Utah AG says state may not recognize 1,300 marriages of same-sex couples

The Utah Attorney General Sean Reyes issued a statement Wednesday afternoon saying that he was “unable to reach a legal conclusion as to the ultimate validity of marriage between persons of the same sex who completed their marriage ceremony in Utah between December 20, 2013, and January 6, 2014.”

“That question remains unanswered and the answer will depend on the result of the appeal process,” continued Reyes. He said any same-sex couple applying for some state marriage benefit or recognition would be evaluated on a “case-by-case basis” by a “review team” established just for that purpose.

utah_flagThe Utah Attorney General Sean Reyes issued a statement Wednesday afternoon saying that he was “unable to reach a legal conclusion as to the ultimate validity of marriage between persons of the same sex who completed their marriage ceremony in Utah between December 20, 2013, and January 6, 2014.”

“That question remains unanswered and the answer will depend on the result of the appeal process,” continued Reyes. He said any same-sex couple applying for some state marriage benefit or recognition would be evaluated on a “case-by-case basis” by a “review team” established just for that purpose.

Reyes stated that the U.S. Supreme Court’s grant of a stay against the federal district court decision that struck down Utah’s ban on marriage for same-sex couples “means that Utah’s laws defining marriage…are again in effect….”

The attorney general’s statement acknowledges that 1,300 same-sex couples have married in the two-and-a-half weeks since U.S. District Court Judge Robert Shelby issued his decision and immediately enjoined the state from enforcing its ban. The U.S. Supreme Court on Monday granted Utah’s stay against Shelby’s order.

“There is no reason for the state to destabilize these families,” said Shannon Minter, legal director for the National Center for Lesbian Rights, which just Wednesday sought designation from the Tenth Circuit U.S. Court of Appeals to serve as co-counsel for same-sex couples on the state’s appeal of Shelby’s decision in Kitchen v. Herbert. “These couples are legally married, the state has been providing them with marital rights and protections, and it should continue to do so. There is no need for this kind of case-by-case review, and putting married couples and their families through this process is humiliating and will subject them to needless uncertainty and legal vulnerability.”

Jon Davidson, legal director for Lambda Legal which has a number of marriage equality lawsuits in the works, including one in the Ninth Circuit, said he believes “couples who married prior to the stay remain married.”

“They validly married pursuant to the law at the time they married, given that a court order allowed them to marry then,” said Davidson. But, he added, with the injunction against enforcement of the ban now stayed by the U.S. Supreme Court, “there is no court order preventing what the AG is suggesting be done.”

“Any couple whose marriage is denied recognition by the state would have a claim that refusing to honor their marriage violates their constitutional rights, however, and I believe it would be a strong claim, given the vested property rights and reliance interest that couples who lawfully marry in a state have that their marriage will be respected,” said Davidson. “Accordingly, if the state does refuse to honor their marriage, it may be facing additional litigation.”

Human Rights Campaign President Chad Griffin said Attorney General Reyes’ action “harms hundreds of Utah families and denies them the respect and basic protections that they deserve as legally married couples.”

A private law firm, Magleby & Greenwood, is representing same-sex couples who initiated the Kitchen v. Herbert lawsuit in Utah.

Utah ban back in force for at least three months or more on appeal

The U.S. Supreme Court order granting a stay of the December 20 district court order that prohibited Utah from enforcing its ban on same-sex marriage allows Utah to resume enforcing the ban “pending final disposition” of the appeal of that decision to the Tenth Circuit. Given the Tenth Circuit’s briefing schedule for the appeal, that means the ban will be back in force for at least three months and likely longer, given anticipated appeals of whatever the Tenth Circuit decides.

The full U.S. Supreme Court has granted Utah a stay on a district court decision that has allowed same-sex couples to marry there since December 20.

The court issued its stay this morning, apparently after Justice Sonia Sotomayor referred the matter to the full court.  Sotomayor is the justice designated to administer requests for emergency stays for the Tenth Circuit U.S. Court of Appeals, but had the option to ask the full court to weigh in on the request.

It takes at least five justices to grant such a stay. The order issued today does not indicate that any justice was in dissent. It states simply that the stay is granted and that the December 20 order by U.S. District Court that prohibited Utah from enforcing its ban is “stayed pending final disposition” of the appeal of that decision to the Tenth Circuit. Given the Tenth Circuit’s briefing schedule for the appeal, that means the ban will be in force for at least three months and likely longer, given anticipated appeals of whatever the Tenth Circuit decides.

