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.”

Frank and Merkley poised to reintroduce ENDA

U.S. Rep. Barney Frank on Wednesday, March 30, announced he would soon re-introduce the Employment Non-Discrimination Act (ENDA), characterizing it as “winnable.”

Barney Frank

U.S. Rep. Barney Frank on Wednesday, March 30, announced he would soon re-introduce the Employment Non-Discrimination Act (ENDA), characterizing it as “winnable.”

But the bill, which seeks to prohibit discrimination based on sexual orientation and gender identity by employers, is unlikely to move during the current Congressional session—primarily because the Republican Party controls the House.

The bill is typically assigned to the House Committee on Education and Labor, now chaired by Rep. John Kline (R-Minn.). In 2009, during a committee hearing on the bill, Kline said his many concerns about the bill in previous years had “not been alleviated” by its recent rewrite.

Between 2007 and 2009, the bill added “gender identity” and also provided exemptions for religious organizations. Some form of religious exemption has existed in ENDA since the first ENDA text was submitted in 1994, but in 2007, the language concerning the exemption was given greater definition and clarity.

Diego Sanchez, a spokesman for Frank, said the language in this year’s bill is “exactly” as the one from last Congressional session.

The bill reads, “This Act shall not apply to a corporation, association, educational institution, or society that is exempt from the religious discrimination provisions of title VII of the Civil 23 Rights Acts of 1964….”

Kline said back then that ENDA “creates an entirely new protected class that is vaguely defined and often subjective.” Specifically, he objected to the language of the bill prohibiting discrimination based on “perceived sexual orientation.”

“Attempting to legislate individual perceptions is truly uncharted territory,” said Kline, “and it does not take a legal scholar to recognize that such vaguely defined protections will lead to an explosion in litigation and inconsistent judicial decisions.”

Kline also said he thought legislators should consider the “consequences” ENDA might have on “religious and family-based organizations.”

A press person for Kline’s committee office did not return a call by deadline Wednesday but, given that the language of the bill has not changed since 2009, there seems little likelihood that Kline will enable a committee hearing or vote on the bill this session.

Still, supporters of the measure say it’s important to have the bill in the Congressional hopper, as it provides a tool around which supporters can lobby legislators to support the measure in a future session.

Julie Edwards, a spokeswoman for Senator Jeff Merkley (D-Ore.), said Wednesday that Merkley is working with his fellow co-sponsors to prepare ENDA for re-introduction there “in the next few weeks.”

The Senate is still controlled by Democrats and the bill received a hearing in the last session. But it did not get a vote in committee.

The last time ENDA got a vote in the Senate was 1996, when it came within one vote of passage. The Senate was controlled then by Republicans.

A version of ENDA passed the House in 2007.

But in both the House and Senate votes, the version of ENDA on the floor was one that included only sexual orientation, not gender identity.

By 2009, the LGBT community of organizations stood firm to insist that ENDA also include a prohibition on discrimination based on gender identity. And in 2009 as well as this year, ENDA does include both.

The Transgender Legal Defense and Education Fund issued a press release Wednesday, saying that 47 percent of transgender people surveyed reported being fired or denied a job because they are transgender.

The “gender identity” language would protect not just people who are transitioning from one sex to another, but also those whose outward appearance does not conform with common expectations for their gender. The language of the bill defines gender identity as: “gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth.”

A press release from Frank’s office noted that there are no laws in 29 states to prohibit sexual orientation discrimination in employment and none in 38 states to prohibit gender identity discrimination.

Human Rights Campaign President Joe Solmonese issued a statement, pitching ENDA as a jobs bill, an appeal that would presumably attract more Republican support.

“Passing ENDA is a key element of making sure all Americans can get back to work and get our country moving again,” said Solmonese.

Lambda Legal Executive Director Kevin Cathcart took a similar approach, saying, “With ENDA now re-introduced, it is time for Congress to make good on its promise to focus on the top priority of all Americans – good jobs and economic security.”

Republicans have said publicly they want to focus on jobs.

But Republicans have also indicated they want broad exemptions for religious organizations, and that is something that does not set well for many supporters of ENDA.

In a little bit of intrigue, Frank’s press release on Tuesday and Wednesday indicated he would have an important announcement concerning ENDA. That prompted many people to expect Frank would actually introduce the bill Wednesday.  But instead, he said he would try to sign up additional co-sponsors for the legislation before introducing the bill.

Interestingly, too, two of the House’s four openly gay members—Reps. Tammy Baldwin and David Cicilline—were not listed in Frank’s press release and did not attend the press conference. But spokespersons in both offices said the issue was one of scheduling and that both intend to co-sponsor the bill.

Green card applications for married gays on hold awaiting DOJ guidance

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

Lavi Soloway

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

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

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

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

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

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

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

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

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

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

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

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

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

Arkansas Supreme Court reconsiders adoption ban

The Arkansas Supreme Court heard arguments March 17 in a case to determine whether the state constitution will allow a law banning any person cohabiting with a sexual partner outside of marriage from adopting or foster a child. It is a case some legal observers expect could end up before the U.S. Supreme Court.

The Arkansas Supreme Court heard arguments March 17 in a case to determine whether the state constitution will allow a law banning any person cohabiting with a sexual partner outside of marriage from adopting or foster a child. It is a case some legal observers expect could end up before the U.S. Supreme Court.

The Arkansas law, Act 1, was passed by 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—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.

Plaintiffs include 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 plaintiffs say that Act 1 violates their rights to equal protection, due process, and the right to privacy under the state constitution.

The defendants claim that Act 1 is necessary to protect children.

Defense lawyer Byron Babione, representing the Family Council Action Committee, also told the court that the issues in the case were part of the state’s larger policy of defining marriage as between a man and a woman. Act 1, he said, serves to encourage marriage and to channel children into “home environments where they do best” and are “less likely to be subject to risks.”

Attorney Garrard Beeney, arguing for the plaintiffs, said Act 1 does not serve the purpose of encouraging marriage because it does not exclude single people from fostering—and it does exclude gay people, who cannot marry in the state.

The heart of Beeney’s argument, however, was that two previous state Supreme Court rulings have held that certain actions similar to the ones in this case violate the state constitution.

In a 2006 case, Department of Human Services v. Howard, the court overturned a state policy that had banned gay people from fostering or adopting children. The state supreme court ruled that the policy excluded gays “based on morality and bias,” and the facts of the case showed no correlation between the welfare of foster children and “the blanket exclusion” of gay people.

And in the 2002 case, Jegley v. Picado, the court recognized the “fundamental right” to intimate relations in the home, as the U.S. Supreme Court did a year later in the landmark Lawrence v. Texas.

