbians.” “Proposition 8 singles out gays and lesbians and legitimates their unequal treatment,” said Walker. It “perpetuates the stereotype that gays and lesbians are incapable of forming long-term loving relationships and that gays and lesbians are not good parents.”

Walker agreed that gays and lesbians have “been the victims of a long history of discrimination” and that “no credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.” Those findings are important to establishing a requirement that Proposition 8 be able to withstand a strict judicial scrutiny.

Walker ruled that Proposition 8 violates both the due process and equal protection clauses of the U.S. Constitution’s 14th amendment. The 14th amendment states, among other things, that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

When governmental law burdens a fundamental right, such as marriage, said Walker, the law must withstand strict scrutiny. And Proposition 8, he said, could not withstand even the simplest judicial review—rational basis.

“The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household,” wrote Walker. While an “initiative measure adopted by the voters deserves great respect,” said Walker, the voters’ determinations “must find at least some support in evidence.”

“Conjecture, speculation and fears are not enough,” wrote Walker. “Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view.” The evidence presented at trial, he said, “demonstrated beyond serious reckoning that Proposition 8 finds support only in such disapproval.”

The U.S. Supreme Court, in Romer v. Evans, ruled in 1996 that animus against any particular group could not be used to justify a law that disadvantages that group.

Yes on 8 attorneys, apparently anticipating a loss at the district court level, filed a motion with Judge Walker on Tuesday night, asking that, if the court rules against them, to issue a stay of the impact of his decision pending their expected appeal to the 9th Circuit U.S. Court of Appeals. Attorneys for the two gay couples challenging Proposition 8—Kristin Perry and Sandra Stier and Paul Katami and Jeff Zarrillo—submitted a letter, prior to release of the decision, saying the request was premature.

Judge Walker, in approving a stay of the impact of his decision, gave plaintiffs’ attorneys until August 6 to file their formal response to the request for a stay, pending a decision from the 9th Circuit. He did not schedule an in-court proceeding to hear arguments concerning the stay but simply said that the temporary stay would remain in effect until he rules on the request.

Meanwhile, pre-planned rallies to celebrate—or protest—Wednesday’s ruling were scheduled to take place in major cities across the country Wednesday evening, even before the decision was released. Rallies were planned in a number of major cities around the country following release of the decision –including Atlanta, Boston, Dallas, West Hollywood, and San Diego.

The Perry decision comes less than two months after Walker heard closing arguments in the case, but six months after the close of testimony in a three-week-long trial in the U.S. District Court of Northern California in San Francisco.

The legal team challenging Proposition 8 was led by two of the country’s most prominent and respected attorneys—conservative Ted Olson and liberal David Boies. The challenge was organized and funded by the newly formed Americans Foundation for Equal Rights, headed by Democratic activist Chad Griffin.

Griffin organized the challenge shortly after California voters, in November 2008, approved Proposition 8, amending the state constitution to bar recognition of same-sex marriage. The California Supreme Court had ruled, only six months earlier, that the state constitution required same-sex couples be treated the same as heterosexual couples in state marriage licensing. More than 18,000 same-sex couples obtained marriage licenses before Proposition 8 became law and those marriages are considered valid. Opponents of the new amendment challenged it in state court but the California Supreme Court ruled that the measure was valid. It also ruled that the 18,000 marriage licenses would also remain valid.

The case drew widespread national attention, not only because of the high profile legal team and the irony of such a conservative icon as Olson leading the case, but also because national gay legal and political groups were initially hostile to the effort. The groups said they felt a lawsuit taking the issue of same-sex marriage to the U.S. Supreme Court was too risky, given the likelihood the case would reach the high court at a time when the court is considered to increasingly conservative.

Lambda Legal Defense and Education Fund, the National Center for Lesbian Rights, and the ACLU were also denied the right to serve as a party to the case –a development that caused considerable chagrin within the LGBT community. But the groups did contribute to the litigation, providing advice on expert witnesses that delivered a wealth of ammunition against the ballot measure. All three groups filed briefs in support of the plaintiffs. And all three, of course, applauded the result of Wednesday’s decision.

Jenny Pizer, head of Lambda’s National Marriage Project, said Judge Walker’s decision was “historic,” and applauded his “methodical assessment of the evidence presented at trial.” She predicted the decision would have “immense positive implications as the case advances, and in the national struggle for full LGBT equality.”

“The right-wing excuses for denying same-sex couples the right to marry have had an all-too-familiar and ugly ring, echoing the defamatory stereotypes used against us in past decades to deny jobs and other basic rights. Today’s decision,” said Pizer, “examines and explodes each of these lies about us, yielding yet another important legal ruling justly concluding that constitutional guarantees of liberty and equality must require equal treatment under a state’s marriage laws.”

“Judge Walker’s ruling,” said NCLR Executive Director Kate Kendell, “is complete vindication for the most bedrock principles this nation is built on: a majority cannot strip a minority of fundamental rights, we do not permit bare prejudice or even discomfort to provide the basis for sweeping and damaging discrimination, and protecting loving families and couples is the humane and just thing to do. Prop 8 was a major stain on the kind of nation we strive to be, good riddance.”

James Esseks, director of the ACLU’s Lesbian, Gay, Bisexual and Transgender Project, called the decision “a huge victory for LGBT people of America.”

“For the first time, a federal court has conducted a trial and found that there is absolutely no reason to deny same-sex couples the fairness and dignity of marriage,” said Esseks, in a statement released Wednesday. “At the same time, we know that this is not the end.”

The end, of course, could be an eventual U.S. Supreme Court decision—something that is not necessarily guaranteed. Thousands of cases are petitioned to the high court every year, but the court hears only a tiny fraction. The likelihood the court would take an appeal on this case—once the 9th Circuit appeals court has weighed in—is probably enhanced by the high profile, wide-spread fight over same-sex marriage bans nationally and by the involvement of such a high-profile and well-respected legal team as Olson and Boies. But it may also be diminished, depending on whatever the 9th Circuit says. Ultimately, at least four justices must ask to hear the case before the Supreme Court will take it for review.

Meanwhile, the expected confirmation of Solicitor General Elena Kagan to the Supreme Court is not likely to change the conservative lean of the current court, given that she replaces one of the court’s most liberal justices, John Paul Stevens.

PROP 8 DECISION: Big victory, but stayed

U.S. District Court Judge Vaughn Walker ruled Wednesday that California’s ballot measure banning same-sex marriage violates the federal constitution’s guarantees to equal protection and due process of law.

Judge Vaughn Walker
Judge Vaughn Walker

U.S. District Court Judge Vaughn Walker ruled Wednesday that California’s ballot measure banning same-sex marriage violates the federal constitution’s guarantees to equal protection and due process of law. A few minutes after issuing the decision, Walker also issued a temporary stay of its impact and directed attorneys challenging the initiative to respond to request by August 6.

The 136-page decision, which has been much anticipated by both sides of the same-sex marriage debate, says supporters of Proposition 8 failed to establish any rational or legitimate reason for prohibiting same-sex couples from having marriage licenses.

Judge Walker, an appointee of Republican President George H.W. Bush, applied simple rational basis review in making his decision. He said that, “Even if California had an interest in preferring opposite-sex parents to same-sex parents …Proposition 8 is not rationally related to that interest, because Proposition 8 does not affect who can or should become a parent under California law.”

“This is a tour de force—a grand slam on every count,” said Shannon Minter, an attorney with the National Center for Lesbian Rights. “The court held that Prop 8 violates the fundamental right to marry and discriminates on the basis of both sex and sexual orientation in violation of the equal protection clause.”

“The court,” said Minter, “held that laws that discriminate based on sexual orientation must be subject to the highest level of constitutional review, but that Prop 8 would fail even the lowest test, because it is based solely on moral disapproval of gay people. The court made detailed findings of fact about all of the evidence presented and the credibility of the witnesses.

“This is without a doubt a game-changing ruling,” said Minter. “Today’s decision is the most comprehensive, detailed decision addressing the constitutional rights of same-sex couples to affirmative recognition and support ever to be issued by a federal court.”

The opinion represents the first major victory for legal challenges against state bans on same-sex marriage in federal court. Two other state-related cases in federal courts have been dismissed. Two federal cases challenging part of the federal Defense of Marriage Act (DOMA) won a critical district court victory last month in Boston and are expected to be appealed to the 1st Circuit U.S. Court of Appeals. All three of these cases are expected to eventually reach the U.S. Supreme Court and are on track to arrive at approximately the same time.

Yes on 8 attorneys filed a motion with Judge Walker on Tuesday night, asking that, if the court rules against them, to issue a stay of the impact of his decision pending their expected appeal to the 9th Circuit U.S. Court of Appeals. Walker, thus far, has not responded to that request.

Meanwhile, pre-planned rallies to celebrate—or protest—Wednesday’s ruling are scheduled to take place in major cities across the country Wednesday evening. Rallies are planned in a number of major cities around the country following release of the decision—including New York (7 p.m. NYC Supreme Court), Boston (6 p.m. Copley Square), West Hollywood (6 p.m. West Hollywood Park), Dallas (6 p.m. at Legacy of Love Monument), Atlanta (7 p.m. 10th and Piedmont) and San Diego (6 p.m. LGBT Community Center).

Walker heard testimony for three weeks in January and closing arguments in June. The legal team challenging Proposition 8 was led by two of the country’s most prominent and respected attorneys—conservative Ted Olson and liberal David Boies. The challenge was organized and funded by the newly formed Americans Foundation for Equal Rights, headed by Democratic activist Chad Griffin.

Conservative attorney Ted Olson, who along with liberal attorney David Boies, led the challenge against Proposition 8, is holding a press conference in San Francisco now.

Kagan debated in full Senate, vote Thursday

Senator Jon Kyl, a Republican from Arizona, said he would oppose Elena Kagan’s appointment to the U.S. Supreme Court because she has “a history of ignoring the law when it conflicts with the gay rights agenda.”

Elena Kagan
Elena Kagan

Senator Jon Kyl, a Republican from Arizona, said he would oppose Elena Kagan’s appointment to the U.S. Supreme Court because she has “a history of ignoring the law when it conflicts with the gay rights agenda.”

Senator George LeMieux, a Republican from Florida, said he thinks Kagan set up a “separate but equal” scenario for military recruiters at Harvard Law School while she was dean there, “but it wasn’t equal.”

And, in an emotional rant, Senator Jeff Sessions, a Republican from Alabama, said Kagan’s actions with regard to military recruiters at “obstructed the mission” of military officers during a time of two wars.

The complaints were a little harsher than those aired during the Senate Judiciary Committee’s confirmation hearing for Kagan in June, but held no surprises. The only surprise of the Senate’s first day of debate on the Kagan nomination was an announcement by Senate Majority Leader Harry Reid –at about 5:50 Eastern Daylight Time—that he was filing a motion to force the nomination to a vote within 36 hours. Such motions are generally used only when a senator has threatened to filibuster a nomination.

Sessions said he was hurt and “a bit uneasy” about the move and that he hadn’t suggested any effort to block a vote.

Reid acknowledged that “no one on the Republican side has even suggested a filibuster,” but he said he wanted to take the action as a precautionary measure to prevent the business of the Senate from being hijacked by a “renegade senator” who might try to hold up the nomination in return from some concession.

