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

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

Jeff Sessions
Jeff Sessions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Kagan: ‘vigorously defended’ DADT

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

Elena Kagan
Elena Kagan

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Senator Charles Grassley questioned Kagan about gay marriage.

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

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

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

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

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

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

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

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

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

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

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

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

“Are you qualifying that now?” asked Kyl.

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

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

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

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

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

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

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

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

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

Kagan acknowledges she’s “generally progressive”

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

Elena Kagan
Elena Kagan

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Another Supreme Court victory, amidst ideological hostilities

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Marriage equality opponents vow rematch over public disclosure case

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Supreme Court upholds disclosure of petitioners’ names

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

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

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

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

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

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

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

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

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

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

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

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

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.

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.

kagan_elena
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.

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.

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.”

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.”

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.

High court to examine limits on Phelps protests

The U.S. Supreme Court continues its unpredictable foray into LGBT-related legal conflicts—this week announcing that it will decide whether a protester has a First Amendment right to use a private funeral service as a staging ground for their hate speech against gays.

scotus_bldg1_DR200The U.S. Supreme Court continues its unpredictable foray into LGBT-related legal conflicts—this week announcing that it will decide whether a protester has a First Amendment right to use a private funeral service as a staging ground for their hate speech against gays.

It’s a complicated case, and one in which one of the LGBT community’s strongest allies—the ACLU—has taken sides with one of the LGBT community’s most hostile enemies—Fred Phelps and his Westboro Baptist Church in Kansas.

The court’s acceptance of this case, Snyder v. Phelps, comes less than two months after the court agreed to take Doe v. Reed, to examine whether state law can require public disclosure of the names of people who signed a petition to force a referendum on a domestic partnership law in Washington State. The full court also took the unusual action that month of blocking a federal judge in San Francisco from allowing a closed-circuit broadcast of the Proposition 8 trial because supporters of the initiative claimed they could be harassed if the public trial was widely viewed.

This latest case, Snyder v. Phelps, seeks to undo a ruling in Phelps’ favor in the conservative 4th Circuit U.S. Court of Appeals. A three-judge panel for that circuit ruled last September that Phelps’ anti-gay messages—on placards and a website—are protected speech. The fact that the high court has decided to hear the case indicates that at least four of the nine justices believe that ruling may have been in error.

The petition of Snyder to the Supreme Court poses three questions concerning how far offensive expressions can go—and in what context—before they exceed the protections guaranteed by the First Amendment. The 4th Circuit ruled that “distasteful and repugnant” protests surrounding the funeral of a servicemember were protected. But attorneys for the servicemember’s family argue that such speech should not be allowed to inflict emotional distress on a private party, particularly one trying to exercise his freedom of religion during a funeral service.

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

According to the U.S. District Court opinion issued by Judge Richard Bennett, in Baltimore, Phelps and his followers attended the funeral “without invitation in order to express their views against homosexuality, Catholicism, and the military.” The Westboro group has staged similar protests at other military funerals, prompting Congress to pass the Respect for America’s Fallen Heroes Act in May 2006. The law prohibits protests within 300 feet of any federal military cemetery within 60 minutes of a funeral.

That law is not at issue in this case. Instead, at issue is the charge by Snyder’s father, Albert, and family that the Phelps group’s expressions at the funeral and its comments later on its godhatesfags.com website constituted invasion of privacy, intentional infliction of emotional distress, and civil conspiracy.

Art Leonard, a well-respected LGBT law professor and commentator said he thinks “the conservatives on the court are eager to cut back tort liability whenever and wherever they can.” A “tort” is a wrongful act for which a person can be made to pay damages.

“Here’s a chance for them to say that people who speak publicly about controversial issues giving their opinion should not have to pay damages just because expressing their opinion causes emotional distress to somebody,” said Leonard. The question here, he said, is whether the conduct of Phelps and his followers “steps so far across the line into truly outrageous conduct that it should be held to have sacrificed the protection of the First Amendment.”

In defending themselves, Phelps and followers argued that their expressions were protected by the First Amendment guarantee of freedom of religion.

A federal jury trial found Phelps and followers guilty and the court awarded Snyder $5 million in compensatory and punitive damages.

