Obama cancels one-on-one with Putin over various issues, including “human rights and civil society”

President Obama said Tuesday (August 6) that countries that participate in the Olympics “wouldn’t tolerate gays and lesbians being treated differently” during the 2014 Olympics in Russia.

President Obama

President Obama said Tuesday (August 6) that countries that participate in the Olympics “wouldn’t tolerate gays and lesbians being treated differently” during the 2014 Olympics in Russia. And though his other remarks suggested he would not likely push for any boycott of the winter games next February, the White House on Wednesday issued a statement indicating President Obama was canceling his one-on-one meeting with the Russian president during next month’s G-20 summit. The statement hinted at a wide variety of reasons, including issues of “human rights and civil society” issues. An administration official said the “human rights and civil society” reference included recent actions taken against the LGBT community in Russia.

Meanwhile, Human Rights Campaign President Chad Griffin has asked the NBC Universal network, which is providing television coverage of the Olympics to U.S. viewers, to “expose this inhumane and unjust law to the millions of American viewers who will tune in to watch the Games.”

According to a number of reports, including from ESPN and the Los Angeles Times, Vitaly Mutgo, sports minister for the Putin administration, told reporters the Russian government would enforce its new laws during the Olympics.

“An athlete of nontraditional sexual orientation isn’t banned from coming to Sochi,” ESPN quoted Mutko as saying in an interview with the Russian state news agency RIA Novosti. “But if he goes out into the streets and starts to propagandize, then of course he will be held accountable.” The Times said foreign visitors who violate the law can be fined up to $3,000, jailed for 15 days, deported, and denied re-entry into Russia.

The laws, signed by President Vladimir Putin in June and July, prohibit the “propaganda of nontraditional sexual relations around minors,” any public displays of affection by same-sex couples and public events related to LGBT people, and prohibit allowing couples from countries where marriage equality is law to adopt children from Russia. One law allows authorities to arrest and detain anyone suspected of being gay or pro-gay.

The International Olympic Committee (IOC) issued a statement July 26, saying it had received “assurances” from “the highest level of government in Russia” that the new all “will not affect those attending or taking part” in the Winter Olympics in February in Sochi, a city of more than 340,000 people situated on the eastern coast of the Black Sea, a thousand miles south of Moscow.

“The International Olympic Committee is clear that sport is a human right and should be available to all regardless of race, sex or sexual orientation,” said the statement. “The Games themselves should be open to all, free of discrimination, and that applies to spectators, officials, media and of course athletes. We would oppose in the strongest terms any move that would jeopardise this principle.”

Tonight Show host Jay Leno posed his question to the president after first asking him several questions about the U.S.’s recent global travel warning and the government’s much-criticized intelligence-gathering operation. That led to a discussion of the intelligence leaks by computer analyst Edward Snowden who was recently given one year of political asylum in Russia.

“I was disappointed because, even though we don’t have an extradition treaty with them,” said President Obama, “traditionally we have tried to respect if there’s a law-breaker or an alleged law-breaker in their country, we evaluate it and we try to work with them.  They didn’t do that with us.”

President Obama said he would be attending the economic summit of world leaders, meeting in St. Petersburg September 5-6. He said he was going because “the G-20 summit is the main forum where we talk about the economy, the world economy….”

“So, it’s not something unique to Russia. They’re hosting it this year, but it’s important for us, as the leading economy in the world, to make sure that we’re there,” said Obama. (However, Wednesday morning, the White House issued a statement saying it was canceling its one-on-one meeting with Putin during the summit. The statement said, “there is not enough recent progress in our bilateral agenda with Russia to hold a U.S.-Russia Summit in early September.” See more below.)

That’s when Leno noted “something that shocked me about Russia.”

“I’m surprised this is not a huge story,” he said. “Suddenly, homosexuality is against the law. I mean, this seems like Germany – ‘Let’s round up the Jews; let’s round up the gays, let’s round up the blacks.’”

“I mean, it starts with that,” said Leno. “You round up people who you don’t –I mean, why is not more of the world outraged at this?”

“Well, I’ve been very clear that when it comes to universal rights, when it comes to people’s basic freedoms, that whether you are discriminating on the basis of race, religion, gender or sexual orientation, you are violating the basic morality that I think should transcend every country,” said President Obama. “And I have no patience for countries that try to treat gays or lesbians or transgender persons in ways that intimidate them or are harmful to them.

“Now, what’s happening in Russia is not unique,” he continued. “When I traveled to Africa, there were some countries that are doing a lot of good things for their people, who we’re working with and helping on development issues, but in some cases have persecuted gays and lesbians.  And it makes for some uncomfortable press conferences sometimes.”

When Obama traveled to Africa in June, the U.S. Supreme Court had just issued its decisions striking down a federal law that barred the government from recognizing marriages of same-sex couples. Reporters asked him about those decisions and Obama, at a press conference with the president of Senegal, which outlaws sex between same-sex partners, called them a “victory for American democracy.”

“When it comes to how the state treats people, how the law treats people, I believe that everybody has to be treated equally,” said President Obama June 27.

He reiterated that view on the Tonight Show:

“One of the things that I think is very important for me to speak out on is making sure that people are treated fairly and justly, because that’s what we stand for,” said the president. “And I believe that that’s a precept that’s not unique to America, that’s something that should apply everywhere.”

Leno asked President Obama whether he thinks the anti-gay law “will affect the Olympics.”

“I think Putin and Russia have a big stake in making sure the Olympics work, and I think they understand that for most of the countries that participate in the Olympics, we wouldn’t tolerate gays and lesbians being treated differently,” said Obama. “They’re athletes, they’re there to compete.  And if Russia wants to uphold the Olympic spirit, then every judgment should be made on the track, or in the swimming pool, or on the balance beam, and people’s sexual orientation shouldn’t have anything to do with it.”

On Wednesday (August 7), the White House issued a statement, saying that while the U.S. and Russia have made progress on many fronts, “given our lack of progress on issues such as missile defense and arms control, trade and commercial relations, global security issues, and human rights and civil society in the last twelve months, we have informed the Russian Government that we believe it would be more constructive to postpone the summit until we have more results from our shared agenda.”

The statement noted that “Russia’s disappointing decision to grant Edward Snowden temporary asylum was also a factor that we considered in assessing the current state of our bilateral relationship.”

“Our cooperation on these issues remains a priority for the United States,” said the statement, “so on Friday, August 9, Secretaries Hagel and Kerry will meet with their Russian counterparts in a 2+2 format in Washington to discuss how we can best make progress moving forward on the full range of issues in our bilateral relationship.”

HRC issued a statement saying it was pleased with both President Obama’s remarks on the Tonight Show, “especially with the news this morning that he would be cancelling his trip to Moscow – citing a number of issues to include human rights.” HRC also stated that the IOC should obtain an “ironcld written assurance” from President Putin that “foreigners will be exempt from [Russia’s] repressive laws….”

“But more importantly,” said the statement from HRC’s Griffin, “they should be advocating for the safety of all LGBT people in Russia, not simply those visiting for the Olympics. Rescinding this heinous law must be our collective goal.”

Five nominees are cleared, others are snagged

The U.S. Senate has confirmed 75 candidates for various executive branch offices, including four openly gay ambassadors and the highest openly gay official at the Department of Justice.

Although a few openly gay nominees are still snagged, a Republican-led logjam against Obama nominees was briefly cracked this month, enabling the U.S. Senate to confirm 75 candidates for various executive branch offices, including four openly gay ambassadors and the highest openly gay official at the Department of Justice.

Most of the confirmations, including the five openly gay appointees, were approved collectively by a single voice vote (known as unanimous consent).

The openly gay nominees confirmed August 1 included Stuart Delery as assistant attorney general for the DOJ Civil Division and ambassadorial appointees James Costos to Spain, John Berry to Australia, Rufus Gifford to Denmark, and Daniel Baer to the Organization for Security and Cooperation in Europe. Berry will be sworn in Friday, August 9.

Although Senator Charles Grassley (R-Iowa) submitted several gay-related questions to Delery in writing, there was no other apparent scrutiny given to the gay nominees suggesting they might be opposed for some reason related to their sexual orientation.

But the nominees notably did not include President Obama’s nomination of Chicago gay businessman James “Wally” Brewster to serve as ambassador to the Dominican Republic. Though the Texas native was nominated the same day as Berry, there may be a snag with the choice of an openly gay person to serve in the Dominican Republic, an island nation that is about 69 percent Catholic and 11 percent evangelical.

According to Dairio Librio, a local paper, at least one Christian church organized a protest, asking people to show their dissatisfaction with Brewster’s nomination by wearing black one day last month. Pastor Sauford Medrano said he wasn’t opposed to gay people but considers homosexuality a sin. When the day of protest came, Dairio Librio asked several people why they were wearing black, but each one interviewed indicated it was just “by chance.”

CNSNews.com, a conservative news organization, quoted the auxiliary Catholic bishop of Santo Domingo, Pablo Cedano, as saying that, if Brewster arrives in the DR as ambassador, “he is going to suffer and will have to leave.” Several U.S. news websites have quoted the country’s Catholic cardinal, Nicholas Rodriguez, as referring to Brewster publicly with the Spanish equivalent of “faggot.”

But those remarks came weeks before the recent high-profile statement by Pope Francis, concerning gay priests: “If someone is gay and he searches for the Lord and has good will, who am I to judge?”

Like many ambassadorial nominees, Brewster was a big donor to President Obama’s re-election effort. More than many others, he has held high-profile positions in LGBT entities, including serving as a national co-chair for LGBT people on the Democratic National Committee, a national co-chair of the LGBT Obama for America re-election campaign, and serving on the national board of the Human Rights Campaign.

It is not clear whether there is any opposition to Brewster’s nomination in the Senate. There apparently was none for this month’s openly gay candidates, and last month, only 17 senators (all Republicans) voted against the re-nomination of the openly gay president of the Export-Import Bank, Fred Hochberg.

So far, President Obama has appointed openly LGBT people to 277 positions in his administration.

Several important ones are still pending, including Elaine Kaplan, to serve on the U.S. Court of Federal Claims. Kaplan, whose nomination was advanced out of the Senate Judiciary Committee June 6, was initially appointed to serve as General Counsel for the Office of Personnel Management. She has served as acting director of OPM since Berry’s resignation in April. Kaplan’s questionnaire responses to the Senate indicated she has served on the HRC board, was a member of the National Gay and Lesbian Task Force and of Parents and Friends of Lesbians and Gays, and Gay and Lesbian Parents International. She also made presentations to two White House LGBT events for youth and families and to numerous other LGBT-related events in and outside the federal government.

Six current and former federal employees signed a letter to the Senate Judiciary Committee in April, expressing “reservations” about Kaplan’s nomination. The employees had each sought protection through Kaplan’s previous position as U.S. Special Counsel for their whistle-blowing activities. They say her actions as Special Counsel weakened the federal Whistleblower Protection Act.

Kaplan’s nomination could come up on the Senate floor anytime after Congress reconvenes September 9, following its month-long summer recess.

Fallout over Supreme Court decision: New Jersey, other states court fights intensify

After the fireworks surrounding its landmark rulings on two cases involving same-sex marriage, the U.S. Supreme Court quietly dispensed with nine other DOMA-related petitions last week, denying their requests for review.

Jan Brewer

After the fireworks surrounding its landmark rulings on two cases involving same-sex marriage, the U.S. Supreme Court quietly dispensed with nine other DOMA-related petitions last week, denying their requests for review.

In most of those cases, the DOMA decision in U.S. Windsor took care of the questions presented. But some legal activists took special note of the fact that the Supreme Court also refused to hear an appeal from Arizona Governor Jan Brewer.

The Brewer case, Brewer v. Diaz, challenged a DOMA-like amendment passed by voters in Arizona in November 2008. The amendment to the state constitution prohibited state recognition of same-sex relationships and officially redefined “spouses” in state law to exclude state employees with same-sex partners. Lambda Legal filed suit, representing a group of gay Arizona state employees because the new state law barred them from signing up their domestic partners and children for family health insurance coverage. A federal judge ruled the state law violated the U.S. Constitution’s guarantee of equal protection, and, in a preliminary ruling, the Ninth Circuit ordered the state not to enforce the new law, pending its review. The Supreme Court’s action last week denied Brewer’s petition for Supreme Court review of that preliminary action.

The Supreme Court also refused to take up a case out of Nevada concerning statewide bans on same-sex marriage. That case, Coalition for the Protection of Marriage v. Sevcik, was brought to the high court by the Coalition, a group opposed to same-sex marriage. The Coalition, which lost a challenge to the state ban in the district court (brought by Lambda Legal), tried to leapfrog over the Ninth Circuit for a ruling from the Supreme Court. The Supreme Court rarely takes such appeals, so not much can be read into the court’s reluctance to take the Nevada case.

In other court action, Supreme Court Justice Anthony Kennedy denied a request from Yes on 8 supporters that the Supreme Court stop the implementation of its Windsor ruling before the Supreme Court had officially delivered the decision to the Ninth Circuit. Under normal procedures, a Supreme Court decision, such as in the Proposition 8 case, is formally conveyed to the appeals court below in about 25 days. But California Attorney General Kamala Harris said her reading of the law is that the Ninth Circuit did not have to wait to receive that official decision before lifting a stay it put on the district court decision, pending appeals. Harris asked the Ninth Circuit to lift its stay immediately and, on Friday, June 28, at 3:22 p.m. PDT, the federal appeals court did so. Same-sex couples immediately began getting married again in California.

The Yes on 8 coalition filed an application Saturday asking Kennedy, who oversees Ninth Circuit affairs for the Supreme court, to vacate the Ninth Circuit’s order lifting the stay. But on Sunday, Kennedy denied the request.

Also last week, an immigration judge in New York ruled that a Manhattan gay man’s Columbian husband could stay in the country indefinitely. The ruling came just hours after the Supreme Court decision in DOMA.

The Columbian, Steven Infante, had expected the judge to order him to leave the country at Wednesday morning’s hearing. According to a New York Times report, Infante married American Sean Brooks in New York in 2011, shortly after the legislature passed a bill to ensure marriage equality in the state. But Infante’s visa had expired and DOMA had prevented him from seeking a routine marital green card to stay in this country with his spouse.