Senate Minority Leader Mitch McConnell said the cloture motion was “completely unnecessary.”

“I can’t imagine what incentive anyone would have to create the scenario the Majority Leader is concerned about,” said McConnell. Reid said that, based on Sessions and McConnell’s remarks, he would withhold filing the motion for now.

Reid promised he would let any senator speak who wanted to on the nomination, and more than 20 did so on Tuesday.

Democrats, with one exception, said Kagan has an in-depth understanding of the law and that her judicial views are well within the mainstream. Republicans said she lacks judicial experience and is a liberal activist with a pro-gay, pro-abortion, anti-gun agenda to push.

Reprising comments he made during Kagan’s confirmation hearing, Sessions painted Kagan as an “activist, liberal, progressive, politically-minded judge” who will “advance her causes under the guise of judging.”

He railed at length against her opposition to the federal “Don’t Ask, Don’t Tell” law while serving as dean of Harvard Law School, saying her actions “discriminated” against the military.

Kagan said, during her confirmation hearing, that the limitations she put on the military did not compromise their ability to recruit on campus and that she had a responsibility to defend the school’s policy barring discrimination based on sexual orientation. But Sessions brushed that off as “silly activities.”

He noted that Kagan, as Solicitor General, again undermined the DADT law by “failing” to appeal a preliminary decision in favor of a lesbian challenging the law. He said that decision, in and of itself, was reason to disqualify Kagan for a position on the Supreme Court.

The case in question was Margaret Witt v. Air Force, in which a highly decorated military nurse was discharged under DADT. In a lawsuit led by the ACLU, Witt won a preliminary court victory in 2008 when the 9th Circuit U.S. Court of Appeals ruled she had a right to a trial. Kagan recommended the federal government not appeal that preliminary victory to the U.S. Supreme Court but to wait for the trial and its appeal to be completed.

During her confirmation hearing, Kagan said her decision was based on an assessment that the DADT law would be better defended once a complete record of facts was established through trial. But Sessions contended that Kagan decided not to appeal the decision because she and the Obama administration “expected the Supreme Court would affirm the law.”

“She was punishing the military, really demeaning them,” said Sessions.

Senator Kyl also complained that Kagan did not appeal the Witt decision, saying “there was no reason to develop a fuller record or seek further clarification form the courts.” He said Kagan’s decision not to appeal ensured that members of the military would be “subjected to invasive and humiliating trials” in the Witt case and others and, in doing so, “destroy morale and unit cohesion.”

Kyl criticized Kagan for “double-speak” concerning same-sex marriage, contending that she “distorted” her answer as to whether she believes there’s a constitutional right to same-sex marriage.

Kyl said Kagan, as Solicitor General, did not mount a vigorous defense of the Defense of Marriage Act (DOMA) and, painting with a broad brush, complained that the Department of Justice “undercut the law’s constitutionality” in Smelt v. U.S., a case which has been dismissed. Kyl said the DOJ mounted only a “half-hearted” defense of DOMA in the Gill v. Office of Personnel Management case, recently won by the Gay & Lesbian Advocates & Defenders in a federal district court in Boston. Kyl said Kagan “admitted” to being involved in both cases but “refused” to identify specifically what role she played.

“We will likely never know what Miss Kagan’s advice was in these cases,” said Kyl. “What we do know is that Miss Kagan has a history of ignoring the law when it conflicts with the gay rights agenda.”

Only Democrat Ben Nelson of Nebraska indicated he would oppose Kagan’s nomination.

Senator Dianne Feinstein (D-Calif.) called Kagan a “wise” choice for the high court. A former mayor of San Francisco, Feinstein applauded Kagan’s willingness to bring conservatives to Harvard and praised her for defending DADT despite her personal objection to the law.

Senator Carl Levin (D-Mich.) disputed claims by some Republicans that Kagan’s actions around DADT demonstrated she was “anti-military.”

According to the Washington Post and other sources, five Republican senators have announced plans to vote for Kagan: Lindsey Graham of South Carolina, Olympia Snowe and Susan Collins of Maine, Judd Gregg of New Hampshire, and Richard Lugar of Indiana. The expected vote stands at 55 to 45.

Senate debate is expected to continue Wednesday, followed by a vote on the nomination Thursday.

Prop 8 loss: The parents weren’t all right

Proposition 8 passed in November 2008 because parents with kids living at home were scared and the LGBT community did nothing to assuage that fear.

David Fleischer
David Fleischer

Proposition 8 passed in November 2008 because parents with kids living at home were scared and the LGBT community did nothing to assuage that fear.

That’s the conclusion of an exhaustive, 448-page analysis of the vote on California’s Proposition 8, which passed by 52 percent to 48 percent—or barely 600,000 votes in an election in which 13.7 million votes were cast.

But those 500,000 of those 600,000 votes were ready to side with the LGBT community against Proposition 8 up until the last six weeks of the campaign. During those last six weeks, explained the report’s author, David Fleischer, the Yes on 8 campaign saturated the television airwaves with advertisements that borrowed from the 30-year-old Anita Bryant “Save the Children” campaign from 1977.

The advertisements—also used successfully in 2009 in Maine—told parents that the legalization of same-sex marriage would require public schools to teach children that same-sex marriage is a viable option for them. The No on 8 campaign failed to respond directly and quickly to that claim and, thus, lost the vote.

Fleischer’s analysis—“The Prop 8 Report: What Defeat in California Can Teach Us about Winning Future Ballot Measures on Same-sex Marriage,”—was released August 3 and drives home the point that “anti-gay forces know how to exploit and stimulate anti-gay prejudice, and the LGBT community has difficulty facing and responding to the attack.”

“Recycling a lie as old as Anita Bryant’s ‘Save the Children’ campaign in 1977,” said Fleischer, “the anti-gay Yes on 8 campaign whipped up fears about kids to move voters to its side.”

Fleischer rejected analyses proffered by other political observers who suggested that African American voters had been the deciding factor in the Proposition 8 vote. He also rejected a recent analysis by political scientist Patrick Egan, who said spending large amounts of money on ad campaigns has no impact because most voters’ minds on gay ballot measures are made up long before election day.

Instead, Fleischer lays the passage of Proposition 8 at the feet of “parents with children under eighteen living at home,” saying that about 500,000 such voters switched from No to Yes on 8 in the closing weeks. And he says the No on 8’s ad campaign could have made a difference if it had responded quickly and directly to the fears parlayed by the Yes on 8 ads.

The most effective Yes on 8 ads, said Fleischer, was one showing a little girl coming home and telling her mother that she had just learned in school that a prince can marry a prince and that she could marry a princess. The narrator then claimed that, “When Massachusetts legalized gay marriage, schools began teaching second-graders that boys can marry boys.”

“The courts ruled parents had no right to object,” said the narrator.

“The lesson of the Yes on 8 campaign,” said Fleischer, is that “when parents hear that their kids are in danger, even if it’s a lie, some of them believe it—particularly when the lie largely goes unanswered.”

“Those ads are fear-mongering directed at parents to make them think their children are in danger,” said Fleischer, during a conference call with reporters Tuesday. Fleischer noted that daily polling data showed that adults with no children at home did not show any change in their plans to vote against Proposition 8 once the so-called “Princes” ad started airing, but adults with children at home changed their plans—from voting against to voting for Proposition—in dramatic numbers.

The “Princes” ad was on the air by October 7, just a week after Yes on 8 had begun airing another TV ad in which San Francisco Mayor Gavin Newsom was shown telling a crowd that gay marriage is “going to happen—whether you like it or not.”

Prior to those ads going up, said Fleischer, polling showed a virtual tie on the Proposition 8 question.

“Yes on 8’s fear-mongering about children was particularly effective because No on 8 waited seventeen of the thirty days remaining until the election was over to directly respond,” said Fleischer.

“[W]hen an anti-LGBT campaign alleging indoctrination of kids unfolds on TV; and when that campaign is well-funded enough that the average voters sees ads exploiting anti-gay prejudice five or more times each week for four to five weeks; then the ads generate, awaken, reawaken, or reinforce a response among some voters that moves them to vote against the LGBT community,” wrote Fleischer in his report.

The report can be viewed in its entirety at Prop8Report.org.

Fleischer spent many years training openly gay candidates to run for elective office, as a part of the Gay & Lesbian Victory Fund and then the National Gay and Lesbian Task Force. He notes, in the report, that he has participated in more than 100 campaigns to “preempt, stop, delay, and overcome anti-LGBT ballot measures.”

His analysis examined more than 10,000 pages of data and related documents and included more than 40 hours of interviews with No on 8 officials. Fleischer also analyzed the use and penetration of every television ad aired by both the pro- and anti-gay campaigns in Proposition 8.

Fleischer says data shows that the initiative, approved by a margin of about 600,000 votes, secured 687,000 votes in the last six weeks of the campaign. More than 500,000 of these crucial last-minute shifters were parents with children under 18 living at home.

Parents, noted Fleischer, comprised about 30 percent of the 13.7 million voters in California in November 2008. While Yes on 8 initially had only a two-point lead over No on 8 in this 4 million-strong demographic group, it had a 24-point lead on election day.

“Overall, parents with kids under 18 at home began the campaign evenly divided on same-sex marriage,” said Fleischer, “but ended up against us by a lopsided margin.”

But they weren’t the only groups to shift away from a pro-gay position.

“Other groups that moved significantly in favor of the ban on same-sex marriage included white Democrats (by 24 points), voters in the greater Bay Area (31 points), voters age 30-39 (29 points), and Independent voters (26 points).”

Fleischer criticized the No on 8 campaign for delegating “too much of the thinking and therefore too much of the de facto decision-making” to consultants. And he said its message to voters was “vague, inconsistent, and too often de-gayed, reducing its power to persuade.”

No on 8 took too long to respond to the “Princes” ad, said Fleischer, because its decision-makers “did not choose to directly respond to the attack.” There had been a change in leadership in the No on 8 campaign just a week before “Princes” began airing, and the new decisions-makers also hired a new media firm to create their ads. But their failure to act quickly and directly was hardly anything new.

“The LGBT community has historically avoided responding directly to the issue of kids,” said Fleischer, “in part out of the belief that no response will defuse the issue, and in part out of a wish not to have to face this unfair, untrue defamation.” But that failure to respond, said Fleischer, amounts to a “decision not to defend LGBT people as trustworthy.”

Ballot measures over gay civil rights issues have been taking place throughout the United States since 1974, but pro-gay ballot campaigns didn’t even use the word “gay” until 2002 and didn’t use an openly gay spokesperson until 2004.

Although acknowledging that he had not studied Maine as thoroughly as California, Fleischer also criticized the No on 1 campaign that fought an initiative to repeal the state’s marriage equality law. He said the No on 1 campaign also avoided responding directly to the “kids are in danger” ads and even avoided using the word “gay” in all but one of their own ads. Rather than respond to the Yes on 1’s claim that marriage equality would put the kids of voters in danger, noted Fleischer, No on 1 talked about the need to protect gay kids and children with gay parents.

Post-election data from Maine’s campaign—which repealed its marriage equality law in 2009—suggested the parents’ concerns there were not that kids would experiment with being gay. Instead, said Fleischer, parents were concerned their kids would accept gay couples and that other kids would be raised by gay parents.

