Movement to ban gay adoption: sacrificing the well-being of children

The case of two gay foster parents in Florida has created a dilemma for the courts: either they honor state law banning adoption by gay men and lesbians or honor their duty to rule in the best interests of the children.

And beyond Florida, some LGBT experts and advocates think that adoption could be the next major target—after marriage equality—for opponents of LGBT civil rights.

Gary Segura
Gary Segura

When child protective services took two young children from their home and brought them to Frank Martin Gill and his partner in December 2004, the investigator told the men, experienced foster parents, that the boys deserved a good holiday. The men were planning to move soon but agreed to take them temporarily.

It was clear the boys, ages four years and four months, needed care. The elder boy was wearing a dirty adult-sized t-shirt and sneakers four sizes too small. He did not speak, and his only concern was caring for his infant brother. Both boys had scalp ringworm and the younger had an ear infection, but the medicines brought from their home had been unused. When the older boy began to speak after about a month, the men learned he had never seen a book, could not count, and did not even know letters from numbers.

The brothers stayed and the men did not move. The boys developed friendships at school and in the neighborhood. They bonded with the biological son of Gill’s partner and with the men’s parents and siblings. They began referring to Gill and his partner (who is not identified in court documents) as “Papi” and “Daddy.” In 2007, after the rights of the biological parents were terminated, Gill petitioned to adopt.

The men, however, live in the state of Florida—the one state that bans any gay men or lesbians from adopting. And that has created a dilemma for the courts: either they honor the law or honor their duty to rule in the best interests of the children.

Despite a positive home study, the Florida Department of Children and Families denied Gill’s adoption application. With the help of the ACLU of Florida, Gill sued the state. (The men felt they would stand no chance if they sued for a joint adoption.) During the trial, the court heard expert testimony from a psychologist who had assessed the boys and determined they would be “emotionally devastated” if taken from their current home.

In November 2008, Miami-Dade Circuit Judge Cindy Lederman ruled that the adoption ban violated Gill and the children’s right to equal protection under the state Constitution. The government, she said, failed to demonstrate a rational reason for imposing the ban, and the law obstructed the right of children to a permanent, stable home as provided by federal and state law.

The state Department of Children and Families (DCF) appealed the ruling to the state’s Third District Court of Appeals, which heard arguments in August 2009. The decision has now been pending for a year.

A few other states have some restrictions on gay people adopting children, but Florida is the only state whose law specifically bans adoptions by all gay men or lesbians. Mississippi bans same-sex couples from doing so, and Arkansas, Michigan, and Utah ban unmarried couples (by definition, all same-sex couples in the state).

So far, despite the ban, Florida courts have ruled three times to allow an adoption by a gay or lesbian parent. The first was in August 2008, when a Monroe Circuit judge allowed Wayne LaRue Smith to adopt the boy he and his partner had been fostering since 2001. Because Smith had already been named the boy’s legal guardian, neither DCF nor the attorney general appealed.

The second adoption was granted to Gill through Lederman’s ruling in November 2008. The third was in January 2010, when a Miami-Dade circuit judge allowed Vanessa Alenier to adopt the one-year-old she and her partner have been fostering. The judge said the adoption ban was “unconstitutional on its face.” The state has appealed that decision, too.

Nadine Smith, executive director of Equality Florida, an LGBT advocacy group, observed in an interview, “Judges are beginning to push back and say ‘There’s a contradiction in this law that does not allow us to carry out our prime mission, and that is that the children have to come first. What their needs are has to be the primary guidance in what we do.’”

Florida legislators have also recently attempted to overturn the ban in the legislature. Three bills were introduced in March, but two were withdrawn before a vote and one died in committee.

And Governor Charlie Crist, who now running for U.S. Senate, told TIME magazine in June he believes in “a live and let live attitude as it regards adoption [by gay men and lesbians].” He said “the best decision maker would be a judge,” but that the current law must change first.

“I’m sure that a future legislature and maybe the next governor might address that issue,” he added.

Beyond Florida, some LGBT experts and advocates think that adoption could be the next major target—after marriage equality—for opponents of LGBT civil rights. In the federal trial this year challenging the constitutionality of Proposition 8, California’s ban on same-sex marriage, a witness for the plaintiffs, Dr. Gary Segura predicted that, as fewer states are able to use the initiative process to contest same-sex marriage, “the new front line would be gay and lesbian adoption.”

“I would not be surprised to see anti-adoption initiatives appearing in the near future,” said Segura, professor of political science at Stanford University.

Equality Florida’s Smith agreed, saying, “The entire country has a stake in ending [the Florida] adoption ban so that the far-right doesn’t begin trying to export it and expand it elsewhere through the same mechanisms that they pushed the marriage ban. . . . The far-right nationally is geared up to defend and expand this ban and we’ve got to be geared up nationally to defeat it.”

There are signs of this already. The Arizona House approved a bill at the end of February that would give preference to married couples when placing children with adoptive parents. It is now in the State Senate.

And voters in Arkansas approved that state’s ban on allowing adoptions by unmarried couples in November 2008. In April, a state circuit judge struck down the ban for that circuit, but the state is expected to appeal.