And in New Jersey, which has a civil unions law, Lambda Legal announced Friday that it would file a motion this week asking the state superior court judge to rule that, in light of the Supreme Court decision on DOMA, New Jersey’s civil union option for same-sex couples clearly denies them equal protection of the law.

Haley Gorenberg, a Lambda attorney working on an 11-year-old lawsuit seeking marriage equality in that state, said the DOMA ruling was a “game changer” in New Jersey. The fact that DOMA now guarantees married same-sex couples federal benefits, she said, means the state supreme court now has evidence of tangible harms done to same-sex couples who can obtain only civil unions in New Jersey.

Because the case has already been to the state supreme court once, and because the plaintiffs include Garden State Equality, with thousands of members, Gorenberg said a ruling by the superior court judge “essentially decides for the state.”

Gorenberg said the judge has set an expedited briefing schedule for a ruling. Oral argument is tentatively scheduled for August 15.

SUPREME VICTORY: Stunning victories: DOMA, Prop 8 struck

In a stunning double victory, the U.S. Supreme Court today issued decisions that strike down both Proposition 8 and the key provision of the Defense of Marriage Act.

From the U.S. Supreme Court Collection

In a stunning double victory, the U.S. Supreme Court today issued decisions that strike down both Proposition 8 and the key provision of the Defense of Marriage Act.

The DOMA decision, a 5 to 4 split, was written by Justice Anthony Kennedy and joined by the four liberal justices of the court. It strikes as unconstitutional Section 3 of DOMA which prohibits federal recognition of valid marriage licenses issued to same-sex couples. The majority said the law  violates the guarantees of equal protection and due process.

The DOMA dissent, based largely on matters of standing, was led by Chief Justice John Roberts and joined by the court’s three other conservatives.

The Proposition 8 opinion, a 5 to 4 vote led by the Chief Justice, vacates a Ninth Circuit U.S. Court of Appeals ruling. It says Yes on 8 defenders of the law lacked standing, under federal rules of law, to make the appeal. The decision appears to leave intact the district court decision, a much broader ruling.

The dissent was a surprise: Justice Kennedy led two conservative justices plus liberal Justice Sonia Sotomayor. They said the court should accept the California Supreme Court’s determination that Yes on 8 had standing.

Reaction was understandably euphoric from LGBT legal activists and the thousands of supporters of same-sex marriage gathered outside the Supreme Court building and town hall in San Francisco.

“It’s nearly perfect. I’m thrilled,” said Mary Bonauto, civil rights project director for Gay & Lesbian Advocates & Defenders, the group which launched the first successful lawsuit challenging DOMA and secured the first right to marry from a state supreme court.

The DOMA decision, said Bonauto, “not only strikes DOMA but makes clear what we’ve been saying all along –that DOMA is discriminatory and that it is an effort by the federal government to deprive same-sex couples of their rights and to demean them.”

“We have won the freedom to marry in California,” said Evan Wolfson, head of the national Freedom to Marriage group, on MSNBC right after the decision was released in the Proposition 8 case. Wolfson noted that, with the addition of California, at least a third of the nation’s population now lives in a state with marriage equality. Prior to today, it was at about 18 percent.

Jon Davidson, legal director for Lambda Legal, called both decisions a “huge victory for married same-sex couples and their families because it will affect almost every facet of life from health care to retirement to taxes.”

The two plaintiff couples emerged from the Supreme Court building on the front steps at 10:45 a.m., with Chad Griffin, who organized the Proposition 8 lawsuit, and David Boies, one of the two lead attorneys who pressed the challenge. As they did, a chorus sang the national anthem.

On the plaza in front of the court, Boies spoke about both decisions and noted that June 26 is the tenth anniversary of the Lawrence v. Texas decision, striking down sodomy laws.

In striking DOMA, said Boies, the court ruled “there was no purpose” in denying same-sex couples the right to marry.

In the Proposition 8 case, said Boies, the court ruled that the Yes on 8 defenders of the law did not have standing to press the appeal. But he said the court’s opinion makes clear that “when” a case involving a similar ban comes before the court on merits, it is clear the majority will find it unconstitutional.

Plaintiff Kristin Perry emphasized the importance of the Prop 8 decision to the children of same-sex parents, children who can now know that their parents are equal to other parents. Her spouse-to-be, Sandra Stier, said the struggle must now continue to secure the right to marry for same-sex couples in states that deny them marriage licenses.

President Obama, aboard Air Force One on his way to Africa, called the plaintiffs while they were at the impromptu press conference in front of the Supreme Court building. He said he was “proud” and “so glad for California” and thanked them for their leadership.

The White House also posted a Twitter message quoting the president as calling the DOMA ruling an “historic step forward for marriage equality.”

The court issued its decision in the two high-profile marriage cases at 10 a.m. EDT on June 26, the last day of its 2012-13 session.

The opinions in Hollingsworth v. Perry (concerning Proposition 8) and U.S. v. Windsor (concerning DOMA) can be read in their entirety at http://www.supremecourt.gov/opinions/slipopinions.aspx.


DOMA details and reaction

In the majority opinion on the DOMA case, U.S. v. Windsor, Justice Kennedy was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. The majority affirmed a Second Circuit U.S. Court of Appeals decision that found DOMA to violate the guarantees to equal protection and due process. The majority said DOMA went “far” beyond an attempt at providing uniformity in federal policy affecting married persons and was “directed to a class of persons that the laws of New York, and of 11 other States, have sought to protect.” Regulation of marriage licensing, said the majority, “has long been regarded as a virtually exclusive province of the States.”

“The Federal Government uses this state-defined class for the opposite purpose—to impose restrictions and disabilities,” wrote Kennedy. And by doing so, he said, “DOMA seeks to injure the very class New York seeks to protect” and “violates basic due process and equal protection principles applicable to the Federal Government.”

“The Constitution’s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group,” wrote Kennedy, quoting a 1973 decision in USDA v. Moreno, a decision in which the court said the government couldn’t deny food stamps to “hippies” living in communes.

Bonauto, who was reached before she had a chance to finish reading the 26-page majority decision, said it’s not clear yet whether or to what extent married same-sex couples living in states that ban recognition of marriage licenses for same-sex couples would be able to obtain federal benefits.

“Clearly, if they live in a marriage equality state, they’re protected,” said Bonauto. She said many would also be able to obtain benefits related to immigration and the military to the extent those areas recognize marriage licenses regardless of what state they were issued in. She said there may be some additional legal work necessary to secure federal benefits for all married same-sex couples but that the federal government “has the flexibility,” such as with tax returns, “to recognize marriage licenses as soon as they are formed.”

“I think we’ll have a patchwork at first but it will become a tighter quilt as time goes on,” said Bonauto.

U.S. Attorney General Eric Holder issued a statement calling the DOMA ruling an “enormous triumph for equal protection under the law for all Americans.”

“At the President’s direction,” said Holder, “the Department of Justice will work expeditiously with other Executive Branch agencies to implement the Court’s decision.  Despite this momentous victory, our nation’s journey – towards equality, opportunity, and justice for everyone in this country – is far from over.  Important, life-changing work remains before us.  And, as we move forward in a manner consistent with the Court’s ruling, the Department of Justice is committed to continuing this work, and using every tool and legal authority available to us to combat discrimination and to safeguard the rights of all Americans.”

Edith Windsor’s attorney Roberta Kaplan told reporters, “It is now clear that discrimination against gay people solely because they are gay violates the United States constitution.”

CNN legal analyst Jeff Toobin called the DOMA decision “an immense victory for same-sex marriage supporters” and one that “will change the lives of thousands of marriages in 12 states where it is legal.”


Prop 8 details and reaction

Toobin said that, in the Proposition 8 case, Hollingsworth v. Perry, the court could have said same-sex marriages must be allowed in all 50 states “and it did not say that.”

“But it did seem to open the door to same-sex marriages in California and it …certainly does look like court is moving in the direction of everybody has the right to marry,” said Toobin.

Chief Justice Roberts wrote the majority decision in the Proposition 8 case, joined by Justices Antonin Scalia, Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan.

The majority decision vacated the Ninth Circuit U.S. Court of Appeals decision with instructions to dismiss the appeal pressed by the Yes on 8 coalition that won passage of Proposition 8. It said Yes on 8’s “only interest in having the District Court order reversed [at the Ninth Circuit] was to vindicate the constitutional validity of a generally applicable California law.” Such a “generalized grievance,” said the majority, is “insufficient to confer standing.”

“A litigant ‘raising only a generally available grievance about government—claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large—does not state an Article III case or controversy.’”

Once Proposition 8 was approved by the voters, said the majority, “the measure became ‘a duly enacted constitutional amendment or statute. Petitioners have no role—special or otherwise—in the enforcement of Proposition 8…. They therefore have no ‘personal stake’ in defending its enforcement that is distinguishable from the general interest of every citizen of California.”

“We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here,” wrote Roberts.

“Because petitioners have not satisfied their burden to demonstrate standing to appeal the judgment of the District Court, the Ninth Circuit was without jurisdiction to consider the appeal,” wrote Roberts. “The judgment of the Ninth Circuit is vacated, and the case is remanded with instructions to dismiss the appeal for lack of jurisdiction.”

Once the Ninth Circuit dismisses Yes on 8’s appeal, the district court ruling by former Chief Judge Vaughn Walker will remaining the law concerning Proposition 8. Walker, who came out as gay after retirement, ruled that Proposition 8 violated the federal equal protection clause because there was no rational basis for limiting the designation of marriage to straight couples. He also said it violated the federal due process clause because there was no compelling reason for the state to deny same-sex couples the fundamental right to marry.

Plaintiff attorney Ted Boutrous said they expect it will be about 25 days before the official judgment in the Proposition 8 case takes effect, though it may happen sooner. That is the estimate San Francisco City Attorney Dennis Herrera’s website gave earlier this month.

In dissent, Justice Kennedy, joined by Justices Clarence Thomas, Samuel Alito, and Sonia Sotomayor, said they would have recognized Yes on 8 as having standing because the state supreme court had ruled Yes on 8 did have standing.

CNN interviewed a Baptist minister who said the rulings would “radically transform the institution of marriage” and be “very, very devastating” for the country.

Family Research Council leader Tony Perkins told CNN the Prop 8 decision was a “punt” on the question of same-sex marriage bans. He predicted the two decisions would lead to teachers teaching homosexuality in school and religious groups losing their tax-exempt status.

But supporters of marriage equality see a much different scenario.

Chad Griffin, the founder of the American Foundation for Equal Rights which organized the Proposition 8 lawsuit and who now heads the Human Rights Campaign, said in a telephone press conference with reporters Wednesday afternoon that he had already been in touch with Attorney General Eric Holder about implementation of the ruling.

Currently, 13 states (counting California) and the District of Columbia will issue marriage licenses to same-sex couples the same as to male-female couples.

Griffin said the LGBT civil rights movement must now adopt an “urgent new commitment” to bring marriage equality to all 50 states “within five years.”

Obama names three more gay ambassadors; nearly doubles Clinton’s LGBT appointments

President Obama this month nominated three openly gay men for posts as ambassadors to Spain, Denmark, and the Organization for Security and Cooperation in Europe.

President Obama this month nominated three openly gay men for posts as ambassadors to Spain, Denmark, and the Organization for Security and Cooperation in Europe.

On June 14, the president named James Costos to take over as ambassador to Spain and Rufus Gifford to become ambassador to Denmark. On June 10, he named Daniel Baer to serve as ambassador to the 57-nation security group that cooperates to address concerns over such matters as border security, human trafficking, and the illegal distribution of weapons.

Baer was originally appointed to the State Department, serving as deputy assistant secretary of the Bureau of Democracy, working on human rights and labor issues. This is his second appointment from President Obama.

Costos and Gifford were both involved in raising money for Obama’s re-election last year, giving or bundling hundreds of thousands of dollars. Costos is vice president for global licensing and retail for HBO; Gifford was finance director of the re-election campaign.

Costos and his partner, interior designer Michael Smith, hosted a fundraiser for Obama at their home last year. First Lady Michelle Obama attended the fundraiser; she also selected Smith to redecorate the residential section of the White House.

The Washington Post “In the Loop” column has speculated for weeks that one of Obama’s first and top picks, John Berry, who recently stepped down as head of the Office of Personnel Management, could soon be appointed ambassador to Australia. The column reported this week that another gay fundraiser, James Brewster of Chicago, might also be in line for an appointment.

Prior to this month’s nominations, openly gay people had been appointed to serve as ambassadors to relatively small countries, including Luxembourg, New Zealand, and Romania (the largest, at 22 million population). While Denmark’s population hovers around five million, Spain’s is more than 47 million.

The Human Rights Campaign applauded this week’s nominations and noted that Spain and Denmark are among the 13 countries in the world that have marriage equality.

Meanwhile, the full Senate on Thursday gave voice vote approval to

Nitza I. Quinones Alejandro, the president’s openly lesbian appointee to the U.S. District Court for the Eastern District of Pennsylvania.

And the Senate Judiciary Committee this month held a confirmation hearing for President Obama’s openly gay nominee to serve as an assistant attorney general, heading up the Civil Division of the Department of Justice. Nominee Stuart Delery, who has served in an acting director capacity in the position for over a year, introduced his partner and their two sons, but was asked almost no questions by the committee.

If confirmed by the Senate, Delery will formally take over the position formerly held by Tony West held when he argued against the Defense of Marriage Act (DOMA) in a federal district court in 2011.

The new nominations this month bring to estimated 272 the number of appointments President Obama has made of openly LGBT people to his administration. That’s almost double the estimated 140 appointments of LGBT people by President Clinton during his two terms. President Obama was also the first president to appoint an openly transgender person to his administration.

About 50 of the Obama LGBT appointees serve in positions that are largely administrative. At least 30 are engaged in public affairs and media relations. Fourteen serve as legal counsel, including as legal counsel to the president. President Obama has also appointed openly LGBT people for the first time to such important entities as the U.S. Commission on Civil Rights, the Equal Employment Opportunity Commission, and Occupational Safety & Health Review Commission.

