As DOMA lawsuits proliferate, Boehner has a spending problem

The Antideficiency Act is not the sort of federal law that an ordinary American would be familiar with. It applies to government officials who are in a position to spend government money. And it prohibits those officials from spending federal money unless Congress appropriates it to be spent.

John Boehner

The Antideficiency Act is not the sort of federal law that an ordinary American would be familiar with. It applies to government officials who are in a position to spend government money. And it prohibits those officials from spending federal money unless Congress appropriates it to be spent.

It appears that Kerry Kircher, General Counsel of the U.S. House, may have violated the Antideficiency Act when he and House Administration Committee Chair Dan Lungren (R-Calif.), signed a contract to pay attorney Paul Clement half-a-million dollars to defend the Defense of Marriage Act (DOMA) in federal courts.

The problem, according to a recent report in the Huffington Post, is that the General Counsel’s office has no budget for the deal, and Congress has not appropriated $500,000 for those legal fees.

The Post says House Speaker John Boehner (R-Ohio) appeared to acknowledge the problem in April when he suggested the Justice Department should turn over funds it would have spent defending DOMA.

But, as Attorney General Eric Holder said, the Justice Department did not have a specific budget to defend DOMA. It simply has staff attorneys who do work as assigned.

Democratic Rep. Michael Honda of California and others think the contract with Clement violates the Antideficiency Act.

Honda is the ranking Democrat on the subcommittee for House Legislative Branch Appropriations, which oversees appropriations for the House. During a subcommittee hearing May 12, Honda suggested the contract with Clement and his newly adopted law firm, Bancroft, may be a case where “an overzealous House Speaker committed $500,000 of the American people’s tax dollars to push a partisan and political agenda without having a funding source in place.”

“If so,” said Honda, “do Speaker Boehner’s actions violate the Antideficiency Act?” Honda did not attempt to answer the question and has not yet taken any action to test the issue.

Instead, Honda posed a political question: “If the message from the last election is to cut spending, then why is Speaker Boehner forcing Americans to pay a high-priced private law firm $520 per hour to defend a Constitutionally-flawed and discriminatory law?”

During his testimony before the subcommittee on May 12, General Counsel Kerry Kircher did not ask for any increase in the General Counsel’s budget for Fiscal Year 2012. The request for FY 2012—$1.4 million—is the same as for FY 2011. In fact, he never mentioned the contract with Clement at all.

Money may become an issue for Boehner’s efforts to defend DOMA in another way—the sheer number of federal legal challenges underway. There are at least 11, in one phase of litigation or another. And it is exceedingly unlikely that $500,000—even a properly authorized $500,000—will stretch far and wide enough to mount defenses in every case.

“$500,000 is a paltry amount that surely will be quickly exhausted,” said Jon Davidson, legal director for Lambda Legal Defense and Education Fund. He noted that a tax form filed by the American Foundation for Equal Rights, the organization funding the litigation to overturn Proposition 8, showed it paid Ted Olson’s law firm “almost 1.7 million dollars” in 2009, “for just one year for just one case.” Davidson said he believes there are 15 DOMA-related lawsuits underway.

Interestingly, Clement and his associates have not filed to intervene in every DOMA-related case.

So far, court records indicate they have filed to intervene only in three: in the Gay & Lesbian Advocates & Defenders (GLAD) case Pedersen v. Office of Personnel Management, in federal district court in Connecticut; in the ACLU’s case Windsor v. U.S. in New York; and in the Golinski v. OPM case, seeking the right to health coverage for a same-sex spouse, a case pending before the 9th Circuit.

They have not yet filed to intervene in GLAD’s Gill v. OPM cases (one lawsuit, two cases) or in Massachusetts v. HHS, which is consolidated with the Gill cases. Those cases are still in the briefing phase before the First Circuit and Chief Judge Sandra Lynch ordered the government to indicate by June 1 whether “and, if so, when,” the Attorney General would submit a report to both houses of Congress indicating his intentions regarding the Gill and Massachusetts cases and what Congress intends to do.

House General Counsel Kircher has intervened in a tax-related DOMA challenge, Dragovitch v. Treasury, in Oakland, California. But neither Kircher nor Clement has intervened in at least four other lesser-known DOMA challenges.

But attorneys on several of the cases for which Clement and/or Kircher have not yet intervened said both men have indicated an intention to do so.

Baldwin eyes run for U.S. Senate

U.S. Rep. Tammy Baldwin’s office is, thus far, silent on whether the openly gay legislator might make a bid for the U.S. Senate. But buzz about that possibility is hot.

Tammy Baldwin

U.S. Rep. Tammy Baldwin’s office is, thus far, silent on whether the openly gay legislator might make a bid for the U.S. Senate. But buzz about that possibility is hot, particularly within the LGBT community because, if successful, Baldwin would become the first openly gay person to serve in the U.S. Senate.

An aide to Baldwin did not respond to this reporter’s inquiry.

But the state Democratic chair told reporters in a phone call with state media outlets that Baldwin is “very seriously considering running,” according to the Milwaukee Journal. The Journal added,  “A close adviser to Baldwin echoed that sentiment.”

The Gay and Lesbian Victory Fund, which supports openly gay candidates, indicated on its website that “sources close” to Baldwin said she is “very likely” to run.

“This would obviously be a top priority for us,” said Victory Fund president Chuck Wolfe, according to the website. “This would be a remarkable milestone for LGBT Americans. Congresswoman Baldwin is one of the most admired public officials I know.  She would have the strong support of those who want to see our economy work for all Americans, and who believe that all voices deserve a place at the table.”

There is no shortage of potential candidates for the seat being vacated by retiring Senator Herb Kohl, the incumbent Democrat from Wisconsin. Kohl made an announcement May 13 that he would not seek re-election in 2012—an announcement that had not been expected.

Newspapers in Wisconsin immediately began identifying a list of potential candidates—a very long list—that included Baldwin. Others mentioned, on the Democratic side, include former U.S. Senator Russ Feingold, who lost his re-election bid only last year to newcomer Republican Ron Johnson.

Most prominent in the GOP category is Rep. Paul Ryan, who has been much in the news for his proposals, as chair of the House Budget Committee, to make enormous cuts in spending.

Ryan said he would make his decision in the next few days. A former aide to Feingold said Feingold would probably decide within the next month.

The Democratic Party of Wisconsin holds its annual convention in Milwaukee beginning June 3, so some candidates may hold off on their decisions until they have a chance to test the waters with state party leaders.

The 2010 Senate race in Wisconsin was a very close one, with Republican Johnson winning with 51.9 percent of the vote, over incumbent Feingold’s 47 percent. Political maps of party leanings show a state with several pockets of Democrat and Republican voters, but more than half the state leans toward no particular party.

The Milkwaukee Journal quoted one of the state’s Democratic strategists as saying a key to determining who will emerge as a viable candidate is who can show the ability to raise between $2 million to $4 million just for the primary.

Baldwin needed only $1. 2 million last year to win re-election to her seventh term.

She has represented the district that includes Madison, with a focus on health issues.

Baldwin, who turned 49 in February, graduated from Smith College in Northampton, Massachusetts, and earned a law degree from the University of Wisconsin Law School. She was elected Dane County Supervisor for four terms, then served three terms in the State House of Representatives, before running for Congress. With her election in 1998, she became the first woman from Wisconsin to serve in the U.S. House and the first non-incumbent openly gay person to win a seat to Congress.

As one of four openly gay people in the U.S. House, Baldwin has been a leader on numerous bills of interest to LGBT people and a prominent voice for ensuring that legislation covers all sexual minorities.

House Committee approves three DADT/DOMA amendments

The full U.S. House Armed Services Committee approved three amendments late Wednesday night that seek to delay implementation of repeal of Don’t Ask, Don’t Tell and to reiterate Congress’s support for the Defense of Marriage Act.