Anti-LGBT groups have long tried to tie the right to parent with the right to marry. In the Proposition 8 case, for example, attorneys defending the marriage ban tried to persuade the court that an opposite-sex couple provides the best family structure for raising children, and that marriage should therefore be limited to opposite-sex couples.

The defense’s star witness, David Blankenhorn, president of the Institute for American Values, however, testified, “I believe that adopting same-sex marriage would be likely to improve the well-being of gay and lesbian households and their children.”

Attorneys on the plaintiffs’ side brought in two experts who had also testified in the Florida Gill case. One was Dr. Michael Lamb, professor of developmental psychology at Cambridge University, who spoke in both cases about the extensive research showing that children do as well with gay or lesbian parents as with straight ones. The other was Dr. Letitia Peplau, professor of psychology and sociology at UCLA, who testified to the stability of same-sex relationships.

Anti-LGBT groups may have better luck at the ballot box than in the court room, as the field of experts to testify on their behalf about same-sex couples and children seems to be shrinking. In the Gill case, the DCF brought in two experts for the trial court hearing who argued that gay men and lesbians were not suitable to become parents. Judge Lederman said of one, clinical psychologist Dr. George Rekers, “the court can not consider his testimony to be credible nor worthy of forming the basis of public policy.” (Rekers was later reported to be traveling with a gay male escort who claimed Rekers himself was gay. Rekers responded that he spends time with sinners in order to help them.)

The other DCF expert, Dr. Walter Schumm, associate professor of family studies at Kansas State University, seemed to argue for Gill when he said, during the Florida trial, that “gay parents can be good foster parents,” and “the decision to permit homosexuals to adopt is best made by the judiciary on a case by case basis.”

Only one federal bill seeks to address the issue. The Every Child Deserves a Family Act, introduced by Rep. Pete Stark (D-Calif.) in March, would prohibit federal funds to states that discriminate in adoption based on sexual orientation or gender identity. Gill himself testified at a U.S. House panel discussion when the bill was introduced. The bill is now in the House Ways and Means Committee and has 29 co-sponsors, but there are no scheduled hearings and no Senate counterpart, making it unlikely it will pass this session.

D.C. marriage victory: Supreme Court and Congress still loom

scalesIn yet another important win for marriage equality, the District of Columbia’s highest court ruled July 15 that the city government acted lawfully when it rejected a local minister attempt to place a referendum before voters that sought to roll back equal marriage rights for gay couples in the nation’s capital.

The ruling leaves intact marriage equality legislation, in effect in the District City Council since early March.

But the ruling may not be the end of the battle for Washington, D.C. The U.S. Supreme Court and Congress may have the final word.

There were two questions before the D.C. Court of Appeals, which is the equivalent of a state supreme court. First, whether the proposed ballot measure was discriminatory or not, and second, whether the D.C. City Council had the authority to restrict a ballot initiative that violated a provision of city’s Human Rights Act, which bans discrimination based on the basis of sexual orientation and other categories.

All nine justices of the Court of Appeals agreed on one point: The proposed ballot measure would be discriminatory. They split, 5 to 4 on the second question. Court of Appeals Associate Judge Phyllis Thompson, writing for the majority said the Council’s restriction was “not inconsistent” with the city’s charter, its equivalent of a state constitution.

Marriage equality opponents, led by Harry R. Jackson Jr., the pastor of a local church, sought the referendum and, with the aid of the conservative Alliance Defense Fund, took the battle to court. The Alliance issued a statement after the ruling, indicating it is considering whether to petition the Court of Appeals decision to the U.S. Supreme Court.

“The decision from the District of Columbia Court of Appeals means that those living in our nation’s capitol are being denied their most fundamental freedom –the right to vote,” said Alliance Senior Legal Counsel Austin Nimocks. “We are considering our options to right this wrong, which include asking the Supreme Court of the United States to consider this case.”

The dissent, which agreed in part with the Alliance, said the particular restriction on the initiative process—that no initiative have the potential to violate the city Human Rights Act—is not one explicit or even implied in the city charter.

The Human Rights Act, said the dissent, “is not part of our local ‘constitution.’” And while the charter instructs the D.C. Council to provide for a right to an initiative process, said the dissent, “It did not grant any license to restrict those rights….”

It said the D.C. Council had no authority to restrict the initiative process, as it did.

“The prospects of the Supreme Court granting a review are probably low at this stage,” said Paul Ainsworth, an associate at the law firm Covington & Burling, during a July 22 conference call with reporters. The firm filed a brief in support of the District of Columbia and other groups and individuals supporting the marriage equality law in the case.

One reason the high court is unlikely to consider any review, he said, is the D.C. Appeals Court’s “avoiding issues of U.S. constitutional law” in its opinion. The decision, Ainsworth added, focused on “the text of the District’s [Home Rule] Charter,” the equivalent of a state constitution, and “the legislative history of the Charter and amendments.”

And yet, “One question we considered,” added Covington & Burlington partner Jean Vita, “is whether there was some federal constitutional right to have an unfettered right to … participate in an initiative?” The answer to that question, she said, “I think is ‘No.’”

Still, said Ainsworth, “We’ll have to see how [the Alliance] frames the petition.”