Tomsic and James Magleby, with the private law firm of Magleby & Greenwood which is representing same-sex couples in the case, issued a statement following the Supreme Court’s announcement, noting that it is “not unusual” for the court to stay a decision declaring a state law unconstitutional pending appeal and has “no bearing on who will win on appeal.”

LGBT legal activists agreed.

“No one should draw any negative inferences about where the Court is leaning. This is an unprecedented situation,” said Shannon Minter, legal director for the National Center for Lesbian Rights, which has several marriage equality lawsuits pending now, too. “Never before has a federal court struck down a state marriage law and then declined to stay it, and never before has a Court of Appeals also declined to issue a stay.  For those reasons, the chances that the Supreme Court would issue a stay until the appeal is resolved were always quite high, so the real news here is that so many marriages were able to take place. And it is significant that the Court did not rush to act. There is nothing unusual about the issuance of a stay when a federal court strikes down a state law on federal grounds.”

Bottom line,” said Minter, “[is] the prospects for this case still look very bright.  And there will never be any going back in Utah.”

The challenge to Utah’s ban (the state constitutional Amendment 3 and related statutes), Kitchen v. Herbert, now proceeds as Herbert v. Kitchen on an expedited schedule before the Tenth Circuit U.S. Court of Appeals. The next briefing date, according to attorney Peggy Tomsic who is part of the team representing same-sex couples, is January 27. The last brief due before oral argument is February 25. The court date has not yet been announced but the next argument session after that deadline is March 17-21.

“One important thing for people to understand is that the marriages that same-sex couples have entered in Utah are unaffected by the stay order,” said Jon Davidson, legal director for Lambda Legal, which also has marriage equality cases pending. “Those marriages remain valid unless courts in the future rule otherwise, and there are good reasons to believe that marriages entered in good faith pursuant to a court order remain valid even if that court order is subsequently reverse.”

The Deseret News reports that more than 900 same-sex couples married since December 20, when District Judge Robert Shelby, an Obama appointee, issued a 53-page opinion, striking down Utah’s ban violates the U.S. Constitutional guarantees of equal protection and due process. Shelby immediately enjoined the state from enforcing its ban, then denied the state’s request for a stay of his decision pending appeal. The state took its request for an emergency stay to the Tenth Circuit, where it also filed an appeal of Shelby’s decision. Two judges of the Tenth Circuit –one an appointee of President George W. Bush, the other an appointee of President Obama– denied the request for a stay on December 24 but put the appeal on an expedited schedule.

“This stay is obviously disappointing for the families in Utah who need the protection of marriage and now have to wait to get married until the appeal is over,” said plaintiffs’ attorney Magleby. “Every day that goes by, same-sex couples and their children are being harmed by not being able to marry and be treated equally.”

Opposition brief due today on Utah request for stay of marriage decision

U.S. Supreme Court Justice Sonia Sotomayor gave attorneys representing same-sex couples in Utah until noon today to file a brief in opposition to Utah’s request for a stay of a federal district court decision that struck down the state’s ban on same-sex marriage.

U.S. Supreme Court Justice Sonia Sotomayor is pondering whether to grant a stay of a federal district court’s order that the state of Utah stop enforcing its ban on marriage for same-sex couples.

The state’s new attorney general filed a petition Tuesday to the court to grant the emergency stay, after being denied a stay by both the federal district court and the Tenth Circuit U.S. Court of Appeals. Sotomayor is the justice designated to handle such requests from the Tenth Circuit. She has given attorneys representing same-sex couples until noon today to file their brief. She can either make a decision about the stay or ask the full court to weigh in. And if she refuses to grant the stay, Utah has the option of asking the full court to consider its request.

Earlier this week, in another Tenth Circuit case, Sotomayor granted a temporary stay of a provision in the Affordable Care Act that requires employers providing health insurance, including certain religious-oriented employers, to cover birth control.

In the same-sex marriage ban case, Utah Governor Gary Herbert and Attorney General Sean Reyes rely on the Supreme Court’s two marriage decisions last June. The brief says the U.S. v. Windsor decision striking the Defense of Marriage Act’s key provision made clear that the federal government “cannot constitutionally disregard State laws allowing same-sex marriage.”