Duncan Hunter

The full U.S. House Armed Services Committee approved three amendments late Wednesday night that seek to delay implementation of repeal of Don’t Ask, Don’t Tell and to reiterate Congress’s support for the Defense of Marriage Act.

The votes were largely along partisan lines and are unlikely to be sustained in the Democratic-controlled Senate, even if they are approved by the Republican-dominated House.

But the question is whether they might survive a Senate-House conference committee, when compromises have to be hammered out between two increasingly contentious parties.

None of the proposed amendments sought to undo what Congress did last December when it passed legislation to repeal the military’s ban on openly gay people, but each provided yet another forum for debate over repeal.

The Committee debated for more than 40 minutes an amendment over whether to require that each of the Chiefs of the four combat branches of the military provide written certification to Congress before repeal can be implemented. The amendment passed 33 to 27.

It then debated for less than 20 minutes an amendment to reiterate that the Defense of Marriage Act (DOMA) applies to the military. The amendment passed 39 to 22.

And it debated for 13 minutes an amendment to reiterate that decisions concerning use of military facilities and personnel for conducting same-sex wedding ceremonies are governed by DOMA. That amendment passed 38 to 23.

Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network (SLDN), called the amendments “an assault on our nation’s senior military leaders and rank-and-file service members, who are marching toward open military service successfully.”

“These adopted amendments to delay and derail repeal are a partisan political attempt to interject the same-sex marriage debate and other unrelated social issues into the [budget authorization legislation] where they have no place,” said Sarvis.

Joe Solmonese, president of the Human Rights Campaign, said the amendments were intended “to slow down open service and perpetuate scare tactics about the repeal of ‘Don’t Ask, Don’t Tell.’”

Three different Republican members of the House Armed Services Committee proposed the amendments during the full House Armed Services Committee consideration of the annual bill authorizing how the Department of Defense can spend its funding. The overall bill is known as the National Defense Authorization Act (NDAA) for Fiscal Year 2012 (or bill Number H.R. 1540). Fiscal Year 2012 begins October 1.

Rep. Duncan Hunter (R-San Diego) first introduced his measure, called the “Restore Military Readiness Act,” as a stand-alone bill, in January. It has 25 co-sponsors. It seeks to require that certification of military readiness to implement repeal of the ban on gays in the military be done by the Chiefs of the four branches of the military, in addition to the certifications already required from the president, the Secretary of Defense, and the chairman of the Joint Chiefs of Staff.

Hunter, in debate, claimed that “60 to 70 percent” of Navy SEALs oppose repeal of DADT. The SEALs have been the subject of enormous public attention and praise recently, after successfully capturing and killing terrorist leader Osama Bin Laden.

Rep. Susan Davis (D-San Diego) the ranking Democrat on the subcommittee which received Hunter’s original measure, reminded the full committee that the four service branch chiefs testified at Congressional hearings that they believe their views are heard and respected by Defense Secretary Robert Gates and the Chairman of the Joint Chiefs of Staff Admiral Mike Mullen.

Rep. Hank Johnson (D-Georgia) lamented that the House continues to debate DADT repeal.

“Having openly gay people serve in our military is not apocalypse,” said Johnson, “it’s a sign of progress.” He also reminded committee members that when President Truman moved to integrate the military, there were some who opposed it.

“I think it’s a similar situation here with Don’t Ask, Don’t Tell,” said Johnson.

Rep. Tim Ryan (D-Ohio) read a letter from a gay veteran from World War II, supporting repeal of DADT.

Currently, President Obama, Gates, and Mullen are expected to certify the military as ready to implement repeal of DADT this summer. The repeal would then take effect 60 days later. Given how difficult it has been for the Senate and House to agree on budget matters in recent months, it seems possible that the 60-day waiting period will expire and DADT will be repealed long before a Senate-House conference committee will have a chance to tackle the issues.

The second amendment came from Rep. Vicky Hartzler (R-Missouri). It seeks to emphasize that DOMA still applies to DOD regulations and policies. Hartzler said the amendment would address situations such as the recent conflict over whether Navy chaplains could preside over same-sex marriages and allow such ceremonies to take place on military bases.

Rep. Randy Forbes (R-Va.) and others claimed the amendment was necessary because the Obama administration was “not enforcing” DOMA, so it is necessary to reiterate Congress’s support for the law. No one spoke to correct that claim. The Obama administration made clear it would continue enforcing DOMA until such time as the courts may find it unconstitutional. But it did say it would no longer defend DOMA as passing all constitutional levels of scrutiny in all federal courts.

The third amendment, from Rep. Todd Akin (R-Missouri), would prevent the use of military facilities or personnel for marriage ceremonies between same-sex couples. Akin’s amendment, like that of Hartzler, was in reaction to an April 13 memo from the Navy’s Chief of Chaplains recommending military facilities be available for use at same-sex marriage ceremonies in states where marriage licenses are available to same-sex couples. The Chief also recommended military chaplains be allowed to participate in such ceremonies, if their religious beliefs allow them to.

But on Tuesday, May 10, the Navy Chaplain Chief, Mark Tidd, “suspended” his earlier recommendations, saying they needed to undergo “additional legal and policy review and interdepartmental coordination.”

ABC News reported that a group of 63 Republicans had sent a letter to the Secretary of Navy, expressing objections to Tidd’s initial recommendations.

“Make no mistake,” said SLDN’s Sarvis, “these votes should be a wake-up call to supporters of open service that our work is not done. Our commitment to timely certification and repeal must be redoubled as we move to the House floor to defend the progress we have made to ensure that LGB patriots can defend and serve the country they love with honesty and integrity.”

Rep. Steven Palazzo (R-Miss.) was reportedly ready to introduce an amendment to delay implementation of DADT repeal in order to develop and issue new regulations concerning how to handle service members who have religious or moral objections to openly gay people in the military. He did not do so.

New bill seeks end to adoption bias

Hundreds of thousands of children are in foster care in the United States, while discrimination prevents millions of willing LGBT people from being able to foster or adopt. U.S. Rep. Pete Stark (D-Calif.) reintroduced a bill that aims to fix that discrepancy.

Pete Stark

Hundreds of thousands of children are in foster care in the United States, while discrimination prevents millions of willing LGBT people from being able to foster or adopt. U.S. Rep. Pete Stark (D-Calif.) reintroduced a bill on May 3 that aims to fix that discrepancy.

Each year, there are approximately 500,000 children in the United States foster care system—over 100,000 of whom are waiting for adoptive homes, according to the U.S. Department of Health and Human Services. In 2007, 25,000 youth “aged out” of the foster care system without ever finding permanent homes.

At the same time, over two million gay and lesbian adults are ready and willing to adopt a child, according to a 2007 study by the Williams Institute of UCLA. The study also found that over 14,000 children were already in foster placements with LGB parents, and 65,000 had been adopted by LGB parents. In total, 1 million LGBT parents are raising approximately 2 million children in the country.

But one-third of child welfare agencies in the country rejected applicants because they were LGB, according to a 2006 report by the Evan B. Donaldson Adoption Institute.

Rep. Stark’s “Every Child Deserves a Family Act,” which was introduced with 33 original cosponsors, would withhold federal adoption and foster care assistance funds from states that discriminate against LGBT people in foster placements or adoption. Individuals seeking redress under the law would have access to federal courts.

It would also require the Secretary of Health and Human Services to assist states and child welfare agencies in identifying discriminatory laws, regulations, and practices, and to provide guidance on the Act for judges and attorneys that handle foster care and adoption cases, along with “comprehensive cultural competency training” for agencies and prospective parents.

U.S. Senator Kirsten Gillibrand (D-N.Y.) has said she will introduce a companion bill in the Senate.

Linda Spears, vice president of Policy and Public Affairs for the Child Welfare League of America, was one of several child welfare experts and family policy advocates who attended a press conference to introduce the Stark bill. She said in a statement, “We must support all qualified adults who are interested in providing a nurturing, adoptive home—regardless of their marital status or sexual orientation. Having a real live, caring parent is incredibly important for ensuring a child’s success.”