Most of Obama’s LGBT appointees serve in policy-oriented positions on a range of issues that are not specifically or even indirectly LGBT-related. They include advisory and policy positions on the environment, veterans’ affairs, helping communities affected by the auto industry downturn, drug control policy, and small business development.

Thirty-nine have required Senate confirmation and, so far, only one has failed to achieve that –Edward DuMont, the first openly gay person nominated to serve on a federal appeals bench.

Some of the increased number under the Obama administration is no doubt due to the Gay & Lesbian Victory Fund’s creation, in 2008, of a “Presidential Appointments Project.” The project is aimed specifically at “increasing LGBT appointees” and provides an easy mechanism for interested candidates to funnel their resumes into the right hands. A former Victory Fund President, Brian Bond, was among the first of Obama’s openly LGBT appointments. Bond served in Obama’s first term as deputy director of the White House Office of Public Engagement.

Seventy-five of Obama’s openly LGBT appointees serve in the White House or on presidential boards or commissions. The rest are spread out over 15 departments, 12 agencies, and the federal judiciary. After the White House itself, the Department of Education has the largest number of openly LGBT appointees (24), followed by the departments of Labor and Health and Human Services (both with 16).

Grant Colfax is director of the White House Office of National AIDS Policy, charged with coordinating the federal response to the HIV/AIDS epidemic in the United States. Nancy Sutley is chair of the White House Council on Environmental Quality and, as such, is the president’s principle advisor on environmental policy and initiatives. Michael Camuñez, Assistant Secretary of Commerce, and Fred Hochberg, chairman of the Export-Import Bank, promote American exports.

Richard Socarides, who was arguably in the best position to influence the president on LGBT issues during the Clinton White House, says how much “influence” each has can be measured in a number of ways.

“Do they have an important policy job in their area,” asks Socarides, “or are they influential in terms of setting broad government policy?” It also matters, he notes, whether one is looking at influence on LGBT policy or other important issues. And some people measure influence by how quickly, easily, and often the person can speak to the president himself.

Here’s a look at what might be considered the top 12 most influential positions to which President Obama has nominated an openly LGBT person:


  1. Director of the Office of Personnel Management. Some LGBT activists were hopeful that President Obama would make the first appointment of an openly gay person to a cabinet level position. So far, that hasn’t happened, and his appointment of John Berry as OPM director probably came closest. OPM has more than 5,000 employees and manages personnel issues for some 2.8 million for U.S. federal civil service employees around the world. One of its biggest missions lately has been issuing guidelines to other federal agencies on how to handle furloughs associated with the current sequestration budget cuts. Berry announced his resignation April 11, one day before his four-year term expired. Unconfirmed reports suggest he may be in line for an ambassadorship. OPM’s openly lesbian general counsel Elaine Kaplan is serving now as interim acting director.
  2. Assistant Attorney General, U.S. Department of Justice. There are 12 assistant attorneys general at DOJ. Delery has been appointed to head the department’s Civil Division, which represents the U.S. government in litigation involving such critical matters as national security, presidential powers, immigration, energy, banking, and consumer protection. Recently, the Division has defended the Affordable Care Act and the administration’s protection of information concerning the CIA use of drones to eliminate suspected terrorists. The DOJ Civil Division has 1,400 employees. Delery took the helm as Acting Assistant Attorney General in February 2012, but his official nomination to the post is now before the Senate Judiciary Committee.
  3. Chairman, Export-Import Bank of the United States. Fred Hochberg was appointed to the position in Obama’s first term, and in March, the president reappointed him for a second stint. The Export-Import Bank provides financial credit and support to promote the sale of American goods to other countries. In doing so, the aim is to support and promote jobs in the United States. Under Hochberg, the bank says it “supported more than 255,000 American jobs” in FY 2012 with almost $36 billions of financing.
  4. Judge, U.S. Court of Appeals for the Federal Circuit. Any federal bench provides the appointee with a potential for a lifetime of influence. The 179 judges appointed to a federal appeals court have influence over –not just a district but — several states. The 16 judges of the appeals court for the Federal Circuit have jurisdiction nationally on a limited variety of legal conflicts, including disputes over patents, trademarks, international trade agreements, government contracts, federal personnel, and veterans’ benefits. President Obama named a highly qualified openly gay man, Edward DuMont, to a Federal Circuit seat, but Republicans in the Senate, perhaps suspecting it would improve DuMont’s chances for eventual consideration as a Supreme Court candidate, refused to allow DuMont even a hearing. DuMont eventually withdrew his nomination.
  5. Director, White House Office of National AIDS Policy. This is the office charged with coordinating the federal response to the HIV/AIDS epidemic in the United States. That includes implementing the National HIV/AIDS Strategy to reduce the incidence of HIV infection and make sure people with HIV receive proper medical care. In this position, Grant Colfax also serves as the president’s lead advisor on HIV-related domestic policy. According to the Centers for Disease Control and Prevention, men having sex with men account for 63 percent of new HIV infections, and the percentage is even higher (72 percent) for MSM 13 to 24 years old.
  6. Commissioner, U.S. Equal Employment Opportunity Commission. This is the agency charged with enforcing federal laws against discrimination in the workplace. EEOC laws pertain to employers with more than 15 employees, including the federal government itself. While federal law does not proscribe sexual orientation-based discrimination in the workplace, an executive order signed by President Clinton prohibits such discrimination by the federal government. President Obama named Chai Feldblum as one of five commissioners who direct the EEOC’s work.
  7. Commissioner, U.S. Commission on Civil Rights. The eight-member commission is charged with guiding the federal government’s national civil rights policy and the enforcement of its civil rights laws. Among other things, it does research and analysis into potential discrimination in voting rights, and holds public hearings and issues reports on civil rights matters. President Obama named Roberta Achtenberg, a prominent appointee during the Clinton administration, to one of the eight seats.
  8. Chief Judge, U.S. Court of Federal Claims. This is another court with national jurisdiction and specialized cases. Its 16 active judges deliberate over lawsuits brought by private citizens against the U.S. government. President Clinton appointed Emily Hewitt to the court in 1998, and President Obama designated her as Chief Judge in March 2009. In March, President Obama nominated Elaine Kaplan, who is currently acting director of OPM, to the Federal Claims bench. If confirmed by the Senate, she will joint the bench in deciding lawsuits against the U.S. relating to taxes, government contracts, natural resources, and foreign governments.
  9. Social secretary, The White House. It may not sound like a power position, but insiders say it is. The White House Social Secretary works for the First Lady to plan all White House events, from small coffee receptions to large state dinners. In the world of power politics, an invitation to a White House party carries real value. For many invitees, it signals recognition from Washington’s most powerful entity that the guest has some political influence. And for those at the more select events, it’s an opportunity to be seen as part of a powerful elite. The Social Secretary, says Socarides, “basically decides who gets invited.” The current Social Secretary, Jeremy Bernard, is “the highest ranking gay person at the White House,” says Socarides. When appointed, in February 2011, Bernard became the first man –and the first openly gay person—to be appointed to the position.

10. Judge, U.S. District Court. There are more than 600 federal district court judges, but each has a lifetime appointment and serves as the first line of judgment in legal conflicts big and small. President Obama has nominated seven openly LGBT people to federal district court positions in six different districts. Five have already been confirmed (Paul Oetken and Alison Nathan in Manhattan, Michael Fitzgerald in Los Angeles, Pamela Chen in Brooklyn, and, on May 20, Michael McShane of Oregon). Two others are still pending (Nitza Quiñones Alejandro in Philadelphia and William Thomas in Miami).

  1. Associate counsel to the President. There are at least a dozen people identified as Associate Counsel to the President, and they fall below the Counselor, the Principal Deputy Counselor, and the Senior Counselor. They are not as high up as Karen Tramontano was when she served as Counselor to President Clinton’s Chief of Staff. But they do have influence, says Winnie Stachelberg, executive vice president of the Center for American Progress, a group that has had a great deal of interaction with President Obama’s White House. The associate counsels have played key roles in a number of issues including the repeal of Don’t Ask Don’t Tell and workplace discrimination, from the Employment Non-Discrimination Act (ENDA) to drafting an executive order prohibiting federal contractors from discriminating based on sexual orientation. Two lesbians have held one of the positions thus far in the Obama White House: Allison Nathan, who is now a U.S. district court judge, and Kathleen Hartnett, who just left.

12. Director, Region IX, Health and Human Services. HHS has ten regional offices that address intergovernmental and external affairs and the president appoints the director of each region. Based in San Francisco, Region 9 covers the states of California, Arizona, Nevada, and Hawaii, as well as several territories. Each region serves as the HHS Secretary’s advisor and liaison to state and local governments and community organizations on matters of policy and programs. Herb Schultz, former senior advisor to then California Governor Arnold Schwarzenegger, is director of Region 9. The Center for American Progress’ Stachelberg says the job covers such matters as implementation of the Affordable Care Act, AIDS service delivery, and programs aimed at lesbian health. “Running that region,” she says, “is a huge responsibility.”

DOJ nominee gets GOP booster

Openly gay nominee Stuart Delery went into Tuesday’s confirmation hearing with at least one big endorsement: Republican former Solicitor General Paul Clement.

Paul Clement has endorsed Stuart Delery for DOJ post

Openly gay nominee Stuart Delery went into Tuesday’s confirmation hearing with at least one big endorsement: Republican former Solicitor General Paul Clement. Clement is the attorney the Republican House Bipartisan Legal Advisory Group (BLAG) to defend the Defense of Marriage Act (DOMA). He signed onto a letter with 15 other former government officials expressing their “strong support” for Delery’s confirmation to serve as Assistant Attorney General in charge of the Department of Justice Civil Division.

Delery has been acting assistant AG of the division since February 2012. President Obama nominated him in March to become permanent head of the division.

The U.S. Senate Judiciary Committee held a confirmation hearing June 11 for Delery, who is openly gay, coupling it with the confirmation hearing of a more controversial nominee, Todd Jones. President Obama nominated Jones to serve as director of the Bureau of Alcohol, Tobacco, Firearms and Explosives. Delery’s nomination was completely overshadowed by that of Jones who has hit some rough waters. Ranking Committee Minority leader Senator Chuck Grassley of Iowa has expressed concern about Jones’ responsiveness as interim ATF director in relation to the “Fast and Furious” gun sting operation.

All but one question at the June 11 hearing were directed to Jones.

For the LGBT community, Delery’s nomination is a high level appointment. If confirmed, he will formally take over the position most recently held by Tony West. It was under West, in 2009, that the DOJ filed a brief vigorously defending DOMA as a reasonable and necessary law. The brief (in Smelt v. US) stated that “DOMA does not discriminate against homosexuals in the provision of federal benefits” and “… does not distinguish among persons of different sexual orientations, but rather it limits federal benefits to those who have entered into the traditional form of marriage.” After a hue and cry from the LGBT community, the DOJ and West changed their position and, by February 2010, announced they would no longer defend DOMA as constitutional.

There are 12 assistant attorneys general at DOJ. As head of the Civil Division, Delery represents the U.S. government in litigation involving such critical matters as national security, presidential powers, immigration, energy, banking, and consumer protection. Recently, the Division has defended the Affordable Care Act and the administration’s protection of information concerning the CIA use of drones to eliminate suspected terrorists. The DOJ Civil Division has 1,400 employees.

Coming just days before the historic marriage oral arguments in the U.S. Supreme Court, Delery’s nomination March 21 received little notice. But it was a significant nomination, especially for the LGBT community. If confirmed by the Senate, it will make Delery, 45, the highest-ranking openly LGBT appointee at the DOJ and one of the highest ranking among the estimated 268 openly LGBT people whom President Obama has nominated or appointed since entering the White House in 2009.

In his brief opening statement, Delery introduced his family, including his partner Richard Gervase, and their two sons.

Delery is a graduate of the University of Virginia and Yale Law School and served as clerk to then Justices Sandra Day O’Connor and retired Justice Byron White.

He entered the practice of law as an associate at Wilmer Cutler Pickering Hale and Dorr in Washington, D.C., and left the firm as a partner 10 years later to serve as chief of staff to Deputy Attorney General. He has spent the past two years in the Civil Division, most recently as acting assistant attorney general.

In a routine questionnaire provided to the Senate Judiciary Committee, Delery notes that he was a member of Gaylaw (Gay and Lesbian Attorneys of Washington) from 1996 to 2000. He also notes that he is a member of Rainbow Families DC, an educational and social network for LGBT families.

Among the speeches and talks he has given, Delery noted he delivered a keynote address to the White House LGBT Conference on Families in Minneapolis last year, talking about the DOJ’s work “of interest to families with gay and lesbian members.”

A video of that speech can be seen on YouTube.

In that speech, Delery talked about the Obama DOJ’s record on LGBT-related issues, including its decision to stop defending as constitutional Section 3 of DOMA, and to combat hate crimes, bullying, and harassment.

The questionnaire indicates Delery was involved as a panelist in about a half-dozen forums concerning LGBT-related legal issues at various law school forums as well as a forum of the Lavender Law Conference.

The questionnaire also notes that Delery served as a volunteer for President Obama’s 2008 presidential campaign, in both the primaries and general election, as well as the 2004 presidential campaign of Democrat John Kerry.

Senator Al Franken was the only senator to refer to anything gay during the hearing, thanking Delery for his interim service and noting specifically his work on behalf of marriage equality and holding credit rating agencies accountable.

The Committee has not yet set a date to vote on Delery’s confirmation.

Immigration bill advances without provisions for same-sex couples

The U.S. Senate Judiciary Committee approved an immigration reform bill Tuesday, May 21 without voting on two amendments seeking to provide benefits to same-sex couples, and the room erupted into loud applause and cheers.

Chuck Schumer

The U.S. Senate Judiciary Committee approved an immigration reform bill Tuesday, May 21 without voting on two amendments seeking to provide benefits to same-sex couples, and the room erupted into loud applause and cheers.