But the federal district court decision in Kitchen v. Herbert, says the state, “found no animus behind Utah’s marriage laws” and yet exercised “an outright abrogation” of the state’s definition of marriage.

The brief calls each same-sex marriage in Utah “an affront” to the state and its citizens’ ability to define marriage “through ordinary democratic channels.” It argues that a stay is necessary to “minimize the enormous disruption” that might be caused by “potentially having to ‘unwind’ thousands more same-sex marriages….”

Utah voters adopted the ban on same-sex marriage and any other form of same-sex relationship in 2004 through a ballot measure known as Amendment 3 to the state constitution. Two other statutes enforce that ban. On December 20, in a lawsuit brought by private attorneys, U.S. District Court Judge Robert Shelby declared the ban unconstitutional.

In making its case for a stay, Utah’s brief said the question presented by Kitchen is “the same question” presented by last session’s Proposition 8 case. But unlike Hollingsworth v. Perry, said the Utah brief, the Kitchen case presents no questions concerning legal standing. Last June, the Supreme Court declined to rule on the constitutionality of California’s voter-approved ban on same-sex marriage because the party appealing the case lacked legal standing to do so.

Meanwhile, the Utah legislature is preparing to take up yet another constitutional amendment –one to specify that churches cannot be made to host same-sex marriage ceremonies in violation of their religious views. There seems to be less controversy surrounding this new ban. Openly gay State Senator Jim Debakis told the Salt Lake City Tribune that he doesn’t know of anybody who wants to force churches to perform ceremonies against their beliefs. The legislature convenes January 27.

Local papers have reported that between 700 and 900 marriage licenses have been issued to same-sex couples since the December 20 order barring further enforcement of Amendment 3.

Crist apologizes for mistake on marriage ban

He’s in a tight race for governor, but in an extraordinary interview, Florida’s former Republican Governor Charlie Crist apologized for having supported efforts to ban on same-sex marriage on the ballot in that state in 2008.

Charlie Crist
Charlie Crist

In an extraordinary interview, Florida’s former Republican Governor Charlie Crist apologized last month for having supported efforts to ban on same-sex marriage on the ballot in that state in 2008. “I’m sorry I did that. It was a mistake. I was wrong. Please forgive,” said Crist, in an interview with Watermark, an LGBT news organization in Florida. Crist was the Republican governor of Florida from 2007 to 2011. Crist is currently running for the Democratic nomination for governor, saying that his former political party “went nuts.” But Watermark publisher Tom Dyer, who conducted the interview December 17, didn’t let Crist off the hook. He noted Crist also supported limiting marriage to heterosexual couples when Crist ran for senator in 2006 and that he expressed a belief that children who need to be adopted would be best off in “traditional” heterosexual homes. “When you look back at the circumstances, one could come to the conclusion that your shifts in opinion were either politically expedient…” said Dyer. “They were. They were. And it was wrong,” said Crist, interrupting. “That’s what I’m telling you. And I’m sorry.” Nadine Smith, chief executive officer of Equality Florida, said she was “glad to see someone who has done harm publicly pledge to work to repair the damage.” “My activism is based on the premise that people can and do change,” said Smith, who has been an LGBT activist for many years. “I’m particularly proud of Tom Dyer the publisher of Watermark for pulling no punches and really zeroing in on the issues. He asked the questions that needed to be asked and that we deserved to have publicly and thoroughly answered. I can’t recall the last time I’ve heard a politician say ‘I was wrong. I am sorry’.” Crist told Dyer his earlier positions were “examples of me trying to be a good Republican.” “I couldn’t do it anymore and I’m sorry I did,” said Crist. “I made a mistake. I’m not perfect…please don’t hold me to that standard. And I’m sincerely sorry. I understand when it’s necessary to say I was wrong.” “Can you convince us that your present views aren’t once again driven by political expediency?” asked Dyer. “Can you convince us that the positions you’ve recently expressed are heartfelt, and something we can count on in the future?” “I just did,” said Crist. “There will be doubters, and they have a right to that. But I ask that they have a little faith.” Crist likened his change of position on same-sex marriage to that of President Obama, who famously evolved from supporting only civil unions to supporting marriage for same-sex couples. Crist said he has urged a state representative who is sponsoring a bill to create a domestic partnership registry in Florida to “go for marriage.” A poll of 1,000 likely voters in late November showed Crist with a slight lead over incumbent Republican Governor Rick Scott, but that lead has diminished over the past from, from a high of 16 points last March, to only four points in November.

