Kagan — Gays are constituency, not priority

It’s been clear since Elena Kagan was nominated to the U.S. Supreme Court that her confirmation hearing would be unusually focused on things gay.

First, there were the complaints that she barred military recruiters from Harvard Law School while she was dean. Then, came rumors that she herself is gay. And finally, there has been a generalized fear expressed by right-wing groups that she’s liberal enough to reverse the Defense of Marriage Act.

But there’s surprisingly little support for any of these assumptions in the thousands of emails, memoranda, and other documents submitted to the Senate Judiciary Committee from the archives of the Clinton White House.

kagan_elenaIt’s been clear since Elena Kagan was nominated to the U.S. Supreme Court that her confirmation hearing would be unusually focused on things gay.

First, there were the complaints that she barred military recruiters from Harvard Law School while she was dean. Then, came rumors that she herself is gay. And finally, there has been a generalized fear expressed by right-wing groups that she’s liberal enough to reverse the Defense of Marriage Act.

But there’s surprisingly little support for any of these assumptions in the thousands of emails, memoranda, and other documents submitted to the Senate Judiciary Committee from the archives of the Clinton White House. Kagan, who served as associate White House counsel from 1995-96 and as an official with the Domestic Policy Council from 1997-99, showed little stomach for tackling gay-related issues.

Strangely, there are no emails or documents addressing the Defense of Marriage Act (DOMA), though the legislation was introduced, passed, and signed by President Clinton in 1996. That was the year Kagan was Associate Counsel and, thus, the point person to advise the president on the constitutionality of bills coming to his desk.

In response to questions during her confirmation hearing to become Solicitor General, Kagan said she “never studied” the Massachusetts Supreme Judicial Court’s 2003 ruling that said gay couples have a state constitutional right to obtain marriage licenses the same as straight couples. The lack of interest seems particularly odd given that she was dean of Boston-based Harvard Law School at the time the decision became globally publicized and discussed—triggering attention from presidential candidates to Congress to the mayor of San Francisco. She told the Senate Judiciary Committee she couldn’t remember making any remarks about the law even though she moderated a panel on the landmark Goodridge decision at Harvard Law School three months after it was issued and during the throes of conflict in the Massachusetts legislature considering ways to undo it.

“I suspect I participated in informal conversation about the decision when it came out,” said Kagan, “but I cannot remember anything I said.”

At least two people close to her support that claim.

Asked in a telephone press conference last month whether Kagan advised Clinton on the constitutionality of DOMA, her then colleague Michael Waldman said, “I don’t know if she offered her view” on DOMA. Asked whether she would have prepared a memo to the president concerning the bill’s constitutionality, he said “possibly.” This reporter has found none thus far.

And Lauren Lucas, who graduated from Harvard Law in 2005 and participated in a White House teleconference with reporters about Kagan, recalled that there was “a lot of student discussion” about the Goodridge decision but Lucas “heard no comment from Kagan.”

In fact, emails from Kagan generally managed to make no comment about gay issues—not even whether she would attend a White House meeting to discuss a gay issue. In response to a February 21, 1997, email she received asking that she attend a “Gays Issues” meeting that afternoon, Kagan’s response complains that she’s gotten notice of the meeting only that day; nothing about whether she would attend.

Two months later, openly gay White House staffer Richard Socarides gave her two days notice and asked her to attend a meeting to discuss hate crimes with a group of “gay and lesbian anti-violence (hate crimes) advocates from around the country.” His email tells her the meeting is at the request of the advocates who wish “to discuss the recent rise in hate crimes directed at gay and lesbian Americans.” Her response is curt and non-committal: “if I can.”

In August of that year, Socarides emailed Kagan asking her “Where are we?” on the “sexual orientation non-discrimination executive order.” Kagan forwarded his email to another policy official to ask, “did bruce really say for maria to do this? Why?”

Bruce Reed was Kagan’s boss, director of the White House Domestic Policy Council. Maria Echaveste was deputy chief of staff. Another email six months later showed the Council was still talking about it.

These are not the machinations of a stealth gay activist. The emails, documents, and testimony at her confirmation hearing for Solicitor General paint a picture of an official who is aware of gays as a constituency but not as a priority.

On “Don’t Ask, Don’t Tell,” her position seemed crafted to walk the most narrow of middle lines. Speaking to a group of senior cadets at West Point in 2007, Kagan said she was “grieved” that the military and law schools were in court, facing off over the policy to exclude gays.

“Law schools, including mine, believe that employment opportunities should extend to all their students, regardless of their race or sex or sexual orientation,” said Kagan. “And I personally believe that the exclusion of gays and lesbians from the military is both unjust and unwise. I wish devoutly that these Americans too could join this noblest of all professions and serve their country in this most important of all ways.”

Shortly after Kagan became dean of Harvard Law, in 2003, an Air Force Chief of Recruiting sent an email to superiors indicating that Harvard “folded and conformed to our interpretation” of the Solomon Amendment, “but did so WITH much grumbling.”

While “Don’t Ask, Don’t Tell” preceded Kagan’s time as White House counsel, the Solomon Amendment was passed in 1996, when she was associate councils. The amendment was passed in response to law schools uniting behind a policy of requiring employers who wanted to recruit among their students to abide by a policy of non-discrimination, including no discrimination based on sexual orientation. Kagan inherited the policy as dean at Harvard Law when she took the helm in 2003. That October, an Air Force recruiting chief emailed superiors that “Harvard complied [with the amendment] and treated the [Air Force] the same as other employers.” The report indicated military recruiters were allowed on campus and were not required to sign a non-discrimination statement regarding sexual orientation.

At about that same time, a group of 24 law schools filed a lawsuit against the Solomon Amendment; Harvard was not one of them.

But two years later, in 2005 and after a federal appeals court declared the Solomon Amendment unconstitutional, email exchanges between the Air Force and an assistant dean, suggested the decision on whether to allow military recruiters on campus was up in the air at Harvard and a matter to be decided by “the faculty.” One such email quotes the assistant dean as indicating that Kagan “had made her position (opposition) to military recruiting very clear” but that “the university president [Larry Summers] felt differently.”

A letter from Harvard’s vice president and general counsel informed the Air Force in June 2005—one month after the U.S. Supreme Court indicated it wanted to weigh in on the matter– that military recruiters would have access to recruitment services at the Law School. The Supreme Court reversed the appeals decision and upheld the Solomon Amendment in March 2006.

During her confirmation hearing to become Solicitor General, the Senate Judiciary Committee asked her about the Solomon Amendment. Specifically, some members of the committee wanted to know whether Kagan had encouraged or participated in any protests against the military and whether she abided by guidance from the Association of American Law Schools to take “ameliorative steps” against the amendment.

Kagan’s response was a portrait of caution. She said her approach was to “create a respectful and welcoming environment for gay and lesbian students.” She said Harvard Law never sponsored or organized protests, but that she “made remarks at one assembly organized for this purpose” by the gay student group and “may have attended but not spoken at one other event of this kind.”

Kagan has been more emphatic when asked about “Don’t Ask, Don’t Tell.”

“I can say that, in any case attacking the constitutionality of [the federal law involving Don’t Ask, Don’t Tell],” said Kagan, in response to written questions from Senator Arlen Specter during the February 2009 confirmation hearing, “I would apply the usual strong presumption of constitutionality and give full weight to the factors supporting this presumption, such as the prior appellate court decisions upholding the statute and the doctrine of judicial deference to legislation involving military matters.”

Also during her confirmation hearing to become Solicitor General, Kagan was asked whether she would support the right of health care providers to decline to participate in abortions “because of their moral and religious beliefs.” The question was referring to a rule issued by the Department of Health and Human Services during the second term of President George W. Bush. The rule sought to enable health care providers to abstain from a number of procedures—including insemination of a lesbian— by saying the procedure violated their religious or moral beliefs. Kagan said she didn’t know anything about the so-called “Conscience Rule” but that, if it were a statute attacked on constitutional grounds, she would ask, “is there a reasonable defense to be offered in support of the statute?”

“If so, I would make that defense,” wrote Kagan in her responses.

The Los Angeles Times and other media also found an email from May 1999 in which Kagan described herself as the “biggest fan” in the Clinton White House of the Religious Freedom Restoration Act (later reincarnated as the Religious Freedom Liberty Act). What they didn’t report, however, is that, in an email one month earlier, Kagan acknowledged, “the gay community, supported by many civil rights groups, oppose RLPA as currently drafted.”

“RLPA could provide a religious liberties defense to many state laws, including some civil rights laws, such as fair housing laws that prevent discrimination against gays and lesbians and unmarried persons,” wrote Kagan in the April 29, 1999, email to Bruce Reed. “This result is not certain, but it is certainly possible, at least in some states.”

In the later email, she warned then Vice President Al Gore’s staff that they’d have a “gay/lesbian firestorm” on their hands if Gore endorsed the legislation.

It was another example of Kagan seeing the gay community as a constituency, not a priority. But on at least one occasion, a May 27, 1997, memo co-written by Kagan and Reed, the constituency got a nod. The memo expresses concerns about a proposed race commission and suggests, as an alternative, that President Clinton lead a series of “town halls” on race-related issues or that the White House host a conference on such issues. The Reed-Kagan proposal notes that those options could also “accommodate some attention to issues of intolerance” against other minorities, including gays and lesbians.

Richard Socarides, who was White House liaison to the gay community during the Clinton years, suggests that the portrait painted by this latter memo is a more accurate one than are the various emails.

“I worked with her and got to know her quite well during that period of 1996 to 99,” said Socarides. “She was very supportive of what the president was trying to do around creating greater equality for gays and lesbians. She was very supportive of the mission that he had given me—to make sure, to the extent possible, that gays were included and a part of every relevant policy discussion that took place.”

Socarides said he doesn’t remember Kagan being at any of the White House meetings on DOMA, but that he did talk to her “early on” about his proposal to have the president issue an executive order on sexual orientation discrimination in the federal workplace.

“She was on board from the start,” said Socarides.

Socarides said he simply couldn’t explain why Kagan’s email concerning the proposed executive order appears to question why the administration should issue it. The order, issued in May 1998, declared that a Civil Service law requirement that a federal employee’s “conduct not related to job performance” (such as the employee’s sexual orientation) could not be a basis for discrimination.

“Her reaction was like, ‘Sounds right to me, let’s do it,’” said Socarides. “She was never dragging her feet on this or any gay stuff.”

Many of these issues are likely to come up when the Senate Judiciary Committee holds its confirmation hearings, starting Monday, June 28.

Prop 8 closing: Fear v. Equality

There were so many people trying to get in to watch the final day of the landmark trial challenging California’s same-sex marriage ban, the court staff had to set up an additional overflow room for observers.

Judge Vaughn Walker
Judge Vaughn Walker

There were so many people trying to get in to watch the final day of the landmark trial challenging California’s same-sex marriage ban, the court staff had to set up an additional overflow room for observers. Those dozen or so members of the public who managed to snare seats in Courtroom 6 on the 17th floor of San Francisco’s federal courthouse building had to stand in line starting at 5:45 Wednesday morning to get them.

But gays in California are used to standing in line. They stood in line exactly two years ago—June 16, 2008—to be among the first same-sex couples to obtain marriage licenses in the state. Now, they were watching closing arguments in Perry v. Schwarzenegger, an historic case challenging the November 2008 initiative that took away the right for gay couples to obtain marriage licenses in California.

Conservative icon Ted Olson, one of the most famous attorneys in the country, choked back some emotion as he talked about the “grave and irreparable harm” Proposition 8 inflicts upon gay people. And he implored U.S. District Court Judge Vaughn Walker to muster the courage to strike down the law in the same way the California Supreme Court had been the first to strike down the ban against interracial marriages in 1948.

His conservative opponent, Charles Cooper, for the Proposition 8 supporters, passionately regretted in court Wednesday a statement he made a year ago at a preliminary hearing. At that hearing, Judge Walker asked Cooper what harm allowing gays to marry might wreak upon straight couples’ ability to procreate. Cooper had replied, “I don’t know,” and was repeatedly quoted in the media as saying so.

“I don’t know how many times, Your Honor, I had wished I could have those words back,” said Cooper, as the courtroom erupted in laughter. “Whatever your question is now,” he said, gesturing boldly, “I damn sure know. Whatever it is.”

To that, Judge Walker asked Cooper to explain what the Yes on 8 team’s expert witness David Blankenhorn meant when he testified at trial in January that, “America will be more American or will be closer to the American idea” when same-sex marriage is legalized.

Cooper said he thought Blankenhorn was “giving voice to a sentiment” shared by many Americans but that that sentiment does not overcome “the threat of harm to a central and vital institution—marriage.”

Judge Vaughn pressed Cooper several times to identify specific evidence and witnesses that demonstrated this harm, but Cooper, instead, talked of the potential for unforeseen consequences.

“It is not possible to predict with certainty and confidence” what change might come about to marriage as an institution should same-sex marriages be legalized, said Cooper, but it “could be profound.”

“It could portend some social consequences that would not be good ones,” added Cooper. “And that reality—that I didn’t know—is because no one can know.”