In denying the Phelps group’s request for a rehearing or retrial, the district court said the case “involves balancing [the Defendants’ First Amendment rights of religious expression] with the rights of other private citizens to avoid being verbally assaulted by outrageous speech and comment during a time of bereavement.”

The 4th Circuit said the district court erred by allowing a jury to decide whether the Phelps’ group’s expressions, such as “God Hates Fags,” “Priests Rape Boys,” and “Fag Troops,” were within the realm of protection under the First Amendment or whether they were directed at the Snyder family specifically. No “reasonable reader” of such messages could assume any of these signs were “asserting actual and objectively verifiable facts about Snyder or his son,” said the 4th Circuit.

“Whether ‘God hates’ the United States or a particular group, or whether America is ‘doomed,’ are matters of purely subjective opinion that cannot be put to objective verification,” said the court.

“As a threshold matter, as utterly distasteful as these signs are,” said the 4th Circuit, “they involve matters of public concern, including the issue of homosexuals in the military, the sex-abuse scandal within the Catholic Church, and the political and moral conduct of the United States and its citizens.” Such issues, said the panel, are not statements directed toward a private party “but rather are issues of social, political, or other interest to the community.”

“A distasteful protest sign regarding hotly debated matters of public concern, such as homosexuality or religion,” said the 4th Circuit, “is not the medium through which a reasonable reader would expect a speaker to communicate objectively verifiable facts.” The same is true for the website remarks, said the court.

The Snyder v. Phelps case won’t be argued until the fall, in the 2010-11 session.

The 4th Circuit decision notes that Phelps, the lone pastor of the Westboro, Kansas, “church,” has operated the organization for more than 50 years, and has a membership of “approximately sixty or seventy members, fifty of whom are his children, grandchildren, or in-laws.”

“Among their religious beliefs,” wrote the 4th Circuit, “is that God hates homosexuality and hates and punishes America for its tolerance of homosexuality, particularly in the United States military.”

Chief Justice refuses appeal to stop D.C. marriage law

U.S. Supreme Court Chief Justice John Roberts on Tuesday evening denied a request to stop Washington, D.C.’s new marriage equality law from going into effect Wednesday, March 3.

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

U.S. Supreme Court Chief Justice John Roberts on Tuesday evening denied a request to stop Washington, D.C.’s new marriage equality law from going into effect Wednesday, March 3.

Anti-gay marriage opponent Harry Jackson and others petitioned the high court to intervene in D.C. government and stop the “Religious Freedom and Civil Marriage Equality Amendment Act” from taking effect until voters can address the issue through referendum.

Roberts said he thinks the argument Jackson’s group makes “has some force,” it would not issue a stay of the new law. He said the high court typically defers to the local courts concerning “matters of exclusively local concern.” He noted that Congress, which has the power to review D.C. laws for 30 days before they take effect, took no action against the marriage equality measure. And he pointed out that Jackson’s group still has the option to seek a ballot measure through an initiative process, rather than a referendum.

The D.C. courts and its Board of Election ruled that a referendum on the marriage equality law would violate the city’s charter, which prohibits referenda on matters pertaining to the city’s human rights act. The group already has a petition before the D.C. Court of Appeals, concerning it request to hold an initiative to repeal the measure.

Roberts issued the decision in the case, Jackson v. D.C., because it came from D.C. and Roberts handles emergency petitions from the D.C. Circuit.

In January, Justice Anthony Kennedy, who handles emergency petitions for the 9th Circuit U.S. Court of Appeals, engaged the full court in handling issues on two cases implicated same-sex marriage controversies. In one case, a 5 to 4 majority of the full court blocked a plan by U.S. District Court Chief Judge Vaughn Walker to allow limited access to a broadcast of the trial involving a high-profile legal challenge of California’s anti-gay marriage initiative, Proposition 8. A few days later, the Supreme Court announced it would hear the appeal of anti-gay activists in Washington State who want to seal a public record which has the names of citizens who signed petitions to put a domestic partnership measure on the ballot last year. It takes four justices to agree to hear a case.

The Washington State case, Doe No. 1 v. Reed, is slated for oral arguments on April 28.

Full faith and credit helps gay parents overcome ban

The battle over equal rights to marriage has dominated much of the news concerning the LGBT civil rights movement for the past 17 years, but there have been gains recently in the battle over gay family rights in general. And in just the past week, there were important developments in two significant courts.