New Mexico: No. 17 and over the one-third mark

The New Mexico Supreme Court unanimously ruled Thursday that the state’s interpretation of marriage laws to ban same-sex couples violates the state’s constitution. The ruling makes New Mexico the 17th marriage equality state and means that now more than one-third of the nation’s population lives in a state that provides for marriage equality.

For the eighth time this year, a state has declared that same-sex couples have the right to marry. On Thursday, the New Mexico Supreme Court ruled unanimously that state laws that “have the effect of precluding same-gender couples from marrying” violate the equal protection guarantee of the state constitution.

“We hold that the State of New Mexico is constitutionally required to allow same-gender couples to marry,” wrote the court, “and must extend to them the rights, protections, and responsibilities that derive from civil marriage under New Mexico law.”

The ruling not only makes New Mexico the 17th state plus the District of Columbia to provide marriage equality for same-sex couples, it represents a new milestone: As 17th, it marks one-third of the 50 states, and its population puts more than one-third of the country’s population as living under marriage equality laws.

“Today’s decision by the New Mexico Supreme Court is a powerful affirmation that same-sex couples are equal members of New Mexico’s diverse culture and must be given the same legal protections and respect as other families,” said Shannon Minter, legal director of the National Center for Lesbian Rights (NCLR), which pressed the lawsuit with the ACLU.

Lambda Legal, which has itself pressed many such lawsuits, hailed Thursday’s ruling, saying, “This beautiful unanimous decision explicitly underscores the argument we and our sister organizations have long made: denying same-sex couples the ability to marry imposes significant emotional and dignitary harm and is discrimination, pure and simple.”

            New Mexico does not have a law explicitly banning same-sex couples from marrying. But five same-sex couples were denied licenses in Albuquerque, and the ACLU and NCLR filed the lawsuit, Greigo v. Oliver, in March. A district court judge ruled in favor of the couples in August, and clerks in several counties begun issuing marriage licenses. In its decision, the state supreme court noted that, by the time of the oral argument in October, “over 1,466 marriage licenses had been issued” to same-sex couples in the state.

The decision, penned by Justice Edward Chavez, took pains to discuss the plaintiff couples in everyday terms, mention their children, and explain how the inability to marry negatively impacted them.

“The inability to legally marry has adversely impacted several of the Plaintiff couples who have endured significant familial and medical hardships together,” wrote Chavez. “On one occasion, when Rose [Griego] was hospitalized, the hospital refused to provide Kim [Kiel] with any information about Rose’s condition or treatment until Rose’s other family members arrived, despite the fact that it was Kim who took Rose to the hospital.”

Referring to the U.S. Supreme Court’s ruling in June, striking down the key provision of the Defense of Marriage Act (DOMA) in U.S. v. Windsor, the opinion said, “Interpreting our statutes to authorize committed same-gender couples to enter into civil marriage will grant them the rights and privileges available to opposite-gender married couples in approximately one thousand statutes and federal regulations that refer to a person’s marital status, thereby avoiding a constitutional challenge on that basis.”

“The purpose of the New Mexico marriage laws,” wrote Chavez, “is to bring stability and order to the legal relationships of committed couples by defining their rights and responsibilities as to one another, their property, and their children, if they choose to have children.”

In reaching its decision, the court concluded that the laws preventing same-sex couples from marrying treat people differently because of their sexual orientation and that courts should examine such laws using an intermediate level of scrutiny –more than mere rational scrutiny, less than strict scrutiny. The court said “the LGBT community is a discrete group that has been subjected to a history of purposeful discrimination, and it has not had sufficient political strength to protect itself from such discrimination.”

“When fundamental rights are affected by legislation, the United States Supreme Court has applied strict scrutiny when determining whether the legislation is constitutional,” wrote the court. “However, regarding marriage, the United States Supreme Court does not demand ‘that every state regulation which relates in any way to the incidents of or prerequisites for marriage must be subjected to rigorous scrutiny.’” It also noted that the U.S. Supreme Court in U.S. v. Windsor “left unanswered the level of scrutiny it was applying to same-gender marriages.”