Two of the justices who authored the majority and concurring opinions in Howard — Donald Corbin and Robert Brown– also heard the Cole case, as did Chief Justice Jim Hannah, who concurred in Jegley. Neither of the dissenting judges in Jegley remains on the seven-member bench.

Act 1, said Beeney, forces couples to choose between the fundamental right to intimate relations, recognized by Jegley, and their desire to raise children. The Act is therefore a “direct” and “substantial impingement” on that right. It can only stand if the government can identify some “compelling” purpose for it and the law is “narrowly tailored” to accomplish that purpose.

Beeney argued this was not the situation with Act 1. He pointed out that, in 2008, before Act 1 passed, DHS itself rescinded its policy of banning unmarried cohabitors from fostering or adopting. And members of DHS—including the director—testified in the lower court that the Act serves no child welfare purpose.

Several of the justices’ questions to both Babione and Beeney focused on whether the Act should be evaluated based on “heightened scrutiny,” which requires a higher justification, or the lower “rational basis” standard.

The lower court found that Act 1 violated the fundamental right to privacy under state law and should thus be evaluated using strict scrutiny as was Jegley. But the court also said that it did not violate any such right under federal law.

The plaintiffs say that heightened scrutiny should apply, even though, as Beeney noted, Act 1 also “miserably fails,” to demonstrate even a “rational basis,” and actually harms children by keeping them in state care when otherwise qualified people are willing to take them into their homes.

Babione, however, said the protection of children was a sufficient “rational basis” for the Act, and that having to choose between cohabiting and fostering represented only an “indirect, limited burden” on the right guaranteed in Jegley.

Several justices, Brown in particular, pressed Babione on that point. Babione responded that Jegley does not punish cohabitation, and that the interests of children are “paramount.”

Brown then asked him why the state’s extensive screening process for foster parents was not enough to evaluate candidates.

Act 1, Babione responded, serves the purpose of filtering out the “highest risk” people—although he admitted the system is “not foolproof” and might overlook some qualified parents.

Deputy Attorney General Colin Jorgensen agreed, telling the court, “No screening system is perfect.” Because the DHS system is understaffed, he said, it ends up with better applicants if officials “have more time to dedicate to clients who are lower risk.”

Justice Corbin also asked Babione, “What evidence have you presented in this case that indicates that homosexual or gay parents present potential harm to a child?” When Babione referred him to the citations in the defense brief, Corbin questioned whether they were opinion or fact. Babione said they were opinions based upon social science research.

Christine Sun, lead counsel for the ACLU on the case (but who did not argue it on March 17), said she expects a ruling before the court adjourns at the end of June. She said that, depending upon the outcome and how the ruling is written, asking the U.S. Supreme Court to hear the case is “definitely an option.”

In 2005, the U.S. Supreme Court declined to hear a case, Lofton v. Secretary of the Department of Children and Family Services, in which the federal 11th Circuit Court of Appeal said a Florida ban on adoption by gay men and lesbians violated no federal constitutional rights. Babione quoted the Circuit Court in Lofton near the beginning of his argument in Cole, saying, “The state stands in the shoes of the parents that children have lost.”

On March 18, Senator Kirsten Gillibrand (D-N.Y.) and 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.

Senate confirmations: A partisan pelt-and-wait game

It looked like a cake-walk: President Obama nominated openly gay attorney Paul Oetken to a federal district court bench in Manhattan two months ago, and just last week, he had a confirmation hearing.

Charles Grassley

It looked like a cake-walk: President Obama nominated openly gay attorney Paul Oetken to a federal district court bench in Manhattan two months ago, and just last week, he had a confirmation hearing. No one objected; no one had a tough question; no challenges to his ability to serve as an impartial judge, no matter what the case.

But there were no Republicans at that confirmation hearing, and Republicans have been maximizing their ability to stall nominees by asking for more time to “review” the nominees’ answers to various additional questions—questions on things such as same-sex marriage.

Senator Charles Grassley, the ranking Republican on the Senate Judiciary Committee, has been leading the charge. Grassley did show up briefly to Oetken’s March 16 hearing, just long enough to make remarks welcoming the nomination of another Iowa native. Oetken was raised in Cedar Rapids.

But Grassley’s remarks don’t guarantee his vote and the following day, Grassley engaged in a pelting match with Committee Chairman Patrick Leahy (D-Vt.) over which party has stalled the most nominees of which president.

Grassley and other Republicans on the Senate Judiciary Committee have made fairly clear that confirmations are war. They have blocked votes on many of Obama’s nominees as payback for when Democrats blocked votes on the nominees of Republican President George W. Bush. They have used confirmation hearings to harangue publicly President Obama’s decision to stop arguing that there is a compelling justification for the Defense of Marriage Act (DOMA).

They have quizzed numerous nominees over whether they believe the U.S. Constitution guarantees same-sex couples the right to marry.

None of them stayed to ask Oetken how he feels about that issue, but during a business meeting of the Committee the next day, Senator Jeff Sessions (R-Ala.) claimed that an Obama nominee to be deputy attorney general, James Cole, must be supportive of the administration decision not to defend DOMA.

Sessions claimed that law enforcement officials, such as Cole, have a “throw up” obligation to defend the law.

“The old rule about defending a statute,” said Sessions, who served as Alabama’s Attorney General before entering the Senate, “is you should have a duty to defend the law of Congress unless to do so would cause you to throw up [while] making the argument. They used to call it the throw up rule.”

Instead, said Sessions, the Obama administration law officials are “elevating their own preferences on social policy over the constitution, the will of Congress and the American people.” He said the administration has “consistently refused to meaningfully defend” DOMA or Don’t Ask, Don’t Tell. He did not mention that Congress voted in December to repeal Don’t Ask, Don’t Tell, the law that bars gays from serving in the military. He also failed to note that the Obama administration is defending DOMA in the First Circuit, where it believes only a simple, rational reason for the law is necessary for its defense. The administration’s announcement concerning the defense of DOMA includes only those courts in which the level of scrutiny the law deserves has not yet been settled by the courts. In those jurisdictions, the Obama administration intends to argue that a compelling justification is required and that DOMA does not meet that standard.

For his part, Oetken did refer to his same-sex partner during his introductory remarks to the two Democratic senators who did stay for the hearing. And one of those senators, Charles Schumer of New York, made note that Oetken’s nomination puts him in position to become the first openly gay man to be confirmed to the federal bench.

There was no conversation at either meeting last week about another historic nominee—President Obama’s openly gay nominee to the Federal Circuit. If confirmed, Edward DuMont would become the first openly gay person appointed to a federal appeals court bench.

But the Committee has not scheduled a confirmation hearing for DuMont—even though he was nominated almost a year ago. Republicans on the committee are said to be “reviewing” his confirmation papers.