Fleischer strongly recommended that the LGBT community not return to the ballot box “until we are prepared to vitiate this [child-related fear-mongering] attack.” He also urges future campaigns to adopt a more modern approach to campaigning—one that calls for quick, direct, and forceful responses to attacks.

Fleischer’s analysis was not entirely critical of the No on 8 campaign. He credited the campaign with enlisting a “record-breaking” number of volunteers and dollars, and making “a series of smart choices that maximized the number of dollars raised and volunteers involved.”

Kate Kendell, one of the best known No on 8 leaders, said of Fleischer’s report, “I think we need to learn all we can about how to win these campaigns and we need to digest all the info we get to do that.”

Meanwhile, Equality California, which was a key component of the No on 8 campaign in 2008, issued a press release July 20 indicating it plans to organize for a ballot measure to repeal Proposition 8 in 2012.

Gay issues continue to dominate as Senate committee recommends Kagan’s nomination

Both “Don’t Ask, Don’t Tell” and same-sex marriage continued to be a prominent focus of the confirmation proceedings for Elena Kagan to the U.S. Supreme Court, as the Senate Judiciary Committee Tuesday recommended the confirmation.

Jeff Sessions
Jeff Sessions

Both “Don’t Ask, Don’t Tell” and same-sex marriage continued to be a prominent focus of the confirmation proceedings for Elena Kagan to the U.S. Supreme Court, as the Senate Judiciary Committee Tuesday recommended the confirmation.

The vote and debate in committee was—with one exception—strictly partisan—Democrats spoke in favor and Republicans against her nomination. The vote was 13 to 6.

Senator Charles Grassley (R-Iowa) said Kagan has “shown a strong commandment to far left ideological beliefs” and that “her liberal convictions, rather than the law, seemed to guide her recommendations.” Among his specific concerns, he said, were her actions that “actively defied federal law by banning military recruiters from campus while the nation was at war.”

Jon Kyl (R-Ariz.) criticized her for “evading” a question about whether she could find a constitutional right that would enable same-sex couples to obtain marriage licenses.

But Dianne Feinstein (D-Calif.) said Kagan would “clearly” move today’s conservative Supreme Court back toward the ideological center. And Richard Durbin (D-Ill.) said Kagan’s opposition to “Don’t Ask, Don’t Tell” (DADT) could not be construed as a statement against the military but, rather, a statement against DADT.

As he did during Kagan’s confirmation hearing, Jeff Sessions (R-Ala.), the ranking Republican on the Senate Judiciary Committee, led the attack against her Tuesday. He reiterated, at length, his deep concern over Kagan’s actions opposing DADT, the federal law banning openly gay people from the military.

He accused Kagan and Harvard of “playing games” with Air Force recruiters and having “stonewalled” their efforts to recruit attorneys from among students. He said her answers to questions about her opposition were either “inaccurate,” “not true,” or “intellectually dishonest.”

“The bottom line is this,” said Sessions, “when Miss Kagan chose to block military recruiting, the law was crystal clear. She knew she was defying the law.”

Sessions said he was even more disturbed by Kagan’s actions, as Solicitor General, in regards to a challenge of the DADT law in federal court. The case in question was Margaret Witt v. Air Force, in which a highly decorated military nurse was discharged, apparently after a third party told military officials she was gay. In 2008, Witt, represented by the ACLU, won a preliminary court victory when the 9th Circuit U.S. Court of Appeals ruled she had a right to a trial. Kagan recommended the federal government not appeal that preliminary victory to the U.S. Supreme Court but to wait instead for the trial and its appeal to be completed.

Sessions said this amounted to Kagan having “abdicated” her duty as Solicitor General by “refusing to effectively appeal the Witt decision.”

“The Witt decision,” said Sessions, “placed the Don’t Ask, Don’t Tell law—a law that she has stated repeatedly that she personally abhors— in serious jeopardy and has made it unworkable.”

During her confirmation hearing, Kagan had said that the Obama administration declined to appeal at that time in order to build a factual record that would demonstrate to the Supreme Court the burden the Witt ruling would place on the military, by requiring that each person discharged under DADT have a trial.

“The government would have to show in each particular case,” said Kagan, “that a particular separation caused the military harm, rather than view it in general across the statute.” Such individual inquiries, she said, “would disrupt military operations.”

Her response seemed to take the wind out of Sessions’ attack during the confirmation hearing, and he said he’d take another look at it. But on Tuesday, Sessions said her response “left a false impression that the government had to choose between appealing a decision then or later, after trial, but again that is not true.” Sessions said the government could appeal at both points “and should.”

“Her decision not to appeal pushed the government into a disruptive trial process with full knowledge that it would damage the military’s interest,” said Sessions. “She knew that letting [the preliminary ruling in Witt] stand would do damage to the ‘Don’t Ask, Don’t Tell’ law….Her personal policy objection [to DADT] played a role in this decision…[It was] a failure to do her duty.”

Senator Jon Kyl (R-Ariz.) and John Cronyn (R-Texas) also focused on Kagan’s actions around military recruiters while dean of Harvard Law School and her decision not to appeal the Witt case. On the latter, Kyl said there “was no need to develop a fuller record” in the Witt case. Cornyn reiterated his concern that Kagan’s opposition to recruiters on campus “stigmatized” the military.

Arlen Specter, the Republican-turned-Democrat member of the Committee, lamented the partisan nature of the vote on Kagan, saying it reflected the ideological split on the high court, as well.

The exception to the partisan line in Committee was Senator Lindsey Graham (R-S.C.), who voted to support the nominee. Graham supported the nomination of Sonia Sotomayor to the high court, as well, last year. He said Kagan’s challenge of the DADT law was a legitimate exercise of democracy and he said he does not believe Kagan to be anti-military.

Graham did not focus on any particular quality in Kagan that affected his vote and said he wouldn’t expect a nominee to say, in front of the committee, specifically how she would vote on same-sex marriage. But he was moved, he said, by the support of conservative former appeals court nominee Miguel Estrada for Kagan’s nomination.

Although a specific date for the Kagan nomination to reach the Senate floor has not yet been set, Senate Majority Leader Harry Reid has made clear he plans to take up the matter before the August 9 recess.

DADT trial opens to little notice

While most people who are concerned about eliminating the military’s Don’t Ask Don’t Tell law are focused on a bill in Congress and a survey by the Pentagon, there is important action elsewhere—in a federal district court in Riverside, California.

Daniel Woods
Daniel Woods

While most people who are concerned about eliminating the military’s Don’t Ask Don’t Tell law are focused on a bill in Congress and a survey by the Pentagon, there is important action elsewhere—in a federal district court in Riverside, California.

It is there, in the U.S. District Court for Central California, that Judge Virginia Phillips opened proceedings Tuesday, July 13, in a bench trial to hear a class action lawsuit against Don’t Ask, Don’t Tell (DADT).

Log Cabin Republicans v. U.S. is to the federal law banning gays from the military what Perry v. Schwarzenegger is to the state law banning gays from obtaining marriage licenses. It is a days long trial examining the history of the law, the injury it has caused, and the likelihood that animus is its motivation.

The plaintiff is the Log Cabin Republicans (LCR), a national gay political group, who says many of its members are being denied their constitutional rights. The group specifically identifies two members: Alexander Nicholson, a former U.S. Army Human Intelligence officer who was discharged under DADT and now serves as head of Servicemembers United; and John Doe, a lieutenant colonel in the Army Reserves concerned he may face discharge under the policy.

The U.S. Department of Justice has tried repeatedly to have the lawsuit dismissed, claiming LCR has no legal standing to serve as plaintiffs. It also tried to have the judge decide the case without hearing testimony from LCR’s witnesses. And it tried to have the judge “stay”—or postponement—the lawsuit, arguing that Congress has a measure pending that could significantly affect the DADT law.

But in an important victory July 6, Phillips ruled against the government on all three points. She said LCR was entitled to a trial and entitled to put on witnesses. She ruled that against a postponement, saying that it would be “speculative” to assert that the DADT repeal measure before Congress “will ultimately be included as part of the final defense authorization bill.” And, even if the DADT repeal is retained within the defense authorization bill, she said, repeal of the law is still conditioned on various certifications.

“In other words,” wrote Phillips, “the currently contemplated legislation, were it to become law, would not result in imminent repeal of the DADT Policy. Given the many contingencies involved—including the threshold contingency of Congressional approval—and the lack of clear timelines, any ultimate repeal that may result from this legislation is at this point remote, if not wholly speculative.”

Phillips also—importantly—ruled last year that DOJ must show –not just a rational reason to justify DADT but—an “important” reason. While a “rational” reason could be just about anything, requiring an important reason makes it harder for the federal government to defend the law.

Phillips’ pre-trial rulings have not all been in favor of Log Cabin. In one, she indicated she would not hear the group’s claim that DADT violates the equal protection guarantee.

The legal questions that remain during the trial this week are whether DADT violates the constitutional guarantees to free speech and due process of law. And the question of free speech is, in this case, limited. Judge Phillips said she would consider DADT’s implications on speech other than statements “regarding homosexuality as evidence of his or her propensity to engage in homosexual acts.”

Phillips, 52, was appointed to the federal bench in 1999 by President Clinton, who signed DADT into law in 1993. LCR filed its lawsuit against the policy in 2004.

On the witness stand today, according to LCR lead attorney Daniel Woods, were Terry Hamilton, chairman of the LCR national board; Jamie Ensley, president of the Georgia LCR chapter; Philip Bradley, LCR member; and Nathaniel Frank, author of a book about the military’s policy on gays, called Unfriendly Fire.

According to a prepared statement published on blogcabin.net, an LCR blog, Woods called DADT “one of the most pressing civil rights issues in our great country today.”

But interest in the case would not prove that point. Except for Twitter reports from The Advocate and an LGBTpov.com blog entry from Karen Ocamb, news editor for Frontiers in LA magazine, there was relatively little coverage of the case. And compared to the media frenzy around the Proposition 8 case in January, and its closing arguments in June, LCR v. US is proceeding in virtual obscurity.

A Twitter report from The Advocate indicated that, among general circulation media, only Associated Press and the Los Angeles Times had reporters in the courtroom Tuesday. But by the end of the day, the Los Angeles Times had run the Associated Press story, which provided few details about Tuesday’s courtroom proceedings. Neither of the two national organizations working for repeal of DADT had any mention of the lawsuit on their websites Tuesday, nor did any of the national gay legal or political organizations. Even Blogcabin.net ran only attorney Woods’ prepared opening statement.

What has captured considerable media attention concerning DADT during the past several days is a “survey” the Pentagon sent to about 400,000 active duty servicemembers asking such questions as, “If Don’t Ask, Don’t Tell is repealed and you are assigned to bathroom facilities with an open bay shower that someone you believe to be a gay or lesbian Service member also used, which are you most likely to do?” With this question, the survey gave servicemembers several possible answers to choose from, including “use the shower at a different time” and ask a leader for “other options.”

Servicemembers United, a national organization of gay and lesbian servicemembers, harshly criticized the survey as “biased” against gay servicemembers. Executive Director Nicholson said the survey used “derogatory and insulting wording, assumptions, and insinuations.”