The Alliance, Jackson, and supporters have until mid-October to file for Supreme Court review.

Meanwhile, Congressional intervention, through a variety of venues, including a D.C. appropriations bill or rider or some other piece of legislation, poses a greater threat.

“Unlike judicial review,” Ainsworth explained, “there is no expiration in Congressional control over local D.C. matters.”

The likelihood of Congressional intervention could pivot on this fall’s midterm elections.

“If the Democrats lose the House or the Senate,” the situation on Capitol Hill “could all turn around,” cautioned local gay civil rights activist Peter Rosenstein, a board member of the local advocacy group, Campaign for All D.C. Families. Rosenstein also participated in the telephone conference call.

The District “is such a different place,” he said.

D.C. is not a state but a federally controlled district, over which Congress has the authority to exercise considerable control.

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

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

Jeff Sessions
Jeff Sessions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ENDA prospects apparently gone

The Employment Non-Discrimination Act (ENDA) is not on the agenda for Senate floor action for the next few weeks, prior to the August 9 recess. The Senate will take up work on as many as nine matters during the next month, but none of those are ENDA.

Harry Reid
Harry Reid

The Employment Non-Discrimination Act (ENDA) is not on the agenda for Senate floor action for the next few weeks, prior to the August 9 recess.

A spokesperson for Senate Majority Leader Harry Reid said the Senate will take up work on as many as nine matters during the next month, but none of those are ENDA.

The nine include the Defense authorization bill, which incorporates language aimed at repealing Don’t Ask, Don’t Tell; and the nomination of Elena Kagan to the U.S. Supreme Court. They also include Wall Street reform, energy (including oil spills), and the extension of unemployment benefits.

The Hill, a newspaper reporting on Congress, said Senate Democratic leaders met Tuesday and, in consultation with President Obama, decided to focus on these latter three bills during the next two weeks. It also suggested the three bills were chosen, at least in part, for their ability to bolster support for Democrats during the mid-term elections in November.

Congress returns from its summer recess on September 13, and The Hill said “Senators acknowledge…little legislating will be possible” between September 13 and elections.

White House press secretary Robert Gibbs acknowledged the administration’s deep concern about the mid-term elections. He told NBC’s Meet the Press Sunday, “there is no doubt there are enough [Congressional] seats in play [in November’s mid-term elections] that could cause Republicans to gain control” of one or both chambers.

A number of recent polls show Republicans gaining support over Democrats among voters. A July 7-11 poll of 1,288 registered voters by ABC/Washington Post found that 47 percent would vote for the Republican in their Congressional district, while 46 percent would vote for the Democrat. Sixty-two percent said they were inclined to “look around” for other candidates than their current representative in Congress. Other polls showed similar findings.

There are 255 Democrats and 178 Republicans in the House; 56 Democrats, 41 Republicans, and 2 Independents in the Senate.

In May, House Speaker Nancy Pelosi (D-Calif.) said ENDA and a measure to repeal Don’t Ask, Don’t Tell would get floor votes this year. She reassured a group of LGBT leaders that, while a measure to repeal DADT may move first, ENDA would also move under her watch.

The DADT repeal measure did get a floor vote by the House in May and passed; it also passed a Senate committee –both as part of an annual Defense spending bill. The full Senate is expected to consider the measure before the August 9 recess.

But the dwindling number of legislative days and the growing number of urgent legislative and political priorities have squeezed ENDA out.

Drew Hammill, a spokesman for Pelosi, said Tuesday, “Passing ENDA this year is a top priority for the Speaker, but we believe that passing ENDA before DADT repeal has been finalized, jeopardizes both initiatives.”

“Until then,” said Hammill, “we should encourage the Senate to develop a course for ENDA to ensure that when the House passes the legislation, the Senate can move quickly to send the legislation to the President’s desk.”

Rep. Barney Frank, chief sponsor of the bill, could not be reached by deadline this week.

DADT trial opens to little notice

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

Daniel Woods
Daniel Woods

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Two giant blows against DOMA

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

Mary Bonauto
Mary Bonauto

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Federal Judge Rules Part of DOMA Unconstitutional

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

Mary Bonauto
Mary Bonauto

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

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

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

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

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

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

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

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

HUD clarifies LGBT housing discrimination protections

The U.S. Department of Housing and Urban Development (HUD) announced new guidance to help LGBT people who encounter discrimination in housing. Two LGBT leaders familiar with housing issues say the move is “very significant” and “much needed.”

Shaun Donovan
Shaun Donovan

The U.S. Department of Housing and Urban Development (HUD) on July 1 announced new guidance to help LGBT people who encounter discrimination in housing. Like a recent move by the Department of Labor, the HUD announcement is more of a clarification than a new policy—but two LGBT leaders familiar with housing issues say the move is “very significant” and “much needed.”

The new guidance, announced by HUD Secretary Shaun Donovan at HUD’s LGBT Pride Month Celebration, states that, although the Fair Housing Act (FHA) does not explicitly cover sexual orientation- or gender identity-based housing discrimination, such discrimination may be covered by the FHA in other ways. For example, the guidance explains, gender-identity discrimination may be seen as gender discrimination, and discrimination against a gay man because of fear he will spread HIV/AIDS may constitute illegal discrimination on the basis of a perceived disability, HIV/AIDS.