Republicans have not presented DuMont with additional questions, as they have other appeals court nominees.

Sometimes the questions are direct; sometimes, indirect.

Frequently, Senator Tom Coburn has asked nominees whether they believe judicial doctrine rightly incorporates the evolving understandings of the Constitution forged through social movements, legislation, and historical practice?” Such a question could be referring to any number of controversial issues. Nominee James Graves responded as many other nominees have, saying he didn’t agree with the “premise” of the question “that there are evolving understandings of the Constitution.” The full Senate approved his confirmation to the 5th Circuit last month on a voice vote.

Senator Sessions took the more specific approach, asking Caitlin Halligan, nominated to the U.S. Court of Appeals for D.C., whether she believes the “original intent” of the 14th Amendment “supports recognition of a constitutional right to same-sex marriage or of a constitutional obligation on the part of any government not to define marriage as the union of a man and a woman?”

Halligan, like Graves, simply dodged the question, stating only that “The Supreme Court has not determined” the answer to that question and that it is a subject of “active litigation.”

Presented with essentially the same question, Goodwin Liu, a nominee to the 9th Circuit who has been targeted by conservatives for opposition, also tried to dodge it. But several Republican senators noted that Liu had written a brief to the California Supreme Court supporting a challenge to Proposition 8. Liu insisted that his brief did not argue for same-sex marriage, but rather argued simply that the state’s definition of same-sex marriage violated the state constitution, at the time.

Liu took great pains to emphasize that he has made no public argument or expressed no view publically concerning whether limited definitions of marriage violate the federal constitution.

“I have not previously expressed any view on whether the federal Constitution confers a right to same-sex marriage,” said Liu, in response to written questions from Grassely, “and because that issue may come before me as a judge if I am confirmed, I believe it is not appropriate for me to do so now.”

The committee voted to recommend Halligan’s nomination on March 10 and sent it to the full Senate where it awaits action. Liu’s nomination is still awaiting a committee vote. It is scheduled to come up at the next Committee business meeting, March 31. The Committee is scheduled to hold a hearing on nominations March 30, but no list has yet been posted to indicate which nominees will be up.

Court loss with a silver lining

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

Jennifer Pizer

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

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

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

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

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

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

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

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

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

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

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

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

Delaware Supreme Court confirms lesbian mom is a parent

The Delaware Supreme Court issued a ruling upholding the right of a woman to be identified as a “de facto” parent of a child she had been raising with her former same-sex partner—a child the partner adopted but that the woman herself did not.

The Delaware Supreme Court issued a ruling March 14 upholding the right of a woman to be identified as a “de facto” parent of a child she had been raising with her former same-sex partner—a child the partner adopted but that the woman herself did not. The ruling was based on the amending of a state law to expand the state’s definition of a “parent” to give full, equal rights to lesbian and gay parents who may not have biological or adoptive ties to their children.

The custody battle between the women not only relied on the amended law, but, in an earlier phase, it had motivated the legislature to amend the law. And in its decision, the Delaware Supreme Court ruled against a challenge to the newly amended law’s constitutionality.

The state Supreme Court ruling upheld a lower court decision stating that Carol Guest had the right to joint custody of the child she had been raising with her former partner, Lynn Smith, even though Smith was the only one who had adopted the child. (The names in the case are pseudonyms used by the court.)

Smith and Guest had obtained the child through a service in Kazakhstan, but that country does not permit two women to adopt a child jointly. Because of that, only Smith filed papers to legally adopt the child in March 2003, but both women raised the child together. According to court documents, a lawyer advised the couple in June 2003 that Guest could petition for adoption in the United States after she lived with the child for a year, but Guest did not do so and the couple split in May 2004. Smith cut off Guest’s contact with their child shortly after that.

The case made two passes through the state courts.

When Guest initially sought custody and visitation through the Family Court, in 2004, Smith countered that Guest had no standing to bring a custody action under the Delaware Uniform Parentage Act (DUPA), which defines who may be considered a “parent” under state law. But the Family Court ruled for Guest in June 2006, saying she had standing as a “de facto” parent—someone who acted as a parent to the child—although she was not a legal parent.

The Supreme Court in February 2009 overturned the Family Court’s ruling and denied Guest custody. The court said the DUPA did not recognize de facto parents and noted that changing the law “is a public policy decision for the General Assembly to make.”

The legislature did so in July 2009, amending the DUPA to define a “de facto” parent as someone who has the “support and consent” of the legal parent(s) and has acted as a parent to that child for long enough to have established “a bonded and dependent” parental relationship with the child.

After Guest went back to the Family Court and was granted custody under the new law, Smith challenged the decision and appealed to the state Supreme Court, which considered the women’s situation for a second time.

This time, Smith claimed the Family Court ruling violated her right to raise her child, as maintained by the 2000 U.S. Supreme Court case of Troxel v. Granville. In that case, the high court struck down a Washington state law that allowed any third party—such as a grandparent—to petition for child visitation rights, even if the parents objected.

But the Delaware Supreme Court said that the cases differed because, in Troxel, the third party had no claim to a parent-child relationship.

“Guest is not ‘any third party,’” the court explained, but a “de facto” parent. As such, under the newly amended law, she is also a legal parent of the child and has “a co-equal ‘fundamental parental interest’” in raising the child.

The definition of “de facto” parent varies from state to state, and not all states give de facto parents full legal status, as does Delaware, explained LGBT family law expert Nancy Polikoff, in an interview. Some states may recognize them as having a claim only to visitation or custody, but not as full parents for the purpose of government benefits and inheritance rights.

Only four other states—Maine, New Jersey, Pennsylvania, and Washington—will, like Delaware, recognize non-biological, non-adoptive parents as having the full rights and responsibilities of parentage. They base their recognition on the person’s relationship with the child, according to the National Center for Lesbian Rights, in an October 2010 fact sheet, “Legal Recognition of LGBT Families.”

States that recognize marriage or civil unions of same-sex couples may also recognize non-biological, non-adoptive parents as full parents under state law. But in Delaware and the other four states, the parents’ rights are based upon their relationship to the child, not to the other adult. Their parental rights are thus not subject to challenge under the Defense of Marriage Act (DOMA) or other state laws banning the recognition of same-sex relationships.

DOMA repeal: All hands now on deck

When U.S. Rep. Jerrold Nadler (D-NY) introduced the Respect for Marriage Act in 2009, he conceded there was little chance for passage in the 111th Congress. Clearly, something’s changed.