The survey repeatedly uses the clinical one-dimensional term “homosexual,” and even misstates the law itself, saying that it requires separation from the service of a servicemember who “is found to have engaged in, or attempted to engage in, homosexual acts.” The law, in fact, calls for discharge of a servicemember who “demonstrates a propensity” to have sex with a person of the same gender, and a servicemember who simply says, “I am gay” is considered to have such a propensity.

In a telephone conference call with reporters Friday, July 9, Pentagon spokesman Geoff Morrell defend the survey, saying its purpose was not to be a referendum on DADT but “a confidential conversation” between the Pentagon DADT working group and “a large representative sample” of servicemembers.

And, in fact, one could “read” the survey as a tactic common among political surveys—providing to servicemembers some ideas about how to handle situations involving gay servicemembers. For instance, with the shower facility question, the six multiple response choices are: “Take no action,” “Discuss how we expect each other to behave and conduct ourselves while sharing a room, berth or field tent,” “Talk to a chaplain, mentor, or leader about how to handle the situation,” “Talk to a leader to see if I have other options,” “Something else,” and “Don’t know.” (If a servicemember chooses, “Something else,” the survey prompts him or her to “specify” what that is.)

But in clarifying the purpose of the questions about sharing bathroom and sleeping facilities, Morrell they were intended to determine whether the large scale group expressed the same concerns as did servicemembers participating in 30 focus group discussions on the topic. He said they would also direct the Pentagon’s efforts in being able to “devise a solution” to problems that are perceived to be widespread concerns.

“If we avoided these questions and proceeded with a repeal, and proceeded with an implementation that didn’t address this potential problem, we wouldn’t be doing our job,” said Morrell. “Because the [Defense] secretary’s attitude about this is he thinks this change should be made, but he’s insisting that it be done smartly.”

That latter statement from Morrell was the first time a Pentagon official confirmed that Defense Secretary Robert Gates is himself in favor of repealing DADT. Gates’ public statements, thus far, have been carefully worded to indicate “support” for the president’s decision to repeal DADT and have not stated explicit support for repeal of DADT.

(For a transcript of the telephone conference call, see www.defense.gov/transcripts/transcript.aspx?transcriptid=4651. For a copy of the complete survey, go to servicemembersunited.org/survey.)

Language seeking repeal of the policy—following a prescribed certification process—is embedded in the annual legislation to authorize spending by the Defense Department. The Senate is expected to take up the issue before it takes its summer recess on August 12.

Two giant blows against DOMA

In an enormous victory for same-sex marriage, a federal judge in Boston Thursday, July 8, ruled—in two separate lawsuits—that a critical part of the federal Defense of Marriage Act is unconstitutional.

Mary Bonauto
Mary Bonauto

In an enormous victory for same-sex marriage, a federal judge in Boston Thursday, July 8, ruled—in two separate lawsuits—that a critical part of the federal Defense of Marriage Act is unconstitutional.

In one lawsuit, Commonwealth of Massachusetts v. Health and Human Services, Judge Joseph Tauro, of the U.S. District Court in Boston, ruled that DOMA violated the Tenth Amendment to the U.S. Constitution by taking from the states powers that the Constitution gave to them. In the other lawsuit, Gill v. Office of Personnel Management, he ruled that DOMA violates the equal protection principles embodied in the due process clause of the Fifth Amendment in an effort to “disadvantage a group of which it disapproves.”

The Massachusetts lawsuit was led by Maura T. Healey, chief of the Massachusetts Attorney General’s Civil Rights Division, and the Gill case was led by Mary Bonauto, civil rights director for Gay & Lesbian Advocates & Defenders (GLAD). Bonauto and GLAD also led the landmark lawsuit that won equal marriage rights for Massachusetts couples in November 2003.

Both of the lawsuits heard by Tauro targeted Section 3 of DOMA. That section states that, for federal government purposes, “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” Neither lawsuit challenged the section of DOMA that enable any state to ignore valid marriage licenses issued to a same-sex couple in other states.

In ruling Section 3 of DOMA unconstitutional in Gill, Tauro stated that he could not find “any identifiable legitimate purpose or discrete objective” for DOMA to treat same-sex couples differently. DOMA, he said, “is a status-based enactment divorced from any factual context from which [this court] could discern a relationship to legitimate [government] interests.”

That finding was important because, in 1996 decision, in Romer v. Evans, the U.S. Supreme Court ruled that animus cannot be used to justify a law.

GLAD legal director Gary Buseck noted that GLAD made the argument “very strongly” that DOMA was motivated by animus for gay people and that it gains considerable credibility from its confirmation by Tauro, a Nixon appointee whom Buseck describes as “very centrist and conservative.”

GLAD’s Bonauto had argued that the court should apply an even more stringent level of scrutiny—heightened scrutiny. But she said she was not disappointed that Tauro applied only rational basis in striking down DOMA.

“His ruling on rational basis alone,” said Bonauto, “is consistent with judicial minimalism in constitutional cases and deciding no more than is necessary.” Bonauto said GLAD would continue to argue for heightened scrutiny at the First Circuit, assuming the decision is appealed.

“It is a very strong opinion and very carefully reasoned,” said Bonauto, during a phone conference with reporters Thursday.

Attorney General Martha Coakley, who joined the conference call only very briefly at the beginning, called the Tauro decisions “a landmark step” for marriage equality and a “victory for civil rights in Massachusetts.”

Buseck said that, “as a technical matter,” the Gill decision involves just the eight plaintiff couples that participated in the lawsuit, though the state’s lawsuit could be seen as encompassing all gay married couples in Massachusetts. But before the ruling in either case extends beyond Massachusetts, he noted, it will require a ruling from the 1st Circuit U.S. Court of Appeals. A 1st Circuit ruling would extend to Massachusetts, New Hampshire, Rhode Island, Maine, and Puerto Rico. A U.S. Supreme decision would affect the country.

As of deadline, attorneys for the federal government on the two cases had not yet filed notice of appeal or a request that the judge stay the effect of his decision until an appeal can be decided. But the Obama administration has made clear that it intends to defend DOMA and an appeal is considered virtually inevitable.

Most legal observers believe both cases will eventually be appealed to the U.S. Supreme Court for resolution, including Supreme Court nominee Elena Kagan who, during her confirmation hearing last week, declined to respond to questions concerning DOMA, noting that cases challenging the law were “on the road” to the high court.

The only other marriage case in federal court right now is the Proposition 8 marriage case in a federal district court in San Francisco. Judge Vaughn Walker heard closing arguments in that case in June and has not yet issued his decision. That case, challenging a state law banning the right to obtain a marriage license in California as violating the equal protection, will likely be appealed to the much larger 9th Circuit, which covers California and eight western states.

Both the Massachusetts and Gill cases were argued in May, and the decisions released today are relatively quick turnarounds, given that some judges take almost a year to decide cases.

Tauro noted, in particular, that the Massachusetts case posed a “complex constitutional inquiry” about the power of the state to determine marital status versus “whether Congress may siphon off a portion of that traditionally state-held authority for itself.”

But, he concluded, “DOMA plainly intrudes on a core area of state sovereignty—the ability to define the marital status of its citizens” and “imposes [on the states] an unconstitutional condition on the receipt of federal funding.”

“It is a fundamental principle underlying our federalist system of government,” wrote Tauro in the Massachusetts decision, “that ‘[e]very law enacted by Congress must be based on one or more of its powers enumerated in the Constitution.’ And, correspondingly, the Tenth Amendment provides that ‘[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people’.”

Tauro also noted that the 1st Circuit U.S. Court of Appeals has upheld federal regulation of state family law “only where firmly rooted in an enumerated federal power.”

Tauro acknowledged that attorneys for the federal government argued that the authority for DOMA was grounded in the U.S. Constitution’s “Spending Clause.” That clause says Congress has the power to collect taxes and pay debts to promote the “general welfare” of the country.

But Tauro noted that DOMA goes far beyond provisions related to federal spending

“The broad sweep of DOMA, potentially affecting the application of 1,138 federal statutory provisions in the United States Code in which marital status is a factor, impacts, among other things, copyright protections, provisions relating to leave to care for a spouse under the Family and Medical Leave Act, and testimonial privileges,” wrote Tauro.

“This court has determined that it is clearly within the authority of the Commonwealth to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status,” concluded Tauro in the Massachusetts opinion. “The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment. For that reason, the statute is invalid.”

“By premising eligibility for these benefits on marital status in the first instance, the federal government signals to this court that the relevant distinction to be drawn is between married individuals and unmarried individuals,” wrote Tauro in the conclusion of the Gill opinion. “To further divide the class of married individuals into those with spouses of the same sex and those with spouses of the opposite sex is to create a distinction without meaning. And where, as here, ‘there is no reason to believe that the disadvantaged class is different, in relevant respects’ from a similarly situated class, this court may conclude that it is only irrational prejudice that motivates the challenged classification. As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution.”

Federal Judge Rules Part of DOMA Unconstitutional

In an enormous victory for same-sex marriage, a federal judge in Boston today ruled, in two separate cases, that a critical part of the federal Defense of Marriage Act unconstitutional.

Mary Bonauto
Mary Bonauto

In an enormous victory for same-sex marriage, a federal judge in Boston today (Thursday July 8), ruled, in two separate cases, that a critical part of the federal Defense of Marriage Act unconstitutional.

In one challenge brought by the state of Massachusetts, Judge Joseph Tauro ruled that Congress violated the Tenth Amendment to the U.S. Constitution when it passed DOMA and took from the states decisions concerning which couples can be considered married. In the other, Gill v. Office of Personnel Management, he ruled DOMA violates the equal protection principles embodied in the Due Process Clause of the Fifth Amendment.

In Commonwealth of Massachusetts v. Health and Human Services, Tauro considered whether the federal law’s definition of marriage—one man and one woman—violates state sovereignty by treating some couples with Massachusetts’ marriage licenses differently than others. In Gill v. Office of Personnel Management, Gay & Lesbian Advocates & Defenders, a gay legal group, asked Tauro to consider whether DOMA violates the right of eight same-sex couples to equal protection of the law. Both cases were argued, separately, in May, and the decision released today is a relatively quick turnaround, given that some judges take almost a year to decide cases.

GLAD attorney Mary Bonauto told Tauro that DOMA constitutes a “classic equal protection” violation, by taking one class of married people in Massachusetts and dividing it into two. One class, she noted, gets federal benefits, the other does not. Just as the federal government cannot take the word “person” and say it means only Caucasians or only women, said Bonauto, it should not be able to take the word “marriage” and say it means only heterosexual couples. Bonauto said the government has no reason to withhold the more than 1,000 federal benefits of marriage from same-sex couples, and noted that a House Judiciary Committee report “explicitly stated the purpose of DOMA was to express moral disapproval of homosexuality.”

Maura T. Healey, chief of the Massachusetts Attorney General’s Civil Rights Division, told Judge Tauro that Section 3 of DOMA—the section that limits the definition of marriage for federal benefits to straight couples—violates the state’s right under the federal constitution to sovereign authority to define and regulate the marital status of its residents. Healey called DOMA an “animus-based national marriage law” that intrudes on core state authority and “forces the state to discriminate against its own citizens.”