The HUD guidance also instructs staff to inform individuals about state and local LGBT protections that may apply to them. It notes that approximately 20 states, the District of Columbia, and over 60 cities, towns, and counties do specifically prohibit discrimination against LGBT individuals. HUD will retain jurisdiction over complaints filed by LGBT individuals or families as appropriate, but will “jointly investigate or refer matters to those state, district, and local governments with other legal protections.”

Rea Carey, executive director of the National Gay and Lesbian Task Force (NGLTF), said the reforms are “much-needed… especially in the context of this rocky economic climate that has already left so many people fearful of losing the roofs over their heads.”

“LGBT people remain particularly vulnerable in seeking or retaining housing due to widespread bias, discrimination and a lack of housing protections,” said Carey. “Explicitly including LGBT people and our families in housing policies in order to better protect them and ensure fairness marks a proper governmental response and step toward rectifying a long-standing inequity.”

Mara Keisling, executive director of the National Center for Transgender Equality, called HUD’s announcement “very significant.” It should be commonsense that discrimination on the basis of gender identity is prohibited by the FHA’s ban on gender-based discrimination, she said, but it’s not.

A national study by NGLTF and the National Center for Transgender Equality last year found that 11 percent of the more than 6,400 transgender people surveyed had been evicted and 19 percent had become homeless because of their gender identity. (Keisling notes, however, that some of the cases of homelessness could have been from loss of jobs through employment discrimination, not housing discrimination alone.)

Keisling added that, while HUD went as far as it could to clarify protections under existing law, additional legislation is still needed because of the additional clout an explicitly LGBT-inclusive federal nondiscrimination law carries.

The original Fair Housing Act was enacted in 1968 in response to widespread housing discrimination against people of color. At first, it prohibited discrimination based on race, color, religion and national origin. It was later amended to add prohibitions on discrimination based on sex, disability, and familial status. Individuals seeking redress under the Fair Housing Act may bring a lawsuit in federal district court or file an administrative complaint with HUD.

There are currently three bills pending in the House—introduced by Reps. Jerrold Nadler (D-N.Y.), Joe Sestak (D-Penn.), and Edolphus Towns (D-N.Y.)—that would amend the Fair Housing Act specifically to prohibit discrimination in housing on the basis of sexual orientation or gender identity.

Nadler, who chairs the Subcommittee on the Constitution, Civil Rights and Civil Liberties, held a hearing on FHA revisions in March, at which NGLTF’s Carey testified. His LGBT housing nondiscrimination bill has only two co-sponsors, though; Sestak and Towns’ have none, making it seem unlikely that any of the bills will move before the end of this session of Congress in the fall.

Despite a lack of legislative change, however, HUD has taken several other steps under President Obama to address sexual orientation- and gender identity-based discrimination.

HUD Secretary Shaun Donovan has proposed policy changes that would stop discrimination on the basis of sexual orientation or gender identity in HUD’s core housing programs, require those who participate in HUD programs to comply with local anti-discrimination laws that cover sexual orientation and gender identity, and end mortgage-loan discrimination based on sexual orientation and gender identity. The policies are being drafted and must go through a period of public comment before being enacted.

HUD has also commissioned the first-ever national study of discrimination against LGBT people in the rental and sale of housing, and is currently seeking public comment at hud.gov to help design the study.

Like HUD, the Department of Labor recently issued an LGBT-related policy clarification, stating on June 22 that the Family and Medical Leave Act (FMLA) allows an employee to take unpaid leave to care for the legal children of the employee’s same-sex partner.

Keisling said she has heard some within the LGBT community call such moves by the Obama administration “token things”—but she believes they reflect a deeper change.

“Throughout the federal government now, they’re really taking a look to make sure all the things they do are fair for all people. . . . These are really huge decisions and huge advancements. They are pieces we want.”

Barnes: ‘We’ve carried the ball a long, long way down the field’

The purpose of the small gathering at the Old Executive Office Building in Washington was two-fold: first, to give LGBT media a “snapshot” of what the Obama administration has done, and plans to do, on LGBT issues. And, second, nine LGBT reporters and political bloggers would get to ask a question.

barnes_melody
Melody Barnes

WASHINGTON, D.C. —The purpose of the small gathering on the second floor of the Old Executive Office Building in Washington Thursday afternoon was two-fold. First, White House Domestic Policy Chief Melody Barnes wanted to give LGBT media a “snapshot” of what the Obama administration has done, and plans to do, on LGBT issues.

And, second, nine LGBT reporters and political bloggers would get a chance to ask a question.

It was the first time any administration had arranged to deliver such a briefing to LGBT media and take questions, and some lamented that the access has come 18 months into the administration and, thus far, has not included an interview with the president himself.

But Barnes offered an earnest defense of what the Obama administration has done thus far on LGBT issues—“more than any previous administration,” she said. She pointed to the signing hate crimes legislation into law, issuing of executive memos to expedite tangible benefits where possible, and using the president’s bully pulpit in a variety of settings to advance the public’s understanding of civil rights for LGBT people.