According to estimates in the bill, increasing adoption rates, in addition to establishing permanency and decreasing risk factors for foster youth, could yield annual national cost savings between $3.3 and $6.3 billion.

But legislative and court battles are now being waged in several states over whether gay and lesbian people—individually or as couples—should be allowed to adopt.

Arizona Governor Jan Brewer (R) signed a bill April 18 that gives a married man and woman “placement preference” in adoption over a single adult, if all other relevant factors are equal. Marriages of same-sex couples are not recognized in the state.

And the Virginia State Board of Social Services voted on April 20 to reject a proposal of former Governor Tim Kaine (D) that would have prohibited discrimination against potential adoptive parents on the basis of sexual orientation.

In Illinois, a state Senate committee narrowly killed a bill April 11 that would have allowed religiously affiliated child welfare agencies to refuse a person’s adoption or foster home application if the person was in a civil union.

Utah also has a legislative ban against adoption by unmarried couples. Mississippi has a ban on adoption by same-sex couples. And while Michigan has no statutory ban, state courts have ruled that unmarried individuals may not jointly petition to adopt.

In the courts, the Arkansas Supreme Court ruled April 7 that the state’s ban on adoption by unmarried, cohabiting couples violated the state constitution. Last September, a Florida appeals court overturned that state’s ban on adoption by gay and lesbian individuals.

But the U.S. 5th Circuit Court of Appeals ruled April 12 that the Louisiana state registrar did not violate the U.S. Constitution by refusing to issue a new birth certificate to a Louisiana-born child adopted in New York by a gay couple. Louisiana officials said to do so would violate the state’s public policy of not allowing joint adoptions by unmarried couples.

And although the majority of states do not have categorical bans on fostering or adoption by LGBT people, most lack policies prohibiting discrimination against them, according to a joint statement in support of the bill from the Family Equality Council, the National Black Justice Coalition and Parents, and Families and Friends of Lesbians and Gays (PFLAG).

Jennifer Chrisler, executive director of the Family Equality Council, said in an interview that the bill is both “a stick and a carrot.” It will penalize states that have discriminatory placement practices, but it will also help educate practitioners “about being competent at understanding the issues that come with working with same-sex parents and placing kids in their homes.”

Chrisler said that because the bill is modeled after the 1994 Multiethnic Placement Act—which prohibits entities receiving federal funds from engaging in racial and ethnic discrimination when making placement decisions—“we think we have a good chance of its passage.”

She added, “It is an incredible vehicle for us to be on the Hill, talking to our elected officials about the issues that LGBT people face in creating and forming their families, and more importantly, the child welfare crisis we have in this country.”

David Hansell, Acting Assistant Secretary for the Administration for Children and Families at the Department of Health and Human Services, also attended the bill’s introductory press conference. His administration issued a memo April 6 encouraging child welfare agencies to better serve the needs of “lesbian, gay, bisexual, transgender and questioning (LGBTQ) youth” in the foster care system, and calling LGBT prospective parents “a largely untapped resource” for providing foster or adoptive homes to LGBTQ young people.

Marriage equality: It’s up to you, New York

The openly gay sponsor of a marriage equality bill in Rhode Island has said he would push for civil unions instead. Six states are considering legislation that would ask voters to ban recognition of marriage for same-sex couples. And all this was on the heels of a loss for a marriage equality bill in Maryland. Has the state legislative fight for marriage equality lost momentum?

Evan Wolfson

The openly gay sponsor of a marriage equality bill in Rhode Island said last week he would push for a civil unions bill instead, setting off a slew of criticism from LGBT groups. Six states are considering legislation that would ask voters to amend the state constitution to ban recognition of any legal relationships for same-sex couples. And all this was on the heels of a dramatic loss for a marriage equality bill in Maryland in March.

Has the state legislative fight for marriage equality lost momentum?

Not according to Evan Wolfson, executive director of the national Freedom to Marry group.

“Both Rhode Island and Maryland are very much still in play,” said Wolfson. “. . . The fact that we don’t win it exactly on the day we want . . . doesn’t change the overall momentum that is strongly in our direction.”

The “highest priority” right now, says Wolfson, is New York. Wolfson said he is “very hopeful” a marriage bill that is expected to pass the New York State Assembly, which is under Democratic control, will also pass the Senate, where Republicans hold a 32 to 26 majority.

Wolfson acknowledges the Senate may be more difficult. While a marriage equality bill passed the Assembly three times in the past four years, an attempt to pass it in the Senate in 2009 failed by 14 votes.

New York Senate Majority Leader Dean Skelos (R), who opposes marriage equality, has nevertheless said he would let a marriage equality bill come to the floor.

And several recent polls show that a majority of voters in the state support marriage equality. A Siena College poll April 11 showed that 58 percent of New Yorkers support it, with 36 percent opposed. A Quinnipiac poll April 14 showed 56 percent support, with 38 percent opposed, and a New York Times estimated projection on the same date also showed 58 percent support.

Additionally, two dozen New York business leaders, including Lloyd C. Blankfein, CEO of Goldman Sachs, and John Mack, chairman of the board of Morgan Stanley, on April 28 issued an open letter arguing that legalizing marriage for same-sex couples would help the state attract talent and remain competitive.

“Winning New York would really be transformative,” said Wolfson, “because New York has enormous cultural and political leadership in the United States and in the world.”

Freedom to Marry and several other LGBT advocacy groups—the Empire State Pride Agenda, the Human Rights Campaign, the League of Women Voters, the Log Cabin Republicans, and Marriage Equality New York—have formed the New Yorkers United for Marriage coalition, which is coordinating efforts to lobby for the marriage equality bill this session, which adjourns in June.

Governor Andrew Cuomo (D), who has expressed strong support for passing such a bill this year, has asked members of his staff to work with the coalition.

In Rhode Island, openly gay House Speaker Gordon Fox (D), a sponsor of that state’s marriage bill, said in a statement April 27 that “there is no realistic chance for passage of the bill in the Senate,” and that he will not move forward with a vote in the House.

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

Fox said he will instead sponsor a bill for civil unions and is “optimistic” that such a bill could pass both chambers this session. He was expected to introduce the bill May 3.

But Fox’s decision has not gone over well with LGBT groups. Marriage Equality Rhode Island (MERI), which supports full marriage, is holding a rally at the State House the same day to protest Fox’s decision to drop the marriage equality bill. Gay & Lesbian Advocates & Defenders, and others, issued statements criticizing Fox’s decision and calling it “completely unacceptable”.

“Nothing short of marriage is equality for Rhode Island’s gay and lesbian citizens and their children,” said Karen Loewy, a GLAD senior staff attorney. “More to the point, civil unions tell gay people and their kids that they are second class citizens and that their families matter less than other families.”

Wolfson called Fox’s decision a “miscalculation.” He noted that polls show a majority of support among voters, that Rhode Island already recognizes marriages of same-sex couples performed elsewhere, and that nearby Connecticut, New Hampshire, and Vermont all began with civil unions and have moved to full equality.

Similar to Rhode Island, marriage equality supporters never had a clear majority in Maryland either, even with the support of Governor Martin O’Malley (D). Although the bill passed the Senate in Maryland, but on March 11, the House unanimously to send the bill back to committee.

But in Maryland, several LGBT groups, including Equality Maryland, the leading state organization behind the bill, expressed approval for the move.

Wolfson noted, however, that Maryland was “within a couple of votes” of passage. With “a little more time to make the case and organize,” he thinks achieving equality could happen in early 2012.

Meanwhile, three states have enacted civil union laws this year—Delaware, Hawaii, and Illinois. Wolfson said that, while civil unions are not the true goal, they may still “sometimes can be a stepping stone.”

Camilla Taylor, marriage project director for Lambda Legal, agreed, saying that civil unions “are an important step forward” in states where same-sex couples have no benefits or protections. She added that Lambda is “often very involved,” as it was in Illinois, in drafting such legislation.