“We conclude from the United States Supreme Court’s equivocation in these cases that whether the right to marry is a fundamental right requiring strict scrutiny is a question that remains unanswered,” wrote Chavez. “We do not need to answer this question here because Plaintiffs prevail when we apply an intermediate scrutiny level of review under an equal protection analysis.” According to the court, under intermediate scrutiny, the state offered no sufficient reason for denying same-sex couples the right to marry.

Not all post-DOMA changes lead to more benefits

There was a flurry of activity among federal agencies this month to issue regulations concerning how they are complying with the U.S. Supreme Court decision striking down the key provision of the Defense of Marriage Act (DOMA). All of them were aimed at making sure same-sex marriage couples were treated equally, but not all of them resulted in a positive gain.

Arne Duncan
Arne Duncan

There was a flurry of activity among federal agencies this month to issue regulations concerning how they are complying with the U.S. Supreme Court decision striking down the key provision of the Defense of Marriage Act (DOMA). All of them were aimed at making sure same-sex marriage couples were treated equally, but not all of them resulted in a positive gain.

On Monday, the U.S. Treasury and the Internal Revenue Service issued a notice that governs how employees with same-sex spouses may sign up their spouses for health coverage and avoid paying taxes on the benefit, as straight married couples have been able to do. Previously, under DOMA, employers could not allow employees with same-sex spouses to elect coverage for that spouse on a “pre-tax basis.”

Also on Monday, the U.S. Social Security Administration announced it is now processing and paying claims for benefits of “some” surviving spouses’ of same-sex marriages.

“In addition,” said SSA Acting Commissioner Carolyn Colvin, “we are able to pay some one-time lump sum death benefit claims to surviving same-sex spouses.”

According to SSA spokesman William Jarrett, a widow or widower may receive reduced survivors’ benefits as early as age 60, and full survivors’ benefits once they reach the “full retirement age.” Full retirement age for people born between 1945 and 1956 is currently 66. Over time, however, that will increase. The full retirement age for people born in 1962 or later will be 67.

“If you’re surviving spouse is disabled, benefits can begin as early as age 50,” said Jarrett. “Your widow or widower can receive benefits at any age if she or he takes care of your child who is receiving Social Security benefits and younger than age 16 or disabled.”

Interestingly, a SSA press release quoted Commissioner Colvin as urging, “If you believe you may be eligible for Social Security, I encourage you to apply now to protect against the loss of any potential benefits.”

Asked what might cause a “loss of any potential benefits,” Jarrett said, “We don’t want an individual to delay filing an application because he or she is uncertain of the rules. A person is typically protected back to the date the application is originally filed.” SSA’s press release said it is developging “additional policy and processing instructions” in the coming weeks.

“If you are in a same-sex marriage or other legal same-sex relationship, even if you live in a state that prohibits same-sex marriage,” says the SSA website, “we encourage you to apply right away.”

But not all compliance changes in the post-DOMA aftermath improve circumstances for same-sex couples. For instance, the U.S. Department of Education on Friday announced a new policy related to eligibility for federal student loans. Under DOMA, the Department of Education could not seek information about a student’s same-sex spouse and what income that person might contribute to the student’s financial picture. Nor could they look at the contribution of a non-biological parent either married to or living with the student’s biological parent. In many cases, that probably helped a student seeking federal needs-based student aid.

A December 13 press release from the DOE says it will now consider a student loan applicant married if he or she “was legally married in any jurisdiction that recognizes the marriage, regardless of whether the marriage is between a couple of the same sex or opposite sex, and regardless of where the student or couple lives or the student is attending school.”

Students who need financial aid for their college education can apply through the Free Applications for Federal Student Assistance, or FAFSA, under the Department of Education. The program gives out over $150 billion each year in grants, loans, and work-study funds to help pay for college education for more than 15 million students. In fact, it is the largest provider of student financial aid in the country. About 22 million students apply each year.

Information provided on the FAFSA form is used to determine how much a student and his or her family can be expected to contribute to school costs and how much he or she might be eligible to receive from the federal needs-based student aid.

Where, under DOMA, the FAFSA would not collect data on same-sex spouses or parents in same-sex marriages, now it will. And this is the part of the post-DOMA change DOE’s press release focused on.