Cooper argued that this fear of unknown consequences is a “rational basis” for the ban on same-sex marriage.

“If there is a legitimate and rational basis to be concerned about,” he said, “it couldn’t be more rational for the people of California to say, ‘We aren’t going to run that risk. . . . We’re going to wait. We want to see what happens in Massachusetts. We want to see what happens right here, and elsewhere.’ And perhaps,” said Cooper, “Mr. Olson and his clients, whose sentiments are powerful, will be able to convince their fellow Californians that, in fact, they’re right.”

“Is the ‘I don’t know’ answer enough?” pursued Judge Walker.

“It is,” said Cooper.

Not surprisingly, Olson disagreed, and he had U.S. Supreme Court citations to back it up. He pointed to a 1985 decision—Cleburne v. Cleburne—in which “the Supreme Court did say . . . that mere negative attitudes, fear, or unsubstantiated factors or assertions wouldn’t be sufficiently cognizable.”

“They just don’t know,” said Olson of supporters of Proposition 8. “That is the essence of their case as it comes to the end of the trial and the closing arguments. They just don’t know whether same-sex marriage will harm the institution of heterosexual marriage, and I submit the overwhelming evidence in this case proves that we do know. And the fact is allowing [same-sex marriage] will not deter heterosexuals from marrying or staying married or from having babies…[but] strengthens the institution of marriage for heterosexual and homosexual persons and their children.”

“Ted Olson cleaned Cooper’s clock,” said Kate Kendell, head of the National Center for Lesbian Rights. She called Olson’s performance “brilliant” and “meticulously prepared” and Cooper’s arguments “thin and ludicrous.”

“Olson, and the whole trial, made clear that voter attitudes about gays is just not enough to justify such a damning exclusion,” said Kendell. “It was a bravura performance—start to finish—and an honor to watch.”

Jenny Pizer, head of Lambda Legal Defense and Education Fund’s Marriage Project, said Olson did “an effective job” of hammering home the U.S. Supreme Court precedent supporting the “freedom to marry as a right of individuals that is so basic and important that the state cannot abridge it. . . .”

Walker also asked questions about “when is it appropriate for the judiciary to weigh in on legal and constitutional questions that may touch on sensitive social issues.” When the U.S. Supreme Court overturned laws against interracial marriage, with Loving v. Virginia, he noted, the political tide was already turning in favor of doing so—only about a dozen states still had such laws in 1967, down from a high of 41.

“Do we have such a political tide here that’s going to carry the Supreme Court?” he asked.

“I believe there is a political tied running,” said Olson. “And I think that people’s eyes are being opened. People are becoming more understanding and tolerant.” But Olson said the court should not require political polling to be “a few points higher” before ruling against discrimination.

“Some judge is going to have to decide what we have asked you to decide,” said Olson, “and there will never be a case with a more thorough presentation of the record.”

Judge Walker will, of course, decide. The primary questions before him are whether California’s ban on same-sex marriage violates the federal constitution’s guarantee to equal protection and due process. Assuming he rules that the ban does so, he must then determine whether there is some reason that justifies the ban. And related to that inquiry, he must decide how compelling a reason is required in order to trump the constitutional rights of gay citizens.

“I’ll be floored if he does not offer the Ninth Circuit [U.S. Court of Appeals] his conclusions about whether very rigorous scrutiny should be applied to antigay discrimination,” said Lambda’s Pizer.

Kendell said she thinks Walker will use “some higher level of scrutiny” than just a simple “rational” one—the easiest level to satisfy. The higher levels of review—quasi and strict—she noted would be “enormously helpful in challenging all manner of laws that discriminate based on sexual orientation.”

The highest level of review—strict scrutiny—is applied to laws that disfavor persons on the basis of race, and Olson relied heavily on comparisons between the current ban on same-sex marriage and the ban that existed in the 1960s on interracial marriage. The claim by supporters of Proposition 8, he said, that marriage has “traditionally” been understood to be one man and one woman does not constitute a reason to ban same-sex marriage.

That, said Olson, is a “Because I said so” type reason that “would justify racially segregated schools” in the sixties.

But if Walker applies the lowest level of scrutiny, said Kendell, “virtually every state law we attack survives because, at the rational basis level, laws essentially get a free pass.”

Mid-day report: Prop 8 trial closing arguments

Conservative attorney Ted Olson relied heavily this morning on comparisons between the current ban on same-sex marriage and the ban that existed in the 1960’s on interracial marriage.

Ted Olson
Ted Olson

Conservative attorney Ted Olson relied heavily this morning on comparisons between the current ban on same-sex marriage and the ban that existed in the 1960s on interracial marriage. The claim by supporters of Proposition 8, he said, that marriage has traditionally been understood to be one man and one woman, does not constitute a reason to ban same-sex marriage.

That, said Olson, is a “because I said so”-type reason. That “would justify racially segregated schools” in the 60’s.

U.S. District Court Judge Vaughn Walker fired off some tough questions for Olson, who was leading the legal team challenging California’s same-sex marriage ban.

He noted, for instance, a Supreme Court decision that said “any debatable” explanation would pass muster. But the questions had the tone of a devil’s advocate. And Olson quickly cited Supreme Court decisions that held negative attitudes about a group such as gays cannot be used to justify a law.

The San Francisco courtroom was filled to capacity Wednesday morning, with room enough to accommodate only about a dozen members of the public, who waited in line since 5:45 a.m. to get in.

Closing arguments continue this afternoon with Judge Walker hearing from supporters of Proposition 8.

Judge’s Prop 8 questions portend ‘blockbuster’

The federal judge presiding over the highly publicized Proposition 8 trial distributed to attorneys on both sides of the controversy a list of 39 questions he’d like them to address during closing arguments June 16. It’s the kind of list, said one veteran gay legal scholar, that promises his decision will likely be a “blockbuster in its scope.”

U.S. District Court Judge Vaughn Walker
U.S. District Court Judge Vaughn Walker

The federal judge presiding over the highly publicized Proposition 8 trial distributed to attorneys on both sides of the controversy Monday a list of 39 questions he’d like them to address during closing arguments June 16. It’s the kind of list, said one veteran gay legal scholar, that promises his decision—whatever that turns out to be—will likely be a “blockbuster in its scope.”

Among the questions Walker poses are: “What does it mean to have a ‘choice’ in one’s sexual orientation?” and “If spouses are obligated to one another for mutual support and … if legal spousal obligations have no basis in the gender of the spouse, what purpose does a law requiring that a marital partnership consist of one man and one woman serve?”

High-profile attorneys Ted Olson, challenging Proposition 8, and Charles Cooper, defending it, will attempt to answer those questions in their closing arguments before Walker Wednesday in the U.S. District Court for Northern California, in San Francisco. If they choose, they can also do so in writing before that proceeding is adjourned.

But after June 16, Walker will take all the arguments he’s heard and all the facts he’s been delivered back to his chamber to render a decision.

Nan Hunter, who for nine years headed up the ACLU’s National Gay and Lesbian Rights Project and is one of the most veteran and respected scholars in LGBT legal matters, said Walker’s questions suggest he may have already drafted an opinion in the four months since he adjourned the evidentiary segment of the trial, in late January.

The detail and breadth of the questions, she noted, “are literally all over the place, but in a good way.”

“Since I assume that most of them arose from a draft of the opinion,” said Hunter, “the list strengthens my expectation that this decision will be a blockbuster in its scope.”

“Judge Walker seems to be preparing an opinion that will comb through the evidentiary record,” said Hunter, referring back to his question list, “to discuss history (how can a right be characterized as fundamental, given the Supreme Court’s focus on tradition, when it did not exist in American society until a few years ago), culture (what is the difference between gays and lesbians on one hand and heterosexuals on the other), social theory (why is the ‘deinstitutionalization’ of marriage bad), and psychology (could sexual orientation be immutable for men but not for women).” (Hunter’s discussion of the question list can be read at Hunter of Justice.)

One question that stands out for Hunter and other LGBT attorneys watching the case is the first: It asks attorneys challenging Proposition 8 to assume that it has been established that Proposition 8 is not rationally related to a legitimate state interest but that “voters genuinely…believed” it was. “Do the voters’ honest beliefs, in the absence of supporting evidence, have any bearing on the constitutionality of Proposition 8?”

“That,” said Hunter, “alludes to a fundamental conflict in constitutional democracy that has been with us since the founding.”

The key question before Walker, as a judge, however, is whether California’s ban on same-sex marriage, passed as an initiative by voters in November 2008 as Proposition 8, violates the U.S. Constitution.

This trial is the first time state bans on same-sex marriage have been challenged under the federal constitution in federal court. (Other lawsuits have been filed—notably Smelt v. U.S.—but have been subsequently dropped.)

Olson and his team, which include well-known liberal attorney David Boies, put on a broad-scale attack, similar to one staged against Colorado Amendment 2 in 1993. Both cases tackled such matters as the history of discrimination against gays and whether sexual orientation is an immutable trait, but the Colorado Romer v. Evans case was about anti-discrimination laws in general. Perry v. Schwarzenegger, in San Francisco, is about marriage in particular.

Olson and his team, representing two same-sex couples, say Proposition 8 violates the federal constitutional guarantees of equal protection and due process. Cooper and his team say it reflects the will of the majority in a democratic system and that will is—not to express hostility to gays but—to “preserve the traditional definition of marriage.”

The 39 questions that Walker posed to the two sides—and to San Francisco’s openly gay Deputy City Attorney Therese Stewart, who will also give closing arguments—delve into both law and facts. They also touch on the federal Defense of Marriage Act—a federal law banning the recognition of same-sex couples which is under challenge by two active lawsuits in a federal court in Boston.

Judge Walker asked the attorneys challenging Proposition 8 to say whether they believe the court “could find Proposition 8 to be unconstitutional without also considering the constitutionality of the federal Defense of Marriage Act.”

Gary Buseck, legal director of Gay & Lesbian Advocates & Defenders, which is waging one of those challenges against DOMA, said he thinks Proposition 8 can be found unconstitutional without implicating DOMA.

“After all, we have marriage in five states and D.C. with DOMA in effect,” said Buseck, and the Massachusetts supreme court ruled, in 2003, that the Massachusetts constitution required equal marriage rights without needing to reach DOMA.

“Practically, people may have views on whether DOMA could stand given some bases on which Prop 8 might be struck,” said Buseck. “Then again, some narrow theory for striking Prop 8 may have no necessary effect on DOMA.”

In some cases, Walker’s questions appear to be hinting that the evidence submitted thus far for certain critical facts may not be sufficient. He asks, for instance, “What are the constitutional consequences if the evidence shows that sexual orientation is immutable for men but not for women? Must gay men and lesbians be treated identically under the Equal Protection Clause?”

If a minority is treated poorly because of an immutable trait, such as skin color, the courts may scrutinize laws that treat them differently with a much tougher review—called strict scrutiny.

“We think that term ‘immutable’ has a meaning different in this analysis from just whether something is ‘changeable’ in the day-to-day sense,” said Lambda Legal Defense and Education Fund attorney Jenny Pizer. “Just because a person’s expression of their sexuality may be different at different stages of their life doesn’t mean their orientation is a matter of voluntary will at any given moment or, more to the point, that the government has any business telling the person to change as the price of equal treatment under law.”

“Think of it this way,” said Pizer, “people who are raised in an orthodox faith may be less likely to change their religious views or affiliations than people raised in faiths that accept greater diversity of belief. But do the orthodox get more constitutional protection for their exercise of religion than those whose beliefs are broader or more flexible in their expression? No. Equal protection means equal.”

“And while sexual orientation and religious faith have very different sources,” said Pizer, “both tend to be deeply rooted in personal identity and not something our government has a right to judge or require be changed as a condition of equal citizenship.”

Whatever questions prevail near the end of the case, they certainly foreshadow an active last day in court. Walker also issued instructions on Monday that closing arguments would begin at 10 a.m. Pacific time (1 p.m. Eastern) and, after a 12 to 1 p.m. lunch break, would resume from 1 p.m. until 3:45—a total of less than four hours but approximately the same as opening statements.

Walker is expected to be an active questioner during closing arguments, as he was during opening statements on January 11. On that day, Walker quickly interrupted plaintiffs’ lead attorney Ted Olson to ask, “Does the right to marriage mean you have the right to a marriage licenses from the state?” He interrupted Proposition 8 defender Charles Cooper’s opening statement to note that, if President Obama’s parents—an interracial couple—had lived in Virginia “their marriage would have been unlawful. Doesn’t that indicate there’s been quite a change in our understanding of what people are entitled to marry? Couldn’t an argument be made that there’s been a similar evolution with respect to same-sex marriage?”

Walker was equally active in challenging both sides throughout the three weeks of testimony in Perry v. Schwarzenegger in January.

The trial itself spanned almost three weeks, with 16 witnesses for the plaintiffs challenging California’s same-sex marriage ban, and 3 witnesses who support the initiative.