Christopher Hall, representing HHS, said Congress should be able to control the meaning of terms, such as “marriage,” used in its own statutes, and should be able to control how federal money is allocated for federal benefits provided to persons based on their marital status. Tauro essentially replied that the government’s power is not unlimited.

Both Bonauto at GLAD and Healey at the Attorney General’s office urged Tauro to apply heightened scrutiny in considering whether the federal government had any legitimate need for DOMA. Heightened scrutiny requires the government to come up with a fairly significant reason for treating gay couples differently under the law. In both cases, however, the judge said that DOMA failed to meet even the most simple judicial review, rational basis—in other words, there was no justifiable reason to the federal government to treat same-sex couples differently.

Both lawsuits are very precise legal attacks against DOMA—targeting just Section 3—and most legal observers believe both cases will eventually be appealed to the U.S. Supreme Court for resolution. The only other marriage case right now that has that same potential is the Proposition 8 marriage case in a federal district court in San Francisco. Judge Vaughn Walker heard closing arguments in that case in June and has not yet issued his decision. The next step for all three cases is the U.S. Court of Appeals.

Kagan: ‘vigorously defended’ DADT

Never before in the history of Supreme Court confirmation hearings have gay issues played such a prominent role.

Elena Kagan
Elena Kagan

Never before in the history of Supreme Court confirmation hearings have gay issues played such a prominent role. After quizzing Elena Kagan on Tuesday about the extent of her opposition to the “Don’t Ask, Don’t Tell,” Republicans on the Senate Judiciary Committee came back Wednesday and grilled her again on that matter and on the federal Defense of Marriage Act.

And the questions elicited some interesting answers—not all of which LGBT people will be happy with. She assured the Senate Judiciary Committee that she has “vigorously defended” “Don’t Ask, Don’t Tell” as Solicitor General and that the statute is constitutional. She suggested there has to be some flexibility for people with religious beliefs to obtain exemptions from certain state laws.

And she hinted strongly that a 1972 gay marriage case that the Supreme Court dismissed might have only limited precedential value should the issue come before the court again.

She hedged or declined to answer other questions. She would not say, for instance, whether the Supreme Court has jurisdiction over state marriage laws.

Kagan did say, however, that she and others in the Obama administration “talked a good deal…amongst ourselves and with” the Department of Defense as to whether to appeal a 9th Circuit U.S. Court of Appeals case the government lost on DADT.

Senator Jeff Sessions (R-Ala.), the ranking minority member on the committee, asked her about that because he and others saw it as a reluctance to defend the federal law excluding gays from the military.

But Kagan denied that, saying she and the administration “vigorously” defended the law and saw postponing appeal as the best way to defend the law.

The case in question is Margaret Witt v. Air Force, in which a highly decorated military nurse was discharged under the policy, apparently after a third party told military officials she was gay. In 2008, Witt, represented by the ACLU, won a preliminary court victory against DADT, when the 9th Circuit ruled she had a right to a trial. Last year, Kagan recommended the federal government not appeal that preliminary ruling to the Supreme Court but wait instead for the trial and its appeal to be completed.

Kagan said the administration made the decision in order to build a factual record that would demonstrate to the Supreme Court the burden it would place on the military to give each person discharged under DADT a trial.

“The government would have to show in each particular case,” said Kagan, “that a particular separation caused the military harm, rather than view it in general across the statute.” Such individual inquiries, she said, “would disrupt military operations.”

The response seemed to take the wind out of Sessions, who has led the charge against Kagan. He said he’d take another look at the decision, then complained that the decision was still “in harmony with the ACLU.”

Aubrey Sarvis, head of the Servicemembers Legal Defense Network (SLDN) said, “we simply do not agree with the Solicitor General on how she and her legal team approached and argued the Witt case.”

“SLDN continues to be at odds with that office, as well as the Department of Defense, on Witt. Indeed, the standard articulated by the Ninth Circuit in Witt should be the very standard that DOD uses in all DADT cases in every circuit.”

Sessions and others also probed Kagan again about what actions she took to prevent the military from recruiting at Harvard Law School, while she was dean there from 2003 to 2009. But they didn’t extract much.

Senator Orrin Hatch (R-Utah) questioned whether Kagan really provided equal access to military recruiters, as the Solomon Amendment requires. The Solomon Amendment, passed in 1996 and upheld by the Supreme Court in 2006, prohibited federal funds to universities which barred military recruiters.

Kagan said she believed the access Harvard Law provided was “an equally effective substitute” for the type of access enjoyed by employers. Other employers were required to sign a statement saying they did not discriminate based on sexual orientation and other characteristics, including based on military service.

Senator John Cornyn accused Kagan of trying to “stigmatize” service members with her handling of the DADT-Solomon conflict.

“It certainly wasn’t to stigmatize the military,” said Kagan, emphatically. She said she always tried to honor the military and demonstrate how important they are to the country. She also noted several times during the hearing that the number of attorneys recruited by the military from Harvard went up during the year Sessions and the other senators were questioning.

“I heard you say that,” said Cornyn, “but if the policy had no impact on recruiting, what possible purpose could it serve other than to stigmatize the military –provided them separate but equal” access.

Senator Charles Grassley questioned Kagan about gay marriage.

“Do you believe that marriage is a question reserved for the states to decide?” he asked.

It was the same question he posed to Sonia Sotomayor during her confirmation hearing last year. Sotomayor declined to answer the question but, when pressed about a gay marriage appeal—Baker v. Nelson—dismissed by the Supreme Court in 1972 and asked whether it amounted to precedent, Sotomayor said, “If it is the court’s precedent…I will apply that precedent to the facts of any new situation that implicates it.”

Kagan, too, declined to answer the first question, but she got pulled into Grassley’s questions about whether Baker amounts to precedent.

In Baker, a gay couple sought a marriage license in Minnesota and, when denied one, sued in state court. The couple lost in the Minnesota Supreme Court and then appealed to the Supreme Court. The Supreme Court did not hear arguments or issue a decision in Baker v. Nelson, but it did dismiss the appeal—an action that has more significance than simply refusing to hear the appeal. In dismissing the appeal, the high court explained it was doing so because there was no “substantial federal question” presented by the case. There is disagreement within legal circles as to whether that “summary dismissal” means anything today.

Kagan said she thinks the dismissal has “some precedential weight but not the weight of a normal decision” which has been fully briefed and argued before the high court.

“What weight would you give Baker v. Nelson?” asked Grassley.

Kagan said she would want to hear arguments, read briefs, and talked to her colleagues before making a decision on that.

“I’m disappointed,” said Grassley. He said he had hoped she would say Baker was “settled law” as to whether the Supreme Court could weigh in on state marriage laws.

Grassley also asked Kagan whether she played any role the Department of Justice “abandoning its argument,” in its cases defending the Defense of Marriage Act (DOMA), that the law was justified by the need to protect “traditional marriage” and to see that children are raised “by both parents.”

Kagan said she has not been a decision-maker on the DOMA cases because they are all still in district court and the Solicitor General’s office gets involved at the appellate level. However, she acknowledged participating in “some discussions” about the cases, though she added that she was not at liberty to reveal those discussions.

Senator Jon Kyl (R-Ariz.) challenged Kagan over her remarks about gay marriage at last year’s confirmation hearing as Solicitor General. He noted that, in response to a question, Kagan had said, “There is no federal constitutional right to same-sex marriage.”

“To me, that means the constitution cannot be properly read to include such a right,” said Kyl. “Is that what you meant to say.” Some conservative opponents of Kagan’s nomination have expressed concern that she parsed her words very carefully to last year and that, in that context, may have been saying only that, as Solicitor General, she knew she had a duty to defend the DOMA. Kagan fed that concern with her initial response, saying that she made the statement in response to a question about whether she could, as Solicitor General, defend the constitutionality of DOMA.

“Are you qualifying that now?” asked Kyl.

“I understood the state of the law and accepted the state of the law,” said Kagan. When Kyl pressed her further, she said she didn’t think it appropriate to respond, given the likelihood of a case on DOMA coming before the court.

Democratic senators generally steered away from gay-related discussions, but Senator Dianne Feinstein (D-Calif.) asked Kagan a question concerning the clash of religious beliefs and the constitution’s prohibition on promoting religion—a clash that often comes up with people seeking to circumvent state laws prohibiting discrimination based on sexual orientation.

Feinstein asked Kagan what her approach would be in interpreting the so-called Establishment Clause and the First Amendment guarantee of free exercise of religion.

Kagan said the court needs some flexibility—or “play in the joints”—to provide an exemption to a state law when it imposes “some substantial burden” on a person’s religious beliefs.

“There needs to be some play in the joints,” said Kagan, “to prevent a state from not being able to do anything.”

The response seemed to be an effort to walk a political tightrope, perhaps because of a memorandum she wrote as associate counsel in the Clinton White House disagreeing with a California Supreme Court decision that a landlord could not discriminate against an unmarried couple based on the landlord’s religious belief against co-habitation before marriage. The California court said the landlord had the option of getting out of the rental business, rather than compromise her religious views. Kagan called that “quite outrageous” and worried that “this kind of reasoning could strip” the Religious Freedom Restoration Act (RFRA) “of any real meaning.”

Lambda Legal Defense and Education Fund told Judiciary Chairman Patrick Leahy (D-Vt.) that the issue is “of great importance” to the LGBT community “that any individual who would be appointed to the Supreme Court be willing to follow the precedent” set forth in the Supreme Court’s determination—which was that the RFRA was unconstitutional.

Lambda had no comment on Wednesday about Kagan’s answer, saying they were taking a close look at the transcripts of the hearing before formulating their opinion.

The confirmation hearing continues Thursday and Friday with witnesses testifying for and against Kagan’s nomination.

Kagan acknowledges she’s “generally progressive”

One message Republicans tried to hammer away at this week, in an effort to derail Elena Kagan’s nomination to the U.S. Supreme Court, must have struck many LGBT viewers of her confirmation hearing as deeply ironic.

Elena Kagan
Elena Kagan

One message Republicans tried to hammer away at this week, in an effort to derail Elena Kagan’s nomination to the U.S. Supreme Court, must have struck many LGBT viewers of her confirmation hearing as deeply ironic. They said she treated the men and women of the military as “second-class citizens,” when she stood up for her belief that the law barring gays from the military was “a profound wrong.”

And yet gay groups have concerns of their own. Lambda Legal Defense and Education Fund, a national gay legal group, shared its concerns over Kagan –though they did so through a letter to Senate Judiciary Committee Chair Senator Patrick Leahy (D-Vt.). The group is worried Kagan might show too much deference to religious objections to non-discrimination laws and not enough deference to existing Supreme Court precedents that have largely benefited gays.

But it was Kagan’s actions as dean of Harvard Law School in the dispute over gays in the military that became a large focus of the first two days of her confirmation hearing. Republicans suggested Kagan’s efforts to balance the university’s non-discrimination policy with the military’s need to recruit lawyers amounted to an effort to defy that federal law. More generally, they also sought to label her “progressive,” a term they apparently consider negative.

Kagan initially deflected the effort to stamp her identity with a politically loaded characterization.