But Lambda also brought a suit before the New Jersey state Supreme Court claiming the state’s civil union law did not provide full equality. The Court last June refused to hear the case, saying it must first go through the trial court process.

Taylor said she could not say whether Lambda would be filing any further cases to contest civil unions, noting that it is important in each state to first “develop a record of the ways in which it harms people to deny them equal access to marriage.”

Six states—Indiana, Iowa, Minnesota, North Carolina, Pennsylvania, and Washington, also have active legislation that would ask voters to amend the state constitutions to ban marriage—and in some cases, recognition of any legal relationships, such as civil unions—for same-sex couples.

New Mexico and Wyoming both considered but did not pass such bills this year. Wyoming also rejected a bill that sought to prevent the state from recognizing marriages and civil unions of same-sex couples from other jurisdictions.

Washington State has seen a mish-mash of marriage-related bills. The state already allows same-sex couples to register as domestic partners and, on February 14, bills were introduced in both chambers of the legislature for marriage equality.

And on April 5, Washington State Governor Chris Gregoire (D) signed a bill to recognize legal relationships of same-sex couples from other jurisdictions as domestic partnerships. But there is also a bill in the House that would ask voters to ban marriage for same-sex couples under the state constitution. Democrats have a majority in both chambers.

The situation in New Hampshire is also mixed. A House committee voted March 3 to table a bill that would repeal the state’s existing marriage equality law, thus postponing further consideration until January 2012. But opponents of marriage equality have said they will also introduce a bill next year seeking to ask voters in November 2012 to approve amending the state constitution to ban marriage for same-sex couples.

AIDS funding: caught in the crossfire of the FY 12 budget battle

Before it left on spring recess, the U.S. House passed a budget for Fiscal Year 2012 that the president called “wrong for America” and that AIDS activists have said would do “irreparable harm.”

Paul Ryan

Before it left on spring recess, the U.S. House passed a budget for Fiscal Year 2012 that the president called “wrong for America” and that AIDS activists have said would do “irreparable harm.”

The proposal hasn’t gone over well with many Americans, either. During the two-week recess, the budget bill’s chief author, Rep. Paul Ryan (R-Wisc.), was greeted with crowds of unhappy constituents and many boos.

The primary complaint is that the so-called “Ryan budget” calls for dramatic cuts in Medicaid, which provides health insurance coverage for people with low incomes. And it calls for dramatic cuts in Medicare, which provides health insurance coverage for Americans 65 and older and for people with disabilities, including AIDS.

In a letter to members of the House last month, a large coalition of groups serving people with HIV urged a “no” vote on the plan.

“Chairman Ryan’s proposal to dismantle the Medicaid and Medicare programs, roll back reforms enacted through the Affordable Care Act, and drastically reduce support for vital federal programs will do irreparable harm to people living with HIV disease as well as those at risk for HIV infection,” said the letter. “We will lose our battle against HIV disease and the loss will come with a high price tag in terms of the human toll and costs to the health care system.”

The letter notes that Medicaid is the “single largest source” of funding for HIV-related treatment and care, covering about 40 percent of people with HIV in the United States.

The coalition said Ryan’s proposal to completely defund provisions of President Obama’s recently enacted Affordable Care Act would leave “hundreds of thousands of people with HIV without access to health care coverage and services.”

Overall, Ryan’s plan would cut federal spending by $6 trillion over the next 10 years. For Fiscal Year 2012, Ryan’s plan calls for a 15 percent drop in spending on non-security-related funding—from $565 billion this year to $482 billion next year. That includes a $56 billion cut in discretionary health spending over the next five years. The coalition of AIDS groups say that cut would lead to the loss of programs to prevent new HIV infections.

“It is counterproductive to disable the prevention, care and research programs that have controlled the HIV epidemic and transformed HIV disease from a fatal to a complex but manageable condition in the United States,” said the coalition’s letter.

The letter was sent to members of the House on April 13 and signed by 54 groups, including AIDS United, the Gay Men’s Health Crisis, the AIDS Institute, the National Minority AIDS Council, the San Francisco AIDS Foundation, Treatment Action Group, the AIDS Task Force of Greater Cleveland, and the AIDS Foundation of Chicago.

Some the organizations which signed the letter—such as AIDS United and The AIDS Institute—had expressed relief at the Fiscal Year 2011 budget because there were no cuts in places where people with HIV need additional help. But all AIDS organizations seem to be alarmed at the House plans for FY 12.

Project Inform, a 26-year-old national AIDS policy advocacy group, says on its website that Ryan’s budget would “devastate” the country’s response to HIV.

The National Minority AIDS Council Deputy Executive Director, Daniel Montoya, issued a statement, saying, “Medicare and Medicaid are essential programs that safeguard the health of all Americans, including those living with HIV/AIDS.”

“Placing the burden of his $6 trillion cuts on the backs of our nation’s vulnerable,” said Montoya of Ryan, “is inhumane and un-American.”

The unpopularity of the Medicare/Medicaid provisions prompted Senate Majority Leader Harry Reid (D-Nev.) to say he might put it on the floor for a vote soon, presumably to put Senate Republicans in the uncomfortable position of defending a bill that so many are clamoring against.

There are other budget proposals—the President’s original FY 12 budget plan (which AIDS and LGBT groups generally like) and several in the works by various groups of legislators. One plan, from the Congressional Progressive Caucus, would maintain Medicare and Medicaid but require significant tax increases for people with high incomes and tax capital gains and dividends as ordinary income. The Caucus includes all four openly gay members: Rep. Tammy Baldwin (D-Wisc.), who serves as a vice chairman, as well as Reps. Barney Frank (D-Mass.), Jared Polis (D-Colo.), and David Cicilline (D-RIs.).

The House rejected that proposal during last month’s vote.

But no budget proposal has yet emerged that appears to be capable of gaining passage through both chambers of Congress. So, it’s likely to be another knockdown-drag out fight, like that just finished for FY 11.

And to complicate the negotiations for FY 12, there is the looming gloom of the nation’s debt ceiling. The government anticipates spending to bump up against that ceiling—currently set at $14.6 trillion—in July. Republicans have vowed to oppose an increase in that ceiling unless significant concessions are made to cut spending.

In an effort to encourage cooperation between the House and Senate and both parties, President Obama named a commission of six to find common ground on the budget and on a request to raise the debt ceiling. Vice President Joe Biden is leading the panel

The group holds its first meeting May 5.

With children in need, states struggle over gay adoptive parents

Each year, over 100,000 children in the U.S. foster care system are waiting for adoptive homes. And over two million gay and lesbian people are interested in adopting a child. But legislative and court battles are being waged in several states over whether gay and lesbian people should be allowed to adopt.

Jennifer Chrisler

Second of Two Parts (Part One)

Each year, over 100,000 children in the United States foster care system are waiting for adoptive homes, according to the U.S. Department of Health and Human Services (HHS). And over two million gay and lesbian people are interested in adopting a child, according to a 2007 study by the Williams Institute of UCLA.

But legislative and court battles are being waged in several states over whether gay and lesbian people—individually or as couples—should be allowed to adopt. And the outcomes have been mixed.

Under a bill signed April 18 by Arizona Governor Jan Brewer (R), a married man and woman will receive “placement preference” in adoption over a single adult, if all relevant factors are equal. Unmarried individuals may adopt, but only a married husband and wife may adopt jointly. Marriages of same-sex couples are not recognized in the state.

And the Virginia State Board of Social Services voted 7-2 on April 20 to reject a proposal of former Governor Tim Kaine (D) that would have prohibited discrimination against potential adoptive parents on the basis of sexual orientation. Governor Bob McDonnell (R) recommended that they disapprove the proposal, although the Board was not obligated to follow him.

Two other senior state officials had also expressed their opposition to the proposal. Republican Attorney General Ken Cuccinelli II’s office issued a memo April 12, written by Senior Assistant Attorney General Allen Wilson. The memo said the proposed change goes against state law and public policy and the Board “lacks the authority to adopt this proposed language.” The memo “revises and amends” Wilson’s memo from December 2009 (during Kaine’s governorship), in which he said the Board did have that authority.