Judge Walker, an appointee of President George H.W. Bush, is chief of judges in the U.S. District Court for Northern California. His credentials coming into the case were predominantly conservative. In addition to being a Republican appointee, his reputation included having been one of the attorneys representing the U.S. Olympics Committee in 1985 when it prohibited the San Francisco Arts & Athletics Association from calling its event the Gay Olympics. Walker and his colleagues won the USOC’s case against Gay Games in 1986, at the U.S. Supreme Court.

But days after Walker adjourned the witness portion of the trial, the San Francisco Chronicle reported that it is an “open secret” in San Francisco that Walker “is himself gay.” The paper made its report without identifying any named sources and with only a “no comment” from Judge Walker himself.

An estimated 18,000 same-sex couples obtained marriage licenses in California between June and November 2008, after the California Supreme Court ruled that the state’s constitution required they be treated the same as straight couples.

Mass. likens DOMA to Colorado initiative that Supreme Court struck down

For the second time in three weeks, a federal judge in Boston heard arguments in a lawsuit that asks the court to strike down a significant part of the federal Defense of Marriage Act (DOMA).

Maura Healey
Maura Healey

For the second time in three weeks, a federal judge in Boston heard arguments in a lawsuit that asks the court to strike down a significant part of the federal Defense of Marriage Act (DOMA).

In Commonwealth of Massachusetts v. Health and Human Services, U.S. District Court Judge Joseph Tauro is considering whether the federal law’s definition of marriage—one man and one woman—violates state sovereignty when it comes to marriage licensing. On May 6, 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.

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 constitutional right, under the federal constitution, to sovereign authority to define and regulate the marital status of its residents.

DOMA, said Healey, is an “animus-based national marriage law” that intrudes on core state authority and “forces the state to discriminate against its own citizens.” She likened DOMA to the Colorado Amendment 2 initiative that was struck down by the U.S. Supreme Court in 1996 with its Romer v. Evans decision. Amendment 2 said no law in the state of Colorado could prohibit discrimination based on sexual orientation.

“DOMA, like Amendment 2,” said Healey, “is a “wholesale, unprecedented denial of protection for a group of people.”

“Imagine the federal government giving money for the construction of schools and telling us that we can build them for white children but not for black children,” said Healey. Or imagine, she said, that the federal government would give money to subsidize health care for men, but not for women.

“That’s what DOMA does to Massachusetts,” said Healey. “It gives us funding but tells us to treat one category of married people differently than another. It forces us to violate equal protection.”

As GLAD did in Gill v. Office of Personnel Management, Healey urged Tauro to apply heightened scrutiny in considering whether the federal government had any legitimate need for DOMA. Heightened scrutiny would require the government to come up with a fairly significant reason for treating gay couples differently under the law.

But Healey told Tauro that, even if he uses only the lowest level of review—simple rational basis—the government still cannot identify a reason to treat gay couples differently, other than animus. She noted the federal government has “disavowed” the reasons Congress offered in 1996 when it passed the law. And she said it has no evidence to support the reasons it offers now.

Christopher Hall, the attorney arguing on behalf of the federal government, repeated at least twice that the current administration “does not support DOMA.” He said it believes the law is discriminatory and that it should be repealed. But, he said, federal attorneys “have an obligation to defend it,” nonetheless.

Hall said the government’s two key points are: 1) Congress should be able to control the meaning of terms used in its own statutes, and 2) that Congress should be able to control how federal money is allocated.

When Judge Tauro echoed Healey’s contention that marriage has always been left to the states to define and regulate, Hall disagreed. He the federal government has been involved in defining marriage for immigration laws.

He said DOMA does not, as Healey contended, violate the 10th amendment. The 10th amendment says “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.” Hall said DOMA does not prevent any state from defining marriage or who may marry.” It simply defines marriage “for the limited purposes of federal benefits,” said Hall.

Tauro interrupted Hall at one point to note that his arguments were “interesting and valuable.”

“But we’re here dealing with something basic,” said Tauro. “Are these people married or not?”

“They are married in the state,” said Hall.

“But not for federal purposes?” asked Tauro.

“They’re not eligible for federal benefits,” said Hall.

Tauro prompted Hall to respond to Healey’s claim that DOMA was coercing Massachusetts into discriminating against gay couples by the threat of losing billions of dollars in federal funds in Medicaid (hence the identification of HHS as a defendant).

Hall said DOMA does nothing different than what the government did in 1984 when it conditioned federal funds for highway construction on each state adopting a federal drinking age minimum of 21.

At the end of the 90-minute argument, Tauro said he would issue his ruling “shortly.”

There was not as big a crowd May 26 for the Commonwealth’s case against DOMA as there was May 6 for GLAD’s case. Attorney Mary Bonauto—who has won enormous recognition and publicity for winning the landmark decision in 2003 that enabled gay couples to start receiving marriage licenses in Massachusetts in 2004—argued GLAD’s case against DOMA. And the federal government’s defense was delivered by the somewhat notorious Department of Justice official Scott Simpson. Simpson has been a key figure in the Obama DOJ’s controversial briefs defending DOMA and saying it was not discriminatory against gays.

But both the state’s lawsuit and that of GLAD are very precise attacks against DOMA—targeting just Section 3—and most legal observers believe both cases could very well go as high as the U.S. Supreme Court for resolution.

Attorney General Martha Coakley, who attended the oral argument Wednesday and sat in the public section, said, in her office’s original briefs on the case, that more than 16,000 same-sex couples have obtained marriage licenses in Massachusetts since May 2004, when the state began allowing gay couples to obtain marriage licenses the same as heterosexual couples.

White House hints Kagan passive on “Don’t Ask” policy

The number of results from a Google search of “Elena Kagan” plus the word “gay” more than doubled from 722,000 on Monday, when President Obama nominated her to the U.S. Supreme Court, to 1,950,000 on Tuesday night, when Politico.com reported two friends said she is not gay.

Robert Gibbs
Robert Gibbs

The number of results from a Google search of “Elena Kagan” plus the word “gay” more than doubled from 722,000 on Monday, when President Obama nominated her to the U.S. Supreme Court, to 1,950,000 on Tuesday night, when Politico.com reported two friends said she is not gay.

Many of the results are articles and blogs discussing whether Kagan supported gay civil rights to the detriment of the military—a discussion that will clearly be a matter of intense focus during her confirmation hearing.

Sen. Jeff Sessions (R-Ala.), the ranking Republican on the Senate Judiciary Committee, put that at the top of his list Monday in reacting to the nomination. And efforts to complain about her lack of experience as a judge are running up against an embarrassing reality—former Chief Justice William Rehnquist never served as a judge prior to joining the Supreme Court; Chief Justice John Roberts served only two years; and Justice Clarence Thomas served barely one.

But the White House has taken an aggressive posture against efforts to thwart Kagan’s nomination by painting her as some kind of pro-gay, anti-military radical.

White House Press Secretary Robert Gibbs acknowledged during Tuesday’s routine press briefing that the White House submitted a commentary for publication in Tuesday’s Wall Street Journal to publicize the facts surrounding Kagan’s actions, as dean of Harvard Law School, with regard to military recruiters.

“We sent this out… because there’s people that either don’t know or are unwilling to understand the facts,” said Gibbs. “The military had, through a student organization, access to Harvard Law School students. And the semester in which they did not have access to the Office of Career Services actually saw an increase in the number of Harvard Law School students that joined the military.”

The essay in the Wall Street Journal did not make that latter point, but it did paint a picture of Kagan’s efforts to defend Harvard’s non-discrimination policy against the military’s “Don’t Ask Don’t Tell” policy as a more passive one than news reports have painted previously.

The commentary, written by Robert Clark who dean of Harvard Law just prior to Kagan, said Kagan merely “followed” a policy that was “already in place” since 1979. That policy, he said, barred employers from recruiting on campus unless they signed a statement agreeing not to discriminate based on various factors, including sexual orientation. Although the military refused to sign such a statement, said Clark, Harvard Law did allow military recruiters some limited access to recruit through the Harvard Law School Veterans Association.

In 1996, Congress passed the so-called Solomon Amendment to withhold federal funding from any university that barred military recruiters. Clark said Harvard Law relented so as not to jeopardize that funding for the entire university but that the school issued a statement each year expressing its disapproval of the military’s discriminatory policy.

When Kagan became dean in 2003, he said, she continued that policy—of allowing military recruiters but expressing disapproval of Don’t Ask Don’t Tell.

“Military recruiters used [campus recruiting] services,” wrote Clark, “but at the beginning of each interviewing season, [Kagan] wrote a public memorandum explaining the exception to the school’s nondiscrimination policy, stating her objection to ‘don’t ask, don’t tell,’ and expressing her strong view that military service is a noble and socially valuable career path that should be encouraged and open to all of our graduates.”

Clark said “it would be very wrong to portray Elena Kagan as hostile to the U.S. military. Quite the opposite is true.”

Meanwhile, Politico.com has the first sourced information purporting some knowledge of Kagan’s sexual orientation.

In a column posted late Tuesday night, Politico writer Ben Smith quotes Kagan’s former law school roommate, Sarah Walzer, as saying, “I’ve known her for most of her adult life and I know she’s straight.”

Walzer does not indicate that she’s speaking at Kagan’s request or on her behalf, but she offers, as evidence, that Kagan “dated men when we were in law school, we talked about men—who in our class was cute, who she would like to date, all of those things.”

Smith said Walzer agreed to be interviewed “after Kagan’s supporters decided they should tactfully put an end to the rumor” that Kagan is gay.

That rumor, which is fairly common about many people in public life, gained some traction with Kagan because she is 50 and unmarried and because the CBS News website posted a blog last month claiming that, if confirmed, Kagan would be the “first openly gay justice.” The White House quickly informed CBS the report was inaccurate, CBS took the post down, and the conservative blogger who wrote it apologized.

The Politico story also quoted another Kagan friend—the notorious former New York Governor Eliot Spitzer—as saying he, too, knew Kagan dated men at Princeton.

Kagan herself has made no public identification of her sexual orientation. Some LGBT activists reportedly expressed dismay that many news reports Tuesday ran a photo of Kagan playing baseball. The 1993 photograph, from the University of Chicago Law School, shows Kagan at the plate, holding a well-informed batting stance.

John Wright, news editor of the Dallas Voice, a gay newspaper, criticized the Wall Street Journal’s use of the photo. As he explained to Politico, “I think the newspaper, which happens to have the largest circulation of any in the U.S., might as well have gone with a headline that said, ‘Lesbian or switch-hitter?'”

The photo got more than a little notice and use by a number of news outlets Tuesday, including MLB.com. The website of major league baseball, asked several professional baseball players to assess Kagan’s batting stance from looking at the picture. New York Mets outfielder Jeff Francoeur said he thinks “she’s choked way too far up” on the bat, but most players asked said they thought she had a pretty decent stance. Some noted that it’s important to see a batter in action to get a full assessment.

“Batting stance looks OK,” said Ivan Rodriguez, a catcher for the Washington Nationals, “but I don’t know the swing.”

Reserved ovation for Kagan nomination to high court

Gay legal activists are applauding President Obama’s second nominee to the U.S. Supreme Court: Solicitor General Elena Kagan. But it could hardly be described as a standing ovation.

Elena Kagan

Gay legal activists are applauding President Obama’s second nominee to the U.S. Supreme Court: Solicitor General Elena Kagan. But it could hardly be described as a standing ovation.

Former Clinton White House aide Richard Socarides called Kagan a “brilliant, pragmatic progressive interested in listening to all sides and building coalitions.”

Lambda Legal Defense and Education Fund Executive Director Kevin Cathcart said Kagan took “a strong position” in opposing the military’s ban on gays but noted that Obama administration has also “taken legal positions on ‘Don’t Ask, Don’t Tell’ and the so-called ‘Defense of Marriage Act’ with which we strongly disagree.”

Human Rights Campaign President Joe Solmonese applauded her selection as fulfilling Obama’s promise to promote “diversity” on the court.

If confirmed, Kagan would become only the fourth woman ever named to the court—out of 104 justices in the history of the court.

Kagan is of particular interest to the LGBT community. While serving as dean of Harvard Law School, she took sides with gays against military recruiters because the military would not abide by the school’s non-discrimination policy. That policy prohibited recruiters who discriminated based on sexual orientation.

Kagan clerked for one of the Supreme Court’s staunchest liberals, Thurgood Marshall, and was a research assistant for one of the greatest legal defenders of gay civil rights, Laurence Tribe.

Single and 50, she was also the subject of a CBS News website blog report last month which claimed that, if named to the court, Kagan would be the “first openly gay justice.” But Kagan has not publicly identified with any sexual orientation, and the White House moved quickly to say the report was “inaccurate.”

The president announced his selection at a 10 o’clock press conference this morning.

Socarides called Kagan “one of the smartest people I know” and “someone the country will come to like and respect.”

“Her thinking is well within the mainstream,” said Socarides, and “very much in keeping with Obama’s overall philosophy…. Pretty much a home-run appointment.”

Shannon Minter of the National Center for Lesbian Rights called Kagan “well-qualified” and said members of his organization “strongly support increasing the number of women on the court.”