Many LGBT immigration activists had been waiting for the two amendments, both from U.S. Senator Patrick Leahy (D-Vt.), chairman of the Committee, to be offered Tuesday afternoon. But late Tuesday morning, Leahy surprised many when he stated that all the amendments from the Democratic side of the committee had been addressed.

That came close on the heels of reports that the White House had asked that the two LGBT-related amendments be set aside until the full Senate takes up the overall bill.

While some held out hope that perhaps Leahy still intended to bring up his amendments, he brought them up for discussion but then said he was withdrawing them due to heavy Republican opposition.

“I take the Republican sponsors of this important legislation at their word,” said Leahy, noting that many had said they would withdraw their support of the overall bill if the gay language was included.

“As a result …I will withhold calling for a vote but I will continue to fight for equality.”

An Associated Press article in the late morning said “two people familiar with Senate immigration deliberations say the White House has suggested [to Leahy] that it would be best to put off a controversy over gay marriage until a bill goes before the full Senate.”

AP said both sources spoke on the condition that its news report would not identify them.

An aide to the Judiciary Committee told this reporter that, while Leahy and President Obama speak often, Senator Leahy “does not discuss what they speak about in any given week.” The White House also had no comment about the AP report Tuesday.

“We are extremely disappointed that our allies did not put their anti-LGBT colleagues on the spot and force a vote on the measure that remains popular with the American people,” said Human Rights Campaign President Chad Griffin. He and others blamed a small group of Republican senators who had been vocal about their determination not to let the gay language onto the bill.

“Republicans have been signalling their posture on this for long time, and we can’t bring it up in committee because they’ve dug in their heels,” said Winnie Stachelberg, an openly gay executive vice president at the Center for American Progress. “They’ve created a scenario where the amendments can’t be offered.”

Immigration Equality Action Fund Executive Director Rachel Tiven said Democrats on the committee “caved to bullying by their Republican colleagues.”

“There should be shame on both sides of the political aisle today for lawmakers who worked to deny LGBT immigrant families a vote,” said Tiven. “Despite widespread support from business, labor, faith, Latino and Asian-American advocates, senators abandoned LGBT families without a vote.”

Immigration Equality spokesman Steve Ralls singled out Democrat Senator Charles Schumer of New York.

“We know that Senator Schumer remains uncommitted regarding a vote on the [gay] amendments and has not pushed back on GOP Senators on the Committee who are making threats about the amendment,” said Ralls. “Earlier this afternoon, Schumer would only say ‘no comment’ when asked if he would vote for the amendments.”

Schumer is considered a strong supporter of equal rights for LGBT people, and he is a co-sponsor of a stand-alone bill, the Uniting American Families Act. The UAFA provides the language for one of Leahy’s two gay-related amendments and seeks to allow a U.S. citizen to gain citizenship for his or her “permanent partner.”

Schumer is also a leading member of the “Gang of Eight,” a group of Democratic and Republican senators who drafted the overall comprehensive immigration reform bill (S. 744), which passed the Senate Judiciary Committee at 8 p.m. Tuesday.

Politico.com reported Monday that a May 10 “off the record” meeting between Schumer and a group of LGBT activists and elected officials grew “heated” over the issue. Politico reported that some “key Democrats have quietly pushed” President Obama to ask Leahy to delay the gay amendments but did not identify Schumer specifically.

But Ralls said Schumer and Senator Dick Durbin (D-Ill.) “assured our families” that gay-related protections would be in the immigration reform bill from the beginning.

“When the base bill was not inclusive,” said Ralls, talking about the Gang of Eight’s original draft proposal, “they assured us we would receive a vote in Committee.”

But the committee did not vote on either the UAFA amendment or the second amendment, which would treat as a “spouse” a person who has entered a marriage with a citizen that is “valid in the State in which the marriage was entered into.”

At a hearing last month on the proposed draft bill, former Republican U.S. Rep. Jim Kolbe urged members of the Judiciary Committee to “fix” the bill by adding language to help LGBT citizens with foreign partners or spouses. But neither Schumer, Durbin, nor Senator Dianne Feinstein, who also helped the Gang of Eight on the draft bill, said anything in support of adding gay-related language during that hearing. Meanwhile, several Republicans on the committee and in the Gang of Eight have been very vocal about their opposition to the gay-related language. As recently as May 13, Senator Lindsey Graham (R-SC) issued a Twitter post saying, “If the Judiciary Committee tries to redefine marriage in the immigration bill they will lose me and many others.” Gang of Eight member Senator Marco Rubio (R-Fla.) told politico.com last month that adding language to allow same-sex permanent partners to immigrate would “virtually guarantee” that the overall bill won’t pass and undo the cooperative spirit of the “Gang of Eight” senators who put the bill together. And Senator John McCain (R-Ariz.) said last month at a forum, “if you’re going to load it up with social issues, that is the best way to derail it in my view.”

Leahy submits language to help bi-national same-sex couples

As expected, U.S. Senator Patrick Leahy introduced amendments Tuesday (May 7) to enable gay citizens to sponsor their “permanent” same-sex partners for immigration, under the proposed comprehensive immigration reform legislation.

Patrick Leahy

As expected, U.S. Senator Patrick Leahy introduced amendments Tuesday (May 7) to enable gay citizens to sponsor their “permanent” same-sex partners for immigration, under the proposed comprehensive immigration reform legislation.

The Senate Judiciary Committee will begin considering amendments to the immigration bill (S. 744) starting Thursday (May 9) and the committee’s work on the bill is expected to spread out over several days throughout the month.

A total of 53 amendments were submitted by the May 7 deadline, including 29 from the committee’s Democrats and 24 from Republican member Senator Orrin Hatch of Utah. Senators Dianne Feinstein (D-Calif.) and Dick Durbin (D-Ill.) did not introduce amendments.

Only Leahy’s amendments address same-sex couples. One seeks to insert the language of the Uniting American Families Act (UAFA) into the bill to allow a U.S. citizen to gain citizenship for his or her “permanent partner.” The second amendment would treat as a “spouse” a person who has entered a marriage with a citizen that is “valid in the State in which the marriage was entered into.”

The latter amendment, said Steve Ralls, a spokesman for Immigration Equality, seeks to “recognize married LGBT couples for immigration purposes.”

“This second amendment – which is specifically in line with what Senator Feinstein has said she will support in Committee – provides the same benefits LGBT bi-national couples would receive if the Supreme Court strikes down the Defense of Marriage Act,” said Ralls.  “It is important to note that this second amendment, when passed, would permit couples in non-marriage states to travel to a marriage equality state and still receive a green card. It would also allow couples in exile to marry abroad and have their marriage recognized for U.S. immigration purposes.”

“The demise of DOMA would lead to gay and lesbian couples having the same access to immigration benefits” as male-female married couples, said Lavi Soloway, head of The DOMA Project, which is working to help same-sex bi-national couples.

Immigration Equality supports both amendments.

Ralls said his group expects Republican opposition to the same-sex couple language will “get louder” during the committee mark-up on the amendments.

“But we are confident that Senator Leahy will secure the 10 votes our families need, and that immigration reform will be inclusive when it arrives in the full senate,” said Ralls.

If the Leahy language goes into the bill in Committee, where Democrats have a majority, any effort to strip out that language on the Senate floor would likely require 60 votes to gain cloture before proceeding to the vote to strip the language. But even if the UAFA language passes the Senate, the Republican-led House version of immigration reform will almost certainly not include it. That will put it in the hands of a Senate-House conference committee, where trade-offs and compromises often take place in order to hammer out one version of the legislation to take back to both chambers.

Senator Marco Rubio (R-Fla.) told politico.com last month that adding language to allow same-sex partners to immigrate would “virtually guarantee” the overall bill won’t pass and predicted it would undo the cooperative spirit of the “Gang of Eight” senators who put the reform bill together.

Congress is expected to vote on the overall bill in June.

Delaware votes for marriage equality; becomes 11th state to make it the law

Just minutes before the Delaware Senate was set to vote on its marriage equality bill, a Democrat senator who had been quiet about how she would vote announced on her Facebook page that she would vote yes.

Jack Markell

Just minutes before the Delaware Senate was set to vote on its marriage equality bill, a Democrat senator who had been quiet about how she would vote announced on her Facebook page that she would vote yes. The announcement by Senator Bethany Hall-Long, who represents Dover, the state capital, came just minutes after the city’s other Democratic senator, Karen Peterson, came out as gay on the floor during debate.

The final roll call vote, after three hours of debate, was 12 to 9, with the gallery erupting into loud and prolonged applause. The twelve supporters included one Republican; the nine opponents included two Democrats.

Just minutes later, Democratic Governor Jack Markell signed the bill, making Delaware the eleventh state plus the District of Columbia to provide for equal protection under its marriage laws. Meanwhile, a Minnesota House Ways and Means Committee gave the marriage equality bill there a green light Monday, and the House floor is scheduled to vote on the measure Thursday (May 9). Democratic Governor Mark Dayton is lobbying actively for the measure.

And Illinois is also poised to take a final vote on its marriage equality bill this week. The state senate passed the bill in February; the House bill needs 60 votes to pass.

Tuesday’s debate in Delaware sounded at times as if marriage for same-sex couples was a completely novel idea with numerous unforeseen “consequences.” One senator asked if the marriage equality law would still allow businesses to discriminate against gay couples. (The state of Delaware already has a law prohibiting discrimination based on sexual orientation.) Another said gays were attempting to secure marriage in an effort to feel normal, made a reference to the “Queen James Bible,” and lamented that it would lead to a bill to address the concerns of “transgenders.” One speaker suggested the bill was taking control of children from parents and giving it to the government. Another said it would lead to polygamy.

Senator Robert Marshall, one of four Democrats whose vote was not known before Tuesday, noted that it took hundreds of years to assure that blacks and women had equal rights.

“No one in this chamber would support laws that prohibited a black person from marrying a white person, yet many states did so,” said Marshall. “Is the right to choose a life partner any different.” He said he supported civil unions two years ago, but that he considered it an incremental step toward allowing marriage.

“I have concluded that it is the fundamental civil right to choose our life partner,” said Marshall, adding that he would vote for the bill. That signaled the bill needed just one more vote to pass.

Next up, was another Democrat whose vote was not known prior to Tuesday, Senator Robert Venables. Venables said he, too, thought civil unions was a step toward eventual recognition of marriage but unlike Marshall, he voted against civil unions two years ago.

“What really they want is to feel comfortable in their lifestyle and I don’t see anything wrong with that,” said Venables, but he said allowing same-sex marriage jeopardizes the sanctity of marriage.

Noting that President Obama had indicated his support for marriage for same-sex couples, but that, “I’ve not so far evolved. I wonder what’s wrong with me?” asked Venables. “I don’t wish anybody ill will but I don’t see why civil unions couldn’t be enough.”

In Delaware, legislators are allowed to invite guests to the floor to make certain points. Opponents of the bill invited a spokesman from an anti-gay group, the Alliance Defense Fund, to say the bill was a tool of LGBT activists to label people who support “traditional” marriage as bigots, force adoption agencies to place children with same-sex couples, and deny parents the right to opt their children out of curricula that recognizes same-sex marriage.

Teachers, said ADF’s Jordan Lorence, would be “forced” to teach things they don’t believe in.

Senator Harris McDowell expressed dismay at Lorence’s getting far afield of the measure on the floor. Nevertheless, an opponent’s witness later during the discussion claimed to have a recording of a Russian journalist speaking to a group of cheering gay activists and saying the purpose of marriage equality was the “dissolution of the institution of marriage.”

Bill supporter Senator David Sokola invited Mark Purpura to the floor to explain the purpose of the bill. Purpura said the bill was would allow the issuance of marriage licenses to same-sex couples and convert current civil unions into marriage licenses. The bill, he explained, repealed a ban on same-sex marriage passed in 1996 but would not require any clergy or religious official to solemnize a marriage for a same-sex couple.

Sokola also called to the floor the head of Equality Delaware’s leader Lisa Goodman, who attempted to explain why she told the legislature two years ago that a civil unions bill was not a step along the way to a marriage equality bill.

“We would be here today, regardless of whether civil unions had happened,” said Goodman. She said the “rapid shift” of public opinion has inspired marriage equality supporters to come back and seek equal rights in marriage.

Senator Karen Peterson, a Democrat representing the capital city of Dover and who reportedly had not come out as gay publicly before the debate, talked about exchanging vows with her female partner and added, “if my happiness somehow demeans or diminishes your marriage, then you need to work on your marriage.”

Senator Bryan Townsend, a Democrat, noted that Delaware was once one of 16 states that prohibited interracial marriage, including his own.

The Delaware bill passed the House on April 23 by a vote of 23 to 18. And Equality Delaware organized its supporters to attend Tuesday’s vote and to wear red for visibility.

The Delaware bill calls for the bill to go into effect on July 1, a month before a bill signed by the Rhode Island governor last week goes into effect.

Rhode Island marriage law signed; Two more states could vote next week

Rhode Island Governor Lincoln Chafee signed a marriage equality bill into law this evening, just an hour after the state House gave the measure its final procedural approval. Two more states could approve marriage for same-sex couples next week.

Gordon Fox

Rhode Island Governor Lincoln Chafee signed a marriage equality bill into law this evening (May 2), just an hour after the state House gave the measure its final procedural approval. Two more states could approve marriage for same-sex couples next week.

In Rhode Island, Chafee’s signature seals the state’s position as the tenth state to provide same-sex couples with the same right to marriage licenses as male-female couples. Rhode Island is also the fourth state to do so in the past six months.

Next up is a similar bill in Delaware, due to get its final vote Tuesday (May 7). The bill passed the Senate’s Executive Committee May 1 and is expected to get its final vote Tuesday on the Senate floor, where Democrats have a two-to-one majority. The bill has already cleared the House, on April 23 by a vote of 23 to 18. And Democratic Governor Jack Markell says he supports the measure and hopes it will pass this year.

And Illinois is also poised to take a final vote on its marriage equality bill, perhaps as soon as next Tuesday. The state House is expected to take up a marriage equality bill that passed in the Senate, as soon as supporters feel confident they have the 60 votes needed to pass.