“I honestly don’t know what that label means,” said Kagan, in response to question from the ranking minority member, Senator Jeff Sessions of Alabama, as to whether a former colleague was correct when he identified her as a “legal progressive.”

“I think people should be allowed to label themselves,” said Kagan. “I don’t know what that label means, and I’m not going to characterize it one way or another.” She also noted that her political views would be a matter separate from what her views would be concerning the constitutionality of a law.

“Well, it means something,” said Sessions, “and I would have to classify you as someone in the theme of a legal progressive.”

Later in the day, Senator Tom Coburn (R-Okla.) later said he didn’t know what a progressive is either but that he thinks she’s a liberal. Senator Lindsey Graham (R-SC) asked her whether she is a “progressive in the mold of Obama himself.”

Kagan said she’d been a Democrat all her life, worked for two Democratic presidents, and “that’s what my politics are.”

Graham pressed again, asking whether she’s “progressive.”

“My political views are generally progressive,” acknowledged Kagan.

During his time questioning Kagan Tuesday, Sessions went on to attack, regarding two laws passed by Congress: the “Don’t Ask, Don’t Tell” law barring gays from the military and the Solomon Amendment prohibiting federal funds to universities that barred military recruiters because of the “Don’t Ask, Don’t Tell” policy.

Adopting the procedure and demeanor of a prosecuting attorney grilling a defendant, Sessions painted a picture of Kagan as complying with military recruiters only under threat of losing federal funds.

“You personally opposed ‘Don’t Ask, Don’t Tell’,” pressed Sessions.

“I do oppose it,” said Kagan, “and I did then.”

“And in a 2003 email,” said Sessions, “you wrote, ‘I abhor the military’s discriminatory recruitment policy. . . This is a profound wrong.”

“I believe the policy is unwise and unjust. I believed it then, and I believe it now,” said Kagan.

Kagan added, however, that she tried, as dean, to “make sure military recruiters had full access” to potential candidates for the military but to also protect Harvard’s own non-discrimination policy and students, including gay and lesbian students.

“I tried to do both of those things,” said Kagan.

“But you couldn’t do both,” said Sessions, “as it became clear.”

He continued, saying she “participated in protests” against the military policy, said she was “very opposed to two government policies,” and participated in submitting a legal brief “attacking the Don’t Ask, Don’t Tell policy.” He also noted that Kagan used a 3rd Circuit U.S. Court of Appeals decision that found the Solomon Amendment to be unconstitutional as an excuse to begin barring military recruiters at Harvard –even though Massachusetts is not a state within the 3rd Circuit.

“We were never out of compliance” with the law, said Kagan. She said, after the 3rd Circuit decision, military recruiters were still “welcome on campus, but through the auspices” of a campus veterans organization even though she thought it was appropriate to go back to Harvard’s original non-discrimination policy.

“DOD came to us and said, ‘ignore the 3rd Circuit decision, we’re going to the Supreme Court,’ and we did change back, said Kagan. “We did precisely what DOD asked us to do.”

“You didn’t do what the DOD asked you to do,” said Sessions.

Kagan held her ground, saying Harvard believed it was acting in compliance, but Sessions interrupted to say, “You stopped complying” and, as a result of that, he claimed, “that season” of recruiting “was lost.” He said Kagan never conveyed its position to DOD “in a straight up way” and that DOD said its recruiters were “blocked, stonewalled, and getting the runaround.”

Again, Kagan held her ground, noting that no season of recruiting was lost by the military and that, in fact, in the year to which Sessions was referring, the number of Harvard students recruited by the military went up, compared to previous years.

“You decided [the Solomon Amendment] was inappropriate and you reversed it,” said Sessions. “You treated [the military] in a second-class way.”

The sparring continued for some time and eventually, Sessions ran out of time (each senator’s time to ask questions is strictly limited). Committee Chairman Patrick Leahy (D-Vt.) gave Kagan a chance to make her final remarks on the matter.

“My father was a veteran,” said Kagan, “and I had students who served in the military and who wanted to” serve in the military.

“I felt the need to defend the non-discrimination policy,” said Kagan, “and protect students, including gay and lesbian students who wanted to serve and do that most honorable kind of service.”

In a press conference during recess, Leahy said he thinks Kagan’s testimony “lays to rest for good the issue of Harvard and [her] somehow being anti-military.”

“I think it’s very obvious that Solicitor General Kagan has shown strong support of the military, has strong respect for the military,” said Leahy. “She’s certainly not anti-military.”

Sessions told reporters during recess that Kagan appeared to be “crafting her testimony” to fit a White House spin on the Harvard military recruiting dispute. He said Kagan was responsible for a reversal of Harvard’s willingness to enable military recruiters to visit campus.

A number of documents submitted to the Senate Judiciary Committee and a number of witnesses scheduled for this week’s hearing have indicated that Kagan has both publicly and privately expressed her respect for the military.

After being attacked for having disagreed with a Congressional law—one concerning military exclusion of gay people—she was then attacked for having defended a Congressional law—one that had limited corporate funding to influence elections.

Senator Orrin Hatch (R-Utah) asked Kagan whether she agreed with the Supreme Court’s recent decision, Citizens United v. Federal Elections Commission. As Solicitor General, Kagan’s job was to defend the federal campaign funding law that Citizens United struck down, and she said so.

Hatch was taking on the difficult task of trying to defend the Citizens United decision, which has been enormously controversial and had become great fodder for Democrats against Republicans during the first day of the confirmation hearing.

Later, Senator Arlen Specter (D-Penn.) tried to pin down Kagan on whether she considered the Supreme Court’s ruling in Citizens United disrespectful of Congress. Kagan tried to avoid answering the question, and Specter, with apparent frustration and impatience, moved on and tried to get Kagan to criticize specific conservative justices, especially Justices John Roberts and Sam Alito, who he said gave the Committee “assurances of deference” to Congress and then “there was none.” Kagan repeatedly avoided making such statements.

In fact, much of Day One, June 28, of the confirmation hearing was taken up with partisan bomb-throwing, in between remarks in praise of Senator Robert Byrd (D-WVa.), the Senate’s longest serving member, who died very early Monday morning.

The political sideshows on Monday may have been due in part because so many political pundits have declared Kagan’s confirmation is virtually inevitable; it may also have been due to the fact that confirmation hearings have become a somewhat predictable series of thrusts and parries with a nominee.

Kagan’s own opening statement on Monday was unremarkable except, perhaps, for the fact that she did not make the traditional introductions of individual family members. Kagan’s parents are deceased, but her two brothers were in the confirmation hearing with her. Instead of introducing them, Kagan, who is not married, simply thanked the “family, friends, and students” who had joined her in the confirmation room and then turned around and looked down a row of people sitting behind her. Republicans made clear on Monday that they would seek to portray Kagan as anti-military, lacking in judicial experience, and inclined toward “activism.”

Responding to questions about “activist judges,” from Senator John Cornyn (R-Texas), Kagan said she thinks judges are “always constrained by the law” where the text is clear. But where the text is not clear, said Kagan, judges must look to other “sources of law,” including original intent and “continuing history and traditions.”

Senator Jon Kyl (R-Ariz.) said he has “substantive concerns” about Kagan’s views on “gay marriage” and other issues. The only other mention of gay marriage in the first two days of the five-day hearing came from Senator Sheldon Whitehouse (D-R.Is.). Whitehouse took the occasion of his opening statement Monday to criticize the current Supreme Court for having taken the “extraordinary” action of “inject[ing] itself into the day-to-day business of the lower courts, issuing an extraordinary ruling prohibiting the online streaming of the gay marriage trial in San Francisco.”

Some Kagan supporters pointed to the fact that Senator Scott Brown (R-Mass.), along with Senator John Kerry (D-Mass.), introduced the nominee to the committee as a sign that Republicans can support her confirmation. But it is tradition that the two senators from a nominee’s home state introduce him or her, and Brown’s words fell far short of support. He called her an “impressive and pleasant individual” and said she had “gone far since graduating” from Harvard. Then, he simply reiterated some details from her resume.

In his June 25 letter to Leahy, Lambda’s legal director Jon Davidson expressed its concern about a memo Kagan wrote in 1996, as associate counsel in the Clinton White House. In the memo, Kagan disagreed with a California Supreme Court decision that a landlord could not discriminate against an unmarried couple based on the landlord’s religious belief against co-habitation before marriage. The California court said the landlord had the option of getting out of the rental business, rather than compromise her religious views. Kagan called that “quite outrageous” and worried that “this kind of reasoning could strip” the Religious Freedom Restoration Act “of any real meaning.” Lambda noted that the U.S. Supreme Court later struck down the RFRA as largely unconstitutional.

“It is of great importance to Lambda Legal and our constituents that any individual who would be appointed to the Supreme Court be willing to follow the precedent” set forth in the Supreme Court’s determination. Davidson said that “permitting those with religious objections to flout laws applicable to all others who enter the commercial sector unjustifiably would impose serious harms on workers, tenants and consumers, open dangerous loopholes to protections against discrimination; and contravene crucial state interests in assuring equality for all.”

Lambda also took exception with a statement Kagan made last year during her confirmation hearing for Solicitor General: “There is no federal constitutional right to same-sex marriage.”

Davidson said Lambda is “particularly concerned that every judicial nominee be committed to honoring and enforcing the core constitutional guarantees of equal protection, liberty and due process for all Americans, regardless of sexual orientation, gender identity or HIV status.”

“In order for any nominee to receive the approval of your Committee,” wrote Davidson, “we believe it should be clear the nominee will respect these core constitutional principles and, in particular, is committed to following as binding legal precedent cases such as Lawrence v. Texas, Romer v. Evans, and Roe v. Wade. The decisions in all three cases have been critical to the improving the ability of LGBT people to ensure equal protection under the law.

As of the end of Tuesday’s hearing, no senator had asked Kagan a question about gay marriage. Coburn, without any references, said in passing that he thinks she pro gay-marriage. Kagan did not attempt to correct that statement.

But the last senator to question Kagan on Tuesday—Senator Ben Cardin (D-Md.)—did ask her whether the constitution’s promise of “We the people” covers legal protection against job place discrimination based on sexual orientation and gender identity. The question was not academic. Cardin noted that the Employment Non-Discrimination Act (ENDA) has over 200 co-sponsors and that he expects the bill to pass this year.

“I am certain there’s going to be a legal challenge” to that bill, he noted, asking Kagan what her consideration will be in examining such a challenge.

“The policy decision,” said Kagan, “is up to Congress and the question that might come before the court—if they are statutory in nature—the appropriate question to ask will be what Congress intended.”

It was, as is typical of Kagan, a cautious answer to a controversial question.

Another Supreme Court victory, amidst ideological hostilities

For the second time in a week, the U.S. Supreme Court issued an opinion that delivered a small, indirect, and perhaps unfinished victory to policies that have benefited the LGBT community.

Ruth Bader Ginsburg, Collection of the Supreme Court of the United States, Photographer: Steve Petteway
Ruth Bader Ginsburg, Collection of the Supreme Court of the United States, Photographer: Steve Petteway

For the second time in a week, the U.S. Supreme Court on Monday (June 28) issued an opinion that delivered a small, indirect, and perhaps unfinished victory to policies that have benefited the LGBT community. In doing so, it also gave the community an important symbolic nod: that religious beliefs may not always trump non-discrimination policies. And, it did so with a hostile 5 to 4 split among the justices.