“We must continue to ensure that every single American is treated equally in the eyes of the law, and this important guidance for students is another step forward in that effort,” said U.S. Secretary of Education Arne Duncan in the press release. “As students fill out their FAFSA this coming year, I’m thrilled they’ll be able to do so in a way that is more fair and just.”

The new FAFSA forms will be gay friendlier. They refer to parents not as “Mother” and “Father,” but as “Parent 1” and “Parent 2.” They provide an option for applicants to describe their parents’ relationship status as “unmarried and both parents living together.”

Some worry over amendments in new Defense funding bill

Leaders of the U.S. Senate and House Armed Services committees announced Monday that they have reached an agreement on the defense authorization bill for the coming year, including some provisions LGBT activists have opposed.

fleming_john
John Fleming

Leaders of the U.S. Senate and House Armed Services committees announced Monday that they have reached an agreement on the defense authorization bill for the coming year, including some provisions LGBT activists have opposed.

The National Defense Authorization Act (NDAA) proposal calls for authorizing the Defense Department to spend $625.5 billion in Fiscal Year 2014. Later, an appropriations bill will approve the specific amount of money to be turned over to the department for FY 14 spending. This year’s NDAA has been bogged down in debates over efforts to address the growing number of sexual assaults against service members, particularly female service members.

But there were also some amendments offered that LGBT activists opposed. For instance, the House passed its version of NDAA with an amendment from Rep. John Fleming (R-La.) that would require DOD accommodate the religious beliefs, actions, and speech of service members. Some believed that amendment was intended to allow service members to express their hatred of gays. Fleming’s amendment also required that DOD have no limit on such activities unless it could prove the activities would “actually harm” military order and discipline. President Obama promised to veto a bill with this language.

In a press release Monday, the House-Senate leadership said the new bill “requires the accommodation of individual expressions of moral and religious beliefs by service members unless such expressions of belief could have an adverse impact on military readiness, unit cohesion, and good order and discipline.”

Human Rights Campaign Government Affairs Director David Stacy said HRC opposed adoption of the Fleming Amendment by the House Armed Services Committee. He said HRC also opposed an amendment in the Senate Armed Services Committee by Senator Ted Cruz (R-Tex.) before it was modified.  The original Cruz amendment sought to provide service members with the “rights of conscience” to “express their religious faith” and to have the DOD Inspector General to investigate religious discrimination and “any undue influence” by outside groups in creating DOD policy regarding religious matters. It also called for a survey of military chaplains to determine whether Defense policies forced them to violate their conscience.

The NDAA proposal released Monday “requires the DOD IG to assess and report on compliance with regulations for the protection of rights of conscience of service members.” It also “Requires the Secretary of Defense to conduct a survey of military chaplains to assess whether restrictions placed on prayers offered in public or non-religious settings have prevented the military chaplains from exercising the tenets of their faith as prescribed by their endorsing faith group or have had an adverse impact on their ability to minister to service members and their families.”

On a positive note, the NDAA proposal finally removes from the Uniform Code of Military Justice a long-standing law prohibiting consensual sodomy. It also “Requires the Secretary of Defense to report on DOD personnel policies regarding members of the armed forces with human immunodeficiency virus or Hepatitis B and assess whether the policies reflect a medically accurate understanding of how these conditions are contracted, how they can be transmitted to others, and the risk of transmission.”

Russia to create ‘protest zone’ for Olympics

The International Olympic Committee announced Tuesday that Russian authorities “plan to set up a protest zone in the city of Sochi.”

russia_flagThe International Olympic Committee announced Tuesday that Russian authorities “plan to set up a protest zone in the city of Sochi.”

Concern about protests at the Olympic Winter Games in Sochi, Russia, in February have been building for months since the Russian government and President Vladimir Putin enacted laws to prohibit virtually any form of positive expression about “non-traditional” sexual orientations. Activists have pushed athletes, corporate sponsors, and others to express their opposition to the anti-gay laws. The Russian government has promised to both abide by the Olympic Principle 6, which prohibits discrimination of any kind, and to enforce its anti-gay laws. In August, Putin even issued a special decree banning political protests during the Olympics in Sochi.

In a press release Tuesday, IOC President Thomas Bach said he welcomes the plan for the protest zone “and the fact that people will now have an opportunity to express their views and freely demonstrate their opinions in Sochi.”