If Delaware and Illinois both pass their bills, then marriage equality state count will stand at 12 plus the District of Columbia with half of that number having approved the measures in just the past six months.

In Rhode Island, the House originally passed a marriage equality bill in January on a vote of 51 to 19. But when the Senate passed its version of the bill, it made some changes that required the measure to go back to the House for final legislative approval.

To sustained applause from the House, Rep. Jeremiah O’Grady congratulated House Speaker Gordon Fox for his leadership in getting the bill moved through the legislature. Fox, who is openly gay, took considerable heat two years ago when he killed a marriage equality bill and moved a civil unions bill instead.

Thursday’s “debate” was marked by numerous emotional statements of support for marriage equality and for equality in general.

While passage of the bill will mean no change to straight couples, said Rep. Deborah Ruggiero, “Tomorrow, gay and lesbian couples in Rhode Island are going to wake up to a different world.”

Rep. Peter Martin, a Democrat from Newport, announced that his daughter was texting him to support the bill while watching the vote from San Francisco on a live web stream.

Rep. Karen MacBeth remembered being a kid when Aaron Frick, a high school student in Providence in 1980 who had to sue for the right to take a male peer to the prom, creating such a stir in the heavily Catholic state that the publicity went national.

Even representatives who voted against the bill expressed gratitude for how Speaker Fox’s led the debate and expressed support for gays and lesbians having equal rights.

Rep. Frank Ferri, who introduced “my husband Tony,” choked back emotion as he noted that the bill goes into effect on his and Tony’s 32nd anniversary, August 1. They married in Canada but will now marry in Rhode Island.

The final vote was 56 to 15 and was greeted with a prolonged standing ovation and numerous loud cheers from the floor and a packed gallery, which then broke into a spontaneous chorus of “My Country Tis of Thee.”

Independent Governor Chafee, a long-time supporter of equal rights for LGBT people, scheduled a ceremony for 5:45 EDT on the South Steps of the State House to sign the bill into law in a public ceremony. The ceremony opened with a song from the Providence Gay Men’s Chorus in front of a large crowd.

The governor’s chief of staff, Stephen Hourahan, an openly gay man, welcomed the crowd and thanked the governor and state leaders for making the vote possible. He noted that Chafee was one of only two U.S. senators who, in 2004, supported allowing gay couples to marry.

“We are living up to the ideals of our founders,” said Chafee. He thanked the many openly gay and straight legislators who “worked for decades” to bring marriage equality to Rhode Island, including Speaker Fox, State Senator Donna Nesselbush, U.S. Rep. David Cicilline, and Ray Sullivan, head of Rhode Islanders United for Marriage.

“I know that you have been waiting for this day to come. I know that you have loved ones who dreamed of this” but who have passed on, such as Julie Pell, the late daughter of former U.S. Senator Claiborne Pell, said Chafee. “At long last, you are free to marry the person you love.”

Fox thanked Chafee as a “true friend and ally” in the struggle to obtain marriage equality in Rhode Island. He thanked Rep. Art Handy, a straight representative, for introducing the bill 11 years ago. And he thanked colleagues in the House, many of whom were originally opposed to the measure, as well as Senate President Teresa Weed, who allowed the vote in the Senate despite her personal opposition.

Fox also defended his own controversial decision two years ago to substitute a civil unions bill for a marriage equality one. He said he was always determined to make the bill happen and that the unhappiness of many with that move two years ago helped build the passion and advocacy to succeed on marriage equality this year.

Second-term Senator Donna Nesselbush, who is also openly gay and sponsored the bill in the Senate, said, “We would not be here today if you were not our proud, openly gay speaker of the House.”

“We changed hearts and minds on this issue one at a time,” said Nesselbush.

Meanwhile, a civil unions law — often a precursor to marriage equality bills — went into effect May 1 in Colorado.

Other states on the verge of considering marriage equality bills this year include:

  • Minnesota – a House committee passed a bill in March filed by long-time openly lesbian state Rep. Karen Clark, just one day after a Senate committee did the same. Minnesotans United press spokesman Jake Loesch said a floor vote in either house could come as early as next week and must clear before May 20. Democratic Governor Mark Dayton is lobbying actively for the measure.
  • New Jersey – supporters of marriage equality are trying to override Republican Governor Chris Christie’s veto last year of a marriage equality bill. Garden State Equality says it is close to securing the 27 votes in the Senate and 54 votes in the Assembly to do so. It has until the end of the session, January 2014, to do so. Garden State Equality spokesman TJ Helmstetter said he thinks the U.S. Supreme Court’s ruling on the Defense of Marriage Act (DOMA) in June could help the effort.

President praises pro athlete Jason Collins for courage to come out

President Obama expressed his support for the decision by professional basketball player Jason Collins to come out this week in an interview with Sports Illustrated.

President Barack Obama

President Obama expressed his support for the decision by professional basketball player Jason Collins to come out this week in an interview with Sports Illustrated.

Obama made his comments at the end of an hour-long press conference today (Tuesday, April 30). After he had already started to exit, a reporter shouted out a question about Collins and President Obama stopped and returned to the podium.

“I had a chance to talk to him yesterday. He seems like a terrific young man, and I told him I couldn’t be prouder,” said the president.

“One of the extraordinary measures of progress that we’ve seen in this country has been the recognition that the LGBT community deserves full equality, not just partial equality, not just tolerance but a recognition that they’re fully a part of the American family. And given importance of sports in our society, for an individual who has excelled at the highest levels in one of the major sports to go ahead and say, ‘This is who I am. I’m proud of it, I’m still a great competitor. I’m still seven-feet tall and can bang with Shaq [O’Neal] and deliver a hard foul’–and I think for a lot of young people out there who are gay or lesbian who are struggling with these issues to see a role model like that who is unafraid it’s a great thing. America should be proud that this is just one more step in this ongoing recognition that we treat everybody fairly and everybody is part of a family and we judge people on the basis of their character and their performance, and not their sexual orientation. So I’m very proud of him.”

Collins, 34, plays center for the Washington Wizards basketball team, and, came out in the May 6 issue of the magazine which was posted online April 29.

“I’m a 34-year-old NBA center. I’m black. And I’m gay,” said Collins. “I didn’t set out to be the first openly gay athlete playing in a major American team sport. But since I am, I’m happy to start the conversation. I wish I wasn’t the kid in the classroom raising his hand and saying, ‘I’m different.’ If I had my way someone else would have already done this. Nobody has, which is why I’m raising my hand.”

The revelation made Collins the first male professional athlete in a major sport to acknowledge being gay while still actively playing his sport and it prompted a flood of conversations in the media and online social networks.

In a follow-up article with Sports Illustrated, Collins said he was stunned when he got a call from President Obama. He said the president told him, “What you did today was brave” and that “it didn’t just affect me, it affected so many other people in the country.”

Tennis legend Martina Navratilova became one of the first professional athletes to come out. She did so in July 1981 after being sworn in as a U.S. citizen.

“I didn’t get a phone call from Ronald Reagan,” quipped Navratilova, in an appearance on CNN’s Piers Morgan Monday night. She said that “Madison Avenue totally shunned me” and that tennis audiences “were sitting on their hands.”

“They weren’t clapping when I came on the court or they were booing or jeering,” she recalled. “The press was roasting me. It was not a pretty sight. I’d say it was about 95 percent against and maybe I’d get five percent of support. Now, for Jason, it’s much different….It’s fantastic.”

Navratilova said that, unlike with athletes who are part of a team sport, her livelihood was never threatened.

“But now, for Jason,” said Navratilova, “maybe the case is different, and he may actually get more money because of it.”

First Lady Michelle Obama also showed support for Collins, posting a Twitter message saying, “So proud of you, Jason Collins! This is a huge step forward for our country. We’ve got your back!”

Rhode Island marriage bill clears final hurdle with all Republicans

After a moving speech by a senator who described herself as a lifelong, devout Catholic and said she would support marriage equality, the Rhode Island Senate Wednesday afternoon voted to approve a bill allowing same-sex couples to marry in the state.

Donna Nesselbush

After a moving speech by a senator who described herself as a devout Catholic and said she would support marriage equality, the Rhode Island Senate Wednesday afternoon (April 24) voted 26 to 12 to approve a bill allowing same-sex couples to marry in the state. The Senate bill must now  go to the House, which passed a different version of a marriage equality bill in January on a strong 51 to 19 vote. The bill is expected to clear that hurdle easily next week and the governor has already indicated he will sign it. When that happens, Rhode Island will become the tenth state in the nation, plus the District of Columbia, to begin treating same-sex couples the same as male-female couples in marriage licensing and recognition.

The Rhode Island Senate vote followed by one day a vote in the Delaware House to pass a marriage equality bill, 23 to 18. And it followed exactly one week after the New Zealand legislature passed marriage equality legislation on April 17.

Uruguay’s legislature passed a marriage equality law April 10. And the French National Assembly, following the lead of its Senate, approved similar legislation April 23, meaning the measure there needs to clear only one pre-enactment judicial review before French President François Hollande can sign it into law.

In Rhode Island, openly gay House Speaker Gordon Fox told the Providence Journal he believes the Senate version of the bill, sponsored by openly lesbian Senator Donna Nusselbush, would pass the House and be on the governor’s desk next week.

Before passing the marriage law, the Senate also rejected an attempt to put the issue before voters, by a 28 to 10 vote.

In contrast to the votes in many state legislative bodies, the vote in Rhode Island had most Republicans in support of the measure. Republican Senator Dawson Hodgson said the Republican caucus was “unanimous” in its support of the bill. In fact, all five of the Senate’s Republicans voted for the bill; and a third of the Democrats voted no, including Senate President Teresa Weed. Weed won considerable praise from supporters of the bill, however, for allowing the measure to proceed to the floor for consideration.

Of the Senate’s 31 Democrats, 21 voted for the bill, 10 against. One of the no votes was from Senator Howard Metts (D-Providence) who read numerous Biblical passages, promising that approval of marriage bill would result in “sin and death.”

The one independent senator voted no.


Meanwhile, the Illinois House is expected any day now to take up a marriage equality bill passed in the Senate.

In Nevada this week, state senators were reportedly surprised when one of their own –state Senator Kelvin Atkinson (D-North Las Vegas)—came out to them on the floor of the Senate as the chamber was debating a bill to repeal the state’s current ban on marriage licenses for same-sex couples.

The 21-member Nevada senate voted 12 to 9 Monday night (April 22) to approve a measure to amend the state constitution to remove language that currently bans recognition of marriages for same-sex couples. Because it is a state constitutional amendment, the measure must still pass the Assembly and then pass both the Senate and Assembly in 2015 and be approved by voters in 2016.

According to the Las Vegas Sun, the vote came after about an hour of debate during which time Atkinson spoke of his father’s interracial marriage and then told colleagues, “I’m black. I’m gay.”

The Sun said the senate rejected an effort to add language that would have not only removed the ban but required recognition of same-sex unions.

The legislative actions in the U.S. followed news of a critical vote in France, approving marriage equality this week, and a final approval for marriage equality by the New Zealand legislature April 17.

The New Zealand law does not require that same-sex couples reside in the country before obtaining a marriage license and, thus, is expected to attract many same-sex couples from Australia. Uruguay’s legislature passed a marriage equality law April 10.

The approval of marriage equality in France elicited loud and raucous protests from opponents of allowing same-sex couples to marry. Some news reports, including the New York Times, estimated protesters as numbering “hundreds of thousands.” But despite those protests, 53 percent of the French Senate passed the marriage equality legislation April 12, and its National Assembly did so on April 23 with the support of almost 60 percent of the Assembly’s members.

The number of countries providing marriage equality for same-sex couples now stands at 13, with eight of those moving to marriage equality in the last five years. The 13 are: the Netherlands (in 2001), Belgium (2003), Spain and Canada (2005), South Africa (2006), Norway and Sweden (2009), Argentina, Iceland, and Portugal (2010), Denmark (2012), and New Zealand  and Uruguay (2013).

In addition to France, Australia may soon be taking up marriage equality, thanks in large part to its passage in neighboring New Zealand. The law in New Zealand does not require that same-sex couples reside in the country before obtaining a marriage license and, thus, many expect that a large number of same-sex couples from Australia with make the three-hour flight to secure legal recognition of their relationships. The national group Australian Marriage Equality says it plans to make same-sex marriage “a central issue” in the country’s elections this year. Prime Minister Julia Gillard told an ABC radio interviewer April 24 that she is opposed to same-sex marriage but is “not seeking to impose my views on anybody.”

Illinois, Rhode Island poised for marriage votes this month

The race to become the tenth state to provide for marriage equality just got more interesting, as both Illinois and Rhode Island legislatures are on track to take final votes this month.

Teresa Paiva Weed

The race to become the tenth state to provide for marriage equality just got more interesting, as both Illinois and Rhode Island legislatures are on track to take final votes this month.

In a surprise development, Rhode Island Senate President Teresa Weed acknowledged to a Providence Journal reporter Sunday that she would allow a floor vote on the marriage equality bill by the end of the month. Weed, who is opposed to the bill, had previously promised only to allow a Senate committee vote if the bill passed the House. The marriage equality bill passed the Rhode Island House in January on a 51 to 19 vote.

Weed press spokesman Greg Pare confirmed Tuesday that Weed plans to bring the bill to a vote in the Senate Judiciary Committee soon after the legislature returns from its spring break next week. He said Weed also committed to allow a floor vote a “couple of days after that,” before the end of this month.

Meanwhile, the Illinois House is also looking at the real possibility of taking its historic vote on marriage equality this month. The Senate passed the legislation in February on a 34 to 21 vote.

As of Tuesday (April 9), Equality Illinois leader Bernard Cherkasov said he didn’t have a timeline for when the House vote might happen, but added, “I do feel confident that the marriage bill will pass with strong, bipartisan support.”

The Illinois House has 118 members, 71 Democrat and 47 Republican. The bill needs 60 votes to pass. Associated Press said Democratic Governor Pat Quinn told reporters Monday (April 8) that supporters of the legislation are “very close” to getting the votes they need.