Ken Upton
Ken Upton

The battle over equal rights to marriage has dominated much of the news concerning the LGBT civil rights movement for the past 17 years, but there have been gains recently in the battle over gay family rights in general. And in just the past week, there were important developments in two significant courts.

The U.S. Supreme Court on Monday, February 22, declined to review the appeal of a lesbian mother, identified as Kristina S. in Texas, who sought to prevent her former domestic partner, Charisma R. in California, from continuing her parental relationship with a child they had together. By not hearing the case, the high court simply left intact decisions by the courts of California that upheld the non-biological mother’s rights. But the California court ruling held that the non-biological mother’s parental status was established by the fact that she helped prepare for the child’s birth through insemination, “held herself out” as the child’s mother publicly, and helped care for the child after it was born.

Gay family law expert Nancy Polikoff described the California Court of Appeals decision last year as “the clearest and most comprehensive analysis of why U.S. Supreme Court cases on parental rights do not foreclose Charisma’s parentage and actually protect a person designated as a parent under state law, as Charisma was in this case.” While the decision of the Supreme Court not to take the case has no important legal value, she said, “it can’t help but add the tiniest bit of ‘oomph’ to” similar conflicts in other states.

Kristina S. v. Charisma R. was appealed by the biological mother’s attorneys from the right-wing Liberty Counsel. The Liberty Counsel has also been representing former lesbian Lisa Miller against her former civil union partner Janet Jenkins in a highly publicized custody battle between Vermont and Virginia. The Liberty Counsel tried unsuccessfully to appeal Miller’s case to the U.S. Supreme Court also—and was also denied review in that case. The Miller-Jenkins custody battle continues, with Miller having disappeared with the daughter in order to avoid a Vermont court order that she transfer custody to Jenkins. A Virginia court of appeals on February 23 rejected her third lawsuit to have the Vermont custody orders nullified.

Meanwhile, the Liberty Counsel filed a friend-of-the-court brief in another important case this month.

On February 18, a three-judge panel of the U.S. Court of Appeals for the 5th Circuit –which covers Texas, Louisiana, and Mississippi– upheld the right of a gay couple from California to obtain an amended birth certificate for a Louisiana-born child they adopted in New York State five years ago. The state of Louisiana had refused to issue the routine amended birth certificate, claiming that to do so would be tantamount to allowing adoptions by unmarried couples, which is barred by state law there.

Ken Upton, Supervising Senior Staff Attorney for Lambda Legal Defense and Education Fund, which represented the gay couple, said the court simply ruled the way courts have ruled on similar matters in “tons of cases over the last century.”

“But it was a landmark in Louisiana,” he said, “because [the state] tried to argue that they should have some special exemption from the [U.S. Constitution’s] ‘full faith and credit’ clause because it violates a policy they would like to enact to restrict the rights of gays and lesbians.”

The U.S. Constitution’s “full faith and credit” clause states, “full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.”

In this instance, said the judges, Louisiana owed full faith and credit to a judicial proceeding from New York, which granted the gay couple the adoption. The panel made clear that it was applying the full faith and credit requirements to court judicial proceedings in this case, not to New York state laws concerning adoption.

The judges—which included two Republican appointees—was unusually harsh in its characterization of Louisiana’s defense of its actions, saying the state’s argument was a “shallow, circular attempt” to conflate a judgment and a statute as the same thing.

“Whether the New York adoption contravenes Louisiana’s ‘public policy’ [of barring adoptions by unmarried couples] is simply irrelevant and immaterial,” said the panel. The “plain language of Louisiana’s own statute requires that a new, corrected birth certificate be issued to Louisiana-born adopted minors and their adoptive parents…,” wrote the panel, and “that requirement must be applied in an ‘evenhanded’ manner.”

The case, Oren Adar v. Darlene Smith, involved a gay male couple – Oren Adar and Mickey Ray Smith— who sought an amended birth certificate for a boy born in Louisiana in 2005. They jointly adopted the child in the state of New York that same year. Darlene Smith is the Louisiana state registrar and director of vital records, who was represented by the state attorney general’s office.