“There is something terribly wrong if the head of the International Olympic Committee must request a guarantee that athletes, spectators, and Russian citizens will not be punished for speaking their mind,” said Andrew Miller, a member of Queer Nation, an activist group that has been protesting against Russia’s anti-LGBT laws.

“IOC president Thomas Bach continues to collaborate with the Russian government while Russian LGBT citizens are arrested, jailed, beaten, raped, tortured, and murdered,” said Miller. “Instead of negotiating a protest zone, he should be demanding the repeal of Russia’s anti-LGBT laws and insisting that the Russian government respect the human rights of all its citizens.”

The news of a “protest zone” came just one day after the IOC announced that it would, during Tuesday’s IOC executive board meeting in Lausanne, approve a letter to athletes reminding them that Rule 50 of the IOC Charter states that “No kind of demonstration or political, religious or racial propaganda is permitted in any Olympic sites, venues or other areas.” Tuesday’s press release indicated that the executive board did discuss Rule 50, as well as Rule 40, related to drug testing.

Bach told reporters that the idea had been “under discussion with the IOC for quite some time,” though no mention of the possibility had been mentioned previously.

Hawaii Senate sends marriage bill to governor

The debate went on much longer than expected but the Hawaii Senate voted Tuesday to give final legislative approval to a bill allowing same-sex couples to obtain marriage licenses. The bill now goes to Democratic Governor Neil Abercrombie, who has indicated he will sign it tomorrow. It will take effect December 2, making Hawaii the 15th state plus the District of Columbia to issue marriage licenses to same-sex couples. The vote was ______.

The debate went on much longer than expected but the Hawaii Senate voted Tuesday to give final legislative approval to a bill allowing same-sex couples to obtain marriage licenses. The bill now goes to Democratic Governor Neil Abercrombie, who has indicated he will sign it tomorrow. It will take effect December 2, making Hawaii the 15th state plus the District of Columbia to issue marriage licenses to same-sex couples. The vote, after almost three hours of speeches, was 19 to 4.

The Illinois legislature passed its marriage equality bill before Hawaii, but its Democratic governor, Pat Quinn, will not sign the bill until November 20 and the law does not go into effect until June 1. That will make Illinois the 16th state to issue marriage licenses to same-sex couples.

On the floor of the Hawaii Senate, Senator Clayton Hee, chair of the senate judiciary committee, answered critics who said the marriage equality bill had been rushed through the legislature without giving the public ample time to express its views.

“The discussion of same-sex marriage really began in 1993 with the decision by the [state] Supreme Court in a case brought by a same-sex couple denied a marriage license,” said Hee, who helped champion the legislation. “To say this legislation has been rushed is simply untrue.”

Hee’s Senate Judiciary Committee entertained public testimony from more than 1,000 people and the House panel listened to more than 5,100 citizens who wanted to weigh in on the bill. Each legislator also received thousands of emails, phone calls, and other communications to express their views.

Hee shared two communications he received. One was from a straight Republican woman; the other from Edie Windsor, the plaintiff in last June’s historic U.S. Supreme Court ruling striking the Defense of Marriage Act (DOMA). Both urged support for the marriage equality bill.

“Some have said this is the wrong time to bring this thing up,” said Hee. “Martin Luther King Jr. said ‘There is no wrong time to seek justice’.”

Senator Mike Gabbard, a Democrat, noted that 60 percent of those who testified at the public hearings were opposed to “this incredibly divisive bill.” The voters of Hawaii did vote on the issue in 1998, ratifying a legislature-approved constitutional amendment to limit marriage to male-female couples.

Senator Russell Ruderman said that, while most of the testimony at the public hearing was opposed to the bill, most of the correspondence received by his office was in support, suggesting the opposition was due mostly to an orchestrated campaign.

Senator Jill Tokuda noted that, throughout history, judges and lawmakers “are asked to exhibit great courage on behalf of the disenfranchised and minority voices,” in regards to such issues as segregation, internment, and interracial marriage.

The debate was not always respectful. One senator, referred to the “LGBTXYZ community.” Another said an opponent told him that Typhoon Haiyan that wreaked devastation on the Phillipines last Friday was caused by Hawaii’s passage of the marriage equality bill. And Sam Slom, the Republican leader in the Senate, could barely contain his disdain for the measure and the Democratic Party. He said today was historic because the date can be written as “11-12-13 and that will never happen again.” He mocked the references of marriage equality supporters to Dr. King’s “the arc of the moral universe is long but it bends toward justice” quote. Slom said it was being bent by man not god and noting that Dr. King never supported same-sex marriage.