Both Quinn and Rhode Island’s independent Governor Lincoln Chafee have said they will sign the marriage equality legislation. While either state would represent another success for LGBT civil rights supporters, passage in Illinois would put the nation’s fifth most populous state in the victory column. That would make Illinois the second most populous of the marriage equality states, behind New York. It would also mean that 15 percent of the U.S. population would be living in states where same-sex couples are allowed to marry. If Rhode Island and California come onboard this year –as they could (California through a U.S. Supreme Court decision) —that figure would jump to nearly one-third of the population.

The Illinois legislature has been in recess for the past several weeks and reconvened Monday (April 8), but both supporters and opponents of marriage equality have been busy during recess.

Several local websites have reported escalating use of robo-calls by opponents of allowing gays to marry. One Chicago neighborhood website, dnainfo.com/Chicago, said constituents of at least one House legislator were receiving robo-calls saying that same-sex marriage “denies children the right to know who their real parent it.” The website said the recording was produced by Family-PAC. An earlier robo-call message said “homosexual activists” were demanding marriage regardless of its consequences, adding, “Children are not playthings or social experiments.” It was recorded by a local conservative talk show host, Sandy Rios.

But there have been high-profile supporters, too. National civil rights leader Julian Bond issued a statement in support of Illinois marriage equality last week. Chicago Mayor Rahm Emanuel, Chicago Urban League CEO Andrea Zopp, Hyatt Hotels Corporation President Mark Hoplamazian, Latino Policy Forum Executive Director Maria Pesqueira, and the two local daily newspapers are also supporting marriage equality.

And Windy City Times reported that four well-known local sports stars sent a letter to House members urging their support for marriage equality. They included Chicago Cubs’ Baseball Hall of Fame shortstop Ernie Banks and three former players with the Chicago Bears football team. One of them, Brendon Ayanbandelo, now plays for the Super Bowl Championship team the Baltimore Ravens. He spoke out in support of marriage equality in Maryland, too.

Even the head of the Illinois Republican Party, Pat Brady, announced support for the bill. That move, in January, put him at odds with many in his party –so much so, the state party held a caucus March 8 to consider ousting him from his position as chairman of the state party. But The Chicago Tribune reported that the meeting was later cancelled when opponents failed to identify enough votes (60 percent of the membership) to replace Brady. The Tribune said the National Organization for Marriage organized a form-letter campaign directed at party members against Brady. The Chicago Sun Times reported that U.S. Senator Mark Kirk (R-Ill.) were among the Republican leaders in the state who lobbied for Brady’s retention.

Brady’s support has been joined recently by two Republican members of the House –one Republican leader, Rep. Ed Sullivan of Mundelein, and Rep. Ron Sandack of a Chicago suburb.

Mundelein told Associated Press that his mother-in-law is gay and that has given him a “more familiar and fair understanding of people who are in same-sex relationships.”

Meanwhile, the Santa Fe Mayor David Coss submitted a resolution to the City Council March 27, seeking declaration that same-sex couples have a right to obtain marriage licenses in New Mexico. The Council is expected to vote April 24. Oregon Secretary of State Kate Brown announced April 5 that petitioners have until July 3, 2014 to gather the more 116,000 signatures needed.

Political jousting over DOMA standing, but legal activists encouraged

Today’s argument in the U.S. Supreme Court over the Defense of Marriage Act sounded at times as if President Obama was on trial for enforcing the law even though he considers it unconstitutional. At other times, it sounded like Congress was on trial.

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

Today’s argument in the U.S. Supreme Court over the Defense of Marriage Act sounded at times as if President Obama was on trial for enforcing the law even though he considers it unconstitutional. At other times, it sounded like Congress was on trial, for attempting to cloak its moral disapproval of gay people under the guise of seeking “uniformity.” And at the end of two hours, LGBT legal activists seemed cautious but optimistic that there are five votes to find DOMA unconstitutional.

It was the second and final day of two historic sessions at the nation’s highest court to hear oral arguments in cases challenging the federal law denying recognition of marriage licenses granted to same-sex couples and challenging a state law banning same-sex couples from obtaining marriage licenses.

Wednesday’s case, U.S. v. Windsor, posed the question of whether Section 3 of DOMA violates the equal protection clause of the Fourteenth Amendment. New York lesbian Edith Windsor filed the lawsuit with the help of the ACLU when the federal government demanded she pay more than $360,000 in estate taxes after her same-sex spouse died. Surviving spouses in male-female marriages do not have to pay estate taxes.

The first 50 minutes of the two-hour argument was given to a discussion of whether the case was properly before the court, given procedural questions. On the issue of whether DOMA’s constitutionality, former George W. Bush Solicitor General Paul Clement, an attorney hired by the Republican-led Bipartisan Legal Advisory Group (BLAG), said the Congress, in passing the law in 1996, did not discriminate against gays but simply decided to define the term “marriage” “solely for federal law” in order to ensure “uniformity” in the deliverance of benefits.

“It’s rational for Congress to say its treating same-sex couples in New York the same as same-sex couples in Nebraska,” said Clement.

That assertion did not go unchallenged.

Justices Sonia Sotomayor, Elena Kagan, Stephen Breyer, Anthony Kennedy, and Ruth Bader Ginsburg all questioned Clement on it.

“What gives the federal government the right to be concerned at all about the definition of marriage?” asked Sotomayor, noting that marriage has always been considered an area of state law. She suggested members of Congress appeared to create a law to disfavor a “class they don’t like.”

When Clement suggested Congress was helping the states by putting the issue on “pause” and letting the states work through the democratic process in deciding the law in each state, Kennedy noted that DOMA seemed instead to be “helping states if they do what [members of Congress] want them to do.”

Justice Ginsburg said DOMA appears to affect same-sex couples by turning their marriages into a sort of “skim milk,” in comparison to whole milk version enjoyed by male-female couples.

Justice Kagan perhaps hit the hardest note when she said the record of House proceedings around DOMA in 1996 seemed to indicate Congress “had something else in mind than uniformity….something that’s never been done before.” She quoted a passage of the House report that said that DOMA was intended to express “moral disapproval” of marriage for same-sex couples.

“That’s a pretty good red flag,” said Kagan.

Clement seemed to be caught off guard by the excerpt. “Does the House Report say that?”

The challengers of DOMA appeared off guard at times, too.

Chief Justice John Roberts asked both Solicitor General Donald Verilli and plaintiff’s attorney Roberta Kaplan whether it would be permissible for Congress to adopt a definition for federal purposes that included gay couples, rather than excluded them.

Verilli said the House Report excerpt “makes glaringly clear” that DOMA was intended to exclude lawfully married same-sex couples.

“Are you saying that 84 senators were motivated by animus?” asked Chief Justice Roberts in follow-up to both Verilli and Kaplan.

Both Verilli and Kaplan clearly avoided saying that think DOMA was motivated by animus.

“It could have been a lack of reflection or an instinctive response,” said Verilli. But, he added emphatically, “Section 3 discriminates and it’s time for this court to recognize that discrimination cannot be reconciled with our fundamental commitment to equal protection of the law.”

But it was during questioning about the procedural matters that Roberts and other conservative justices hammered on what came across as much as a political jousting as it was a legal matter.

Roberts wondered why President Obama didn’t have “the courage of his convictions” that DOMA was unconstitutional and “instead, wait until the Supreme Court” rules it so.

Justice Samuel Alito said he thought it odd that President Obama would continue to enforce DOMA “until the court tells him to stop.”

Justice Breyer commented that the president has an “obligation” to faithfully execute the laws, whether he likes them or not.

Jon Davidson, legal director for Lambda Legal, said he was “very encouraged” by the argument.

“When it comes to the merits, I think there are at least five justices who are prepared to strike down Section 3 of DOMA,” he said. “One of the things that Justice Ginsburg said at the end, about the beginning of the sex discrimination cases, the court did strike down laws that discriminated based on sex based on rational basis, and saw it as discrimination.”

Mary Bonauto, head of civil rights for Gay & Lesbian Advocates & Defenders, said she thought the questioning was “vigorous” on the procedural issue of standing. On the issue of DOMA’s constitutionality, she said she thought Justice Kagan “called out” the discriminatory statement in the House report.

“Overall, they were asking the right questions and the right themes were in play,” said Bonauto.

Jenny Pizer, a Lambda Legal attorney who followed the case at the three-week trial in San Francisco, said she thought it was clear that the argument of “uniformity” made “no sense at all.”

“It was surprising to me the suggestion from some of the conservative justices that the administration should not enforce laws when they have questions about constitutionality or have a view of constitutionality different from previous administrations have said. That seems immensely impractical,” said Pizer.

“One thing that did seem clear yesterday and today,” said Pizer, “is that we’re witnessing a moment of recognition of anti-gay discrimination and the government trying to come to terms with how it should change. Perhaps we shouldn’t be that surprised that some justices are resistant to addressing the merits of question, but the justices are particularly well situated to address them.”

Yesterday’s argument was over the constitutionality of Proposition 8, California’s voter-approved ban on marriage licenses for same-sex couples. The court heard 80 minutes of argument in Hollingsworth v. Perry over whether it should find California’s ban on same-sex marriage unconstitutional.

In both cases, both sides see Justice Anthony Kennedy as the most likely justice to provide a fifth vote for the winning side. But Tuesday’s argument in the Proposition 8 case left many speculating that the court may decide that opponents of marriage quality did not have proper legal standing to appeal the case.

Legal standing was an issue in the Windsor case, too, because the Obama administration appealed the Second Circuit U.S. Court of Appeals ruling that DOMA violates the equal protection clause of the constitution. A party bringing an appeal must show it is injured by the lower court holding.

Prop 8 arguments roller coaster on standing and merits of marriage ban

The U.S. Supreme Court took the marriage equality issue on a roller coaster ride Tuesday as it heard almost 90 minutes of argument in the case testing the constitutionality of California’s ban on same-sex marriage.

Anthony Kennedy

The U.S. Supreme Court took the marriage equality issue on a roller coaster ride Tuesday as it heard almost 90 minutes of argument in the case testing the constitutionality of California’s ban on same-sex marriage.

For supporters, the highs included Justice Sonia Sotomayor asking whether there was any other context other than marriage where there would be a rational basis reason for using sexual orientation as a factor in denying rights to gay people rights, to which Yes on 8 attorney Charles Cooper conceded “I do not have anything to offer.” And they included Justice Anthony Kennedy commenting on the importance of considering the “immediate legal injury” that 40,000 children in California suffer because their same-sex parents are not allowed to marry.

The lows included the considerable time justices spent wrangling over whether the Yes on 8 supporters of Proposition 8, California’s ban on same-sex marriage, have proper legal standing to appeal the case. It included Chief Justice John Roberts saying the debate was “just about the label” marriage. And it included Justice Antonin Scalia repeatedly interrupting marriage equality attorney Ted Olson demanding that he identify “when did it become unconstitutional to exclude homosexuals” from marriage. But none of the three attorneys had an easy day.

Chief Justice Roberts tackled Solicitor General Donald Verrilli over his brief to the court, saying it was “inconsistent.” Roberts noted that Verrilli was arguing that the children of same-sex couples do as well as the children of male-female couples, while also arguing that Proposition 8 harms the children of same-sex couples.

“Which is it?” asked Roberts.

Cooper stumbled, too, when Justices Stephen Breyer and Elena Kagan challenged his argument that marriage is all about regulating procreation. If so, asked Breyer, why does California allow sterile male-female couples to marry? If so, asked Kagan, why allow people over 55 to get married. (Cooper, to much laughter in the courtroom, offered that it was “very rare that both parties in such marriages are infertile.”)

Olson, lead attorney with David Boies of the American Foundation for Equal Rights team representing two same-sex couples, got into the most prolonged and exchange of the session when Justice Scalia demanded to know “when” it became unconstitutional to exclude gays from marriage. Scalia repeatedly insisted Olson identify a “specific date in time.” Olson tried several times to answer the question and eventually shot back, “you’ve never required that before.”

Gay legal activists seemed impressed with the overall discussion and most enthusiastic about Justice Sotomayor’s pointed question to Cooper, concerning other areas where gays could be excluded from rights.

“It was basically asking him whether it’s permissible to treat gay people differently from everyone else in anything else other than marriage,” said Bonauto. “And [Cooper] said, ‘I can’t think of anything, no.’

“I thought that was extremely important in terms of acknowledging equal treatment,” said Bonauto. “I thought that was critical.”

Jon Davidson, legal director for Lambda Legal Defense, said a high point for him was Kennedy’s remark about the “legal impact” on children of same-sex couples.

“I was really encouraged that he was thinking about the children of same-sex marriage. That is a very good sign.”

Kate Kendell, executive director of the National Center for Lesbian Rights, said she was a little surprised by the “rather heated exchange” between Scalia and Olson, over when it became unconstitutional to exclude gays from the right to marry.

“What Ted Olson should have said is, ‘It’s always been a violation of the constitution but, like in many of the other cases [involving rights withheld from other groups], it took a while for us to recognize that this right always existed for these people that we treated differently in the past.”

“I doubt that if any other lawyer had been up there it would have been as heated,” said Kendell, who said the exchange was like “two old friends” having a debate.

But each of the legal activists cautioned that it’s important not to read too much into what the justices said or asked.

“We all know you can’t tell from argument how it’s going to go,” said Evan Wolfson, head of the national Freedom to Marry group. “The argument showed they’re wrestling with a lot of these big questions. I think standing is very much on their mind—very much a live part of the case.  But they also were really grappling with the merits.”

Though none mentioned it, it must have been somewhat worrisome for marriage equality supporters to hear Justice Kennedy say, “the problem with this case” is that it is asking the court to “go into uncharted waters.” That mantra was repeated by several other justices during the argument in the case, Hollingsworth v. Perry. Justice Samuel Alito echoed it when he told Solicitor General Donald Verrilli that marriage for same-sex couples is a “very new” phenomenon, newer than cell phones.

“You want us to step into” this debate, he said, when “we don’t have the ability to see into the future. Why not leave it to the people?”