Lambda’s Cathcart said he did not expect Kagan “to answer questions about how she would rule on specific issues such as these that will come before her.” But he said Lambda does “expect that she will respond to questions about her judicial philosophy and her understanding of core constitutional principals of equal protection and privacy that are so crucial to the civil rights of people who face discrimination based on sexual orientation, gender identity and/or HIV status.”

Long-time gay legal activist Paula Ettelbrick, an adjunct professor of law at New York University Law School, said Kagan’s nomination is “most historic” and that “it moves women’s representation on the Court to a more meaningful plurality.”

Mainstream news organizations immediately set about assessing her odds for confirmation. MSNBC speculates both conservatives and liberals could criticize her. Commentator-reporter Chuck Todd said conservatives would fault Kagan over her opposition to military recruiters at Harvard. He said liberals could fault her for defending some policies put in place by the administration of President George W. Bush.

In introducing Kagan to the press conference Monday morning, Obama praised Kagan for having sought conservative views to balance liberal views at Harvard. During her confirmation process for Solicitor General last year, the Senate Judiciary Committee received letters in support of Kagan from such well-known conservatives as former Solicitor Generals Charles Fried and Kenneth Starr, and such well-known liberals as Eleanor D. Acheson.

Her confirmation as Solicitor General was opposed, as expected, by some ultra-conservative groups, including Concerned Women for America, who faulted her for opposing military recruiters, as well as Focus on Family and more than a dozen other groups who said she could not be counted on to defend “Don’t Ask Don’t Tell.”

Kagan, an attorney, has never served as a judge but is widely respected as a legal scholar.

NCLR’s Minter said, “Because she has not served previously as a judge, it will be important to hear more about her judicial philosophy and whether she has a strong commitment to enforcing constitutionally protected rights and liberties. “

Given that she filled out the Senate Judiciary Committee’s lengthy questionnaire just last year, the vetting of her by various senators should go fairly rapidly.

In response to questions from the Judiciary Committee last year, Kagan said she views as “unjust the exclusion of individuals from basic economic, civic, and political opportunities of our society on the basis of race, nationality, sex, religion, and sexual orientation.” But she also said she was “fully convinced” she could defend U.S. laws even when they do not reflect her personal views, including the federal law which penalizes universities which ban military recruiters.

Kagan’s questionnaire also indicated that she delivered a welcoming address to introduce panel members at a Harvard University Gay and Lesbian Alumni event in September 2008. And in April 2006, she moderated a panel of the LAMBDA Student Organization concerning the “Relationship between Law Schools and the Military.” Such participation is fairly typical of law school deans and her list includes an even greater number of appearances before groups promoting civil rights for black law students.

Senators Orrin Hatch and Jon Kyl, two Republicans on the Senate Judiciary Committee who voted for Kagan as Solicitor General, issued statements Monday morning saying their vote is not guaranteed for the Supreme Court appointment.

If confirmed, Kagan will become the third woman on the U.S. Supreme Court today and the second unmarried justice. Justice Sonia Sotomayor, Obama’s first nominee to the Supreme Court, was married briefly but divorced in 1983.

A press release from HRC applauded Kagan’s “commitment to fairness and equality.”

“Specifically, we applaud Elena Kagan’s vocal opposition to the Solomon Amendment and the discriminatory ‘Don’t Ask, Don’t Tell’ law.

HRC said it would continue examining Kagan’s record on issues that affect the LGBT community.

Kagan’s nomination is being made to fill the seat of retiring Justice John Paul Stevens, who announced his retirement last month.

The composition of the Supreme Court is increasing critical to the LGBT civil rights movement. Three important cases seeking equality in marriage rights are winding their ways to the high court and it seems nearly inevitable that the high court will choose to weigh in on at least one, if not all three. The court will also hear a case this fall that will determine whether a virulently anti-gay protest group has a First Amendment right to stage their demonstrations in ways that disrupt private funeral services.

While many nominees that the occasion of the press conference in introduce close members of their family, Kagan noted that her parents had already passed away and said she was “thankful for my brothers and other family and friends” for being there with her.

Court hears first challenge to DOMA

Gay legal activists feel they got a good hearing from U.S. District Court Judge Joseph Tauro May 6, in the first federal district court hearing to examine the constitutionality of the Defense of Marriage Act.

Mary Bonauto
Mary Bonauto

U.S. District Court Judge Joseph Tauro is not your typical federal judge. He wears his black robe wide open so you can see his blue shirt and boldly striped tie. He stands throughout the proceeding at a lectern, studying the attorneys before him as intently as a line judge might do at Wimbledon.

He’s also not your typical Nixon appointee. He is, at 79 years old, the only one still serving in an active role on the federal district court bench. He’s unusually informal—beckoning the courtroom audience to give him a hearty “Good morning,” in return for his own greeting.

But gay legal activists feel they got a good hearing from Judge Tauro May 6, in the first federal district court hearing to examine the constitutionality of the Defense of Marriage Act.

The case was Gill v. Office of Personnel Management, a lawsuit brought by the Gay & Lesbian Advocates & Defenders, the group which won the landmark decision in 2003 which enables same-sex couples in Massachusetts to obtain marriage licenses the same as straight couples.

GLAD’s lawsuit is a very precise attack on DOMA—targeting just one section of the law—Section 3—that limits the definition of marriage –for all federal purposes—to only straight couples.

GLAD attorney Mary Bonauto told Tauro that DOMA constitutes a “classic equal protection” violation.

“It takes one class of married people in the Commonwealth,” she said, “and divides it into two.” And one class, same-sex couples, she said, is “utterly disregarded” under federal law.

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.”

In making its case, GLAD also urged the court to give heightened scrutiny to DOMA. Heightened scrutiny requires the government to provide a strong justification for treating one group of citizens differently. Otherwise, the government can justify a law with just some simple “rational” reason.

To get heightened scrutiny, GLAD needed to convince the judge either that DOMA interferes some “fundamental right” of gay people or that gay people are a relatively powerless minority often targeted for discrimination The latter is referred to legally as a “suspect classification.” The Supreme Court has already ruled that marriage is a fundamental right, but no court has ruled yet that gays constitute a suspect class.

Tauro did not show much interest in examining either side’s position concerning suspect classification. Instead, he seemed determined simply to test out each of the government’s purported reasons for enacting DOMA. He asked Bonauto whether the government had legitimate arguments in saying DOMA was necessary to preserve a “status quo” concerning the federal understanding of marriage or to adapt federal law to the changing understanding of marriage incrementally.

“No, your honor,” said Bonauto. DOMA did not preserve a status quo, it upended one. Bonauto pointed out that, prior to DOMA, the federal government accepted each state’s definition of marriage.

It was on this point that Judge Tauro pressed the government most vigorously, asking Department of Justice attorney Scott Simpson, “When did it become a federal matter—dealing with marriage?”

Simpson, who has been DOJ’s point-man for defending DOMA, tried to step around the question, but Tauro re-directed his question more bluntly:

“Specifically, point to an incident,” said Tauro, when marriage has been a federal matter prior to DOMA. Simpson had to concede: “It’s true” that, up until DOMA, the federal government has “simply followed the states’ definition of marriage.”

Today’s argument represented a sort of Step One in a two-prong attack against Section 3 of DOMA. Judge Tauro will hear a challenge from the Commonwealth of Massachusetts, attacking Section 3 on other grounds. That case will be heard May 26th.

DOMA, passed in 1996 and signed into law by President Clinton, has two parts. Section 2 provides that no state can be “required” to recognize the marriage of a same-sex couple licensed in another state. Section 3 limits, for any federal purpose, the interpretation of “marriage” as being only heterosexual couples.

A year ago, there were five lawsuits in federal court seeking to establish equal rights for gay couples in marriage licensing. Two of those—Smelt v. U.S. and Bonilla v. Levine—have since been dropped. Now, there are these two DOMA challenges in Boston and Perry v. Schwarzenegger, the high-profile challenge to California’s Proposition 8 in a federal district court in San Francisco. The Prop 8 case went through a three-week long trial of expert witnesses in January and is scheduled to hold closing argument on June 16.

While the Prop 8 case challenges the same-sex marriage ban with a broad attack—for all same-sex couples in all arenas—the GLAD case is a precision attack. It identifies specific couples and individuals and demonstrates how Section 3 of DOMA adversely impacts their lives in specific arenas, such as Social Security benefits, taxes, survivor benefits, and health insurance.

The plaintiffs originally were eight married couples, as well as three gay individuals whose spouses have died. Soon after the lawsuit was filed, GLAD scored one victory. In June 2009, the U.S. Department of Justice announced that the Department of State would immediately amend regulations that prevented the issuance of new passports to gay spouses who changed their names after legally marrying. That dropped the plaintiff list today to three individuals and seven couples, including Nancy Gill, a federal postal worker, and her spouse, Marcelle Letourneau.

Can activists claim right to privacy?

For the second time this month, the U.S. Supreme Court’s most conservative member, Justice Antonin Scalia, on Wednesday took a surprising position—one that is helpful to gay civil rights.

Antonin Scalia
Antonin Scalia

For the second time this month, the U.S. Supreme Court’s most conservative member, Justice Antonin Scalia, on Wednesday took a surprising position—one that is helpful to gay civil rights.

“The First Amendment,” said Scalia during oral arguments in a case involving the 2008 Washington State referendum on a domestic partnership law, “does not protect you from criticism or even nasty phone calls when you exercise your political rights to legislate, or to take part in the legislative process.” The point was essentially the same as that made by five national gay legal and political groups in their friend-of-the-court brief in the case, Doe v. Reed.

Earlier this month, in an oral argument about the First Amendment right of a religious student group to ignore a campus policy prohibiting sexual orientation discrimination, Scalia chastised the religious student group. He said the Christian Legal Society had not introduced any evidence to prove it was being treated differently from other campus groups under the University of California’s non-discrimination policy.

Scalia’s remarks in two oral arguments do not constitute a turnaround for the justice; but his remarks in the Doe v. Reed discourse seemed to strongly suggest he would vote against the anti-gay group Protect Marriage Washington, which brought the case.

In fact, only two justices—Chief Justice John Roberts and Justice Sam Alito—appeared to offer Protect Marriage any hope of support Wednesday.

During Wednesday’s oral argument, former Mitt Romney presidential campaign adviser James Bopp, representing Protect Marriage Washington and two “John Doe” plaintiffs, argued that the “First Amendment protects citizens from intimidation resulting from compelled disclosure of their identity and beliefs and their private associations.”

Specifically, Bopp and his clients challenged 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. They said the public disclosure of the identities of petition signers had a chilling effect on their freedom of speech because they feared reprisals and harassment from citizens who didn’t agree with them. And, they said, it violated their right to privacy. 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.

Although the facts of this particular case revolved around a dispute over a domestic partnership law as well as, indirectly, California’s Proposition 8, the justices wrestled with the implications of Protect Marriage’s argument for a wide scope of matters.

In fact, Bopp had barely gotten his first sentence out when Scalia launched his inquiry, wanting to know whether Bopp’s logic would extend to laws requiring disclosures of campaign contributions. Justice Sonia Sotomayor jumped in, saying Bopp’s theory “would invalidate all of the state laws that require disclosure of voter registration lists.” Justice Anthony Kennedy suggested Bopp’s argument would seem to make illegal boycotts of businesses that support a referendum.

Bopp said no, and tried to contend that his legal challenge to the Washington State Public Records Act concerned its application only to referenda petitions. But Justice Ruth Bader Ginsburg asked why, then, his argument wouldn’t cover a campaign contributor who worried about being harassed over the candidate he or she chose to fund. And why, asked Ginsburg, was Protect Marriage trying to protect the privacy of petition signers through public documents at the same time it was selling those names to other organizations for fundraising purposes.

Bopp tried to point to earlier Supreme Court decisions for help. For instance, he cited a 1999 decision, Buckley v. American Constitutional Law Foundation, led by Justice Ruth Bader Ginsburg, that struck down a Colorado law that required people circulating petitions to be registered voters, wear an identification badge with their names on them, and their names and addresses on each petition. In an 8 to 1 decision, the court ruled that the law violated the First Amendment right to free speech. Then-Chief Justice William Rehnquist was the lone dissent.

Scalia rebuffed Bopp’s attempt, saying there was a qualitative difference between collecting signatures on a petition and signing the petition. The latter, he said, was participating in a legislative act.

“The fact is,” said Scalia, “that running a democracy takes a certain amount of civic courage. And the First Amendment does not protect you from criticism or even nasty phone calls when you exercise your political rights to legislate, or to take part in the legislative process.”

Later, Scalia elaborated, saying, “The people of Washington evidently think that [the public disclosure law] is not too much of an imposition upon people’s courage, to stand up and sign something and be willing to stand behind it.”

It was at this point that Chief Justice John Roberts jumped in with a defense of Bopp’s position by using a sort of reverse discrimination argument, saying, “One of the purposes of the First Amendment is to protect minorities.”

But Scalia seemed convinced the disclosure is a reasonable safeguard in a democracy.