The nod came in an opinion penned by Justice Ruth Bader Ginsburg for a majority that included Justice Anthony Kennedy, the obvious swing vote between two increasingly polar segments of the court.

The case this week was Christian Legal Society v. Martinez, from the 9th Circuit U.S. Court of Appeals. Just last week, the high court upheld another 9th Circuit decision—in Doe v. Reed—which said a Washington State law requiring public availability of records indicating the names and addresses of people who sign petitions putting issues on the ballot is constitutional.

This week, it upheld the 9th Circuit’s decision upholding a public school’s non-discrimination policy.

A Christian student group, Christian Legal Society (CLS), had been denied official student group status at the University of California-San Francisco’s Hastings College of Law.

CLS had argued that the public university violated its First Amendment rights when it refused it official recognition and the benefits and resources that go along with that status. The school argued that it treated CLS like every other group when it required CLS to comply with the school’s policy against discrimination based on sexual orientation, religion, and other factors.

The majority agreed with the lower courts that UCSF’s non-discrimination policy is “a reasonable, viewpoint-neutral condition on access” to student group privileges and resources.

In her opinion, Ginsburg said CLS was trying to circumvent the non-discrimination policy and that, she said, was seeking “not parity with other organizations, but a preferential exemption” from a legitimate policy.

“The First Amendment shields CLS against state prohibition of the organization’s expressive activity, however exclusionary that activity may be,” wrote Ginsburg. “But CLS enjoys no constitutional right to state subvention of its selectivity.”

“We are thrilled that the Court rejected the dangerous argument that anti-gay groups have a First Amendment right to discriminate, even when they are accepting public funds,” said Shannon Minter, legal director for the National Center for Lesbian Rights, which represented the gay student group at Hastings. The gay student group was an intervenor party to the litigation.

“This decision,” said Minter, “should go a long way toward putting a stop to efforts by anti-gay groups to challenge basic non-discrimination policies and laws.”

Minter said CLS has been bringing similar cases across the country in a “blatant effort to undermine anti-discrimination protections for LGBT people.”

But Justice Sam Alito, writing for the dissent, saw a march being led by a different drummer’s beat. He chided the majority as going so far as to use a “misleading portrayal” of the facts of the case in order to make a play for “political correctness.” His dissent seethes against a majority he perceives to be leading a liberal march.

“Brushing aside inconvenient precedent,” writes Alito, parodying former Vice President Gore’s Inconvenient Truth documentary against global warming, “the Court arms public educational institutions with a handy weapon for suppressing the speech of unpopular groups….”

In his case, Alito is referring to Christian groups as unpopular.

Alito was joined by the court’s reliably conservative justices, Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas.

The case was considered particularly significant to the LGBT community because it tested the ability of some people to ignore laws prohibiting discrimination based on sexual orientation. Christian Legal would allow gay students and people who would not endorse the group’s stated religious viewpoint to be members of the group. But it would not allow such people to vote or hold office.

That, said the university, was discrimination based on sexual orientation and religion.

The First Amendment right to religious beliefs has frequently trumped laws and policies banning discrimination based on sexual orientation at the U.S. Supreme Court level. It did so most notoriously in 1995 in a case called Rosenberger v. University of Virginia—where the Supreme Court said a public university had to provide funding for a campus Christian group’s newsletter even though the newsletter espoused beliefs that contradicted the university’s non-discrimination policy.

During oral arguments in April, many of the justices complained about the uncertainty of important facts in the case. For instance, the facts of the case did not indicate clearly whether the school refused official status to the Christian Legal chapter because the group violated the school’s written non-discrimination policy or because the group violated the school’s stated interpretation of that policy—dubbed the “all-comers” policy—that all official student groups must allow full and equal participation by all students.

Christian Legal said it was willing to abide by the written policy, by allowing gays to attend its meetings; but it said the all-comers went too far and amounted to interference with the group members’ First Amendment rights to free association and free exercise of religion.

The majority stuck to the all-comers policy, noting that CLS and the university had both agreed in the district court that this was the policy used to deny CLS its status as a recognized student group. But it remanded one of CLS’s claims back to the 9th Circuit—whether the University had applied its all-comers policy exclusively against CLS, and not other groups.

The National Center for Lesbian Rights provided representation to the UC-Hastings gay group Outlaw, which was designated as a party to the lawsuit, as an intervenor, to help defend the policy.

Lambda Legal Defense and Education Fund, along with Gay & Lesbian Advocates & Defenders (GLAD), submitted a brief to the court in favor of the school, saying that public funds and student fees should not be used to support discrimination against any student.

Could victory in court mean loss in public support?

An informal survey by the Washington Post published June 18 asked a tiny number of well-placed experts—six—to say what they think will happen if federal Judge Vaughn Walker overturns California’s ban on same-sex marriage. Two of the six pointed to existing polling data to warn of the potential for a negative impact.

Patrick Egan
Patrick Egan

An informal survey by the Washington Post published June 18 asked a tiny number of well-placed experts—six—to say what they think will happen if federal Judge Vaughn Walker overturns California’s ban on same-sex marriage. Two of the six pointed to existing polling data to warn of the potential for a negative impact.

Scott Keeter, director of survey research at the Pew Research Center, said Pew’s previous polling data predicts “backlash.” Those polls, and others, have historically shown LGBT victories in court lead to an increase in public opposition to same-sex marriage. It happened after the U.S. Supreme Court struck down state sodomy laws (in June 2003). It happened after the Massachusetts Supreme Judicial Court ruled gay couples had a constitutional right to marriage equality (in November 2003). And even before Walker issues his decision, said Keeter, polls indicate the public opinion climate “remains chilly” for same-sex marriage.

Joe Mathews, a senior fellow at the New America Foundation, a political think tank, said that, while public opinion is trending in favor of marriage equality, “a divisive court decision that gets too far ahead of voters could prolong the fight over same-sex marriage for a generation or more. . . .”

“If judges strongly support overturning Prop 8 at each stage of the appeal, this emerging judicial consensus that gay-marriage bans are unconstitutional would speed acceptance of such unions across the country,” wrote Mathews. “But if Prop 8 is overturned by a narrowly and nastily divided U.S. Supreme Court, say 5 to 4, such a decision could conceivably do more harm than good.”

So, where is public opinion on same-sex marriage right now?

Two recent reports shed some light on that, and some doubt.

First, the light: The 2010 Values and Beliefs survey, which Gallup conducts every May, indicated that 52 percent of adults surveyed consider “gay and lesbian relations” to be “morally acceptable,” compared to 43 percent who said they are “morally wrong.” Five percent had no response or had some other opinion. The results were based on random telephone interviews with 1,029 adults conducted between May 3 and 6, 2010. The margin of error is plus or minus 4 percentage points.

The 52 percent saying “morally acceptable” was up three points over 2009, when 49 percent said “morally acceptable.” And the percentage saying “morally wrong” was down four points—from 47 percent in 2009 to 43 percent this year. (Five percent no opinion or other response in 2009.)

This year was the first time since Gallup began asking the question that more than 50 percent of Americans said they believe “gay and lesbian relations” are morally acceptable.

“What’s different this year is that the spread between ‘morally acceptable’ and ‘morally wrong’ is a whole lot bigger,” says Lee Badgett, a professor of Economics at UMass Amherst, and the research director at the Williams Institute for Sexual Orientation Law and Public Policy at UCLA. It was a nine-point spread this year, compared to only a two-point spread last year.

“The question is,” said Badgett, “will that turn out to be a tipping point or not?”

Gallup polling data shows the “morally acceptable” response has been on a steady trend upward since 2004. It took a six-point dive in 2004, just six months after the Massachusetts high court issued its landmark marriage equality decision.

The percentage of Americans who consider gay relations to be “morally wrong”—43 percent—is the lowest it’s been in a decade. And also for the first time, a larger percent of men said “morally acceptable” than women—53 percent of men and 51 percent of women now believe “gay and lesbian relations” are morally acceptable.

The change in men’s attitudes was striking. In May 2006, 39 percent of men polled said they felt “homosexual relations” were morally acceptable. By this year, that number had jumped to 53 percent. That’s a 14-point jump, while, over the same period, acceptance among women increased just 2 percent.

Gary Gates, a demographer at UCLA who studies the LGBT population, cautions against putting too much stock in one poll. But, he says, “a variety of polls have been showing, depending on the wording, increased amounts of acceptance towards LGB and, in some cases, T people. That acceptance has gone up in both men and women.”

To a certain degree, the improvements could have something to do with the fact that Gallup’s wording changed in 2008, from “homosexual relations” to “gay and lesbian relations.” According to Gates and Badgett, people respond differently in polls on gay issues depending on the way questions are asked. Questions about “homosexuals” tend to receive more of a negative reaction than the same questions about “gays and lesbians.”

“The closer you get to people having to think about sex,” said Gates, “the worse gay people do in polls.”

But experts agree say there is probably no single reason for this change in how men are polling, but rather a number of contributing factors.

“Some of it is exposure,” says Mark Stevens, a psychologist at California State University in Northridge. “Guys are growing up where they have friends who are gay. There is a little bit more in the media, on the TV. And it’s kind of cool to be a little bit more liberal and a little bit more accepting.”

Gates agrees that exposure is likely a big part of it, though not just for men.

“We know that a higher proportion of gay people are being more open and being more open at younger ages. And we do know that knowing gay people or having a relationship with an LGBT person does actually have an impact on people’s broader attitudes.”

Age is, and always has been, a factor, something that was clear in the survey’s results. Younger men (like younger women) are generally more accepting than their parents and grandparents.

In addition to the increase in acceptance among men, the Gallup poll also found improved attitudes towards gays and lesbians among every other sub-group polled: from Catholics to Protestants, Democrats to Independents, moderates to conservatives.

Though the degree to which those views shifted differed greatly, it’s evident that there is a steady, gradual shift taking place in the way Americans view gay and lesbian relationships and civil rights for gay people. In fact, Gallup’s polling this year shows the public views “gay and lesbian relations” as more morally acceptable than doctor-assisted suicide (46 percent) and less than having a baby outside of marriage (54 percent).

But what about legalizing marriages for same-sex couples?

While the Gallup poll showed 52 percent of people said they consider “gay and lesbian relations” to be “morally acceptable” and 58 percent said those relations should be “legal,” only 44 percent said such marriages should be recognized. That is up four points from 2009, and up 16 points since 1996, when Gallup first began asking about gay marriage specifically. The Gallup polling on gay marriage is now approximately where it was for interracial marriage in the late 1970s and early 1980s. The balance in favor interracial marriage crossed its tipping point with the 1991 survey –when 48 percent approved and 42 percent disapproved marriage between blacks and whites.

But do people’s attitudes necessarily translate into how they are likely to vote on an issue? Not as reliably as one might expect.

Political scientist Patrick Egan, who has done considerable polling on gay-related political issues, examined the results of 167 pre-election polls on 32 different ballot measures concerning either same-sex marriage or domestic partnerships. He found that pre-election polls “consistently underestimated” the number of people who would vote for a ban on same-sex marriage—by an average of seven points. And, “the share of the public saying they intend to vote for or against these measures typically changes very little over the course” of the ballot measure campaigns.