And Virginia Social Services Commissioner Martin Brown, a McDonnell appointee, also advised against the proposed regulations. Brown is the former executive director of The Family Foundation of Virginia, a conservative organization that includes among the partners listed on its Web site the Family Research Council, classified as an anti-gay hate group by the Southern Poverty Law Center.

In Illinois, however, a state Senate committee killed a bill April 11 that would have allowed religiously affiliated child welfare agencies to refuse a person’s adoption or foster home application if the person was in a civil union.

Court rulings on adoption by same-sex couples have varied. The Arkansas Supreme Court ruled April 7 that the state’s ban on adoption by unmarried, cohabiting couples violated the state constitution. Last September, a Florida appeals court overturned that state’s ban on adoption by gay and lesbian individuals.

But the U.S. 5th Circuit Court of Appeals ruled April 12 that the Louisiana state registrar did not violate the U.S. Constitution by refusing to issue a new birth certificate to a Louisiana-born child adopted in New York by a gay couple. Louisiana officials said to do so would violate the state’s public policy of not allowing joint adoptions by unmarried couples.

Utah also has a legislative ban against adoption by unmarried couples. Mississippi has a ban on adoption by same-sex couples. And while Michigan has no statutory ban, state courts have ruled that unmarried individuals may not jointly petition to adopt.

In Arizona, Virginia, Louisiana, Utah, Mississippi, and Michigan, nearly 12,000 children in foster care are eligible and waiting for adoptive homes, according to the most recent (2009) data from HHS.

Jennifer Chrisler, executive director of the Family Equality Council, said that “the overarching picture right now is looking a little gloomy at the state level.”

But Chrisler added that the adoption battles are in part because of “a growing awareness of the issue of LGBT people and their ways of creating family,” combined with an “opportunistic moment” for conservative politics. Conservatives are using the opportunity “to push through as much of their conservative agenda as they can.”

She sees their actions as “a serious threat” to finding homes for children who need them.

Ellen Kahn, director of the Human Rights Campaign’s (HRC) Family Project, said that society at a “threshold moment in child welfare,” when people have to move beyond old beliefs and traditions, just as they did with adoption by single parents and interracial couples, among others.

But she thinks the issue has hit “the tipping point” with regard to adoption by LGBT parents. Research has shown, she said, that “there’s absolutely no reason to discriminate.”

“Because this issue is so politicized,” however, she said, it gets pulled out of the context of child welfare. This slows down “a natural, organic progression” towards acceptance of LGBT adoptive parents among child welfare professionals.

Sarah Warbelow, HRC’s state legislative director, said the issue of adoption is also tied up with the issue of relationship recognition for same-sex couples, especially in states that ban all forms of relationship recognition—not only marriage—for such couples. Adoption agencies in those states, Warbelow said, are often then “reluctant to allow couples to even consider adopting, because they don’t know how to interpret the language.”

Currently, 18 states have such comprehensive bans. Only one of those, Arkansas, after its April 7 state Supreme Court decision, allows same-sex couples to jointly petition to adopt statewide.

And while only 16 plus the District of Columbia do allow same-sex couples to jointly petition to adopt, Kahn said she works with adoption agencies in states that do not permit joint adoptions by same-sex couples and that many of those agencies will nevertheless treat same-sex prospective parents like a couple, even though they know only one will become the legal parent.

That kind of attitude, she says, “keeps moving regardless of who’s in office” and, “over time, changes the landscape agency to agency and makes a big difference for families.”

On a federal level, the Family Equality Council announced in an e-mail to supporters April 22 that U.S. Rep. Pete Stark (D-Calif.) would on May 3 reintroduce the Every Child Deserves a Family Act, which would withhold federal adoption and foster care assistance funds from states that discriminate against LGBT people in foster placements or adoption. He introduced a similar bill last session, but it died in committee.

And the U.S. Department of Health and Human Services (HHS) issued a memo April 6 encouraging child welfare agencies to better serve the needs of “lesbian, gay, bisexual, transgender and questioning (LGBTQ) youth” in the foster care system, and calling LGBT prospective parents “a largely untapped resource” for providing foster or adoptive homes to LGBTQ young people.

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

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

Vaughn Walker

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Law firm drops contract to defend DOMA

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

Paul Clement

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Arrest made in Miller-Jenkins custody battle

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

Undated photo of Isabella Miller-Jenkins

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

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

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

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

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

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

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

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

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

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

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

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

Isabella Miller turned 9 this month.

HHS urges child welfare agencies to better serve LGBTQ youth

The U.S. Department of Health and Human Services (HHS) issued a memo April 6 encouraging child welfare agencies to better serve the needs of “lesbian, gay, bisexual, transgender and questioning (LGBTQ) youth” in the foster care system.

Bryan Samuels

First of two parts (Part Two)

The U.S. Department of Health and Human Services (HHS) issued a memo April 6 encouraging child welfare agencies to better serve the needs of “lesbian, gay, bisexual, transgender and questioning (LGBTQ) youth” in the foster care system. It said such agencies should avail themselves of federal funds for training staff on how to better serve this community, and it called LGBT prospective parents “a largely untapped resource” for providing foster or adoptive homes to LGBTQ young people.

In the memo, which was issued without a press release, Bryan Samuels, commissioner of the HHS Administration on Children, Youth and Families (ACYF), said, “LGBT parents should be considered among the available options for States and jurisdictions to provide timely and safe placement of children in need of foster or adoptive homes.”

The memo was sent to state, tribal, and territorial agencies that administer federal child welfare funds under Title IV-E of the Social Security Act.

Title IV-E provides federal matching funds to states to help with adoption and foster care expenses for eligible children.

In the memo, Samuels states his “fundamental belief that every child and youth who is unable to live with his or her parents is entitled to a safe, loving and affirming foster care placement, irrespective of the young person’s sexual orientation, gender identity or gender expression.”

A higher percentage of LGBTQ youth, he wrote, exist in the child welfare system and among those living on the streets than would be expected based on the estimated percentage of LGBTQ people in the general population.

He noted that more and more child welfare agencies are addressing the needs of youth in foster care who are LGBTQ and said others should explore ways to do so.

Samuels also urged agencies, where appropriate, to “claim available title IV-E reimbursement for costs associated with training staff” to serve LGBTQ youth more effectively.

For FY 2010, the last year for which actual numbers are available, the budget authority for Title IV-E funds was $7.3 billion, enough to assist approximately 600,000 children with foster care, adoption, or guardianship assistance each month.

Samuels also said agencies must be “particularly attuned” to placing LGBTQ foster youth with families “committed to providing a safe, supportive and affirming environment.”

He called on agencies to “recruit, train and provide ongoing support to families, including LGBT individuals and families, who are able to provide a safe, loving family placement for these youth.”

He drew special attention to LGBT foster and adoptive parents, who “can provide a loving, stable home, responsive to the needs of LGBTQ youth in care, and are a largely untapped resource—an estimated 2 million LGB individuals are interested in adopting,” according to a 2007 study by the Williams Institute at UCLA.

And when a foster child’s case plan calls for reunification with his or her family, he said, agencies should support those families to help them “address the young person’s needs in a healthy, understanding manner.”

Adam Pertman, author of Adoption Nation and executive director of the Evan B. Donaldson Adoption Institute, a national, nonpartisan, nonprofit dedicated to improving adoption policy and practice, said in an interview that the memo is “very significant” and “further than I have seen federal instruction go” on the topic of LGBTQ adoptive children and parents.

“It’s not going to have the same impact as if it were enforced by law or regulation,” Pertman said, but “guidance means an enormous amount in the policy world. . . . What comes from the top really matters. It helps shape both practice and attitudes.”