Barnes was pressed to explain why the administration continues to defend laws in court, such as Don’t Ask, Don’t Tell (DADT) and the Defense of Marriage Act (DOMA), even though the president has repeatedly said both laws should be repealed. Barnes said it’s in part because the president is concerned about setting a precedent that would make it easier for some future administration to pick and choose which laws it would defend, and in part because the president “hasn’t made an argument” concerning the constitutionality of the laws.

“To be clear, he believes DOMA is discriminatory,” said Barnes, noting the administration has indicated so in legal briefs. “But,” said Barnes, “we believe we have an obligation to defend the law if Congress had a rational basis for passing the law.” She added that the president has been “trying to move the country forward and change the narrative” on these issues.

When it comes to prodding Congress to pass pro-LGBT laws, such as the Employment Non-Discrimination Act (ENDA), said Barnes, the administration is relying on the Congressional leadership.

“We look to the Senate leadership to also say to us, ‘These are issues we are prepared to move forward on’,” said Barnes. “They’re doing that based on a whole number of variables. And when they are talking about moving forward with ENDA, they’re also getting an indication from us that we support it.”

Pam Spaulding, a political blogger at pamshouseblend.com, told Barnes that there is a “big gulf” between what national LGBT organizations consider to be significant progress on LGBT issues and what people at the grassroots think. She suggested a briefing like this one might have gone a long way to mitigate the concern of the grassroots if it had been held earlier in the administration.

Barnes acknowledged the frustration of the grassroots, but emphasized, “We are here now, and that reflects the desire to be engaged.” She also noted that the White House AIDS czar, Jeff Crowley, has been engaging the grassroots through a series of town meetings around the country to talk about AIDS.

“There’s always a desire and effort to do better, and that’s why we are sitting here now,” said Barnes. “

The only surprise came when—in responding to a question about the relative lack of openly gay people on the president’s senior staff—Barnes credited White House Chief of Staff Rahm Emanuel with having pushed for the hospital visitation directive. That directive, signed by President Obama, provided for the Department of Health and Human Services to ensure that hospitals receiving federal funding respect the wishes of an LGBT patient in deciding who can visit them in the hospital. Emanuel has, for years, been seen as a relative obstructionist on LGBT advances—first, in the Clinton White House and, now, in this one.

“There are a number of very senior members of this administration—whether it be Rahm, Valerie [Jarrett] or me or Jim [Messina]—who are not gay or lesbian but for whom these issues are important. We have conversations and provide advice to the president on those issues. It is helpful and important to have people… who are not gay or lesbian or transgender who care about these issues and advocate for them in the White House.”

“There are LGBT senior colleagues who may not have as their portfolio specific LGBT issues,” continued Barnes, “but they come to the table with expertise on personnel, the environment, and host of other issues who do participate in these conversations, who sit at the table and bring their perspective to the conversation on a consistent basis. So while there isn’t an individual…there are many individuals who care about these issues, who drive this set of issues and think about how we move forward.”

Asked whether the White House vetted its decision concerning the DADT certification requirement with anyone in the LGBT community, Barnes answered indirectly, saying the White House “absolutely consults frequently” with the community. She pointed specifically to staffers Brian Bond and Tina Tchen in the White House Office of Public Liaison, as the point persons to ensure such consultations.

“Brian and Tina are talking to and considering and hearing the positive and negative as we go through the process of both developing policy and articulating what our policy is,” said Barnes.

“We’ve carried the ball a long, long way down the field,” said Barnes. “There’s still work to be done but we’ve carried it a long way down the field.”

Kagan: ‘vigorously defended’ DADT

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

Elena Kagan
Elena Kagan

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Senator Charles Grassley questioned Kagan about gay marriage.

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

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

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

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

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

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

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

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

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

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

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

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

“Are you qualifying that now?” asked Kyl.

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

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

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

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

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

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

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

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

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

Kagan acknowledges she’s “generally progressive”

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

Elena Kagan
Elena Kagan

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Appointment of Byrd replacement bodes well for DADT repeal

The immediate replacement for U.S. Senator Robert Byrd will most likely be chosen by the governor, not by a special election—and that is good news for the chances of repealing “Don’t Ask, Don’t Tell.”

Robert Byrd
Robert Byrd

The immediate replacement for U.S. Senator Robert Byrd (D-W. Va.), who died June 28, will most likely be chosen by the governor, not by a special election—and that is good news for the chances of repealing the “Don’t Ask, Don’t Tell” (DADT) ban on lesbian and gay servicemembers.

Byrd’s death came after West Virginia’s primary elections were held this year, and state law requires that candidates in special elections to fill vacancies must file during the regular primary filing period, which has already passed. The next regular primary and general elections will not come again until 2012.

West Virginia Secretary of State Natalie Tennant issued a statement the day of Byrd’s death, confirming that there can be no special election until 2012. At that point, there will be two elections, one for the remaining five or so weeks of Byrd’s unexpired term, and one for the next full term.

That means Democratic Gov. Joe Manchin will get to appoint a senator to serve Sen. Byrd’s term until that election.