Jerrold Nadler

When U.S. Rep. Jerrold Nadler (D-NY) introduced the Respect for Marriage Act in 2009, he conceded there was little chance for passage in the 111th Congress. Absent from the 102 co-sponsors that year was Rep. Barney Frank (D-Mass.), the most veteran and influential of the three openly gay members of Congress. He said the bill had “zero” chance of passage. Also missing was then-House Speaker Nancy Peolsi (D-Calif.) and Majority Leader Steny Hoyer (D-Md.) as co-sponsors, and there was no companion bill in the Senate.

Clearly, something’s changed.

When Nadler reintroduced his bill to the 112th Congress Wednesday morning, March 16, Frank, Pelosi, and Hoyer were among its 108 co-sponsors.

And the Nadler bill this year is joined by a first-ever companion bill in the Senate, introduced Wednesday by Democratic Senators Kirsten Gillibrand of New York, Dianne Feinstein of California, Patrick Leahy of Vermont, Christopher Coons of Delaware, and Richard Blumenthal of Connecticut.

What has not changed is the content of the legislation. The new Respect for Marriage Act is “precisely the same” as the last one, noted Nadler spokesman Ilan Kayatsky.

The measures seek to repeal the Defense of Marriage Act (DOMA). DOMA, enacted in 1996, prohibits the federal government from recognizing the legally secured marriages of same-sex couples and provides for states to ignore those marriages as well.

And there is still little likelihood of passage—at least in the Republican-controlled House. The bill will go to the House Judiciary Committee that is now chaired by Rep. Lamar Smith (R-Tex.), who late last year tried briefly to defend DOMA in federal court himself, saying the administration wasn’t doing enough.

But the legislation arrives to a political climate concerning same-sex marriage that is clearly changing.

The latest independent poll, completed March 1 and involving 1,504 adults nationally, shows—once again—a new high in support for allowing gays to marry. While 46 percent told the Pew Research Center they oppose allowing gays to marry, 45 percent said they favor doing so—a two-point jump in the space of six months. (Nine percent said they were unsure. The margin of error was plus or minus three points.)

A poll sponsored last week by the Human Rights Campaign found that 51 percent oppose DOMA, 34 percent favor it, and 15 percent had no opinion. When asked whether legally married gay couples should be able to obtain specific federal benefits provided to straight couples, 60 percent supported gay spouses being able to obtain Social Security benefits and 58 percent supported health coverage for federal employees’ same-sex spouses.

The HRC poll gave its respondents—800 registered voters nationwide—two statements and asked which came closer to their point of view about the House decision to defend DOMA in federal court. One choice was: the move diverts taxpayer money to a divisive issue at a time Congress should be focusing on creating jobs and cutting the deficit. The other choice was that Congress was forced to defend the law after President Obama’s administration “failed to do so.” Fifty-four percent chose the former, and 32 percent chose the latter. (The remainder said Neither, Both, or did not respond.)

In introducing the bill Wednesday, Rep. Nadler said Congress should not wait for the courts to declare DOMA unconstitutional.

“The responsibility for DOMA lies with Congress,” said Nadler, “and the time for dumping this shameful law is long overdue.  Rather than prolonging litigation, Congress should repeal DOMA now and bring an end to the harm it causes gay and lesbian families each and every day.”

Feinstein announced last month that she would introduce a repeal bill, noting that she had opposed the passage of DOMA in 1996.

“It was the wrong law then,” she said, “it is the wrong law now; and it should be repealed.”

In a related development, bills were introduced to both chambers last Thursday, March 10, seeking to enable coverage for domestic partners under COBRA.

COBRA (Consolidated Omnibus Budget Reconciliation Act) is the federal law that requires group insurance plans to enable employees and their families to continue paying for their health coverage for a period of time following the loss or change in employment status.

In the Senate, the Equal Access to COBRA Act (S. 563) was re-introduced by Senator Barbara Boxer (D-Calif.) and has no co-sponsors; in the House, HR 1028 was introduced for the first time, by Rep. Anthony Weiner (D-NY), with 45 co-sponsors.

“Current federal laws related to COBRA coverage do not apply to domestic partners or same-sex spouses—even at companies that offer health coverage to domestic partners of employees,” according to a press statement from Boxer’s office. The proposed law, said the statement, would apply to companies that already offer health coverage to domestic partners and their children.

Cold feet: Maryland House backs off vote on marriage

Supporters of allowing same-sex couples to marry in Maryland could see the altar: passing the House and sending the bill to a governor who said he would sign it. But on March 11, the House unanimously voted to send it back to committee.

The road to marriage equality in Maryland had never been a short and smooth one, but supporters of allowing same-sex couples to marry could see the altar: passing the House and sending the bill to a governor who said he would sign it. But supporters never had a clear majority, and some got cold feet in the days leading up to the House vote. On March 11, instead of voting for the bill, the House unanimously voted to send it back to committee. Even some LGBT activists conceded it was the thing to do.

The Maryland vote reduced to two the number of states that could possibly see marriage equality move through the state legislature this year—Rhode Island and New York. Iowa could lose existing marriage equality rights through actions in the legislature this year, and six states that already have statutes that prevent same-sex couples from obtaining marriage licenses—Indiana, Minnesota, New Mexico, North Carolina, Pennsylvania, and South Dakota—could add constitutional amendments to protect the bans from legal challenges. An attempt to do so in Wyoming died in committee in February.

Equality Maryland, the state’s leading LGBT advocacy group, said in a statement that, although they are “disappointed” the bill didn’t pass, sending it back to committee was “a strategic step that will allow us to fight and win in the future.” Board member David Lublin explained to Maryland Politics Watch that, if the bill failed in a vote on the merits, it would have been harder later to convert the delegates who had already voted no in public.

And a coalition of groups including Equality Maryland, the Human Rights Campaign, Freedom to Marry, and Gill Action released a joint statement after the vote, saying, “Over the past several days it has become clear that additional time to continue the marriage conversation in the state will better position the Civil Marriage Protection Act for success.”

The full Senate had passed its version of the bill on a vote of 25 to 22 February 24.

Action then moved to the House, where the Judiciary Committee had voted 12-10 on March 4 to send the bill to the floor, even though committee chair Joseph F. Vallario Jr. (D-Prince George’s), who cast the deciding vote to do so, indicated he would not support marriage equality on the floor.

Support for the bill had already grown shakier. Committee member Sam Arora (D-Montgomery), an original co-sponsor, had said March 3 he would vote against it on the floor, and he only wanted to send it to the full House so voters could have their say in a likely referendum. The state constitution allows voters to submit new laws to a referendum if they can collect the 55,736 signatures necessary to do so.

And Delegates Tiffany Alston (D-Prince George’s) and Jill Carter (D-Baltimore City)—both co-sponsors—were no-shows at the first scheduled committee vote. Alston said she wanted more time to weigh her decision based on diverse feedback from constituents and others. Carter said she was just trying to draw attention to other legislation. Alston eventually voted against sending the bill to the floor, but Carter voted in favor of doing so.