The gay couple applied in Louisiana for the birth certificate listing each of them as a parent of the child and indicating the child’s new legal name. But Darlene Smith refused to issue the certificate, saying state law prohibited unmarried couples from adopting children.

Polikoff agreed with Lambda’s Upton that the 5th Circuit decision “restates what the U.S. Supreme Court has said continuously, that there is no ‘public policy’ exception to the Full Faith and Credit Clause.”

“Judgments from a state court are different from a state’s statutes,” explained Polikoff, in her beyondstraightandgaymarriage.com blog. “Statutes are not entitled to Full Faith and Credit. Had Adar and Smith become parents of their son by virtue of their marriage or civil union [in another state], for example, Louisiana might not have been required to recognize their dual parentage. It’s a word to the wise for all same-sex couples having children. Get to a lawyer. Get a court order.”

Liberty Counsel founder Mathew Staver has said cases such as this, although they involve adoption, provide a “back door” entrance to marriage equality.

“It’s not generally a direct, head-on, frontal assault with regards to same-sex marriage,” he said in a statement about the Adar case last year when the Republican appointed district court judge ruled for the gay couple. “But the fact is, if a sister state is required to recognize same-sex adoption, even though it doesn’t recognize it within the state, that is essentially a component that is a significant, central aspect of marriage.”

In its opinion, the 5th Circuit panel noted that only one other federal appeals court has dealt with a similar case. The 10th Circuit, it noted, ruled the state of Oklahoma’s law barring same-sex couples from adopting children from other jurisdictions had violated the full faith and credit clause.

Lambda’s Upton said he has heard Louisiana will appeal the decision, either to the full 5th Circuit bench or to the U.S. Supreme Court.

But for now, he said, “we’re pleased the court agrees that it’s wrong to punish children just because the Registrar doesn’t like their parents.”

No strong liberals among Obama’s appeals court nominees

In just a couple of months, speculation concerning the retirement of U.S. Supreme Court Justice John Paul Stevens will once again rev up. He’ll turn 90 in April and, last fall when justices typically do, he did not hire a full complement of clerks for the 2010-11 session.

scalesIn just a couple of months, speculation concerning the retirement of U.S. Supreme Court Justice John Paul Stevens will once again rev up. He’ll turn 90 in April and, last fall when justices typically do, he did not hire a full complement of clerks for the 2010-11 session.

As critical as that potential vacancy is to the prospects of such legal battles as the ones over equal rights in marriage, the more important focus right now should be on appointments to the nation’s federal appeals courts.

Here’s why:

First, every single one of the current nine justices came from a federal appeals court, as did 12 of the last 14 appointees. This is not a legal requisite for the job, but it has become a political expectation. President George H.W. Bush appointed Clarence Thomas to the U.S. Court of Appeals for the D.C. Circuit in 1990 and then promoted him to the U.S. Supreme Court in 1991. President George W. Bush appointed John Roberts to the D.C. Circuit in 2003 then bumped him up to the high court in 2005. President Ronald Reagan put Antonin Scalia on the D.C. Circuit bench in 1982 and then appointed him to the Supreme Court in 1986.

Second, 19 of the appeals courts’ 179 seats are currently vacant. President Obama has only eight nominees pending for these positions. All eight are relative moderates. The same might be said of four other circuit court nominees whom Obama made and who have been confirmed thus far.

Joseph Greenaway, who was confirmed just this month for the 3rd Circuit, clerked for a district court appointee of Republican President Gerald Ford.

Andre Davis, confirmed in November to sit on one of the nation’s most conservative circuits—the 4th—worked in the Civil Rights Division of the Department of Justice in the last months of President Jimmy Carter’s administration. But Senator Dick Durbin (D-Ill.) noted that some disability rights groups have criticized Davis’ record.

Gerald Lynch, confirmed to the 2nd Circuit last September, has perhaps the most liberal-leaning credentials. He clerked for one of the U.S. Supreme Court’s most liberal justices, William Brennan, from 1976 to 1977, and, until he became a federal district court judge in New York, he belonged to the ACLU. Also, in answering a staple question on the Senate Judiciary Committee questionnaire—about whether nominees have ever belonged to a group that discriminated on the basis of “race, sex, religion, or national origin”—Lynch wrote, “I have never been, nor would I ever be, a member of any club or organization that discriminates on the basis of race, gender, religion, national origin, age, disability, or sexual orientation.”