This gap between how voters say they will vote and what they actually do in the voting booth does not appear to be a product of wanting to give the a poll-taker a socially desirable response of supporting equality for all, said Egan. He could find no evidence for that. For instance, he said, in states with large gay populations, one would expect many people who wanted to ban gay marriage would tell a pollster that they were against the ban. Voters in California, for instance, would be more likely than voters in Mississippi to say they were going to vote against the ban and then vote for it. But there was no such correlation and no other evidence emerged in Egan’s analysis to explain the gap.

Still, it’s clear Americans are becoming increasingly open and accepting and experts and polling data suggest this trend will continue—unless something happens to set opinion back.

“You never know how society is changing, and sometimes it’s not very obvious because it’s very subtle,” says Stevens. While the reasons such a shift is occurring now “might not be necessarily explainable,” he says, “it’s really good to see.”

Lisa Keen contributed to this report.

Marriage equality opponents vow rematch over public disclosure case

In a ruling hailed by gay activists, the U.S. Supreme Court upheld a law that requires public disclosure of the names of people who signed a petition to put an anti-gay referendum on the ballot in Washington State. But litigation may not yet be finished.

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

In a ruling hailed by gay activists, the U.S. Supreme Court on June 24 upheld a law that requires public disclosure of the names of people who signed a petition to put an anti-gay referendum on the ballot in Washington State. But litigation over the domestic partnership battle may not yet be finished and may be back before the court in a year or so.

The 8 to 1 decision, with only Justice Clarence Thomas in dissent, said a state law requiring the names and addresses of petition signers be available to the public does not violate the First Amendment of the U.S. Constitution.

Chief Justice John Roberts wrote the decision—a bit of a surprise given that his questions during oral argument seemed to indicate he would be inclined to rule in favor of the plaintiffs. However, in the opinion, Roberts suggested plaintiffs could do better by limiting their challenge to the state law’s impact in the Referendum 71.

James Bopp, who represented Protect Marriage Washington, said Thursday plaintiffs “absolutely” intend to pursue that route.

The case, Doe v. Reed, questioned the constitutionality of Washington’s Public Record Act (PRA).

Protect Marriage Washington and two “John Doe” plaintiffs brought the lawsuit on behalf of citizens who signed a petition to put Referendum 71 on the ballot in 2009. The defendant was Washington Secretary of State Sam Reed, a coalition that supported the state’s new domestic partnership law, and a group that sought to preserve openness in government.

Referendum 71 sought to repeal the domestic partnership law that had been recently approved by the legislature. And Protect Marriage said the public disclosure of the names of people signing the petition to put it on the ballot had a chilling effect on their freedom of speech. According to Protect Marriage, the law enabled persons who disagreed with petition-signers to target them for harassment and threats.

A federal district court judge in Seattle agreed with the group, but the 9th Circuit U.S. Court of Appeals did not, so plaintiffs appealed to the U.S. Supreme Court.

Chief Justice Roberts said that the state law furthered the state’s interest in preserving the “integrity of the electoral process” and that this is sufficient justification for it. He said the law helps prevent fraud, mitigates mistakes, and promotes “transparency and accountability in the electoral process.”

Anne Levinson, chairman of the pro-gay Washington Families Standing Together group, applauded the result, calling it “a significant defeat for those who have sought to enshrine discrimination into law at the ballot box.”

“Perhaps no other group has witnessed its rights put up for public vote more than LGBT Americans,” said Levinson. “Social conservatives have used ballot measures in state after state, over more than 30 years, to keep LGBT Americans from being able to adopt children, to marry and even to be protected from discrimination in housing and employment.”

Attorneys for Protect Marriage had argued that the “First Amendment protects citizens from intimidation resulting from compelled disclosure of their identity and beliefs and their private associations.” And during oral argument in April, Justice Stephen Breyer seemed to signal some sympathy with this argument. He asked whether people who supported integration would ever have signed a pro-integration petition if “there was a very good chance that their businesses would be bombed, that they would certainly be boycotted, that their children might be harassed.”

Washington State Attorney General Robert McKenna responded by noting that the high court, in the controversial Citizens United v. Federal Election Commission decision in January, had already allowed for case-by-case exceptions to be made concerning the disclosures of campaign contributors. That decision held that contributors would have to show a “reasonable probability” that disclosure of their names “would subject them to threats, harassment, or reprisals from either government officials or private parties.”

McKenna added, and the majority clearly agreed, that Protect Marriage plaintiffs had failed to offer any evidence to support their concern for harassment. And, noted McKenna, three other states with public disclosure laws held gay-related ballot measures and offered “no evidence…that anyone who signed any of these petitions in those three States was subjected to harassment.”

Citizens United has been one of the Supreme Court’s most controversial decisions, ever. The decision said the government could not put a limit on how much money a corporation contributes to a political campaign. The 5 to 4 ruling was harshly criticized by many as opening a door for corporate domination of electoral politics. But the decision also said that contributors could not hide public disclosure of their contributions without demonstrating a “reasonable probability” that disclosure “would subject them to threats, harassment, or reprisals from either government officials or private parties.”

Chief Justice Roberts said plaintiffs’ contention that the Washington disclosure law subjected supporters of ballot measures to harassment could not justify striking down the public records law for all referenda; but, he suggested plaintiffs might have more luck with a more narrowly focused legal challenge.

Protect Marriage did make a more narrow claim—that supporters of Referendum 71 were vulnerable to significant threats—but that claim was not before the Supreme Court—only its claim that the state public disclosure law was, in and of itself, unconstitutional.

Even though voters in November 2009 rejected Referendum 71 and the domestic partnership law will mark its first anniversary next month, Bopp said the litigation will continue.

But five justices wrote or joined concurring opinions to signal that they will be hard to convince on a case specific to Referendum 71. Justice Sonia Sotomayor, writing for herself and Justices John Paul Stevens and Ruth Bader Ginsburg, said “courts presented with an as-applied challenge” to public disclosure laws “should be deeply skeptical of any assertion that the Constitution, which embraces political transparency, compels States to conceal the identity of persons who seek to participate in lawmaking through a state-created referendum process.”

Justice Stevens, writing for himself and Justice Breyer, also said he thinks the as-applied scenario is “unlikely” to be successful. He characterized Protect Marriage’s fear of harassment as “speculative.” (Stevens is retiring this month.)

“For an as-applied challenge to a law such as the PRA to succeed, there would have to be a significant threat of harassment directed at those who sign the petition law enforcement measures,” wrote Stevens. “…Debates about tax policy and regulation of private property can become just as heated as debates about domestic partnerships.”

Justice Antonin Scalia wrote a concurring opinion, too, though his position against plaintiffs seemed evident at oral argument.

“There are laws against threats and intimidation,” wrote Scalia, “and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which—thanks to the Supreme Court—campaigns anonymously and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.”

Scalia’s point that laws already exist to deal with harassment and threats was one highlighted by a brief filed by Lambda Legal Defense and Education Fund, Gay and Lesbian Advocates and Defenders, and the National Center for Lesbian Rights, along with the Human Rights Campaign and the National Gay and Lesbian Task Force.

Only two justices suggested hope for Protect Marriage in an as-applied challenge—Justices Sam Alito and Clarence Thomas.

Alito wrote a concurring opinion but said he believes Protect Marriage has a “strong” case through an as-applied challenge.

“The widespread harassment and intimidation suffered by supporters of California’s Proposition 8 provides strong support for an as-applied exemption in the present case,” wrote Alito. He said Yes on 8 supporters submitted “substantial evidence of harassment suffered by Proposition 8 supporters” during their request to keep cameras out of the courtroom during the Proposition 8 trial.

Thomas said he thinks the “compelled” disclosure of names “severely burdens [First Amendment] rights and chills citizen participation in the referendum process.”

Lambda’s Legal Director Jon Davidson, who was the principal author of the gay groups’ brief, said he thought the majority struck an important balance.

“It’s good the court reaffirmed a high test here,” said Davidson. “You can’t, as a blanket matter, bar the disclosure of the petitions. But if you’re trying to bar [disclosure], you have to show a reasonable probability of harassment –not just a possibility, but a probability.”

Davidson said the ruling is “incredibly important to our community, given the number of measures that have gone on ballots to block gay people’s rights.”

“We have been the target of more initiatives to do that than any other group in the history of initiatives,” said Davidson, “so it’s important for us to be able to see if measures are properly qualified.”

“The real thing going on here,” said Davidson, “has been an attempt by right-wing groups to take away our rights secretly.

Supreme Court upholds disclosure of petitioners’ names

The U.S. Supreme Court today upheld a law that requires public disclosure of the names of people who signed a petition to put an anti-gay referendum on the ballot in Washington State.

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

The U.S. Supreme Court today upheld a law that requires public disclosure of the names of people who signed a petition to put an anti-gay referendum on the ballot in Washington State.

The 8 to 1 decision, with only Justice Clarence Thomas in dissent, said the law requiring records of petition signers to be available to the public, does not violate the First Amendment of the U.S. Constitution.

The decision was written by Chief Justice John Roberts, whose questions, during oral arguments, appeared to indicate he would be inclined to strike down the law.

The case, Doe v. Reed, questioned the constitutionality of a Washington State law that makes public the names and addresses of citizens who sign petitions to put various issues onto the ballot. A group called Protect Marriage Washington and two “John Doe” plaintiffs brought the appeal on behalf of citizens who signed a petition to put a referendum on the ballot—Referendum 71—against a new domestic partnership law. They said the public disclosure of their names violated their right to privacy and freedom of speech. A federal district court judge in Seattle had agreed with them but the 9th Circuit U.S. Court of Appeals did not, so they appealed to the U.S. Supreme Court.

Attorneys for the plaintiffs argued that the “First Amendment protects citizens from intimidation resulting from compelled disclosure of their identity and beliefs and their private associations.”

Chief Justice Roberts said that the State’s interest in preserving the “integrity of the electoral process” was sufficient justification for its Public Records Law (PRA). He said the law helps prevent fraud, mitigates mistakes, and promotes “transparency and accountability in the electoral process.”

He said plaintiffs’ contention that the disclosure law subjected supporters of a referendum on the state domestic partnership law to harassment could not—on that specific referendum—justify striking down the public records law for all referenda.

“Faced with the State’s unrebutted arguments that only modest burdens attend the disclosure of a typical petition,” wrote Roberts, “plaintiffs’ broad challenge to the PRA must be rejected.” He suggested plaintiffs might have more luck with a more narrowly focused legal challenge.

During oral argument, Justice Antonin Scalia, the court’s most staunch conservative and a consistent vote against pro-gay positions, said the First Amendment did not protect citizens “from criticism or even nasty phone calls when you exercise your political rights to legislate, or to take part in the legislative process.” It was essentially the same point made by five national gay legal and political groups in their friend-of-the-court brief. The gay brief was filed by Lambda Legal Defense and Education Fund, Gay and Lesbian Advocates and Defenders, and the National Center for Lesbian Rights, along with the Human Rights Campaign and the National Gay and Lesbian Task Force.

Scalia wrote an opinion concurring in the judgment, as did several of the other justices.