But hearing it from Kennedy was even more worrisome because he is considered the most likely fifth vote to provide a majority on one side or the other. Kennedy wrote the opinion in the 1996 Romer v. Evans decision striking an anti-gay initiative in Colorado and in the 2003 Lawrence v. Texas decision striking down sodomy laws. Both sides of the Proposition 8 case consider him the key vote to sway in order to consolidate a five-vote majority.

But Kennedy has been listing toward the conservative wing of the court recently, leading its dissent against President Obama’s Affordable Care Act and leading its majority ruling to allow corporations to contribute without limits to political campaign activities. And in a speech in Sacramento March 6, he worried many marriage equality supporters when he told reporters he thinks it is a “serious problem” that the Supreme Court is being asked to settle controversial issues facing a democracy.

The Hollingsworth v. Perry case is testing the constitutionality of California’s voter-approved ban on same-sex marriage. Voters approved Proposition 8 in November 2008, just six months after a California Supreme Court ruling found that the state constitution required that same-sex couples be able to obtain marriage licenses the same as male-female couples do.

The American Foundation for Equal Rights organized the original lawsuit in federal district court in San Francisco in January 2010, initially over the objections of LGBT legal activists and groups. But the groups came onboard quickly and U.S. District Court Chief Judge Vaughn Walker (who came out as gay after retirement in 2011) issued a decision in August 2010, saying Proposition 8 violated the federal equal protection and due process clauses, that there was no rational basis for limiting the designation of marriage to straight couples, and that there was no compelling reason for the state to deny same-sex couples the fundamental right to marry.

Then California Governor Arnold Schwarzenegger and Attorney General Jerry Brown declined to appeal Walker’s ruling, but Yes on 8 was granted permission to do so. A Ninth Circuit U.S. Court of Appeals panel upheld Walker’s decision but on much more narrow grounds. It said the U.S. Supreme Court’s 1996 ruling in Romer precluded voters from withdrawing the right to marry from same-sex couples in California. But the Supreme Court asked for arguments on the broader question of whether Proposition 8 violates the constitutional right to equal protection. It also asked whether Yes on 8 has proper legal standing to appeal the case after California elected officials decided not to.

As expected, there was considerable attention on the cases from the mainstream news organizations leading up to the arguments and very heavy media coverage of the argument Tuesday. Many nationally televised political talk shows spent time with commentators speculating whether the justices might be influenced by the latest polls showing growing popular support for marriage equality.

A number of news and commentary sites reported that Chief Justice John Roberts’ openly gay cousin –48-year-old Jean Podrasky of San Francisco— and her partner Grace Fasano would be in the courtroom as the Chief Justice’s guest. The Los Angeles Times quoted her as saying that, “He is a good man. I believe he sees where the tide is going. I do trust him. I absolutely trust that he will go in a good direction.” She acknowledged that, while Roberts knows she’s gay, she does not have any personal knowledge his views on the marriage issue.

People began standing in line for public seats on Thursday afternoon, five days before the Proposition 8 argument and in weather that was in the low thirties with rain and snow. On Monday afternoon, most were huddled under large blue tarps to fend off a wet snowfall. None of the dozen or so whom this reporter talked to acknowledged being professional “line-sitters,” though one small group did say they were holding places in line for friends from California. Surprisingly few said they were gay.

Three young men relatively near the front of the line were with the Family Research Council, which opposes same-sex marriage.

Abigail Cromwell, a former criminal prosecutor from Cambridge, flew in Monday morning to see if she could get a seat. She supports marriage equality.

But the reasons each gave for trying to get into Tuesday’s argument was similar: history.

“This is the most important case of our generation,” said Cromwell.

“This is the civil rights issue of our time,” said a man in his fifties or sixties at the very front of the line. Rick declined to give his last name.

On the other end of the National Mall from the Supreme Court on Tuesday, the National Organization for Marriage held a rally of opponents of allowing same-sex couples to marry. The rally was broadcast live by C-SPAN.

The Proposition 8 case was the first of two historic oral arguments before the Supreme Court this week. On Wednesday, the court is set to hear arguments in U.S. v. Windsor, testing the constitutionality of the Defense of Marriage Act (DOMA).

Six million in U.S. have LGBT parent

As many as six million adults and children in the United States have an LGBT parent, and an estimated three million LGBT Americans have had a child at some point in their lives, according to an analysis released February 27 by the Williams Institute of UCLA.

Gary Gates

As many as six million adults and children in the United States have an LGBT parent, and an estimated three million LGBT Americans have had a child at some point in their lives, according to an analysis released February 27 by the Williams Institute of UCLA.

Including single and married or partnered LGBT people, the study found that nearly half of LGBT women and a fifth of LGBT men under age 50 are currently raising a child.

This new report also reinforces an emerging picture of LGBT families as racially and ethnically diverse, and living in places and in economic conditions that contradict popular impressions.

The study, “LGBT Parenting in the United States,” by Gary Gates, Distinguished Scholar at the Williams Institute, also comes at a time when issues of parenting have been implicated in the historic marriage equality cases before the U.S. Supreme Court.

Gates used multiple data sources, including Census 2010, the Census Bureau’s 2011 American Community Survey (ACS), the 2008/2010 General Social Survey (the most frequently analyzed data source in the social sciences after the Census), and the Gallup Daily Tracking Survey.

The study found that more than 125,000 same-sex couple households in the U.S. are raising nearly 220,000 children. These include more than 111,000 same-sex couple households raising an estimated 170,000 biological, step, or adopted children, as well as households that include minors who are grandchildren, siblings of an adult, foster children, or others.

And despite the prevailing image of same-sex parents on television as white and upper middle-class (e.g., on ABC’s Modern Family and NBC’s The New Normal), same-sex parents are more likely to be people of color (39 percent), compared to different-sex parents (36 percent).

LGBT parents are also more likely to be struggling economically than non-LGBT ones. Single LGBT adults raising children are three times as likely to report household incomes near the poverty threshold; married or partnered LGBT individuals raising children are twice as likely as likely to be near the poverty threshold.

Gates explains the economic difference by noting that LGBT parents are more likely to have characteristics associated with a greater chance of being in poverty, such as being female, younger, and a racial/ethnic minority.

LGBT couples raising children live in every state—but the states with the highest percentage of same-sex couples raising children are not the more liberal coastal states like California, New York, and Massachusetts. Mississippi and Wyoming lead the way, with over one quarter of the LGBT couples there raising children, followed by Alaska, Idaho, Montana, Kansas, North Dakota, Arkansas, South Dakota, and Oklahoma, each with over 20 percent.

The Williams study also found that same-sex couples raising children are four times as likely as different-sex couples to be raising an adopted child, and six times as likely to be raising a foster child. An estimated 16,000 same-sex couples are raising more than 22,000 adopted children, and 2,600 same-sex couples are raising 3,400 foster children.

LGBT parents can petition for joint adoption statewide in only 18 states plus the District of Columbia, and are restricted from doing so in five states.

Adam Pertman, executive director of the Evan B. Donaldson Adoption Institute, said in an e-mail interview that, “We know from research and experience that [LGBT] families function well and that the outcomes for their children are good—and now we know just how significant the numbers have become. All that says to me that it’s time—past time—to bring policy and practice into alignment with reality on the ground.”

The Williams report also found a connection between relationship status and children. Same-sex couples who consider themselves to be spouses are more than twice as likely to be raising biological, step, or adopted children compared to those who say that they are unmarried partners (31 percent versus 14 percent).

This analysis comes just weeks before the U.S. Supreme Court is set to take up a pair of cases about marriage equality. Opponents of marriage equality have filed briefs claiming that it is different-sex couples’ unique ability to procreate that warrants giving them sole access to marriage rights, in order to encourage and regulate stable environments for raising children. They also say that children do best when raised by both a mother and a father.

Gates said in an e-mail interview that he included information from his study in amicus briefs he submitted to the court in both cases.

In the interview, he addressed the procreation issue by pointing out that that roughly two out of three kids being raised by same-sex couples have a biological connection to at least one of the parents.

Even more importantly, he said, “Many same-sex couples with children look, at least demographically, very similar to different-sex couples raising kids, yet are treated differently under the law.”

House passes inclusive bill for victims of domestic abuse

In a major victory for Democrats, the U.S. House voted Thursday to reauthorize the Violence Against Women Act.

Gwen Moore

In a major victory for Democrats, the U.S. House voted Thursday (February 28) to reauthorize the Violence Against Women Act with a bill that includes language to ensure that victims of domestic violence can receive assistance from federally funded programs regardless of their sexual orientation. The vote was 286 to 138.

The legislation originally passed the Senate February 12 on a 78 to 22 vote, but House Republicans initially introduced their own version of the bill–one that excluded the language to include gay victims and to provide greater protections for Native American and immigrant women. White House and Democratic leaders in the House expressed their disappointment about the exclusion of LGBT provisions and others.

“The Administration is disappointed that the House bill does not … explicitly protect LGBT victims of crime from discrimination when they seek services or protections funded by VAWA,” said a White House statement February 26.

Following Thursday’s vote, President Obama issued a statement saying he was “pleased to see the House of Representatives come together and vote to reauthorize and strengthen the Violence Against Women Act.”

“Today’s vote will go even further by continuing to reduce domestic violence, improving how we treat victims of rape, and extending protections to Native American women and members of the LGBT community.”

An unidentified aide to an unidentified House Republican leader told a Washington Post blog early in the week that a House version of the bill, which excluded language protecting LGBT people, did not discriminate against LGBT people. The aide criticized the Senate version of the bill for “enumerating actual categories of people that are covered” in a way that “requires constant updating.”

“We’re giving the states the resources they need, and we’re also making sure no one is discriminated against,” said the aide. He did not explain how the House version ensures no one is discriminated against.

On the floor of the House Thursday, many Republicans echoed the point, saying there was no language in the bill to exclude anyone.

“I would just ask my colleagues on other side of the aisle to please point to anywhere in the House bill that coverage for anyone is denied,” said Rep. Cathy McMorris Rodgers (R-Wash.). “The House bill covers all victims. It does not exclude anyone for any characteristic. In fact,” she said, “it directs the Attorney General to make a rule regarding anti-discrimination efforts as he sees fit.” And she said the grants associated with the VAWA are “authorized to permit funding to go toward men as well as women.”

To some extent, debate over the inclusion or exclusion of LGBT victims of domestic abuse was conducted through discussion of protecting “all women” or “all victims,” rather than LGBT people –including gay men—specifically.

Eric Cantor (R-Va.), the House Republicans’ majority leader, repeatedly emphasized on the floor Thursday his desire to help “all women” through reauthorization of the VAWA program, but he limited his support to the House Republican version of the bill which does not prohibit discrimination based on sexual orientation. Twice, Cantor seemed to correct himself –changing “all individuals” and “all people” to “all women.”

Openly gay Rep. David Cicilline (D-R.Is.), while mentioning members of the LGBT community, also emphasized the importance of protecting “all women.” House Democratic Minority Whip Steny Hoyer (D-Md.) emphasized the importance of passing the “fully inclusive” version of the bill protecting “all” victims, as did numerous other Democrats.

But some Democrats were more direct.

“I don’t believe that my Republican colleagues, if they saw a lesbian woman being beaten by their neighbor, that they would not want to have that violence stopped,” said Rep. Joe Crowley (D-New York).

Rep. Gwen Moore (D-Wisc.) noted that all members of the House seemed to be against violence against women, “but the question is which women.”

“The Senate bill protects LGBT victims but the House bill strikes LGBT women as underserved communities and strikes the language that would have them as a protected group,” said Moore.

Rep. Mike Quigley (D-Ill.) spoke forcefully in support of protecting LGBT people, asking, “Do they not feel the same pain?”

Many Republicans, including Rep. Charles Dent (R-Pa.), did speak in favor of the inclusive Senate bill, as did the national Log Cabin Republicans group.

“Today, many Republicans are taking a stand for a more modern and inclusive GOP. Our leaders in Congress should be weary of leaving the LGBT community out of legislation that is intended to protect all Americans from domestic violence,” said Gregory Angelo, executive director of Log Cabin Republicans.

“Including LGBT provisions merely codifies equal protection and clarifies an area in which there was confusion regarding the application of prior versions of VAWA to LGBT individuals,” said Angelo. “The Republican Party must continue to be the party of equal rights for all Americans.”

Prior to passage of the Senate version of the bill, the House defeated the Republican version of the bill on a 166 to 257 vote.

“It’s tremendous that both Republican and Democratic leaders came together to ensure that all domestic violence victims, including those who are LGBT, will not face discrimination when they seek services,” said Human Rights Campaign President Chad Griffin.

D’Arcy Kemnitz, executive director of the National LGBT Bar Association, issued a statement noting that 61 percent of LGBT victims of domestic abuse had been turned away from shelters and 85% of service providers working with LGBT victims had observed discrimination based on sexual orientation and/or gender identity.

“We are grateful,” said Kemnitz, “that the Violence Against Women Act will now be a powerful tool to protect our community and ensure justice is served.”

Unknowns loom as marriage arguments draw near at Supreme Court

One month away from the most historic and, perhaps, influential U.S. Supreme Court cases in LGBT history, a surprising number of facts are still unknown.

One month away from the most historic and, perhaps, influential U.S. Supreme Court cases in LGBT history, a surprising number of facts are still unknown.

For instance, while New York attorney Roberta Kaplan will argue the merits of lesbian plaintiff Edith Windsor’s position that the Defense of Marriage Act (DOMA) is unconstitutional and lesbian law professor Pamela Karlan will argue Windsor’s position on the legal standing issues, it has not yet been decided exactly who will argue the merits and the legal standing issue for the couples opposing Proposition 8. Ted Olson, who along with David Boies is leading the legal team challenging Proposition 8, says his team will decide who will argue the merits and who will argue the standing issue after seeing what the Solicitor General decides to file—or not file—in their case.

There have been no signals from the Supreme Court that it will make the audio recordings of the two cases available to the public on the same day as the arguments, as it did with the landmark health reform cases. (Normally, such audio is not available until the end of the week, though a written transcript is often available on the same day as the argument.)