“Threats should be moved against vigorously,” said Scalia, “but just because there can be criminal activity doesn’t mean that you have to eliminate a procedure that is otherwise perfectly reasonable.” It was an argument similar to one made by the gay brief.

The gay brief states that ballot measures, such as Referendum 71, lead to increased harassment and violence against LGBT people, not petition signers. It said proponents of Referendum 71 did not produce facts to support their claims that petition signers had been subject to any systematic harassment or intimidation. And it said Protect Marriage’s claims that petition signers were being harassed was just another political tactic by the anti-gay activists both in Washington and in California.

“When subjecting a minority group to political attack, a common tactic is to claim that the minority is itself the aggressor from whom protection is required,” stated the gay 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.

Washington State Attorney General Robert McKenna mentioned the “Lambda brief” during his time before the court Wednesday. He noted the brief detailed how a similar public disclosure law in Massachusetts had enabled “more than 2,000” citizens to discover and report that their signatures had been improperly attributed to a petition seeking a ballot measure to repeal a marriage equality law in that state in 2006.

The Lambda brief said that keeping petition signatures as part of the public record provides a “much needed procedural check” on initiatives seeking to take away rights of minorities and that it helps prevent fraud in election.

According to Justice Ginsburg, about 20 states have laws similar to Washington State requiring public disclosure of petition signers for ballot measures.

Roberts, Alito, and Justice Stephen Breyer all asked questions of McKenna seeking his concession that public disclosure laws could have a chilling effect on a signer’s willingness to exercise his First Amendment rights. They focused on reports that certain groups—such as knowtheyneighbor.org—were posting petition signers’ names and addresses on their Internet websites to encourage LGBT people to talk to them about the issue.

“Suppose that, in 1957 in Little Rock, a group of Little Rock citizens had wanted to put on the ballot a petition to require the school board to reopen Central High School, which had been closed because there was a sentiment in the community that they didn’t want integration,” said Breyer. Mobs of white people opposed to integration employed violent tactics to keep blacks out of the school, forcing then President Eisenhower to call in federal troops to enforce the historic Brown v. Board decision to desegregate.

What if people who supported integration, said Breyer, knew that “if they signed this petition, there was a very good chance that their businesses would be bombed, that they would certainly be boycotted, that their children might be harassed. Is there no First Amendment right in protecting those people?”

McKenna said the Supreme Court in January, in Citizens United v. Federal Election Commission, had already allowed for case-by-case exceptions to be made concerning the disclosures of campaign contributors. The decision said the 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.”

But McKenna added that, in Massachusetts, Florida, and Arkansas—three other states with public disclosure laws where gay-related ballot measures have come up—“no evidence has been provided that is in the record that anyone who signed any of these petitions in those three States was subjected to harassment.”

Justice Alito wanted to know how a person who might want to sign a petition proves there’s a sufficient threat of harassment before signing the petition. McKenna suggested it would be up to a petition’s sponsor to seek court approval to seal the records ahead of time.

That is what Protect Marriage did in Washington State, but its claim that its supporters were vulnerable to significant threats was not before the Supreme Court Wednesday—only its claim that the state public disclosure law was, in and of itself, unconstitutional.

Chief Justice Roberts asked McKenna whether he thought the court should grant a stay in this case to allow Protect Marriage to pursue an “as applied” challenge. McKenna said yes and noted that the petition forms are still sealed under the original federal district court ruling.

That, of course, means there’s a likelihood the Supreme Court will send this specific —over Referendum 71 petitions—back to the lower courts to enable Protect Marriage to challenge disclosure of its petitions under an “as-applied” basis.

But the potency of that specific challenge has diminished: Voters in 2008 rejected Referendum 71 and the domestic partnership law took effect last May.

No on 8 groups relent; turn over documents

No on 8 groups turned over CDs of “highly confidential” material to attorneys for the Yes on 8 coalition this week, ending a months-long effort to fight a court order to do so.

Judge Vaughn Walker
Judge Vaughn Walker

No on 8 groups turned over CDs of “highly confidential” material to attorneys for the Yes on 8 coalition this week, ending a months-long effort to fight a court order to do so.

The groups, Equality California and the ACLU of Northern California, had fought a federal court order to turn over internal communications since January. But the groups ended the standoff this week, saying they did not want to delay any further a ruling on the constitutionality of Proposition 8. The Perry v. Schwarzenegger trial testing the constitutionality of the California same-sex marriage ban was held in January but closing arguments in the case have been delayed for months while the dispute has raged over what documents the No on 8 groups had to turn over.

Elizabeth Gill, an attorney with ACLU, acknowledged Thursday that the No on 8 groups had not prevailed in their attempt to avoid turning over all communications—including communications between the various organizations and people who worked against the anti-gay initiative in 2008. None of the groups are a party to the Perry lawsuit, but were subpoenaed for the documents by the Yes on 8 groups that had been ordered to turn over similar documents to the plaintiffs in the case.

Because the No on 8 groups are not a party to the lawsuit, they would have had to subject themselves to a contempt of court order before the 9th Circuit U.S. Court of Appeals could have taken up their objection to turning of the documents.

The 9th Circuit initially ruled that the First Amendment does not cover the communications among political organizations working on a campaign but later clarified that it does. The catch was that the No on 8 groups would have to subject themselves to being held in contempt before the appeals court could intervene. The contempt order would cost each organization $2,000 per day that they refused to turn over documents.

“We just decided not to continue to fight this,” said Gill. “What we were fighting over was a question of principle—the idea of what kind of campaign communications does the First Amendment cover.”

“Ultimately, the Ninth Circuit has recognized the serious implications at stake for all coalition partners who come together around ballot measures,” said Gill, in a written statement, “and has made it clear that the private communications shared among coalition partners is protected speech.”

Gill and the ACLU, in a statement issued Wednesday, said the organization “believes that the substantial delay” in the Perry trial that would result from continued appeal of the documents order “is far outweighed by the interest in a swift resolution of the underlying dispute—the right of same-sex couples to marry in California.”

The groups’ agreement to turn over the documents enabled U.S. District Court Judge Vaughn Walker, who is presiding over the Proposition 8 trial, to set a tentative date for closing arguments. That date, subject to change due to the schedules of the various attorneys involved, is currently June 16 at 10 a.m.

During a court hearing Wednesday, Judge Walker gave both sides of the Perry v. Schwarzenegger lawsuit until Friday to review the documents turned over to Yes on 8 this week. He said they would meet Saturday to determine whether there is any lingering dispute and, if not, issue a ruling Monday that the No on 8 groups are in compliance with the order. Walker said Yes on 8 attorneys would then have until May 5 to present any additional evidence in the Perry case, based on the documents turned over. Walker is also considering a motion from an intervenor party for the Yes on 8 proponents—adverse witness William Tam—to have his testimony stricken from the record. Walker said he would accept arguments on that issue until May 10.

Equality California sent its materials April 27 to the Alliance Defense Fund, a conservative group that has helped the Yes on 8 group’s effort to defend California’s same-sex marriage ban. The ACLU sent a CD for “No on Proposition 8, Campaign for Marriage Equality: A Project of the ACLU-Northern California.”

Openly gay man nominated to fed appeals court

In an historic move, President Obama this month nominated an openly gay person, Edward DuMont, to a federal appeals court judgeship—the first such openly gay nomination at that level. He also becomes the first openly gay man to be nominated to a federal judgeship.

Edward DuMont
Edward DuMont

In an historic move, President Obama this month nominated an openly gay person, Edward DuMont, to a federal appeals court judgeship—the first such openly gay nomination at that level. He also becomes the first openly gay man to be nominated to a federal judgeship.

DuMont was nominated April 14 to the U.S. Court of Appeals for the Federal District, the only federal appeals court with national jurisdiction. Located in Washington, D.C., the court has 16 judges and hears cases involving government contracts, patents, trademarks, customs issues, and veterans’ benefits.

In his responses to the Senate Judiciary Committee questionnaire, DuMont had something to please senators on both sides of the aisle, and he was very forthcoming about his involvement in and support for gay legal groups. He indicated that he is a member of the Gay, Lesbian, Bisexual and Transgender Attorneys of Washington (GAYLAW) and a former member of the National LGBT Bar Association. While at the Department of Justice, he was a member of DOJ Pride, the GLBT employee organization and served as its vice president between 1994 and 1996. He is also a member of Yale GALA.

According to biographical sheet provided by his law firm, DuMont’s partner of the past 13 years is Newton Kendig, a doctor and commissioned officer in the U.S. Public Health Service in charge of health services for the Federal Bureau of Prisons.

His Senate Judiciary Committee questionnaire responses also make note that he has given contributions to a large number of groups concerned with civil rights, the environment, and health issues. Among the many gay-related organizations, he has contributed to the lesbian funding group Astraea, the Empire State Pride Agenda, Equality California, Equality Colorado, Federal GLOBE, Food and Friends, Freedom to Marry, Gay & Lesbian Victory Fund, Gay & Lesbian Alliance Against Defamation, Gay Men’s Health Crisis, the Human Rights Campaign, Lambda Legal Defense and Education Fund, the National Gay & Lesbian Task Force, Servicemembers Legal Defense Network, and Vermonters for Civil Unions. He has also contributed to a variety of women’s and minority civil rights groups, the Democratic Party, and a number of environmental, animal rights, and health causes.

Despite his wide and deep connections to so many progressive groups, he will probably find support among at least some Republicans for having signed a letter in 2002 to support the nomination of Miguel Estrada, President Bush’s controversial nominee to the U.S. Court of Appeals for the D.C. Circuit. DuMont also clerked for Reagan appointee Richard Posner, a judge on the 7th Circuit. He worked four years for a major Wall Street law firm, Sullivan & Cromwell, as an attorney to large corporations on a range of tax matters. His name was on a brief in support of a religious group in its successful petition to the U.S. Supreme Court to exercise a First Amendment right to use public school facilities to host a family values series. A unanimous Supreme Court ruled for the religious group, in Lamb’s Chapel v. Center Moriches School District, in 1993.

A native of Oakland, California, DuMont’s Judiciary Committee questionnaire indicates he was born in 1961 and graduated from Yale University and Stanford Law School. He served as Assistant Solicitor General and as Associate Deputy Attorney General during the last term of President Clinton. He currently works at the Washington, D.C. law firm of Wilmer Cutler Pickering Hale and Dorr.

Through an associate, DuMont declined a request for an interview, as typically all nominees do.

DuMont earned the highest rating from the American Bar Association—unanimously well qualified. He has argued 18 cases before the U.S. Supreme Court, and he has had experience in cases involving computer crime and privacy, international treaties, and foreign corporations.

No hearing date has yet been set for his confirmation hearing by the Senate Judiciary Committee.

Ty Cobb, the Human Rights Campaign’s legislative counsel focusing on judicial nominations, said DuMont is “unbelievably well-qualified.”

Two other openly gay people currently serve positions in the federal courts, both appointed by President Clinton. At the U.S. District Court level, Deborah Batts became the first openly gay person appointed to a federal judgeship, appointed in 1994 to the Southern District of New York, which includes 41 judges. Emily Hewitt became the second when she was appointed to the U.S. Court of Federal Claims in 1998. President Obama elevated her to Chief Judge of that court in 2009. The court, based in Washington, D.C., hears cases involving such matters as government contract claims, intellectual property, Indian tribes, and complicated tax refund litigation.

Prop 8 sideline fight rages on

A sidelines skirmish over document production in the Proposition 8 lawsuit rages on this month, forcing the continued delay of closing arguments and, ultimately, a decision on the constitutionality of California’s ban on same-sex marriage. And Ted Olson, the well-known conservative attorney leading the litigation against the ban, accused the ACLU and Yes on 8 proponents of “delaying the progress” of the trial.

A sidelines skirmish over document production in the Proposition 8 lawsuit rages on this month, forcing the continued delay of closing arguments and, ultimately, a decision on the constitutionality of California’s ban on same-sex marriage. And Ted Olson, the well-known conservative attorney leading the litigation against the ban, accused the ACLU and Yes on 8 proponents of “delaying the progress” of the trial.

The conflict involves a refusal by the ACLU and Equality California to turn over internal e-mails and memoranda to defendants in the Perry v. Schwarzenegger lawsuit challenging Proposition 8. Last week, the 9th Circuit U.S. Court of Appeals dismissed the groups’ appeal of an order to turn over the documents. The 9th Circuit said it did not have jurisdiction over the matter and could not review the controversy unless the groups’ defy the order, are found in contempt of court, and appeal the contempt order.

U.S. District Court Judge Vaughn Walker, the presiding judge in the Proposition 8 trial, urged the groups, the defendants, and the plaintiffs in the lawsuit to try to reach a resolution on their own concerning document production. But in communications filed with the district court on Thursday, April 22, all sides agreed that they had not been able to reach a resolution.

Attorneys for the plaintiffs challenging the California law complained to Judge Walker that the ACLU and Yes on 8 supporters “are delaying the progress of this case” and urged him to move quickly to find the ACLU and Equality California in contempt so that their anticipated appeal of the contempt order can proceed.