David Hamilton, who was confirmed in November to the 7th Circuit, was also once a board member of the state ACLU in Indiana. His record includes authoring a brief in a divorce case, defending the right of a father with HIV to retain his parental rights. Hamilton said terminating those rights because the man had HIV was unconstitutional.

Of the eight nominees still awaiting confirmation, three are in the 4th circuit where their numbers could well tip the political balance towards the middle. Only one of the nominees for that circuit, Barbara Keenan, has any sort of paper trail on gay-related matters. Keenan, who has served since 1991 on the Supreme Court of Virginia, wrote the dissent from the state court’s 1995 decision denying Sharon Bottoms custody of her child because Bottoms was openly gay. More recently, she wrote the unanimous decision respecting a decision of a Vermont family court that granted joint custody of a child to both the biological mother, Lisa Miller, and her former civil union partner, Janet Jenkins. In both cases, however, Keenan’s reasoning was based on procedural issues.

As a trial judge, Keenan in 1984 ruled that the state went too far when it forced a bookstore to shut down because sexually explicit activities—including homosexual activities—were taking place at the store. Keenan ruled that closing the store was too broad a remedy to address the problem. An appeals court later reversed her decision.

In the 11th Circuit, Obama nominated Beverly Martin, who was hired by the notoriously anti-gay Georgia Attorney General Michael Bowers to be an Assistant Attorney General. During the 10 years she was in that position, Bowers withdrew a job offer from attorney Robin Shahar when he found out she was a lesbian. There is no indication that Martin was involved in defending Bowers when Shahar filed a federal lawsuit against him. The only other case of relevance for her was a case she ruled on as a federal district court judge in Georgia. In that case, Martin ruled that a public school dress code against clothing that displayed “words or symbols that are inflammatory, derogatory, insulting to other students, or in reference to gangs” was “void for vagueness.” Such laws have had a mixed record of being used to protect against hate-related messages directed at gays.

Gay civil rights issues have been of some interest to Republicans on the Senate Judiciary Committee. During the confirmation process, judicial nominees answer questions at a public hearing but also questions posed to them in writing. Many of the questions posed by Republicans thus far have been essentially identical, suggesting some outside entity submitted the questions to each of the Republican senators and asked them to pose the questions to the nominees. One question asks, in a roundabout way, about the constitutionality of the Defense of Marriage Act (DOMA).

Hamilton essentially dodged the question by offering that he was “not aware of any court decision concluding that [DOMA] would violate the United States Constitution.”

One of the more unusual questions was this: “During his campaign, President Obama announced: ‘We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African-American or gay or disabled or old-and that’s the criteria by which I’ll be selecting my judges.’ Which, if any, of these categories do you believe best describes your judicial philosophy as laid out by the President?”

Most of the nominees have dispenses with the question fairly quickly, saying either that empathy plays no role in their judicial decision-making or that, to the extent that it does, it is empathy for all.

“Federal judges take an oath to administer justice without respect to persons and to do equal right to the poor and to the rich,” wrote Hamilton. “Empathy for all parties—to be distinguished from sympathy—is important in fulfilling that oath. If confirmed, I will apply the law fairly and accurately to all parties before me.”

Most importantly, President Obama has 12 more vacancies on the circuit courts which he has not yet submitted a nominee. That includes two appointments, as of this month, to the 9th Circuit U.S. Court of Appeals, which covers California and which is expected to hear the landmark Proposition 8 case as early as next year.

And given that most cases are never heard by the U.S. Supreme Court, the appointments to the appeals court level have the potential to affect LGBT lives in the various circuits for years to come.

Supreme Court’s second move alarms gay legal activists

In its second surprise move in a week, the U.S. Supreme Court on Friday announced it would review another narrow dispute involving anti-gay activists’ alleged fear of harassment over their public opposition to legal recognition for same-sex relationships.

Jenny Pizer
Jenny Pizer

In its second surprise move in a week, the U.S. Supreme Court on Friday, January 15, announced it would review another narrow dispute involving anti-gay activists’ alleged fear of harassment over their public opposition to legal recognition for same-sex relationships.