Byrd had provided critical support in moving forward a measure to repeal DADT. He worked with Senate and House leadership on a provision that would give Congress an additional 60 days to review the proposed policy changes, even after the president, the Secretary of Defense, and the Chairman of the Joint Chiefs certify them.

That language was included in an amendment to the Defense Authorization bill that passed the House and the Senate Armed Services Committee (of which Byrd was a member) at the end of May. The full Senate is set to take it up when it returns from recess July 12.

With the vote likely to be close, the focus now is on who Gov. Manchin will choose to replace Byrd. The most frequently mentioned names in the media have been Nick Casey, the former chair of the state Democratic Party, who has just accepted a federal judgeship, and the new party chair, Larry Puccio, the governor’s former chief of staff.

Other names include Senate Pres. Earl Ray Tomblin, Carte Goodwin, a former counsel to the governor, and former state Supreme Court Justice Richard Neely.

No matter who is chosen, most sources see the person as a placeholder for Gov. Manchin, who has long been viewed as a candidate to replace Byrd. Manchin has said that he would not appoint himself to the position, however.

Stephen Skinner, chair of the board of Fairness West Virginia, the state’s leading LGBT advocacy group, said he would expect both Casey and Puccio to follow Byrd’s lead on DADT and can’t imagine that any of the other possible appointees would differ. He said his organization has existing relationships with all of the likely choices, and “we’ll immediately reach out to whomever is chosen.”

The LGBT-related record of the possible choices is slim. Goodwin, as counsel to Gov. Manchin, and Tomblin, as Senate president, backed the governor in rejecting a 2008 attempt by the Family Policy Council of West Virginia to push through a state constitutional amendment that sought to limit marriage to one man and one woman. They pointed out that current state law already does so.

Fox News reported June 29, however, that state Republicans will continue to fight for a special election this coming November.

If they are successful, the likely Republican contender would be U.S. Rep. Shelley Moore Capito. She is the only Republican in the state’s Congressional delegation—but is seen as a moderate—and the state voted for Republican candidates in the last three presidential elections.

Capito is no supporter of LGBT rights, however. She voted against the Employment Nondiscrimination Act in 2007 and against a 2007 standalone version of an LGBT-inclusive hate crimes act. (She ultimately voted for the defense appropriations bill to which the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act was successfully attached.) And, in 2006, she voted for a failed House resolution that would have proposed a constitutional amendment defining marriage in the U.S. as the union of a man and a woman.

Most critically, she voted against the Defense Authorization amendment to repeal DADT that Sen. Byrd had worked to pass.

Another Supreme Court victory, amidst ideological hostilities

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Could victory in court mean loss in public support?

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

Patrick Egan
Patrick Egan

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

But what about legalizing marriages for same-sex couples?

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

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

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

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

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

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

Lisa Keen contributed to this report.

Marriage equality opponents vow rematch over public disclosure case

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Supreme Court upholds disclosure of petitioners’ names

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

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

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

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

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

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

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

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

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

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

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

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

Kagan — Gays are constituency, not priority

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

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

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

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

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

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

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

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

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

At least two people close to her support that claim.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Federal Departments Mixed in Promotion of LGBT Rights

A panel of six LGBT activist leaders in April were asked to grade the Obama administration thus far on LGBT issues. Three panelists gave the administration a “D,” two gave it a “B,” and one a “C.” Keen News Service decided to take a look at eight major federal departments and apply a similar grading system.

A panel of six LGBT activist leaders in April were asked to grade the Obama administration thus far on LGBT issues. Three panelists gave the administration a “D,” two gave it a “B,” and one a “C.” Keen News Service decided to take a look at eight major federal departments and apply a similar grading system.

The result was strikingly similar to that of the April 22 LGBT Leadership Townhall panel, hosted by Sirius XM Radio’s Michelangelo Signorile Show. The panel’s average came to 1.8 on a scale that gives 1 point for a D and 4 for an A. The KNS analysis came up with a 2.0.

The Departments of State and Housing and Urban Development each earned a “B” from KNS, a grade given for taking significant steps toward equal rights for LGBT people, even if some inequities remain. Health and Human Services and the Office of Personnel Management each earned a “C,” given for taking some steps toward equal rights and making no efforts to obstruct equality, while many or major inequities remain within that department’s purview. And Defense, Justice, and Education each earned a “D,” for taking few steps toward improving equal rights and making some efforts to obstruct such rights.

None of the departments warranted an “A,” for taking significant and comprehensive steps toward improving equal rights for LGBT people—or an “F,” for doing nothing to improve equal rights for LGBT people and also taking steps to block such equality.

Department of State (DOS): The DOS said it would provide the same benefits to the same-sex partners of foreign service employees sent abroad as to opposite-sex spouses, including diplomatic passports, use of U.S. medical facilities, emergency evacuation, and training at the Foreign Service Institute.

Two major items are not covered, however: health care and retirement benefits. President Obama, in a memo requesting partner benefits for federal employees, stated that federal law prevents his administration from extending those benefits.

DOS has additionally changed two policies regarding passports. A person in a legal same-sex marriage can apply for a new passport using his or her taken (married) surname, and a transgender person can change the gender listed on their passport without needing gender reassignment surgery, simply certification from an attending medical physician.