Sponsor Melvin Stukes (D-Baltimore City), who was not on the Judiciary committee, announced at the end of February that he was withdrawing his sponsorship. He said he had come to realize that the bill would grant full marriage equality instead of civil unions.

Three days before the full House vote, the bill was still “probably one to two short” of the 71 votes needed for passage, said Delegate Heather Mizeur (D-Montgomery) in an interview March 8, adding, “There is still a large block of undecided who will go to the floor undecided.”

Democrats hold a 98 to 43 majority in the chamber.

Even Governor Martin O’Malley (D), who has said he would sign the bill, appeared to shift towards the idea of a voter referendum—something equality advocates have shunned. He told reporters March 3 “We should let the people decide,” according to the Baltimore Sun. After the bill was recommitted, he told the Associated Press, “I would have hoped that we could have resolved this issue and then let the people decide.”

The full House vote came after nearly four hours of debate on March 9 and 11. Debate centered around religious beliefs regarding homosexuality, whether the LGBT community’s political movement for equal rights could be compared to that of African-Americans, and whether same-sex marriage would negatively impact children.

Delegate Mizeur, in one of the most personal speeches during debate, spoke of reconciling her deep Catholic faith with being a lesbian. She said that, if the bill failed, it would not stop her and her wife from loving each other, but the lack of legal protections would “make it really, really difficult for us in the worst, most challenging times.”

Committee Chair Vallario asked, “Where would Martin Luther King be on this issue?”

“I don’t know,” he said, but introduced a motion to recommit the bill to his Judiciary Committee. The House unanimously approved.

One other bill remaining in that committee seeks to ask voters to amend the state constitution to ban same-sex marriages. Spokespeople for both the bill’s sponsor, Delegate Don Dwyer (R-Anne Arundel), and Vallario could not say whether that bill would receive a vote before the session ends April 11.

In the remaining states, the Rhode Island House and Senate Judiciary Committees have held hearings on marriage equality bills in recent weeks, but neither chamber has yet scheduled a vote.

New York Governor Andrew Cuomo (D) has said he will urge the legislature to take up marriage equality this session. He met with LGBT advocates March 9 to discuss the matter.

White House Calls for Coordinated Anti-Bullying Efforts

The White House held a high-visibility conference on bullying prevention March 10, with the President and First Lady calling on parents, teachers, students, and communities to address the problem together.

President Barack Obama

The White House held a high-visibility conference on bullying prevention March 10, with the President and First Lady calling on parents, teachers, students, and communities to address the problem together. Members of Congress also this week introduced several LGBT-inclusive bills designed to address bullying and harassment of students.

In his opening remarks, President Obama said the one overarching goal of the conference was “to dispel the myth that bullying is just a harmless rite of passage or an inevitable part of growing up.” Instead, he said, “Bullying can have destructive consequences for our young people.”

The President also noted that bullying is “more likely to affect kids that are seen as different, whether it’s because of the color of their skin, the clothes they wear, the disability they may have, or sexual orientation.”

Attending the event were senior administration officials and approximately 150 students, parents, teachers, advocates, and others, including representatives from the Gay, Lesbian and Straight Education Network (GLSEN), the Human Rights Campaign (HRC), the National Center for Transgender Equality, and the Trevor Project.

“No school can be a great school until it is first a safe school,” said Secretary of Education Arne Duncan.

And Secretary of Health and Human Services (HHS) Kathleen Sebelius asserted, “Bullying is not an education problem or a health problem—it is a community problem.”

Breakout sessions led by other administration officials discussed school policies and programs, campus and community programs, and cyberbullying. Although there were no sessions or speeches specific to anti-LGBT bullying, the need to address it came up numerous times in breakout sessions and speeches.

Kevin Jennings, the openly gay Assistant Deputy Secretary for the Office of Safe and Drug-Free Schools (OSDFS) at the Department of Education, and the founder of GLSEN, said in a call with reporters that bullying has reached a “tipping point” where it “is no longer tolerable.” What pushed it to that point, he said, was the media attention surrounding a string of five suicides last fall related to anti-LGBT bullying.

The event also served to launch the Web site StopBullying.gov, which consolidates federal anti-bullying resources for students, parents, educators, and others. On the homepage is a prominent rainbow-colored box titled “LGBT Bullying,” which links to LGBT-specific information and resources.

The conference also highlighted several private, national campaigns to address bullying, including ones from the National Education Association, the American Federation of Teachers, and the National PTA.

MTV said it will launch a new coalition—of which the Gay and Lesbian Alliance Against Defamation (GLAAD) will be part—to fight bullying and intolerance online.

And Facebook said it will soon enhance the anti-bullying resources in its online Safety Center. It will also create a “Social Reporting” system so that, when people report content that violates Facebook policies, harassing content can be removed quickly, and parents or teachers can be notified.

Already, the administration has taken several steps to address bullying:

  • The Departments of Education, Justice, HHS, Agriculture, Defense, and Interior formed a federal task force on bullying in 2009, and convened the first-ever National Summit on Bullying in August 2010.
  • The Department of Education’s Office of Safe and Drug-Free Schools awarded $38.8 million in grants to 11 states in October as part of a new Safe and Supportive Schools program. The program requires states to survey students, family, and staff about school safety issues, including bullying, and direct grant money where there is the greatest need.
  • The Department of Education issued guidance to all school officials in October 2010, reminding them that federal law requires schools to take action against bullying—including gender-based and sexual harassment of LGBT students.
  • The Department of Education issued a memo to all chief state school officers in December 2010, providing examples of effective state anti-bullying laws as a reference for developing or revising their own.
  • HHS launched a Stop Bullying Now! campaign for students five to eighteen years old, with tool kits to help youth mentor younger children about bullying prevention.

Members of Congress also announced several pieces of anti-bullying legislation this week.

Senators Bob Casey (D-PA) and Mark Kirk (R-IL) reintroduced the Safe Schools Improvement Act March 8, which would require schools and districts receiving federal funds to implement anti-bullying programs and to report data on incidents of bullying and harassment, including bullying done through electronic communication. The programs must specifically include bullying and harassment based on the actual or perceived sexual orientation and gender identity of students and those with whom they associate, among other attributes.

A spokesperson for U.S. Rep. Linda Sánchez (D-CA) said she will soon introduce a House version of the bill, as she did last session.

Senator Frank Lautenberg (D-N.J.) and Rep. Rush Holt (D-N.J.) on March 10 reintroduced the Tyler Clementi Higher Education Anti-Harassment Act, which establishes similar anti-bullying requirements for colleges and universities receiving federal student aid. The bill is named after a gay Rutgers University student who committed suicide in September 2010 after two other students videotaped him in an intimate encounter with another man and broadcast the video online.