Ellen Kahn, director of the Human Rights Campaign’s Family Project, agreed the memo was “a really important communication” that “outlines what the expectations are regarding LGBTQ youth in foster care, and emphasizes the importance of adequate services, cultural competence, etc., and then segues into inclusion of LGBT resource families and making the case for nondiscrimination,” even though it “doesn’t have the enforcement of law.”

The memo from Samuels is not the first step ACYF has taken to support LGBTQ youth and parents. In October 2010, ACYF awarded the L.A. Gay & Lesbian Center a $13.3 million, five-year grant to create a model program to support LGBTQ youth in the foster care system.

And in 2000, under President Clinton, the ACYF-run National Adoption Information Clearinghouse published a report on “Gay and Lesbian Adoptive Parents: Resources for Professionals and Parents.” It still exists at the ACYF’s Child Welfare Information Gateway (childwelfare.gov).

The older report debunked several myths about children of lesbian and gay parents, such as they were more likely to become gay themselves. At the same time, it stated that “the effects on children of being raised by lesbian and gay adoptive parents cannot be predicted”—an assertion more recently called into question by the social science evidence presented by LGBT advocates in a number of cases involving either adoption or marriage rights. The evidence showed no differences in adjustment or well being among children with LGBT parents.

A bill in Congress that would withhold federal funds from states that discriminate against LGBT people in foster placements or adoption died in committee last session, but U.S. Senator Kirsten Gillibrand (D-N.Y.) and U.S. Rep. Pete Stark (D-Calif.) are expected to introduce similar bills again this session.

In the past two weeks, three states—Arizona, Illinois, and Virginia—have considered bills or policies that would limit adoption rights for unmarried and/or same-sex couples. Arizona Governor Jan Brewer (R) on April 18 signed a measure giving “placement preference to a married man and woman” over a single adult if all relevant factors are equal. The Illinois measure failed to pass, and the outcome is still unknown in Virginia.

And two major court cases in the last two weeks have ruled in opposite ways on whether treating LGBT couples differently violates constitutional principles. The U.S. 5th Circuit Court of Appeals said “no” (based on the U.S. Constitution) and the Arkansas Supreme Court saying “yes” (based on the state constitution).

Part Two: What are the states doing to help or hinder adoption of children in need by LGBT adults who are seeking to provide homes for them? Why are so many states debating whether LGBT people should be allowed to apply to become foster or adoptive parents?

House hired gun goes to work on DOMA; HRC attacks

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

Paul Clement

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

House hearing contentious on DOJ-DOMA decision

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

Trent Franks

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

5th Circuit upholds Louisiana’s denial to gay dads

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

New ad campaign promotes equal access to housing for LGBTs

The U.S. Department of Housing and Urban Development (HUD) announced that it is launching a national media campaign to promote equal access to housing regardless of sexual orientation and gender identity, among other characteristics.

HUD Secretary Shaun Donovan

The U.S. Department of Housing and Urban Development (HUD) announced Friday, April 8, that it is launching a national media campaign to promote equal access to housing regardless of sexual orientation and gender identity, among other characteristics. And new data shows a marked increase in the number of LGBT housing discrimination complaints filed under existing law.

The ad campaign is the latest in a series of moves HUD has made to address discrimination against LGBT people or those perceived to be.

The new campaign, “Live Free,” will run throughout the year and include “Facebook ads, targeted print ads, digital videos, and podcasts,” according to a HUD press release.

One print ad asks, “Should Gender Stereotypes Influence Where You Live?” and directs people to learn more about HUD’s LGBT initiatives at HUD’s Fair Housing Web site, www.hud.gov/fairhousing.

Last July, HUD issued a clarification of existing policy, stating that, although the Fair Housing Act—a pivotal civil rights act that prohibits discrimination based on race, color, religion, national origin, sex, disability, and familial status—does not specifically cover sexual orientation- or gender identity-based discrimination, it may still cover it in other ways. For example, gender-identity discrimination may be seen as sex discrimination.

Since that guidance was issued, the number of complaints from LGBT individuals to HUD about housing discrimination has increased, according to HUD. From July 1, 2010 to February 28, 2011, LGBT individuals filed 47 complaints of gender-based housing discrimination. During the same date range in 2009 and 2010, before the guidance was issued, there were only three such complaints.

No national study has quantified how many LGBT people have faced housing discrimination, although several smaller studies and examples have indicated pervasive discrimination, especially against transgender people and LGBT seniors.

HUD has been preparing a national study to fill this gap, with a target date for reporting findings in late 2012. It may also include LGBT discrimination in its decennial study of housing discrimination, which has, in the past, looked at racial- and ethnic-based discrimination, according to a HUD spokesperson.

HUD has also instructed staff to inform individuals about state and local LGBT protections that may apply to them. And HUD has told its grant applicants—who seek a total of $3.25 billion in federal funding—they must comply with such state and local laws, where they exist.

Additionally, in January 2011, HUD announced a proposed new rule intended to ban discrimination on the basis of sexual orientation or gender identity in its core housing programs—programs that impact 4.4 million units of housing in the country.

The proposed rule would prohibit owners and operators of HUD-assisted or -financed housing from inquiring about applicants’ sexual orientation or gender identity, and prevent them from excluding otherwise eligible families if one or more members is or is perceived to be LGBT. It would also prevent lenders from using sexual orientation or gender identity of an applicant as a basis to determine eligibility for Federal Housing Administration (FHA) mortgages, which represent one-third of all new mortgages in the country.

A period for public comment on the proposed rule closed on March 25, with nearly 370 comments submitted. HUD must now review them and create the final rule, which a HUD spokeperson said would likely happen by the end of the calendar year.

Many comments on the HUD rule simply expressed support—including a letter representing the 1.1 million members of the National Association of Realtors.

Other comments included specific suggestions. Maya Rupert, Federal Policy Attorney at the National Center for Lesbian Rights, urged “a more explicit definition of who qualifies as a ‘child’ in the definition of ‘family’” under the rule. Rupert suggested specifying “biological or adopted children, stepchildren, children for whom anyone in the family is standing in loco parentis, and foster children,” thus providing protection to families where one parent may not be legally recognized as such.

And several commenters, including Kristina Wertz of the Transgender Law Center, suggested modifying the proposed rule to clarify that housing providers “may only inquire about an individual’s gender identity for the purpose of placing them in a gender- specific accommodation,” but not “regarding a person’s birth sex, anatomy or medical history.”

There are currently no explicit federal protections that ban housing discrimination based on sexual orientation or gender identity. Twenty states plus the District of Columbia have housing protections specific to sexual orientation, and 13 states plus the District have protections specific to gender identity. Approximately 150 cities, towns, and counties have LGBT protections as well, according to HUD.

At the end of the last session of Congress, Reps. Jerrold Nadler (D-N.Y.), John Conyers (D-Mich.), and Edolphus Towns (D-N.Y.) introduced the Housing Opportunities Made Equal (HOME) Act, which would amend the Fair Housing Act to prohibit discrimination in housing, not just HUD housing, on the basis of sexual orientation, gender identity, source of income, or marital status. Individuals seeking redress under the Fair Housing Act may bring a lawsuit in federal district court or file an administrative complaint with HUD.

The bill would also expand the Fair Housing Act’s definition of “familial status” to include “anyone standing in loco parentis” to a minor.

A spokesperson for Rep. Jerrold Nadler (D-N.Y.) said Nadler hopes to reintroduce the bill “soon,” although he did not have an exact date.

With Republican control of the House this session, however, Nadler lost his chairmanship of the Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties. The new chair for the renamed Subcommittee on the Constitution is Rep. Trent Franks (R-Ariz.). Trent received a 0 percent score from the Human Rights Campaign for each of the past two Congresses, indicating he never voted in favor of legislation to further LGBT equality.

LGBTs comprise 3.5 percent of U.S. adult population

Remember this number: 9 million. And this percentage: 3.5. The former is the current best estimate of the number of adults in the U.S. who identify as LGBT; the latter is the percentage that number represents within the total number of adults in the U.S.