Secretary of State Hillary Clinton has publicly decried Uganda’s proposed harsh anti-gay bill, and spoken directly with Ugandan President Yoweri Museveni about it. Karl Wycoff, Deputy Assistant Secretary of State, testified at a January House hearing on the Ugandan bill, and said the U.S. embassy in Uganda has been working with the Ugandan government and local gay and lesbian groups to stop the legislation.

The DOS also issued a statement condemning the Malawi government’s sentencing of a couple—a gay man and a transgender woman—to 14 years of hard labor for “carnal knowledge against the order of nature” and “gross indecency.”

The DOS worked with President Obama to appoint David Huebner as U.S. Ambassador to New Zealand in December 2009. Huebner is the first openly gay person to be appointed to an ambassadorship in the Obama administration, and the third in U.S. history.

Grade: B.

Housing & Urban Development (HUD): HUD has commissioned the first-ever national study of discrimination against LGBT people in the rental and sale of housing. Already, it has conducted town hall meetings in three cities to solicit input for shaping the study.

HUD Secretary Shaun Donovan has also proposed policy changes that would stop discrimination on the basis of sexual orientation or gender identity in HUD’s core housing programs, require those who participate in HUD programs to comply with local anti-discrimination laws that cover sexual orientation and gender identity, and end mortgage-loan discrimination based on sexual orientation and gender identity. The policies are being drafted and will go through a period of public comment before being enacted.

HUD has two openly gay appointees who required Senate confirmation, Raphael Bostic, Assistant Secretary for Policy Development and Research, who will be overseeing the LGBT discrimination study, and Mercedes Marquez, Assistant Secretary for Community Planning and Development.

Grade: B.

Department of Commerce (DOC): The DOC changed Census Bureau policies in order to retain data on same-sex couples reporting themselves as “married.” The Census Bureau also cooperated with Our Families Count, a coalition of LGBT organizations, on an education campaign to motivate LGBT Americans to take part in the 2010 Census.

The DOC has two openly gay appointees requiring Senate confirmation, Michael Camunez, Assistant Secretary for Market Access and Compliance, and David Mills, Assistant Secretary for Export Enforcement.

The National Gay & Lesbian Task Force’s Queer the Census project, however, is still working to have questions about sexual orientation and gender identity included in future Census surveys.

Grade: B.

Health and Human Services (HHS): HHS Secretary Kathleen Sebelius and Kathy Greenlee, the openly lesbian Assistant Secretary of the Administration on Aging, announced plans to establish the first national resource center for LGBT seniors. To that end, they awarded a three-year, $900,000 grant to Services & Advocacy for Gay, Lesbian, Bisexual & Transgender Elders (SAGE).

In addition to Greenlee, HHS has one other LGBT appointee requiring Senate confirmation, Richard Sorian, Assistant Secretary for Public Affairs.

HHS in July 2009 ended its longstanding policy of banning people with HIV/AIDS from traveling to the U.S. The department also worked with President Obama and Congress to reauthorize the Ryan White HIV/AIDS Treatment Extension Act, the largest federal program dedicated to HIV care and treatment.

HHS is now drafting rules to support the President’s memo ensuring hospital visitation and decision-making rights for patients’ designees, including same-sex partners. They will then make the proposed rules available for public comment before enacting them, a process expected to take several months.

And a draft of “Healthy People 2020,” a decennial document to set national goals for health and reduce health disparities, includes sexual orientation and gender as attributes that may cause disparities.

LGBT disparities were in fact noted in Healthy People 2010, the version published in November 2000 under President Clinton. For the 2020 version, a commentary submitted by the National Coalition for LGBT Health and many major LGBT organizations calls for more acknowledgement of gender identity and greater inclusion of LGBT demographics in all relevant federal health surveys.

HHS, however, through its U.S. Healthy Marriage Demonstration Fund, continues to provide over half a million dollars a year to the anti-LGBT Iowa Family Policy Center (IFPC). The grants, begun under President George W. Bush, go from the IFPC to a third-party marriage-counseling program called Marriage Matters, reported the Iowa Independent. The American Civil Liberties Union of Iowa told the Independent May 7 that it plans to investigate whether the grants violate the separation of church and state.

And an HHS committee in June voted to uphold the lifetime ban against blood donation by men who have sex with men. People who have sex with someone of the opposite sex who is HIV positive, however, must only wait one year. The committee heard testimony from Peter Sprigg, senior fellow of the ultra-conservative Family Research Council, among others.

Grade: C.

Office of Personnel Management (OPM): Head of the department is John Berry, the highest-ranking openly gay official in any federal administration. Elaine Kaplan, his general counsel, and Vic Basile, Senior Counselor to the Director, are also openly gay.

Under Berry, OPM added gender identity to sexual orientation in the Equal Employment Opportunity statement for federal employment.

Last June, President Obama directed federal agencies to determine what benefits they could make available to the same-sex partners of federal employees under existing laws. OPM worked with the Department of Justice to review the information and recommend to the president that he extend all of the identified benefits.