It has still not been announced by the Solicitor General’s office what argument—narrow or broad—the Obama administration will take in opposing DOMA. And there has been no indication of whether the Obama administration will even take a position in the Proposition 8 case.

But a lot of these unknowns are about to be resolved. Critical briefs –particularly from the Solicitor General’s office—are due to be submitted to the Supreme Court this week.

Friday, February 22, is the Solicitor General’s deadline for laying out the Obama administration’s view of how the court should resolve the DOMA dispute. And February 28 is its deadline to file a brief in the Proposition 8 case, if it chooses to do so.

This much is known: The Obama administration considers DOMA unconstitutional and President Obama has publicly made very clear that he believes same-sex couples should have the right to marry.

The question, according to two articles this month in The New Yorker magazine, is whether the Obama administration will take positions that promote a “bold” striking down of all anti-gay marriage laws, beyond DOMA, or a more “cautious” dismantling of them, state by state.

In the Proposition 8 case, notes legal analyst Jeff Toobin, “Obama could take the position, as the plaintiffs have, that the Constitution compels every state in the union to allow same-sex marriage.”

“If adopted,” he said, “this argument would turn the Hollingsworth case into the gay-rights equivalent of Loving v. Virginia, the 1967 landmark decision that said states could no longer ban interracial marriage.”

In the DOMA case, notes gay Democratic activist and attorney Richard Socarides, where the government is already on record, the bigger issue is “whether the federal government should just abide by state laws legalizing same-sex marriage, by overturning the Defense of Marriage Act, or, more powerfully, by saying that every American has that right.”

To reach that latter—bold—result, the Supreme Court would have to agree with the Second Circuit U.S. Court of Appeals decision in U.S. v. Windsor that courts should given a heightened level of scrutiny to laws treating people differently because of sexual orientation.

“If the Supreme Court adopted that reasoning to strike down DOMA (in Windsor) and Proposition 8 (in Perry),” wrote gay legal scholar William Eskridge, in a December 9 post at scotusblog.com, “every state marriage law excluding lesbian and gay couples would be in immediate jeopardy, because no state could muster a compelling or substantial public interest that would satisfy the Second Circuit’s approach.”

That’s how big the decisions in Windsor and Perry could get.

Windsor and Perry are likely to be two of the most important constitutional decisions in our lifetimes,” wrote law professors Neal Devins and Tara Leigh Groves at scotusblog December 8.  “If (as we suspect), the Court reaches the merits of each case, we believe it will advance the cause of same-sex marriage by invalidating both DOMA and Proposition 8.  But, in our view, the Court’s jurisdictional rulings—on the power of a single chamber of Congress and private sponsors of ballot initiatives to defend federal and state measures—will also have important implications, informing the scope of the constitutional separation of powers at both the federal and state level.”

But “if the court reaches the merits of each case” is one of the looming uncertainties in both cases. The court may not rule on the merits of each case. It could make a ruling on standing that would preclude it reaching the merits of the disputes.

“If the Court does not rule on the marriage rights issue itself in either of the granted cases, and that is all that is concludes on the issue this Term,” wrote veteran Supreme Court reporter Lyle Denniston, in his December 7 post at scotusblog, “the question would arise whether it might take on some of the other pending cases, so as to reach the more fundamental constitutional dispute.  That, however, might come too late for a decision this Term, with a likely recess in late June.”

Briefs from parties on both sides of both cases are due to the court on the issue of legal standing, as well as the Olson-Boies’ brief about the merits of the Proposition 8 argument, are due this week.

Mixed reviews from LGBT community on fourth State of the Union address

President Obama continued his trend of including references to LGBT people in his State of the Union address Tuesday night (February 12), but he got mixed reviews from the community itself.

President Barack Obama

President Obama continued his trend of including references to LGBT people in his State of the Union address Tuesday night (February 12), but he got mixed reviews from the community itself.

Early in the one-hour speech, he told Congress and the national television audience, “It is our unfinished task to restore the basic bargain that built this country – the idea that if you work hard and meet your responsibilities, you can get ahead, no matter where you come from, what you look like, or who you love.”

Later, in talking about the military, he said, “We will ensure equal treatment for all service members, and equal benefits for their families – gay and straight.”

Neither the “Republican response” to the address, delivered by U.S. Senator Marco Rubio (R-Fla.), nor the response offered by Tea Party Senator Rand Paul (R-Ky.) addressed any gay specific issue.

Family Equality Council Executive Director Jennifer Chrisler singled out the president’s general comment for fairness, saying ,”Tonight the President made clear that every American deserves to have a shot at the American dream regardless of where they live, what they look like or who they love.”

Allyson Robinson, head of the OutServe-Servicemembers Legal Defense Network, applauded the military-specific statement, saying “President Obama was very clear tonight in his assertion that lesbian and gay service members and their families must be treated equally by the nation they serve.”

But Rea Carey, head of the National Gay and Lesbian Task Force, sounded a disappointed tone.

“We have often said that President Obama is the most pro-LGBT president in history. His first term was filled with monumental gains for LGBT people and our families, including the passage of a federal hate crimes law, repeal of ‘Don’t Ask, Don’t Tell’ and his declaration of support for the freedom to marry for same-sex couples,” said Carey. “But the state of the union for many LGBT people remains one of economic inequality and insecurity. We urge President Obama to use his leadership to help get us over the finish line during his second term.”

Carey said the president should issue an executive order banning companies that contract with the federal government from discriminating in employment based on sexual orientation and gender identity. And she said President Obama should “pressure” Congress to pass the Employment Non-Discrimination Act.

Anthony Martinez, executive director of The Civil Rights Agenda, a statewide LGBT group in Illinois, expressed disappointment that President Obama did not use “some of his political capital to push for passage of ENDA, immigration reforms that help same-sex couples, and marriage equality in states, such as Illinois.

And Heather Cronk, managing director of the national activist group GetEqual, said the president’s remarks amount to “lip service.”

“Time and time again, President Obama continues to pay lip service to employment equity,” said Cronk, “but refuses to take the simple step of signing an Executive Order that would end LGBT discrimination by federal contractors — and that would prevent taxpayer dollars, including taxpayer dollars from LGBT Americans, from going to discriminatory companies.”

In his first official State of the Union address, in 2010, President Obama called for repeal of the federal law barring openly gay people from serving in the military. In 2011, just a month after signing into law the bill that repealed “Don’t Ask, Don’t Tell,” the president used his State of the Union address to urge universities that had been barring military recruiters over the gay ban to start allowing recruiters back on campus. Last year, he made one direct reference to something gay, saying that, when our servicemembers put on their uniforms, “it doesn’t matter if you’re black or white; Asian or Latino; conservative or liberal; rich or poor; gay or straight.”

As in past years, the White House again this year included an openly gay person among their two dozen special guests, sitting with First Lady Michelle Obama in the House gallery. This year, they chose Tracey Hepner of Arlington, Virginia, and a co-founder of the Military Partners and Families Coalition (MPFC). The Coalition provides support and advocacy for LGBT military partners and their families. She also full time for the Department of Homeland Security as a Master Behavior Detection Officer.  She is married to the first openly gay or lesbian general officer in the military, Army Brigadier General Tammy Smith.

The Human Rights Campaign noted that U.S. Rep. Jerrold Nadler (D-NY) invited a same-sex couple, Kelly Costello and Fabiola Morales, to be his guests at the event.

The White House released a “President’s Plan for a Strong Middle Class and a Strong America,” in conjunction with the address Tuesday night. The plan made no mention of LGBT people specifically, but included one section called “Encouraging and strengthening families” in which the president proposes “to remove financial deterrents to marriage for low income couples, and to support and encourage fatherhood including working with the faith community and the private sector.” The plan also called for passage of the bill to reauthorize the Violence Against Women Act but made no specific mention of the new provisions that would make the program available to victims of domestic abuse regardless of their sexual orientation.

U.S. Senator Tammy Baldwin, the first openly gay person elected to the Senate, issued a brief statement applauding the speech. She did not highlight either of President Obama’s gay-related remarks.

Second inaugural boosts LGBT equality

President Obama, in his second inaugural address, emphasized the nation’s principle of equality for all and, in doing so, specifically included the struggles of LGBT Americans to achieve equality.

President Obama, in his second inaugural address, emphasized the nation’s principle of equality for all and, in doing so, specifically included the struggles of LGBT Americans to achieve equality.

“We, the people, declare today that the most evident of truths – that all of us are created equal – is the star that guides us still; just as it guided our forebears through Seneca Falls, and Selma, and Stonewall; just as it guided all those men and women, sung and unsung, who left footprints along this great Mall, to hear a preacher say that we cannot walk alone; to hear a King proclaim that our individual freedom is inextricably bound to the freedom of every soul on Earth.

“It is now our generation’s task to carry on what [our nation’s] pioneers began. For our journey is not complete until our wives, our mothers, and daughters can earn a living equal to their efforts. Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law – for if we are truly created equal, then surely the love we commit to one another must be equal as well,” said Obama.

Our generation’s task, he said, is to “make these words, these rights, these values – of Life, and Liberty, and the Pursuit of Happiness – real for every American.”

LGBT groups issued statements praising President Obama for including the gay civil rights struggle in his remarks, and many political commentators with mainstream news organizations were quick to note that this was the first inaugural address to specifically name gays and that it seemed to represent a boost to progressive goals for the administration’s second term.

“By lifting up the lives of LGBT families for the very first time in an inaugural address, President Obama sent a clear message to LGBT young people from the Gulf Coast to the Rocky Mountains that this country’s leaders will fight for them until equality is the law of the land,” said Human Rights Campaign President Chad Griffin.

Evan Wolfson, head of the national Freedom to Marry group, said President Obama, by including the gay civil rights movement alongside the movements for the civil rights of blacks and women, “rightly exalted the struggle for the freedom to marry as part of America’s moral commitment to equality, liberty, and the pursuit of happiness.”

In his first inaugural address, in 2009, President Obama emphasized unity and did not refer to LGBT citizens directly or indirectly. Some last-minute inclusion of gay people in various venues of the inaugural festivities went generally unpublicized and unseen. Instead, media attention remarked on the high-profile inclusion of a California evangelist Rick Warren to deliver the inaugural benediction. Just two months earlier, Warren supported Proposition 8 in California, banning marriage for same-sex couples.

This time, however, there was positive and visible inclusion of LGBT people throughout the inaugural ceremony.

Delivering the benediction on the inaugural podium Monday, the Rev. Luis Leon, the pastor of an Episcopal church near the White House that the Obama family attends, urged that “prejudice and rancor” not be allowed to rule our hearts but that, instead, all citizens hold each other in “mutual regard” no matter what their race or gender or immigrant status, and whether “gay or straight, rich or poor.”

Press reports prior to the inaugural ceremony characterized Leon as a “gay-affirming” clergyman at Saint John’s Church, which also celebrates marriage ceremonies for same-sex couples. Leon replaced Atlanta pastor Louie Giglio who was initially invited to deliver the benediction but who withdrew from the ceremony after criticism surfaced about remarks he made in a sermon in the 1990s. In that sermon, Giglio called homosexualiy “probably the greatest addiction” and said that marriage between same-sex partners is “absolutely undermining the whole order of our society.”

An openly gay man, Richard Blanco of Bethel, Maine, presented a poem as part of the inaugural ceremony. Drawing from common images of Americans in all walks of life, Blanco’s poem spoke of the nation’s oneness.

“One sun rose on us today,” he noted. “…one light waking up rooftops, under each one a story….my face, your face, millions of faces in morning’s mirrors.” He spoke of sights common to all, of the rows of colorful fruits and vegetables at markets, as “rainbows begging our praise.” And he spoke of “carrying our lives without prejudice” and “giving thanks for a love that loves you back.”

Myrlie Evers-Williams, who delivered the invocation at the inaugural ceremony, did not mention LGBT people specifically, but repeatedly referred to the importance of diversity in the nation’s people and in the principle “everyone is included.” In an interview with Urban Christian News a few days before the event, she was asked how she felt about the Giglio controversy: “I’m simply delighted that I was not so controversial that I would step down,” said Evers-Williams, “or be asked to step down.”

And an elder of the gay-oriented Metropolitan Community Church, Rev. Elder Nancy Wilson, was the first to greet the congregation of national leaders at the National Prayer Service Tuesday morning. Wilson, who serves on the White House Advisory Council on Faith-Based and Neighborhood Partnerships, is a moderator of the Universal Fellowship of MCCs, following in the steps of MCC founder Troy Perry. She has been active in the movement to achieve equality for same-sex couples in marriage, as well on issues involving HIV, the treatment of prisoners, and women’s equality.

The sermon for the nationally broadcast prayer service was delivered by Rev. Adam Hamilton, a senior pastor of the United Methodist Church of the Resurrection in Leawood, Kansas. Hamilton co-authored a motion last year to urge the United Methodist denomination to amend its policy statement that homosexuality “incompatible with Christian teaching.” The motion failed.

If there was any mar to the historic inauguration ceremony, it was likely from a different pastor from Kansas. According to a pool reporter for White House, a small number of people held up signs saying, “God hates fags” and “God hates Obama” along the motorcade route to the U.S. Capitol on Monday. The messages were typical of Kansas pastor Fred Phelps and his follower who have acquired considerable media attention by displaying hate-filled messages at gays during various high-profile events.

            During the inaugural parade Monday afternoon, the lavendar-clad Lesbian and Gay Band contingent appeared in the middle of the parade contingents, gaining national visibility on television broadcasts for a few seconds as it passed the presidential viewing booth. The band followed  a float about Martin Luther King Jr., and “Civil Rights Float” and in front of the “Native American Women Warriors” contingent from Colorado. This is the Band’s second appearance ever in an inaugural parade and, because its members are comprised of 37 groups from around the world, its first rehearsal for this year’s event took place Saturday. The Civil Rights Float is described by the Presidential Inaugural Committee as featuring “images representing historic struggles of many of the civil rights movements in our country,” including the LGBT movement.

Monday night, the Human Rights Campaign’s “LGBT Out for Equality Inaugural Ball” was held just a few blocks from the White House –at the Mayflower Hotel.