Gary Gates

Remember this number: 9 million.

And this percentage: 3.5.

The former is the current best estimate of the number of adults in the United States who identify as lesbian, gay, bisexual, or transgender; the latter is the percentage that number represents within the total number of adults in the United States.

But read carefully: These are estimates for adults who identify themselves as LGBT.

The number of adults who report having had sex with a same-sex partner is estimated at “nearly 19 million,” or 8.2 percent of the adult population. And the number of adults who acknowledge being attracted to a person of the same sex is estimated to be 25.6 million (11 percent of the adult population).

The estimates are part of a report released Thursday, April 7, by the Williams Institute, a well-respected law and public policy think tank within the UCLA School of Law. The Institute focuses on issues related to sexual orientation.

The report is entitled “How many people are lesbian, gay, bisexual and transgender?” and estimates more than 8 million adults in the United States identify as lesbian, gay, or bisexual, and about 700,000 identify as transgender.

The report based the percentages on the U.S. adult population (18 and older) as estimated through the 2009 American Community Survey, an annual a survey conducted by the Census Bureau. That total was 232 million adults.

The report also noted that a slight majority of those adults who self-identify as lesbian, gay, or bisexual are bisexual, and women are “substantially more likely than men to identify as bisexual.”

“[N]o single survey offers a definitive estimate for the size of the LGBT community in the United States,” says the report, authored by Gary Gates, a prominent scholar on LGBT-related demographics.

Interestingly, the report’s findings concerning same-sex attraction and behavior are not too far off from the famed Kinsey Institute studies of the 1940s-1960s, and its estimates for self-identifying LGBs is close to that of recent exit polling data collected during national elections.

The sexual behavior studies of Alfred Kinsey found, among other things, that, “Ten percent of males are more or less exclusively homosexual for at least three years between the ages of 16 and 55.” The recent surveys analyzed by the Williams Institute found 8 percent of adults reported having had sex with a same-sex partner at some point in their lives and 11 percent had been attracted to a person of the same sex.

Many historians have suggested that the Kinsey studies were the origin of the one-time consensus that gay people comprise about 10 percent of the population. Demographic experts today are much more cautious when trying to estimate the size of the LGBT community, observing that more people are willing to acknowledge a same-sex attraction or behavior than are prepared to self-identify as gay, lesbian, or bisexual.

And Gates is quick to urge caution in making comparisons between the Kinsey data and the surveys used by the Williams Institute. For one thing, he noted, Kinsey was not using large, population-based data, but rather interviews with several thousand participants in a study of human sexual behavior. And even the Kinsey reports did not conclude that 10 percent of U.S. adults are gay.

The Williams Institute analysis conclusion that about 3.5 percent of the adult population in the United States identifies as LGBT also closely approximates data collected by a major media coalition during recent national elections. The National Election Pool has found that about 3 percent to 4 percent of people answering exit poll surveys when leaving the voting place have identified themselves as gay, lesbian, or bisexual.

The fact that both the surveys analyzed by the Williams Institute and the numbers found by the exit polling are so similar “gives us some real confidence that this [3.5 percent] is a number we can rely on,” said political demographer Patrick Egan.

“We now have a number that measures identity that just didn’t exist when I first started doing this work 10 years ago,” said Egan. “The data back then was much more scant, and we had to rely on proxies for different measures.”

The Williams Institute analyzed information from several population-based surveys. The estimate for sexual orientation identity was derived by averaging results from five U.S. surveys, including the mammoth General Social Survey of 2008 and the National Survey of Sexual Health and Behavior of 2009.

The estimate for adults identifying as transgender came from an average between numbers found on surveys in Massachusetts and California.

Estimates concerning same-sex attraction came from the National Survey of Family Growth between 2006 and 2008, sponsored by the U.S. Centers for Disease Control and Prevention. And estimates concerning same-sex behavior came from both the General Social Survey and the Family Growth survey.

Gates said his analysis also examined relevant surveys from four other countries —Canada, Norway, Australia, and the United Kingdom—“mostly to show that LGBT data inclusion is not simply a U.S. issue.”

“Some of the international surveys,” he said, “are conducted in ways similar to how the U.S. conducts many of its large surveys. For example, the UK survey is roughly akin to the American Community Survey. It is important for folks to see that surveys like this can successfully include these questions.”

The Williams Institute report suggests that the estimates provided by its study are not intended to be the final word on the size of the LGBT community but rather a demonstration of “the viability of sexual orientation and gender identity questions on large-scale national population-based surveys.”

“States and municipal governments are often testing grounds for the implementation of new LGBT-related public policies or can be directly affected by national-level policies,” concludes the study. “Adding sexual orientation and gender identity questions to national data sources that can provide local-level estimates and to state and municipal surveys is critical to assessing the potential efficacy and impact of such policies.”

Having reliable estimates of the population can help direct government resources and programs to help meet the needs of that population, a point underscored just last week by Kathleen Sebelius, Secretary of the U.S. Department of Health and Human Services.

Sebelius issued a lengthy press statement April 1 saying her department would work to increase the “number of federally funded health and demographic surveys that collect and report sexual orientation and gender identity data.”

And an Institute of Medicine report, commissioned by the National Institutes of Health and released March 31, recommended that NIH conduct more research to “advance knowledge and understanding of LGBT health” and that HHS surveys collect data “on sexual orientation and gender identity.”

Estimates also have a political value, persuading elected officials that a constituency is large enough to make a difference in elections. The nine million LGBT estimate from the Williams Institute report is equal to the number of people 65 and older who are military veterans; and it’s greater than the number of teachers (7 million) and the estimated number of stay-at-home moms in the U.S. (5 million). The 3.5 percent LGBT population is twice that of the percent of adults who identify as Mormon (1.7 percent)

The U.S. Census Bureau estimated there were 565,000 same-sex partner households in 2008. They represented 9 percent of the 6.2 million unmarried partner households overall in 2008.

Gates noted that data concerning same-sex couples collected during the 2010 U.S. Census will be released in June and will be rolled out on a state-by-state basis over the course of the summer.

Arkansas Supreme Court strikes down adoption ban

The Arkansas Supreme Court unanimously upheld a lower court ruling that struck down the state’s ban on adoption and foster parenting by any person cohabiting with a sexual partner outside of marriage. The state high court said the law violates “fundamental privacy rights implicit in the Arkansas Constitution.”

The Arkansas Supreme Court on Thursday, April 7, unanimously upheld a lower court ruling that struck down the state’s ban on adoption and foster parenting by any person cohabiting with a sexual partner outside of marriage. The state high court said the law violates “fundamental privacy rights implicit in the Arkansas Constitution.”

Because the ruling was made on state constitutional claims, the case cannot be appealed further.

The Arkansas law, Initiated Act 1, was passed in a voter referendum in November 2008, the same month California voters passed Proposition 8 to ban same-sex marriage. Shortly thereafter, the American Civil Liberties Union (ACLU) and the ACLU of Arkansas challenged Act 1 in court.

In April 2010, a state circuit court overturned Act 1, saying it violates the Arkansas Constitution. It dismissed plaintiffs’ claims that the law also violates their rights under the United States Constitution.

The state, along with the Family Council Action Committee (FCAC)—the conservative group that led the petition drive for Act 1—appealed the case, Arkansas Dept. of Human Services and Family Council Action Committee v. Sheila Cole Et Al., to the Arkansas Supreme Court.

The state Supreme Court ruled, in the opinion written by Associate Justice Robert Brown (an appointee of then-Governor Bill Clinton), that Act 1 “directly and substantially burdens the privacy rights” of both opposite- sex and same-sex couples.

The choice faced by these couples is “dramatic,” said the court. “They must chose either to lead a life of private, sexual intimacy with a partner without the opportunity to adopt or foster children or forego sexual cohabitation and, thereby, attain eligibility to adopt or foster.”