Berry, however, ordered the health insurance carrier of a lesbian federal employee not to comply with a 9th Circuit Court order to include her partner on her insurance plan. He explained at the National Gay & Lesbian Task Force’s 2009 Leadership Conference that Kaplan and the DOJ both concluded that neither OPM nor the president have the authority to provide such benefits. He said that is one reason the Domestic Partnership Benefits and Obligations Act, which would institute these benefits, is so important.

Grade: C.

Department of Defense (DOD): Secretary of Defense Robert Gates and Chair of the Joint Chiefs Adm. Mike Mullen have told Congress they would implement repeal of Don’t Ask, Don’t Tell (DADT) if Congress approves it, and Mullen said he personally believes that’s the right thing to do. Gates in March approved new regulations that make it more difficult for gay and lesbian servicemembers to be discharged under the policy.

On April 30, however, Gates said Congress should not pass its own repeal of DADT before he can complete a study on its impact and come up with an implementation plan. On May 25, he said he would accept a proposed congressional amendment that would repeal DADT but not go into effect until after the DOD study is complete—but he would still prefer that Congress wait until after the study before passing legislation. The study is due December 1.

The DOD boasts one openly gay appointee who required Senate confirmation, Douglas Wilson, Assistant Secretary of Defense for Public Affairs.

Grade: D.

Department of Justice (DOJ): The DOJ filed briefs in Smelt v. U.S. and Commonwealth of Massachusetts v. U.S. Department of Health and Human Services et al. strongly defending the Defense of Marriage Act, and in Log Cabin Republicans v. U.S., defending Don’t Ask, Don’t Tell.

Thomas E. Perez, Assistant Attorney General for the Civil Rights Division, did, however, issue a strong statement in support of the Matthew Shepard and James Byrd Hate Crimes Prevention Act. Mara Keisling, executive director of the National Center for Transgender Equality, said at the LGBT Leadership Townhall that DOJ has been doing “spectacular” community education around the Act.

She explained in an interview that NCTE has been working with The Leadership Conference on Civil and Human Rights to help train the DOJ’s Community Relations Service (CRS) about LGBT-related hate crimes. Based on that experience, she believes CRS “wants to implement the law right,” according to the spirit as well as the letter of the law. The DOJ is also preparing to train local law enforcement about the Act this summer.

And in June, the DOJ’s Office of Legal Counsel issued a memo stating that federal prosecutors may use the Violence Against Women Act in cases of interstate stalking and domestic violence involving same-sex couples.

Earlier this year, the DOJ also filed a motion to intervene in the case of a New York teen who was bullied and physically assaulted at his public school for being effeminate. DOJ lawyers backed arguments made by the New York ACLU, which said that Title IX of the federal Equal Opportunity in Education Act, which prohibits gender-based discrimination, also applies to discrimination based on actual or perceived sexual orientation and gender expression.

The DOJ motion was still pending when a settlement was reached between the school district and the student. In the settlement, the court noted the U.S.’s desire to intervene and its wish to resolve the student’s claim without further litigation.

Although NPR reported the case as “a novel interpretation of the Title IX statute,” Title IX was in fact used in at least three federal cases under President Clinton and two under President George W. Bush to combat harassment based on sexual orientation or gender non-conformity.

There are three openly gay Obama appointees to the DOJ that required Senate approval: Jenny Durkan, U.S. Attorney for the Western District of Washington, Sharon Lubinski, U.S. Marshal, and Laura Duffy, U.S. Attorney for the Southern District of California.

The DOJ plans to hold a Pride event later this month with Attorney General Eric Holder, Perez, Lubinski, and Durkan in attendance.

Grade: D.

Department of Education (DOE): The LGBT community had high hopes for the DOE when President Obama appointed openly gay Kevin Jennings, founder of the Gay, Lesbian, and Straight Education Network, as head of Office of Safe and Drug-Free Schools (OSDFS).

The OSDFS budget was slashed 40 percent even before Jennings took office, however. The remaining money will be used to fund a “Successful, Safe, and Healthy Students” program that will provide grants for schools to address a variety of problems. Anti-bullying programs that include LGBT-based bullying could be one possible component.

The DOE has done little else to address the high incidence of bullying based on real or perceived sexual orientation and gender identity.

No DOE officials testified in a July 2009 House committee hearing on “Strengthening School Safety through Prevention of Bullying.”

The DOE included no specific call for federal anti-bullying protections or programs in the Blueprint for Education that sets forth President Obama’s framework for a major reform of education policies, despite bills in Congress that would provide such protections.

The DOE has also issued no statements on the several bullying-related youth suicides—at least two of which were because of harassment based on perceived sexual orientation—that have occurred since President Obama took office.

Grade: D.

There were also LGBT-related developments in agencies not covered above. The IRS, for example, said in June that same-sex domestic partners in California must combine their incomes and each report half when they file their tax returns. This is consistent with the way that married opposite-sex couples file under California’s community-property law.

Prop 8 closing: Fear v. Equality

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

Judge Vaughn Walker
Judge Vaughn Walker

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

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

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

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

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

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

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

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

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

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

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

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

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

“It is,” said Cooper.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mid-day report: Prop 8 trial closing arguments

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

Ted Olson
Ted Olson

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

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

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

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

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

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