Senator Al Franken (D-Minn.) and Rep. Jared Polis (D-Colo.) introduce the Student Nondiscrimination Act (SNDA) March 10, which states that elementary and secondary schools must not discriminate against students on the basis of real or perceived sexual orientation or gender identity in any program or activity receiving federal funds, or risk losing those funds. “Discrimination,” under SNDA, includes harassment, bullying, intimidation, and violence based on sexual orientation or gender identity.

Student anti-bullying, non-discrimination bills face uncertain path

Members of Congress are introducing a flurry of bills this week designed to address bullying and harassment of students, including LGBT students, and timed to coincide with a major White House conference on bullying prevention March 10.

Bob Casey

Members of Congress are introducing a flurry of bills this week designed to address bullying and harassment of students, including LGBT students, and timed to coincide with a major White House conference on bullying prevention March 10. And President Obama and the First Lady, in preparation for Thursday’s event, posted a video March 9 to the StopBullying.gov Facebook page, reaffirming their commitment to addressing the issue. Bullying “affects every single young person in our country,” the president said. “Putting a stop to bullying is a responsibility we all share.”

Bills aimed at doing that died in committee last session, however. And one LGBT leader worries that the anti-bullying legislation does not go far enough to provide effective protections.

The Safe Schools Improvement Act (SSIA) introduced March 8 by Senators Bob Casey (D-PA) and Mark Kirk (R-IL) would require schools and districts receiving federal funds to implement and report on anti-bullying programs. The programs must specifically include bullying and harassment based on the actual or perceived sexual orientation and gender identity of students and those with whom they associate, among other attributes.

Bullying and harassment under the Casey-Kirk bill would include actions conducted through electronic communication, such as e-mail or instant messages. The bill would also oblige states to report data on incidents of bullying and harassment to the U.S. Department of Education and make the data available to the public.

During a press call Tuesday, Casey noted that LGBT students, and those perceived to be, are among the most frequent targets of bullies. The recent media attention surrounding several cases of LGBT-related bullying, he said, has made bullying “much more of a national issue” and is one of the reasons people in Washington have paid more attention to bullying in general.

Casey called the SSIA “a strong and bipartisan bill designed to ensure that no child is afraid to go to school for fear of being bullied.”

But, so far, Kirk is the only Republican among the 20 original sponsors of the SSIA. There is one Independent, Bernard Sanders (I-Vt.) When the bill died in committee last session, it had 18 sponsors, also all Democrats except for Kirk and Sanders.

A spokesperson for U.S. Rep. Linda Sánchez (D-CA) said she will soon introduce a House version of the bill, as she did last session.

And Senator Frank Lautenberg (D-N.J.) and Rep. Rush Holt (D-N.J.), plan to reintroduce on March 10 the Tyler Clementi Higher Education Anti-Harassment Act, which establishes similar anti-bullying requirements for colleges and universities receiving federal student aid. The bill is named after a gay Rutgers University student who committed suicide in September 2010 after two other students videotaped him making out with another man and broadcast the videos online.

Senator Al Franken (D-Minn.) and Rep. Jared Polis (D-Colo.) will also introduce the Student Nondiscrimination Act (SNDA) March 10 in their respective chambers, according to spokespeople from their offices. SNDA states that elementary and secondary schools must not discriminate against students on the basis of real or perceived sexual orientation or gender identity in any program or activity receiving federal funds, or they will risk losing those funds. “Discrimination,” under SNDA, includes harassment, bullying, intimidation, and violence based on sexual orientation or gender identity.

A federal law could help students even though states have been passing their own anti-bullying laws, said Kara Suffredini, executive director of Mass Equality, the leading LGBT advocacy organization in Massachusetts. The SSIA, she said, goes further than most state laws in providing a specific enforcement mechanism—the withholding of funds. It also goes further than most states, including Massachusetts, in its reporting requirements and in prohibiting bullying based upon specific, enumerated characteristics, such as sexual orientation and gender identity.

A 2007 survey of students by GLSEN found that, where school policies enumerated bullying based on sexual orientation, students were more likely to report problems to staff and staff were more likely to help.

And, in Romer v. Evans, a landmark 1996 U.S. Supreme Court decision that struck down Colorado’s anti-gay Amendment 2, the high court noted, “Enumeration is the essential device used to make the duty not to discriminate concrete and to provide guidance for those who must comply.”

But enumeration has been a stumbling block in passing anti-bullying legislation in several states. A Texas House committee recently removed enumerated categories from an anti-bullying bill in an effort to mollify those who say enumeration creates special rights for people in the listed groups. And competing bills—enumerated and not—were reintroduced into the Michigan legislature this year after legislators failed last session to resolve whether to include enumerated categories.

Steven Goldstein, chair of Garden State Equality, New Jersey’s leading LGBT advocacy group, cautions that, while enumeration of sexual orientation and gender identity is absolutely necessary, it is not sufficient for truly effective anti-bullying protections. Goldstein helped lead the fight for New Jersey’s Anti-Bullying Bill of Rights, the country’s most sweeping anti-bullying law, enacted in January 2011.

He said that, while he supports the SSIA, it does not go far enough in “specifying what [state] policies should be,” such as “what the deadlines should be for reporting and resolving an incident of school bullying.” The New Jersey law, in contrast, requires bullying incidents to be reported by teachers, investigated, and resolved within specific timeframes.

The SSIA and SNDA’s likelihood of passage remains unclear. Casey said he is not sure yet whether the SSIA will progress as an independent piece of legislation or attached to a larger bill, such as the reauthorization of Elementary and Secondary Education Act (ESEA), the key federal statute governing primary and secondary education. And a spokesperson for Rep. Polis said last session that the Congressman hoped SNDA would also become part of ESEA, but that he would push for it as a standalone bill if necessary.

Marriage Equality Hanging Tough in Md., N.H.

Proponents of marriage equality are holding their own this week in two battleground states, despite tough skirmishes that threatened ground they had previously gained. But in both states–Maryland and New Hampshire–more critical battles seem almost inevitable, perhaps on the ballot in 2012.

Heather Mizeur (Photo credit: Maryland State Archives)

Proponents of marriage equality are holding their own this week in two battleground states, despite tough skirmishes that threatened ground they had previously gained. But in both states—Maryland and New Hampshire—more critical battles seem almost inevitable, perhaps on the ballot in 2012.

In Maryland, a House committee passed a marriage equality bill by a narrow margin on March 4, even though key supporters—including some co-sponsors—appeared ready to cave in to opponents. The full House is now debating the measure and will likely vote on it this week. But opponents have promised to petition for a voter referendum in November 2012, if the bill passes.