The court explained that state agencies would have to “police” couples to “determine whether they are sexually involved in the event those couples represent that they are celibate.” That is an intrusion “into a couple’s bedroom to enforce a sexual prohibition,” an act found unconstitutional in the 2002 Arkansas Supreme Court case Jegley v. Picado.

Because the Cole case involved a fundamental right, the court upheld the circuit court’s use of “heightened scrutiny” to evaluate it. This meant that Act 1 could only be constitutional if it used “the least restrictive method available narrowly tailored to accomplish a compelling state interest”—that interest being protecting the best interests of children.

Act 1, however, was a “categorical ban against all cohabiting couples engaged in sexual conduct,” and thus not “narrowly tailored,” said the court.

The individualized assessments of prospective foster and adoptive parents by the state are effective in determining whether applicants would be suitable, said the court—and those are the “least restrictive” means to serve the State’s interest in protecting children.

The court noted that “several of the State ’s and FCAC’s own witnesses testified that they did not believe Act 1 promoted the welfare interests of the child by its categorical ban” and that attorneys for the State and FCAC admitted during oral arguments that some cohabiting adults would be suitable foster or adoptive parents.

The court also confronted the defendants’ argument that Arkansas courts often place a restriction on cohabitation on a parent following a divorce, as a condition of child custody. The court said that in those cases, the third party cohabiting with the parent has not undergone the extensive screening of people applying to foster or adopt.

The court said that because it found Act 1 unconstitutional based on privacy claims, it would not address the issues of whether it also violated due process and equal protection under the state constitution, or whether it violated the federal constitution.

Christine Sun, lead counsel for the ACLU on the case, said in an interview Thursday that she was “ecstatic” about the ruling.

“We’re relieved for our plaintiffs. Now the child welfare professionals of Arkansas can do their job and do what’s in the best interests of children.”

Plaintiffs included a lesbian couple who adopted a special-needs child before Act 1 was passed and wants to adopt another child now; a lesbian grandmother who wants to adopt her grandchild, who is currently in state care; three teenagers in the foster care system awaiting placement; and several married opposite-sex couples whom Act 1 prevents from designating certain friends or relatives to adopt their children in the case of the parents’ deaths.

The unanimity of the court, Sun said, “indicates our case was very strong.”

She noted that the ruling “should not only have an effect in Arkansas, but on other states that may be considering similar types of bans.” While the ruling is limited to Arkansas, she hopes other states will follow the same legal analysis.

Sun also noted that the federal constitution also has “a robust right to privacy,” and “the same analysis should apply to a claim under the federal constitution.”

Utah also has a legislative ban against adoption by unmarried couples. Mississippi has a ban on adoption by same-sex couples. And while Michigan has no statutory ban, state courts have ruled that unmarried individuals may not jointly petition to adopt.

A Florida appeals court in September 2010 overturned that state’s ban on adoption by gay and lesbian individuals, and the state declined to appeal it to the state supreme court.

And Virginia Governor Robert McDonnell (R) is now considering whether to enact a proposal from former Governor Tim Kaine (D) to change state policies prohibiting adoption by unmarried (and by definition, same-sex) couples. McDonnell has indicated he is opposed to the change, concerned about the impact on faith-based adoption agencies. He must make his recommendation to the State Board of Social Services by April 16.

On March 18, U.S. Senator Kirsten Gillibrand (D-N.Y.) and U.S. Rep. Pete Stark (D-Calif.) told the Washington Blade they would be introducing bills to ban states from discriminating against LGBT people in foster placements or adoption. A similar bill, the Every Child Deserves a Family Act, was introduced by Stark last session, but died in committee.

DADT certification likely mid-summer

Pentagon officials told a House subcommittee Friday that training for implementation of repeal of “Don’t Ask, Don’t Tell” has gone “extremely well so far” and that certification to Congress might come by mid-summer.

Clifford Stanley

Pentagon officials told a House subcommittee Friday that training for implementation of repeal of “Don’t Ask, Don’t Tell” has gone “extremely well so far” and that certification to Congress might come by mid-summer.

Republicans on the Military Personnel Subcommittee of the House Armed Services Committee used the hearing to reiterate concerns from previous Congressional debates that the military might rush to jump through the hoops necessary to actually implement repeal of the law.

Rep. Allen West (R-Fla.), for instance, said he was concerned that military leaders might be pressuring service members to respond with “political correctness” during the repeal process, calling it “social engineering.”

Rep. Mike Coffman (R-Col0.) said he has “no confidence” in the process because, he said, “this is a political decision made by the executive branch and the military will follow it.”

Rep. Vicky Hartzler (R-Missouri) said she is “very concerned …we’re making such a radical major shift in our policy, jeopardizing missions and putting people in harm’s way.”

“How does this increase our mission of being able to win wars in doing this?” asked Hartzler.

Vice Admiral William Gortney said it was the judgment of the Chairman of the Joint Chiefs of Staff, Admiral Mike Mullen, that repeal “won’t have an impact.”

“And I happen to believe that as well,” said Gortney.

Rep. Austin Scott (R-Texas) asked how much money had been spent on implementation of repeal that could have been spent on the war effort. He later expressed surprise when Admiral Gortney told him that a servicemember was dismissed just for saying he was gay.

“Not because of a violation of the standard conduct?” asked Scott.

“No,” said Gortney.

“That’s not the answer I was expecting,” said Scott.

“Do you think in most cases there’s a violation of the standard of conduct,” pressed Scott.

“I think in very few instances,” said Gortney.

Undersecretary Clifford Stanley said about $10,000 had been spent for training materials and that no calculation had yet been made for how much staff time had been used.

In response to a question from Rep. Niki Tsongas (D-Mass.) both Undersecretary Stanley and Vice Admiral Gortney said they expect the Pentagon will be ready to submit in mid-summer its required written certification to Congress that the military is prepared to drop implementation of the federal law banning openly gay people from the service.

President Obama, too, must submit written certification to Congress, saying he is confident the military is ready to implement repeal of Don’t Ask Don’t Tell. Then, 60 days after his certification, and that of Defense Secretary Robert Gates and Chairman of the Joint Chiefs of Staff Admiral Mike Mullen, is submitted, the law will be repealed in practice.

“We don’t want to rush…and we don’t want to take forever,” said Stanley, adding that, “if something we didn’t anticipate” comes up prior to then, the military would take the time necessary to address it.

Subcommittee Chairman Rep. Joe Wilson (R-SC) repeatedly expressed his concern that military chaplains might lose their First Amendment right to freedom of expression and religion. He also asked whether gay servicemembers were made aware of when they were in a country that considers same-sex sexual relations illegal. Military officials responded that all service members are given information about the cultural norms and laws of countries into which they are going.

Rep. Coffman suggested that, since separate housing for gay and straight servicemembers is not being mandated, perhaps the military should end its practice of providing separate housing for men and women.

Stanley said that sexual orientation is a “private and personal” matter, different from gender, and that commanders do have the authority to assign servicemembers to separate billeting if they believe it’s necessary.

“It’s the commander’s call,” said Stanley.

Hartzler asked why men and women were provided with different shower facilities.

“What’s the difference? Seems you have a double-standard here,” said Hartzler.

“Gender is very public and sexual orientation is very private,” said Gortney, echoing Stanley’s response earlier.

She also asked whether the children of servicemembers were being provided with training concerning the repeal.

Stanley said such training is available for parents who want to access it for their children.

Hartzler asked whether children attending military schools would have any alternatives where pro-LGBT curricula would not be mandated.

“The question is pretty heavy,” said Stanley, saying he wanted more time to look into what the curriculum provides for.

Both Houses of Congress in December passed, and President Obama signed, a bill to repeal the 1996 law prohibiting openly gay people from serving in the military. The measure stipulated that, before actual repeal of the law takes place, the Defense Department would conduct training to prepare its forces for the change.

DOJ to married green card applicants: DOMA still applies

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

Eric Holder

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

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

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

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

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

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

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

Soloway characterized that “explanation” as “unacceptable.”

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

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