The court’s actions—because they are unusual involvements in two cases regarding same-sex relationships—have gay legal activists worried.

“With the first decision, it might have looked like it was mostly driven by justices who are just adamantly opposed to cameras in the courtroom,” said Jenny Pizer, head of Lambda Legal Defense and Education Fund’s National Marriage Project. “But with the second decision, it goes from being worrisome to alarming. Both decisions are based on quite absurd arguments” that the anti-gay activists are being “terribly persecuted by an angry mob, and that’s just ridiculous.”

The latest case, Doe v. Reed, stems from the controversy over a new law that recognizes domestic partnerships in Washington State. The legislature passed, and the voters—through Referendum 71—ratified that new law last year. But a lingering side issue in matter has been whether citizens who signed the petitions that forced the new law onto the ballot last November can block those petitions—normally, a part of the public record—from public view.

Those who want to keep the petitions secret say they are asking for this special dispensation because they fear that people who disagree with them will harass them for having taken the position that they did. Protect Marriage Washington, the group that sought, unsuccessfully, to overturn the domestic partnership law, filed a lawsuit in federal court seeking to seal the petitions from public scrutiny. A federal judge issued a temporary order stopping release of the signatures, pending a final decision, and the appeals of that decision are now before the high court.

The U.S. Supreme Court’s announcement that it would intervene in that dispute comes just two days after the Supreme Court took the unusual move of intervening in a procedural dispute surrounding California’s Proposition 8. Proponents of that November 2008 initiative, which was successful in banning legal recognition for same-sex relationships, claim they are opposed to making the trial proceedings available for even a very limited amount of public exposure because they fear harassment from people who disagree with them.

In Hollingsworth v. Perry, the Supreme Court voted 5 to 4 on January 13 to overturn lower court decisions from the 9th Circuit U.S. Court of Appeals. Those decisions would have allowed airing of the Proposition 8 trial on closed circuit television in several federal courthouses around the country and for delayed posting on YouTube.

In a 17-page opinion, to which no justice’s name was attached as author, the majority indicated its decision was based—not on the merits of whether this trial should be made available for public viewing, but rather because—“it appears the courts below did not follow the appropriate procedures set forth in federal law before changing their rules to allow such broadcasting.”

Nevertheless, the majority recounts that Proposition 8 “advocates claim that they have been subject to harassment as a result of public disclosure of their support,” including death threats and boycotts. And it stated that proponents of Proposition 8 “have demonstrated that irreparable harm would likely result from the District Court’s actions” to make the proceedings viewable by the public.

Specifically, the majority suggested that U.S. District Court Judge Vaughn Walker, who is presiding over the Proposition 8 trial, Perry v. Schwarzenegger, allowed only five business days for public comment on his plan to make the proceedings public, whereas “administrative agencies…usually” provide 30 days or more.

“There are qualitative differences between [pro-Proposition 8 witnesses] making public appearances regarding an issue and having one’s testimony broadcast throughout the country,” stated the majority opinion. “…It is difficult to demonstrate or analyze whether a witness would have testified differently if his or her testimony had not been broadcast.”

Dissenting from that decision were Justices John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer, and the court’s newest justice, Sonia Sotomayor. Breyer, writing a 10-page dissent for the minority, called the majority’s decision “unusual” and said there was no reason for the high court to intervene on this issue. The dissent also noted that the majority was doing “harm to the public interest” by interfering with public’s right to have access to the trial proceedings.

The high court’s decision to review the Washington State battle, coupled with last week’s decision barring the public viewing of the Proposition 8 trial, is causing some anxiety among gay civil rights advocates.

The Perry case vote was 5 to 4; it required at least four justices to take Doe v. Reed, and it can be safely assumed that those four have reason to question the decision of the lower courts.

Lambda’s Pizer called the Supreme Court’s involvement in “extra-procedural micro meddling” over courtroom cameras and its decision to hear the Referendum 71 petitions dispute makes it “hard not to draw a bigger, bleaker conclusion” about the high court’s motives. In both cases, she said, anti-gay activists are making “absurd claims” in order to secure “special protection” from the government.

“Their claims would be comical,” said Pizer, “if they weren’t falling on such distressingly receptive high court ears.”