In New Hampshire, the House Judiciary Committee voted March 3 to table a bill that seeks to repeal the state’s existing marriage equality law. That action postpones further consideration of the repeal bill until January 2012. But opponents of marriage equality in the Granite State have said they, too, will introduce a bill next year—one seeking to place a question on the ballot in November 2012, asking voters to amend the state constitution to ban same-sex marriages.

The struggle in Maryland grew especially fierce in the House Judiciary Committee, when a vote scheduled for March 1 was delayed because Delegates Tiffany Alston (D-Prince George’s) and Jill Carter (D-Baltimore City)—both co-sponsors—failed to appear. Alston issued a statement saying she wanted more time to weigh her decision based on “the diverse and diametrically opposed feedback” from constituents and others. Carter, in an interview with WBAL-TV, claimed her absence was an effort to draw attention to other legislation.

Then, on March 3, Delegate Sam Arora (D-Montgomery), an original co-sponsor of the marriage equality bill, told House Majority Leader Kumar Barve (D-Montgomery) that he would vote against the bill on the floor. The turnabout was especially stinging for Equality Maryland, the statewide LGBT group that endorsed Arora in the last general election.

“I wrestled with this issue in a way I never had before,” said Arora, in a statement posted to his Web site. He said he would vote support the bill in committee but now believes Maryland should offer same-sex couples civil unions only.

In the final committee vote, with all members present, Arora and Carter were among the 12 delegates, all Democrats, who voted for the bill. Alston was among the 10 voting against it.

Committee Chair Joseph F. Vallario Jr. (D-Prince George’s and Calvert), who has indicated he does not support marriage equality, cast the last–and deciding–vote to send the bill to full House.

Arora clarified that he voted for the bill in committee, and will support it on the House floor, only because he expects voters will have a chance to weigh in on the issue in November 2012, should the full House pass the bill and Governor Martin O’Malley (D) signs it, as promised.

On his Web site, he said the issue “has such impact on the people of Maryland that they should have a direct say. . . . On the floor, I will vote to send the bill to the governor so that Marylanders can ultimately decide this issue at the polls.”

Arora’s position echoed that expressed by several state senators during their deliberation of the Senate bill February 24. State Senator Nancy Jacobs told the chamber that opponents of marriage equality have already been meeting with “people all around the country who have run successful referendums on this issue.”

The state constitution allows voters to submit laws to a referendum if they can collect enough signatures: 55,736. Collection can start as soon as a bill passes the legislature. One-third of the signatures must be submitted by June 1, and the rest by June 30.

If enough signatures are collected for a referendum, no same-sex marriage licenses could be issued until 30 days after the November 2012 referendum—at which point, the results of the referendum would determine whether they could begin. If there is no referendum, the state could begin issuing marriage licenses to same-sex couples as early as October 1, 2011.

A 2001 attempt to hold a referendum to repeal the state’s new law banning discrimination based on sexual orientation failed after the ACLU of Maryland won a lawsuit charging that referendum proponents had failed to collect enough valid signatures.

Two other states have rescinded marriage equality through voter referenda: Maine, in 2009, repealed a law newly passed by the state legislature; California, in 2008, turned back a state supreme court ruling that the state constitution required marriage equality. In the latter case, Proposition 8 amended the state constitution to establish a ban on same-sex marriage. That measure is under challenge in federal court.

Passage in the Maryland House remains uncertain, however. As of Tuesday, the marriage equality bill had 58 sponsors in the House, but was still “probably one to two short” of the 71 votes needed for passage, said Delegate Heather Mizeur (D-Montgomery), in an interview March 8. “There is still a large block of undecided who will go to the floor undecided.”

Last week, Delegate Melvin Stukes (D-Baltimore City) said he would withdraw as a sponsor (he had been No. 59), after realizing the bill would grant full marriage equality instead of civil unions.

Mizeur said supporters in the House hope to pass an identical bill to the one passed by the Senate, allowing it to go directly to the governor for his signature. If the House bill is amended in any way, a House and Senate conference committee would need to agree on a final version to be voted on again in each chamber.

Gay federal appeals nominee: 11 months and still waiting for hearing

Republican members of the U.S. Senate Judiciary Committee have been holding up the nomination of President Obama’s only openly gay nominee to a federal appeals bench.

Edward DuMont

Republican members of the U.S. Senate Judiciary Committee have been holding up the nomination of President Obama’s only openly gay nominee to a federal appeals bench.

President Obama nominated Washington, D.C., attorney Ed DuMont to the Federal Circuit bench on April 14 last year, but the nomination has not progressed through the usual Committee hearing and vote to move to the Senate floor. At the end of the last Congressional session, the Committee “returned” DuMont’s nomination to the president, along with those of several other appeals court nominees who had not gained confirmation. The president re-nominated those candidates at the start of the new congressional session and several have seen movement–either their first hearing or even a second one.

But DuMont’s nomination alone has not received even one hearing.

In fact, only one other nominee on the Committee’s list of pending federal appeals court nominees has waited longer than DuMont for a confirmation vote: controversial liberal nominee Goodwin Liu.

Liu was first nominated in February 2010 and was reported favorably out of committee in May. But his nomination never reached the floor.

Liu, however, has already received a second confirmation hearing just this month. And the committee has hearings scheduled for this Thursday (March 10) for two federal appeals candidates who were nominated months after DuMont was. One of those two nominees, Jimmie Reyna, was nominated to the Federal Circuit five months after DuMont.

Asked why DuMont’s nomination has not been scheduled for a hearing, a spokeswoman for Judiciary Committee Chairman Patrick Leahy (D-Vt.) said only that “Committee Republicans are still reviewing information about the nomination….”

A spokeswoman for the Committee’s ranking minority member, Senator Charles Grassley (R-Iowa), did not respond to a request for comment, nor did a spokeswoman for DuMont.

If ultimately confirmed, DuMont would be the first openly gay person to be appointed to a federal appeals bench. The Federal Circuit, located in Washington, D.C., is the only federal appeals court with national jurisdiction and hears cases involving government contracts, patents, trademarks, customs issues, and veterans’ benefits.

DuMont’s responses to the Committee’s routine questionnaire included responses that would seem to please members of both sides of the partisan aisle. He noted having made contributions to a large number of gay and progressive groups, but he also signed onto a letter of support for one of President George W. Bush’s controversial conservative appeals court nominee, Miguel Estrada. DuMont also clerked for an appointee of President Reagan, 7th Circuit Court Judge Richard Posner.

Meanwhile, openly gay district court nominee J. Paul Oetken has not yet been scheduled for a hearing, but President Obama nominated him only January 26 of this year.