In his statement to Judge Walker Thursday, Olson said that, “While Plaintiffs cannot stop the ACLU from choosing to go into contempt, the Ninth Circuit’s order makes clear that such a tactic and any subsequent appeal would be futile.”

The conflict over document production emerged halfway through the three-week-long trial on Proposition 8 held in January.

Gay group sues gay group for bias against bisexuals

In what may be a legal first, a national gay legal group has filed suit against a national gay sports group for discriminating based on sexual orientation—against straights and bisexuals.

Shannon Minter

In what may be a legal first, a national gay legal group has filed suit against a national gay sports group for discriminating based on sexual orientation—against straights and bisexuals.

The lawsuit, filed in a federal district court, alleges that the North American Gay Amateur Athletic Association (NAGAAA) violates the Washington State law against sexual orientation discrimination in public accommodations. It says the group did so by imposing a rule that teams participating in the 2008 Gay Softball World Series could have no more than two heterosexuals per team.

Shannon Minter, legal director for the National Center for Lesbian Rights (NCLR), said NCLR has “tried very hard” to settle this case and have NAGAAA change its policy, but to no avail.

“We are still hopeful that NAGAAA will agree to change the policy, as that is our goal here,” said Minter. “We strongly support LGBT sporting leagues, but the best practice, and the only lawful one, is not to exclude players based on their sexual orientation.”

NCLR is representing three men who played on a San Francisco team competing in the World Series in Seattle, each of whom was asked “intrusive questions about his sexual orientation and his private life in front of a room of over 25 people.”

“The players were forced to answer whether they were ‘predominantly attracted to men’ or ‘predominantly attracted to women,’ without the option of answering that they were attracted to both,” according to the complaint. “After each player was interrogated, a panel voted on whether he was ‘gay’ or ‘non-gay.’”

NCLR said the NAGAAA panel voted that none of the three were gay. All three were men of color. NCLR said the panel also took votes on the sexual orientation of two other male players from the same team who were white. The panel voted that both those players were gay.

“NAGAAA’s committee refused to entertain the idea that the players could be bisexual,” said NCLR. “In response to a player’s statement that he was attracted to both men and women, a NAGAAA member responded, ‘This is the Gay World Series, not the Bisexual World Series.’”

“It damages our community to conduct witch hunts and to exclude people from playing in a sports league for not being ‘gay enough’,” said NCLR Sports Project Director Helen Carroll. “We wouldn’t accept this kind of treatment from a non-LGBT sports organization and we shouldn’t do it to ourselves.”

The three plaintiffs in the lawsuit—Steven Apilado, Laron Charles, and Jon Russ—are all bisexual. The public accommodations identified are municipal playing fields reserved by NAGAAA for its 2008 softball world series in Seattle. The complaint also alleges NAGAAA treated the plaintiffs differently because of their race and national origin.

Minter said the case was filed in federal court because the plaintiffs and the defendants are from different states.

NAGAAA, a non-profit organization incorporated in Wisconsin, did not respond to a request for comment.

The NAGAAA’s “Instruments of Governance” states that a “maximum of two heterosexual players” are permitted on each team’s roster and that teams who violate this rule may be disqualified from play or be made to forfeit all games, be fined $100, have its manager suspended, and have the heterosexual player permanently suspended from play. The word “bisexual” does not appear in the policy.

The only mention of “sexual orientation” in the policy comes under a statement of the group’s purpose: “To be a nonprofit organization dedicated to the promotion of amateur sports competition, particularly softball, for all persons regardless of age, sexual orientation or preference, with special emphasis on the participation of members of the Gay Community….”

The NCLR complaint notes that it was a team from Atlanta—called the “Mudcats”—that challenged the membership of the San Francisco team—the D2—at the 2008 series. The Mudcats raised their complaints after losing to D2 in the series’ semi-final game and during D2’s championship game with a Los Angeles team but the game was allowed to finish. After D2 lost the game, the NAGAAA organizers held a “hearing” to determine whether five players on D2 were gay or non-gay. Responses by one player indicating he was bisexual were disregarded. Although one black player and one white player gave nearly identical responses to the questions, only the black player was voted to be disqualified.

More than 180 teams participate in the annual event. In 2009, that included ten teams from Florida, nine from Atlanta, six from Boston, Dallas, and San Francisco, five from Chicago, four from San Diego, and three from Oklahoma.

The 2010 Gay World Series is slated to take place in Columbus, Ohio, in August. The complaint also notes that the organization’s principal place of business is either North Carolina or Florida.

The lawsuit, Apilado v. NAGAAA, has been filed in the U.S. District Court for the Western District of Washington.

High court seems uncertain about beliefs v. bias conflict

By the time a lawsuit reaches the U.S. Supreme Court, the facts of the conflict are rarely in dispute. But Monday’s oral argument at the Supreme Court revealed a great deal of confusion over those very basic facts of the case.

scotus_bldg1_DR200By the time a lawsuit reaches the U.S. Supreme Court, the facts of the conflict are rarely in dispute. The high court deals with the question of constitutionality—not which policy was in play when a petitioner cried “foul!”

But Monday’s oral argument at the Supreme Court revealed a great deal of confusion over those very basic facts of the case. And it is a very significant case for the LGBT community because it tests the rights of freedom of religion to trump policies prohibiting discrimination based on a variety of categories.

The consequences of that confusion could mean the Supreme Court decides to make no ruling on the case, but if it does, there appeared to be a fighting chance that the non-discrimination policy might prevail this time.

The lawsuit was Christian Legal Society v. Martinez. In the case, a Christian student group says the University of California-San Francisco’s Hastings College of Law violated its First Amendment rights when the school refused it official recognition as a campus group.

The confusion reigned over whether the school refused official status for the Christian Legal Society chapter at Hastings because the group violates the school’s written non-discrimination policy or because the group violates the school’s stated interpretation of that policy—that all official student groups must allow full and equal participation by all students.

Christian Legal says it is willing to abide by the policy that prohibits discrimination based on sexual orientation, but it says the implementing policy—that all students have full and equal participation in all officially sanctioned groups—goes too far. Christian Legal says that policy—by requiring that all students be eligible to vote and serve in leadership positions – violates group’s First Amendment rights to free association and free exercise of religion.

But key to Christian Legal’s contention is whether the school’s implementing policy has equal impact on all groups or a disparate impact on groups formed around certain religious beliefs.

Guided by Justice Sam Alito’s questioning, Christian Legal attorney Michael McConnell asserted that, while UC–Hastings has a written non-discrimination policy that applies to all groups, it applies the implementing policy only against Christian Legal.

Surprisingly, it was the court’s staunchest conservative, Antonin Scalia, who rebuffed that contention, saying Christian Legal had not introduced any evidence to prove it was being treated differently. Justice Ruth Bader Ginsburg noted that Christian Legal had, at the district court level, stated as fact that Hastings requires all student groups to allow any student to participate fully in the organization.

But McConnell suggested the school’s implementing policy “changes with every wind.” He did not mention that Christian Legal’s policy had changed, too. The UC-Hastings chapter had operated in compliance with the school’s non-discrimination policy for more than 10 years. It was only after it adopted the national Christian Legal Society’s policy—of requiring voters and leaders to swear an oath to its religious beliefs—that the school determined the chapter was in violation of the implementing—so-called “all-comers”—policy.

Justice Anthony Kennedy, who, now more than ever, is considered the crucial fifth vote on many split decisions, told McConnell that his argument, “at its most fundamental level, is that religious organizations are different because religion is all about belief.”

“But, at that point, don’t we also have a tradition of separation?” asked Kennedy. “That’s the whole reason why church and state, for many purposes, are kept separate—so that states are not implicated with religious beliefs. And it seems to me we have to consider that when we are considering your argument.”

Several justices tested McConnell’s argument as it might play out with other groups.

Justice Sonia Sotomayor asked, “Is this an exception that you want to talk about as it is applied to religious groups, or are you suggesting that, if a group wanted to exclude all black people, all women, all handicapped persons—whatever other form of discrimination a group wants to practice—that a school has to accept that group and recognize it, give it funds and otherwise lend it space?”

“Not at all,” said McConnell.

“So, what is wrong with the purpose of a school to say, ‘We don’t wish any group that … discriminates’?”

The key, said McConnell, is that the policy prevents groups from excluding students based on “status or beliefs.”

“We have only challenged the beliefs,” he said. “Not status. Race, any other status basis—Hastings is able to enforce. But they may not tell a group that ‘We don’t have to let you in if we don’t agree with you.’”

“What if the belief is that African Americans are inferior?” asked Justice John Paul Stevens.

McConnell said such a group could not exclude someone on the basis of status. By way of example, he said the policy would require an NAACP chapter to allow a racist skinhead to serve in an officer’s role. (In fact, the policy doesn’t require that groups place any person into an officer’s seat; presumably, the group membership would vote to decide which members become officers.)

Ginsburg queried McConnell, again, and this time, he began to contradict his own arguments.

“Let’s say it is the belief of this group, based on their reading of the Bible, that only white men can lead the Bible studies, can become officers of the group, and that’s based on their fundamental belief that that’s what the Bible instructs,” said Ginsburg. “On your view, must Hastings give this organization status as a recognized student organization?”

First, McConnell said no, then he said such a group could “insist that everyone who participates in the group have that belief” but the group couldn’t discriminate against someone because of their status.

“So they would have to negate their belief in their practice,” said Ginsburg. “They could believe this, but they couldn’t implement it?”

“People can believe in all kinds of things that are illegal,” said McConnell. “That doesn’t mean that they can do them.”

Scalia jumped in to help, noting that Christian Legal was complying with the policy forbidding discrimination based on sexual orientation because it did “not discriminate on the basis of orientation, only on the basis of belief.”

Justice Stephen Breyer asked whether Christian Legal would allow full participation by “a homosexual person” who agrees with the principle of no sex before marriage and that’s why the person is working for same-sex marriage. McConnell said yes, such a person could, but it was another stumble that Scalia quickly moved to correct.

“[Christian Legal] doesn’t have any belief that marriage is between a man and a woman?” asked Scalia.

“It does,” said McConnell, and acknowledged he had misspoken.

The going was rough for the attorney defending the school’s position, too—Gregory Garre, who was Solicitor General for the last few months of President George W. Bush last term. Under intense questioning from Scalia and Chief Justice John Roberts, Garre tried to clarify the two policies. The Christian Legal challenge, said Garre, is just to the all-comers policy.

Both Scalia and Roberts disagreed.

Scalia said the two policies are just plain “weird.”

“To require this Christian society to allow atheists not just to join but to conduct Bible classes –right?” asked Scalia. “That’s crazy.”

And this time, Kennedy seemed to agree with Scalia.

“What interest does the school have in this policing mechanism that it’s imposing?” asked Kennedy.

Garre explained that Christian Legal claims its concern is just about beliefs, but when it comes to status, he said, they don’t discriminate based on any status other than sexual orientation.

Alito sought to understand the implications of the policies in other contexts.

“Suppose at a particular campus there is a great deal of anti-Muslim animus,” said Alito. “And there is a small Muslim group; it has ten students. If the group is required to accept anybody who applies for membership, and 50 students who hate Muslims show up and they want to take over that group, you say the First Amendment allows that?”

Garre seemed stumped and said it’s a hypothetical that “has never happened at Hastings in 20 years.”

“It has really never happened in the history of American education,” said Garre.

“Well, [Christian Legal] obviously thinks this is a real threat,” said Alito.

Near the end of the one-hour argument, it was clear several justices felt they did not have the information they needed to decide.

Breyer said he felt the court was being “asked to decide a constitutional issue where I feel I need more facts, and I don’t have them.”

It is possible the court will decide to dispense with the case without issuing a ruling at all. It is not a common occurrence but it does happen. The lack of a decision would be a small victory for non-discrimination policies because both a federal district court judge in San Francisco and a 9th Circuit panel ruled in favor of the school. Those rulings would stand.

But it is not expected to be the end of an ongoing battle between right-wing religious groups and non-discrimination policies. Previous Supreme Court decisions have included Boy Scouts v. Dale and Rosenberger v. UVA. In Boy Scouts, in 2000, a majority ruled the Boy Scouts had a First Amendment right to expect its belief that homosexuality is not “morally straight” warrants greater deference than the state of New Jersey’s human rights law prohibiting sexual orientation discrimination. In Rosenberger, in 1995, the majority ruled that the University of Virginia could not withhold student funding from a campus Christian group to disseminate a publication that derided gays and other minorities.

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.

Other LGBT groups are watching the case carefully. 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.

“No one is telling [Christian Legal] that they can’t shut their doors to whomever they want. But they can’t do that if they expect university funds,” said Jon Davidson, legal director for Lambda Legal. “It’s wrong of them to expect taxpayers and students to pick up the tab for engaging in discrimination against select [the school’s] students.”

9th Circuit nominee grilled over Prop 8

The confirmation hearing Friday, April 16, for a well-known liberal nominee to a federal appeals court deteriorated quickly into a political battlefield. Republicans seemed intent on settling old scores.