Oetken is nominated for the U.S. District Court for the Southern District of New York, covering much of Manhattan.

In response to questions from the Senate Judiciary Committee’s standard questionnaire, Oetken indicated that he co-authored a friend-of-the-court brief in support of overturning sodomy laws, in Lawrence v. Texas. The U.S. Supreme Court struck down sodomy laws in that case, with a decision issued in 2003. Oetken also noted he holds memberships in the Human Rights Campaign, Lambda Legal, and the ACLU’s LGBT Project.

Oetken served as Associate Counsel to President Clinton from 1999 to 2001.

If approved, Oetken would become the second openly gay judge in that federal district—along with Deborah Batts. He would be the third openly gay federal judge in the country—along with Emily Hewitt of the U.S. Court of Federal Claims. Batts and Hewitt were both appointed by President Clinton.

Name No. of months since first nominated Hearing held? Committee vote Full senate vote
Goodwin Liu 13 Yes – 2 Yes – 1 No
Edward DuMont 11 No No No
Susan Carney 10 Yes – 2 Yes – 2 No
James Graves 9 Yes – 2 Yes – 2 Feb. 12, 2011
Victoria Nourse 8 No No No
Jimmie Reyna 6 Yes Sch. Mar. 10 No
Caitlin Halligan 6 Yes Sch. Mar. 10 No
Bernice Donald 3 No No No
Henry Floyd 2 No No No

Supreme Court rules Phelps hate protests are protected speech

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Marriage equality in Maryland: still a long road ahead

Marriage equality in Maryland looks set to take one of two paths–and neither is likely to enable same-sex couples to marry in the Free State for many months to come.

Heather Mizeur (Photo credit: Maryland State Archives)

Marriage equality in Maryland looks set to take one of two paths—and neither is likely to enable same-sex couples to marry in the Free State for many months to come. First, the State House could follow the Senate and pass a marriage equality bill, which Governor Martin O’Malley (D) has said he would sign; but if that happens, opponents have vowed to launch a campaign to put the measure before voters in November 2012, and that would put the legislation on hold until then. Second, the marriage equality bill could fail in the House, thus ending its chances this session.

The House Judiciary Committee held an eight-hour-long hearing on the bill February 25 and will likely vote this week. It heard testimony from the six openly gay or lesbian members of the House, along with dozens of people on both sides of the issue, including Morgan Meneses-Sheets, executive director of Equality Maryland, and Maggie Gallagher, president of the New Jersey-based National Organization for Marriage.

House Majority Leader Kumar Barve (D-Montgomery) told the committee, “For me, this is about rights, respect, family, and love.” He spoke of same-sex couples he knows, including a cousin who is a gay dad. If the bill passes, he said, “My marriage is not going to be diminished one iota.”

Delegate Heather Mizeur (D-Montgomery) spoke about her relationship with her spouse Deborah, who remains “a legal stranger” to her. She urged delegates to vote for the bill because they believe in “the sacredness of marriage” and “the pledge to forever” and because they feel “the state has a role in protecting these commitments.”

Opponents spoke in favor of a competing bill, introduced by Delegate Don Dwyer (R-Anne Arundel), which would ban marriages and other legal relationships for same-sex couples under the state constitution.

The state Senate passed its version of the marriage equality bill on a vote of 25 to 22 February 24, after a debate that legislators on both sides commended for its civility. State Senator Allan Kittleman (R-Howard County) was the only Republican supporter.

Before a preliminary vote February 23, the Senate adopted two amendments to clarify that clergy, churches, and other religious institutions could refuse services, goods, or public accommodations for same-sex weddings.

It rejected two amendments that would have allowed adoption/foster care agencies and individuals authorized to perform marriages to cite religious convictions in order to refuse services to same-sex couples. It also rejected amendments that would have required that same-sex marriage “not be promoted in a public elementary school through teaching or educational materials” and that would have allowed public school teachers to use their religious beliefs as a reason to refuse to teach materials that “promote same-sex marriage.”

The one win for opponents of the bill was in changing the name of the bill from the “Religious Freedom and Civil Marriage Protection Act” to the “Civil Marriage Protection Act.”

During the Senate debate, bill sponsor Jamie Raskin (D-Montgomery) invoked the recent announcement by the Obama administration that the Department of Justice (DOJ) has concluded one section of the Defense of Marriage Act is unconstitutional and that it will not defend that part in two pending cases. Raskin said everyone should understand “how deeply invested Maryland is, as a state,” in that change, and “how significant” will be the more than 1,000 federal benefits that married same-sex couples in Maryland would receive.

But several opponents indicated that, even if the bill passes, it would be put before voters in a November 2012 referendum.

Senator Nancy Jacobs told the chamber, “This is an issue that is important enough to the people of Maryland that we’re going to be taking it to referendum.” She indicated such efforts were already underway, adding “I just guarantee” it will be on the ballot.

“When we knew we did not have the votes [to defeat the measure], that’s what we started investing our time in,” said Jacobs. “We’ve met with people all around the country who have run successful referendums on this issue.”

The state constitution allows voters to submit laws to a referendum if they can collect enough signatures: 55,736. Collection can start as soon as a bill passes the legislature. One-third of the signatures must be submitted by June 1, and the rest by June 30.

If enough signatures are collected for a referendum, no same-sex marriages would be allowed until 30 days after the referendum—at which point, the results of the referendum would determine whether they could begin.

It remains an open question, however, whether sufficient signatures can be gathered. In 2001, an attempt to hold a referendum to repeal the state’s new law banning discrimination based on sexual orientation failed after the ACLU of Maryland won a lawsuit charging that referendum proponents had not collected enough valid signatures.

Two other states have rescinded marriage equality after voter referenda: Maine in 2009 and California in 2008. California’s ban—Proposition 8—was declared unconstitutional by a U.S. district court in August 2010, but the 9th Circuit U.S. Court of Appeals has issued a stay on that ruling, pending an appeal.

If the Maryland House does not pass the bill, a referendum is a moot point.

The marriage equality bill has 58 sponsors, but is “a couple short” of the 71 votes needed for passage, said Delegate Mizeur, in an interview with MarylandReporter.com on February 25. She expressed confidence that they would find the votes needed. But last week, Delegate Melvin Stukes (D-Baltimore City) said he would be withdrawing as a sponsor (he had been No. 59), after he realized the bill would grant full marriage rights instead of civil unions.

At the start of the House hearing last Friday, committee chair Joseph Vallario (D- Prince George’s and Calvert) said he hoped the committee would take up the bill near the beginning of the week of February 28. His office could not confirm an exact date by press time. Twelve of the 22 members of the Judiciary Committee are co-sponsors of the bill.