Goodwin Liu
Goodwin Liu

The confirmation hearing Friday, April 16, for a well-known liberal nominee to a federal appeals court deteriorated quickly into a political battlefield. Republicans seemed intent on settling old scores—over Democratic passage of a major health reform law, gun control, and over the current nominee’s opposition to certain nominees of President Bush.

And Democrats seemed all too happy to trot out evidence that every weakness Republicans complained about in the nominee had been true of numerous Republican nominees who had been approved.

For his part, the nominee—Goodwin Liu of California—sought to distance himself from his many public statements in support of various liberal positions on a wide range of social issues.

Very soon along the way, Proposition 8 came up.

Senator Tom Coburn (R-Okla.) brought it up, noting that in Liu’s writings, the law professor had appeared to argue for the democratic process on some issues, like gun control, but against it on others, like same-sex marriage.

“Can you please explain why a court should consider the will of the majority as it is expressed through the legislative process when restricting gun rights but not when upholding the law protecting traditional marriage?” asked Coburn.

Liu suggested his legal position on Proposition 8 was mischaracterized. He said that, in October 2008—just before California voters passed Proposition 8 to ban same-sex marriage—he testified as a “neutral” legal scholar before a California legislative committee. And he said he told the legislature, “Proposition 8 should be upheld by the California Supreme Court.”

“Not struck down, but upheld by the California Supreme Court under existing precedents,” said Liu. “Despite whatever other views I might have had about Proposition 8 on the merits – my personal views, whatever, and even my legal views of the past—I testified before that committee that the California Supreme Court should uphold that proposition in deference to the democratic process.”

Coburn challenged Liu’s recollection, saying Liu had testified that the California Supreme Court “could” uphold the proposition, not that it “should,” as Liu recalled.

Inconsistency might be a polite word for Coburn’s own remarks. He arrived at the confirmation hearing late and, before posing the first question, told Liu he was sorry he had missed Liu’s opening statement. But, he added, “I’ve read it.” Liu had not made an opening statement.

Liu’s decision not to make an opening statement was a surprise to many.

“Oh, my goodness, that’s very unusual,” said an apparently startled Senator Dianne Feinstein (D-Calif.), who was acting as chair of the proceeding, even though Senate Judiciary Chairman Patrick Leahy was at the hearing.

Feinstein then, almost without missing a beat, posed the first question, tackling the recent news report that Senator Jeff Sessions (R-Ala.) was accusing Liu of deliberately withholding 117 documents from the committee.

Every judicial nominee fills out a lengthy questionnaire to provide a great deal of information to the Senate Judiciary Committee, including a list of all “published writings and public statements.”

Liu acknowledged having provided an incomplete list and apologized for having to make a supplemental submission. (He did not offer any excuses, but parents watching the proceedings probably took note of the fact that his second child was born just four weeks ago.)

Liu said he “redoubled” his efforts to search for additional materials, including occasions on which he conducted brown bag lunch conversations as a law professor.

“I’m sorry that the list is long and I’m sorry that I missed things the first time,” said Liu. “For better, for worse, I’ve lived most of my professional life in public and my record is an open book. I absolutely have no intention, and frankly no ability, to conceal things I’ve said, written or done.”

But Sessions implied that Liu’s failure was deliberate. And Senator John Cornyn (R-Tex) echoed Sessions complaint, saying he was concerned with Liu’s “sloppiness” in his response to the questionnaire and implying that it rose to the level of contempt.

The attacks rang hollow some minutes later when Senator Feinstein noted that Chief Justice John Roberts Jr. “failed to provide documentation for over 75 percent” of his speeches and writings and had to submit—not 117 but—15,000 supplemental documents “just four days before his confirmation hearings were scheduled to being.

Many of the Republican Senators seemed intent on grilling Liu over remarks he had made in opposing the nominations of both Roberts and Sam Alito—both appointees of Republican President George W. Bush.

In opposing Alito’s nomination, Liu had stated: “Judge Alito’s record envisions an America where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse; where federal agents may point guns at ordinary citizens during a raid, even after no sign of resistance; where the FBI may install a camera where you sleep on the promise that they won’t turn it on unless an informant is in the room; where a black man may be sentenced to death by an all-white jury for killing a white man, absent a multiple regression analysis showing discrimination; and where police may search what a warrant permits, and then some. Mr. Chairman, I humbly submit that this is not the America we know. Nor is it the America we aspire to be.”

Senator Jon Kyl (R-Ariz.) these words, characterizing Alito’s various decisions, demonstrated that Liu lacked the “tempered language” of a judge. He said the critique amounted to a “vicious, emotionally and racially charged, very intemperate” attack on the nominee that “calls into question your ability to approach and characterize people’s positions in a fair and judicious way.”

Sessions accused Liu of advocating for unlimited power for the courts; Kyl accused him of advocating for unlimited power of the federal government.

Liu repeated that his personal views would not be part of his approach to an issue on the court. Although he did not discuss his personal views on Proposition 8 during the hearing, in one of many essays he has published in various newspapers and publications, Liu told the Los Angeles Times, “there is no question that [Proposition 8] targets a historically vulnerable group and eliminates a very important right.” He has predicted that same-sex marriage will eventually “become an unremarkable thread of our social fabric” and that those opposing it now will eventually be viewed as a “narrow and ultimately temporary majority.”

There is no date scheduled for the full Senate to take up Liu’s nomination but the aggressiveness of Republican opposition to Liu demonstrated at the confirmation hearing suggests a filibuster is likely.

President Obama nominated Liu, a professor of law at the University of California Berkeley School of Law, in February and his confirmation hearing has been delayed twice due to Republican opposition.

If confirmed, he would take a seat on the 9th Circuit U.S. Court of Appeals, which covers California and eight other western states. The American Bar Association gave him a “unanimously well-qualified” rating.

Supreme possibilities: How the ‘short list’ stacks up

The White House has begun floating trial balloons for candidates President Obama might appoint to the U.S. Supreme Court to replace retiring Justice John Paul Stevens.

Leah Ward Sears
Leah Ward Sears

The White House has begun floating trial balloons for candidates President Obama might appoint to the U.S. Supreme Court to replace retiring Justice John Paul Stevens. It’s a well-known ritual—played by anonymous White House sources, a willing and competitive media, and even justice-wannabes who know how to capitalize on the power of the rumor mill.

The Associated Press is, thus far, winning: claiming that it has “confirmed” the names of seven potential nominees on a list of candidates it says is 10 people long.

The seven include nominees that are generally friendly to the LGBT community, based on what little is known of them right now. They include Solicitor General Elena Kagan, Michigan Governor Jennifer Granholm, Homeland Security Secretary Janet Napolitano. The other four include three circuit court judges with brief, but friendly, records on gay civil rights, and a former Chief Justice of the Georgia Supreme Court who is at least liberal enough to be disliked by anti-abortion groups because—they say—she protects constitutional rights to privacy against efforts to legislate morality.

Not on the list—at least not confirmed by Associated Press—are two openly gay candidates mentioned last time around: Stanford professors Kathleen Sullivan and Pam Karlan. The likelihood of their being considered, given the hostile partisan climate of the Senate right now, seems nil.

The seven who are reportedly under consideration include:

  • Former Georgia Supreme Court Chief Justice Leah Ward Sears was the first African American woman to serve as chief justice of any state supreme court—and she did so in Georgia. During that time, she twice sided decisions overturning the state’s laws against sodomy. “The individual’s right to freely exercise his or her liberty is not dependent upon whether the majority believes such exercise to be moral, dishonorable, or wrong,” wrote Sears in a concurring opinion in Powell v. State in 1998. She is also friends with conservative Justice Clarence Thomas, who would likely be an asset in persuading conservative senators to give her their support.
  • 9th Circuit U.S. Court of Appeals Judge Sidney Thomas. Thomas, appointed by President Clinton in 1995, dissented from a 9th Circuit decision that said it was permissible for San Francisco police to do strip searches and body cavity searches of all arrested persons—even those arrested for non-violent acts of vandalism during a gay pride event. He also agreed with the full circuit’s refusal to hear a school district’s appeal of a decision that found it unconstitutional for a school to bar a gay student from wearing a gay pride t-shirt.
  • Solicitor General Elena Kagan. The Solicitor General’s position is sometimes referred to as the “10th justice” because of the importance of the role before the nation’s highest court. From the moment Obama nominated Kagan to the position, speculation began that she would eventually be his nominee to the court. She was a clerk for liberal Justice Thurgood Marshall and, as dean of Harvard Law School, defended a non-discrimination policy that barred military recruiters because of their discrimination against gays. That, coupled with her status as single and having served as a research assistant for the great defender of gay civil rights, Laurence Tribe, will no doubt sound an alarm for right-wing conservatives.
  • 7th Circuit U.S. Court of Appeals Judge Diane Wood clerked for liberal Justice Harry Blackmun and was appointed by President Clinton. She has a mixed record on gay-related cases—something that probably bodes well for her prospects for confirmation. In 2000, she joined a panel decision against a gay man, Robert Mueller, who violated the terms of his release from prison for having refused to file his tax returns because he could not file a joint return with his partner. But two years later, she dissented from a panel decision that found no fault in a school district’s failure to prevent harassment of a teacher for being gay. She also dissented from a 1998 panel decision that allowed students to object to their student fees going to gay groups and other organizations of which they disapproved.
  • Homeland Security Secretary Janet Napolitano, appointed by President Obama, was governor of Arizona and, prior to that, its attorney general. As governor, she said she opposed an amendment to the state constitution to ban gay marriage but her reasoning was not that such a ban would be unconstitutional, rather because the state already had a statute that banned gay marriage. Like Kagan, she is unmarried and subject to frequent speculation about her sexual orientation even though, according to the Arizona Republic, she has described herself as “just a straight, single workaholic.”
  • D.C. Circuit U.S. Court of Appeals Judge Merrick Garland was appointed to the appeals bench by President Clinton and clerked for one of the high court’s liberal icons, William Brennan. But he’s the most conservative of the seven nominee candidates. He joined a decision that upheld a gay Navy man’s discharge even though two discharge boards said there was insufficient evidence to merit discharge. He joined a decision that upheld a Federal Communications Commission action against the operator of a low-power radio broadcaster serving the gay community. And he joined then D.C. Circuit Judge John Roberts Jr. in a decision rejecting police liability for misconduct by officers who sprayed a chemical deterrent on members of a pro-gay protest group during President George W. Bush’s first inaugural parade.
  • Michigan Governor Jennifer Granholm is labeled a “long shot” by her home state newspaper the Free Press but her name keeps coming up. She opposed an amendment to the state constitution to ban same-sex marriage and, following that, sent a letter to constituents assuring them she was not ending benefits for domestic partners. She riled right-wing conservatives recently by issuing a statement calling on state legislators to pass an anti-bullying bill, which the American Family Association sees as part of the gay agenda.

President Obama is meeting with several members of the Senate next week to hear their thoughts on filling Stevens’ seat.

Richard Socarides, who worked in the Clinton White House, said he thinks all the potential candidates mentioned thus far would be “pretty outstanding” and “pretty reliable” when it comes to gay civil rights cases. But he said the president’s chief considerations now are “who he connects with best on a visceral level” and “who is most likely to be confirmed.”

No on Prop 8 groups lose a round

A 9th Circuit U.S. Court of Appeals panel dismissed the appeal of two groups opposing Proposition 8 in which the groups sought to stop a district court order that they turn over documents to Yes on 8 groups.

The three-judge panel said it lacks jurisdiction at this point to review U.S. District Judge Vaughn Walker’s order that the groups—which are not a party to the Perry v. Schwarzenegger lawsuit.

A 9th Circuit U.S. Court of Appeals panel dismissed the appeal of two groups opposing Proposition 8 in which the groups sought to stop a district court order that they turn over documents to Yes on 8 groups.

The three-judge panel said it lacks jurisdiction at this point to review U.S. District Judge Vaughn Walker’s order that the groups—which are not a party to the Perry v. Schwarzenegger lawsuit—must turn over their internal documents.

The appeals court said the only remedy available to the two groups—Equality California and the ACLU—is to refuse to comply with Walker’s order and then appealing Walker’s ensuing contempt of court order against them.

No comment from the two groups, who had not heard of Monday’s decision when contacted Tuesday.

Meanwhile, Judge Walker on Tuesday indicated he plans to set Friday, April 16, as the deadline for submitting any additional evidence for consideration in the court case challenging the ban on same-sex marriage in California. He is expected to soon after that date schedule closing arguments.

Stevens: a Republican who grew liberal with the times

Some court observers credit U.S. Supreme Court Justice John Paul Stevens with having forged a majority of the court to overturn laws banning private sexual relations between persons of the same sex—the most beneficial gay-related decision ever rendered by the Supreme Court.

Justice John Paul Stevens
Justice John Paul Stevens

Some court observers credit U.S. Supreme Court Justice John Paul Stevens with having forged a majority of the court to overturn laws banning private sexual relations between persons of the same sex—the most beneficial gay-related decision ever rendered by the Supreme Court.

Stevens, who turns 90 on April 20, announced Friday, April 9, that he will retire from the high court at the end of June.

In a one-paragraph letter to President Obama, Stevens said he had concluded that “it would be in the best interests of the Court to have my successor appointed and confirmed well in advance of the commencement of the Court’s next term.”

The announcement triggered a storm of media attention that is not likely to subside anytime soon –as President Obama prepares to nominate his second candidate for the nation’s highest court. The nomination will almost certainly trigger another storm—this one on Capitol Hill, where Republicans have dug in to oppose nearly everything the Obama administration and Democratic majority in Congress is trying to pass.

But the news also inspired an outpouring of praise for Stevens as the one of the Supreme Court’s oldest and longest-serving justices.

The Human Rights Campaign called Stevens “fair-minded” and Lambda Legal Defense and Education Fund hailed him as a “true visionary” to whom the LGBT community “owes much.”

“He has been a strong, clear, and consistent voice for the rights of gay people and other minorities, the disabled, reproductive freedom, and free speech,” said Jon Davidson, Legal Director at Lambda Legal.

It was 2003 when the greatest chunk of that debt was sealed.

Then Chief Justice William Rehnquist and two other justices wanted to uphold the Texas sodomy law in Lawrence v. Texas, according to court historian Jeffrey Toobin. But Stevens, the ranking justice on the other side of the issue, was against it.

“Stevens wisely assigned [Justice Anthony] Kennedy to write the opinion” for overturning the law, wrote Toobin, in his 2007 book The Nine. In fact, Toobin suggests, Stevens studiously chose Kennedy for the assignment as a way of shoring up Kennedy’s vote for those who wanted to overturn the law. And in writing the historic Lawrence v. Texas opinion, Kennedy “drew heavily on Steven’s seventeen-year-old opinion” in Bowers v. Hardwick.

More specifically, Stevens joined the primary dissent, written by then Justice Harry Blackmun in Hardwick, and then penned his own dissent, joined by Justices William Brennan and Thurgood Marshall.

In his fiery dissent, Stevens harshly criticized the majority for ignoring the plain language of the Georgia law prohibiting sodomy—that it prohibited oral or anal sex for any couple, gay or straight.

The sodomy law, said Stevens, was “an unconstitutional intrusion into [Michael Hardwick’s] privacy and his right of intimate association does not depend in any way on his sexual orientation.”

If the right to privacy means anything, wrote Stevens, “it means that, before Georgia can prosecute its citizens for making choices about the most intimate aspects of their lives, it must do more than assert that the choice they have made is an ‘abominable crime not fit to be named among Christians’.”

The Hardwick decision had not only upheld laws prohibiting private sexual relations between people of the same gender, it had been used in a wide variety of arenas to justify further discrimination based on sexual orientation—in employment, in the military, in child custody cases, even in barring the use of the word “Olympics” for a gay athletic event.

Stevens’ position in Hardwick was not a big surprise: In 1976, one year after he was appointed to the court by Republican President Gerald Ford, he, Brennan and Marshall said they thought the court should hear an appeal challenging Virginia’s law against same-sex sodomy; but a majority affirmed the law without hearing arguments.

In June 1987, Stevens was with the majority in Houston v. Ray Hill, that overturned a city ordinance in Houston that was used to stifle protests by a gay activist, Ray Hill, against police harassment of gays.

But 10 days later, Stevens joined the majority in a ruling that the U.S. Olympic Committee’s prohibition of Gay Games organizers from calling their event the “Gay Olympics” the USOC was not violating the First Amendment rights of the gay sporting group. In 1988, he voted with a majority that said the Central Intelligence Agency’s firing of an employee because he was gay was subject to judicial review, and he voted with a unanimous court ruling that upheld the procedure used to fire an employee of the National Security Agency who acknowledged having homosexual relations with citizens of other countries.

For most of his tenure on the court, Stevens was a relative moderate who leaned liberal. With more consistently liberal justices—Brennan, Marshall, and Blackmun—on the court, Stevens seemed centrist.

By 1991, after Brennan and Marshall retired, Stevens inevitably began to appear more liberal, relative to the increasingly conservative court. But his vote also became more consistently liberal, and he began to take a leadership role. He voted with the majority in Romer v. Evans in 1996, agreeing that Colorado’s initiative banning any legal protection based on sexual orientation was unconstitutional.

And though, a year earlier, he had agreed with a unanimous court, in Hurley v. Irish-American Gay Group, that the organizers of a St. Patrick’s Day parade in Boston had a First Amendment right to ban a contingent of gays, he wrote the dissent in 2000, in Boy Scouts v. Dale, opposing the majority’s decision that said the Boy Scouts of America had a First Amendment right to discriminate against gay scout leaders.

Hurley had only a “superficial similarity” to Boy Scouts, said Stevens. Whereas a gay contingent could be said to convey a message when participating in a parade, the same could not be said of a single gay scout leader joining the Boy Scouts.

“Being openly gay,” said Stevens, “communicates a message—for example, that openness about one’s sexual orientation is more virtuous than concealment; that a homosexual person can be a capable and virtuous person who should be judged like anyone else; and that homosexuality is not immoral—but it certainly does not follow that they necessarily send a message on behalf of the organizations that sponsor the activities in which they excel. The fact that such persons participate in these organizations is not usually construed to convey a message on behalf of those organizations any more than does the inclusion of women, African-Americans, religious minorities, or any other discrete group.”

Prejudices against gays, he said, “have caused serious and tangible harms to countless” gay people.

“That harm,” he said, “can only be aggravated by the creation of a constitutional shield for a policy that is itself the product of a habitual way of thinking about strangers.”

The potential impact of the retirement will be measured once President Obama nominates a replacement who is confirmed by the Senate.

Stevens makes it official: He’s leaving high court

U.S. Supreme Court Justice John Paul Stevens, who turns 90 this month, announced today he will retire from the high court at the end of June. The potential impact of the retirement will be measured once President Obama nominates a replacement who is confirmed by the Senate.

Justice John Paul Stevens
Justice John Paul Stevens

U.S. Supreme Court Justice John Paul Stevens, who turns 90 this month, announced today he will retire from the high court at the end of June.

In a one-paragraph letter to President Obama today, Stevens said he had concluded that “it would be in the best interests of the Court to have my successor appointed and confirmed well in advance of the commencement of the Court’s next term.”

The potential impact of the retirement will be measured once President Obama nominates a replacement who is confirmed by the Senate.

But Stevens’ record on gay-related legal issues will be a difficult one for a nominee to measure up to.

For most of his tenure on the court, Stevens was a relative moderate who leaned liberal. When the high court majority voted, in 1986, to uphold state laws prohibiting same-sex sexual relations, in Bowers v. Hardwick, Stevens joined the dissent. But when the court voted one year later to allow the U.S. Olympic Committee to block the organizers of Gay Games from calling their event the Gay Olympics, Stevens voted with the majority.

But by 1991, after the court’s true liberals—William Brennan and Thurgood Marshall—retired, Stevens became the liberal, relative to the increasingly conservative court.

Back at high court: Religion versus anti-bias laws

When Concerned Women of America, the Boy Scouts, and Evangelical Scholars line up on one side of a legal case, one might naturally assume that gay groups are lined up on the other side.

Christian Legal Society v. Martinez is not that case—at least not perfectly.

scotus_bldg1_DR200When Concerned Women of America, the Boy Scouts, and Evangelical Scholars line up on one side of a legal case, one might naturally assume that gay groups are lined up on the other side.

Christian Legal Society v. Martinez is not that case—at least not perfectly.

A group called Gays and Lesbians for Individual Liberty has submitted a friend-of-the-court brief in support of a religious student group’s effort to receive public benefits while refusing full and equal membership to gays.

It is the latest in a series of cases brought by conservative religious groups who challenge non-discrimination policies that prohibit discrimination based on sexual orientation. They do so by claiming that the policies interfere with the free exercise of their religious beliefs—beliefs they say require discrimination against gay people.

It is also the first of such cases to be dealt with by the conservative-leaning court of Chief Justice John Roberts Jr.

And it is a case that revisits a virtual golden oldies hit list of gay-related decisions from the Supreme Court: Hurley v. Irish-American Gay, Boy Scouts v. Dale, Gay Lib v. University of Missouri, NEA v. Finley, and Rosenberger v. UVA.

In Christian Legal v. Martinez, a Christian law students’ group contests a decision by the University of California’s Hastings College of Law, headed currently by acting chancellor Leo Martinez. The case also includes a gay student group, Outlaw, at the same school as a party to the defense.

The Christian Legal Society (CLS) is a national group with chapters at various universities and elsewhere with the aim of helping law students integrate their Christian beliefs with their legal work. According to the group’s petition to the Supreme Court, the group also “promotes justice, religious liberty, and biblical conflict resolution.”

The group does not prohibit anyone from attending its meetings, however, it requires that its officers and voting members “affirm their commitment to the group’s core beliefs by signing the national CLS Statement of Faith and pledging to live their lives accordingly,” explained the petition. And it explicitly prohibits from offices and voting anyone who engages in “fornication, adultery, and homosexual conduct.”

Like many universities, UC-Hastings College has a policy against discrimination based on a wide variety of reasons, including religion and sexual orientation. When CLS applied for official status at the school, seeking to enjoy the various benefits that status provides, Hastings officials rejected its application, noting that the group appeared to violate both the religion and sexual orientation aspects of the non-discrimination policy. When CLS tried to parse its policy by noting that it allows anyone to attend its meetings—just not vote or take leadership roles—the university parsed its non-discrimination policy saying it applies to enable all students to be members and full participants of any group.

Pointing to two historic Supreme Court losses for gays, attorneys for Christian Legal argue the group has a constitutional right to “control their own message and identity.” They say the denial of the group’s status as official campus groups violates its First Amendment constitutional rights to speech, association, and to free exercise of their religion. And this is where the old gay cases come in.

The group’s attorneys cite the 1995 Supreme Court decision Hurley v. Irish-American Gay in which the high court said a St. Patrick’s Day parade organizer in Boston could exclude an openly gay contingent. And they cite Boy Scouts v. Dale, a 2000 decision in which the high court said the Boy Scouts had a First Amendment right to expect its belief that homosexuality is not “morally straight” warrants greater deference than the state of New Jersey’s human rights law prohibiting sexual orientation discrimination.

To make its First Amendment speech argument, Christian Legal drags out numerous other cases in which federal appeals courts have ruled that universities could not deny campus recognition to gay groups—cases such as Gay Student Services v. Texas A & M, from the 5th Circuit in 1984, Gay Lib v. University of Missouri, from the 8th Circuit in 1977, and even an obscure case, Gay Students v. University of New Hampshire, from the 1st Circuit in 1976.

Not surprisingly, Evangelical Scholars and Evangelicals for Social Action submitted a brief arguing, bluntly, “Evangelical Christian churches and organizations cannot comply with such a nondiscrimination policy.”

“Not only [Christian Legal], but all other evangelical organizations which similarly hold the Bible as the inspired Word of God, will find it impossible to comply with a nondiscrimination policy like the one in the case at bar, and thus they will be forced to suffer exclusion from recognized status as a student organization,” says the Evangelical groups.

Gays and Lesbians for Individual Liberty (GLIL) agrees. While GLIL is not a well known national gay litigation group, it is a national group that supports the civil rights of gay people and has been in existence since 1991. And while GLIL does not agree with Christian Legal’s views regarding homosexuality, its brief says Christian Legal’s views “are entitled to First Amendment protection, including protection of [Christian Legal’s] right to preserve the integrity of its message by excluding nonadherents.”

GLIL’s brief also recalls earlier cases in which universities have tried to ban gay student groups and parades have sought to ban gay contingents.

“It is not the role of the government of a free people to cleanse speech and thought of all actual or perceived biases by forcing expressive groups to relinquish control of their messages,” said the GLIL, echoing the Supreme Court’s 1995 decision in Hurley.

Gay & Lesbian Advocates & Defenders, which is a well-known gay litigation group, defended the right of the gay contingent in Hurley. And GLAD, along with another well-known gay litigation group—Lambda Legal Defense and Education Fund—filed a friend-of-the-court-brief in support of the UC-Hastings College position.

The university, says GLAD and Lambda, is not trying to force Christian Legal to change its views concerning homosexuality or to accept members that disagree with its views.

“Hastings is simply conditioning access to modest public funding and other benefits on compliance with a general nondiscrimination policy applicable to all student groups,” writes GLAD and Lambda.

“Like every other student group on Hastings’ campus, it too has a choice,” says GLAD and Lambda. “It can adhere to Hastings’ general nondiscrimination policy or forego school funding.”

The federal district court in San Francisco and the 9th Circuit U.S. Court of Appeals agreed with that logic and ruled for the university and Outlaw. Christian Legal, with the aid of the right-wing Alliance Defense Fund, has appealed to the U.S. Supreme Court. And in agreeing to hear that appeal, at least four justices had to indicate a willingness to consider their arguments.

The case will be argued on April 19.