“We have never had an outpouring like this,” said Slom. “I don’t know if more hours or more study will change anything, but [the bill] will have lasting and serious consequences.”

The struggle for marriage equality in Hawaii has held a special place in the history of the LGBT civil rights movement. In 1990, three same-sex couples filed a lawsuit in state court in Honolulu, a trial judge concluded the denial of marriage licenses violated the state constitution, and the Hawaii Supreme Court, in 1993, ruled that the state needed to demonstrate it had reason to deny the marriage licenses. After the trial judge determined that the state had failed to do so, the legislature approved an amendment to the state constitution to reserve to the legislature the power to limit marriage to male-female couples, and the voters ratified that amendment in 1998. In the midst of this, Congress passed the Defense of Marriage Act in anticipation that the marriage equality movement was emerging, and conservative political activists orchestrated ballot measures around the country to ban same-sex marriage in other states.

That tide of opposition to allowing same-sex couples to marry began to turn in earnest in November 2003, which the Massachusetts Supreme Judicial Court issued the first state high court ruling that a state constitution guaranteed same-sex couples the same rights to marriage licenses as male-female couples. Hawaii now joins 15 other states and the District of Columbia that have ended their bans on allowing same-sex couples to marry. The U.S. Supreme Court in June struck down the key provision of DOMA, which denied federal benefits to same-sex couples with valid marriage licenses.

Historic Senate vote: ENDA passes, 64 to 32

The U.S. Senate today approved the flagship piece of legislation that the LGBT community has fought for over the past 19 years and more. The vote of 64 to 32 marked the first time the Senate has approved the Employment Non-Discrimination Act (ENDA).

merkley_jeff
Jeff Merkley

The U.S. Senate today approved the flagship piece of legislation that the LGBT community has fought for over the past 19 years and more.

The vote of 64 to 32 marked the first time the Senate has approved the Employment Non-Discrimination Act (ENDA). The only other Senate vote, in 1996, failed on a vote of 49 to 50.

ENDA seeks to add language to the federal Civil Rights Act to prohibit employers from taking adverse employment actions against employees or job applicants based on “sexual orientation” and “gender identity.” It applies to employers with more than 15 employees but exempts some employers based on the degree to which they are involved in religious activities.

While the bill is not as comprehensive as the original legislation introduced by the late Rep. Bella Abzug (D-NY) in 1974 and championed by the late Senator Ted Kennedy (D-Mass.) beginning in 1996, it is considered to be both a critical step toward securing equal rights for LGBT people and a powerful symbolic asset.

The major hurdle now is the Republican-controlled House of Representatives. House Speaker John Boehner has repeatedly said he would not bring ENDA to the floor for a vote in the House, saying he does not believe the legislation is necessary and that it would lead to frivolous lawsuits.

That looming hurdle did not dampen the enthusiasm of senators praising the senate for its passage of the bill.

Senator Jeff Merkley (D-Ore.), who took the lead on ENDA in the Senate after the death of Kennedy, praised Kennedy’s leadership and that of others in both political parties.

“From the Declaration of Independence to the Constitution to our battles over slavery, our battles over gender discrimination, race discrimination, we have fought to capture that vision of equality and liberty and opportunity and fairness embedded in our founding documents and our founding vision,” said Merkley, at a press conference after the first two votes were secured. “We’ve taken a huge stride today in that direction.”

Senator Tom Harkin (D-Iowa), who championed the bill in his senate committee, said, “Today is an historic day.” He noted that the Congress passed the Civil Rights Act in 1964 and the Americans with Disabilities Act in 1994.

“Now, we have sort of finished the trilogy,” said Harkin, who also praised Merkley’s leadership on ENDA.

“We wouldn’t be here without Jeff Merkley,” said Harkin. “He spearheaded this whole effort.” And Harkin called Senator Tammy Baldwin’s involvement “instrumental.”

The passage of ENDA today came after the Senate first rejected an amendment to dramatically expand the number of employers who could claim a religious exemption to ENDA. The amendment, introduced by Senator Pat Toomey (R-Penn.), needed 60 votes to pass.

Section 6 of the original bill stated, “This Act shall not apply to a corporation, association, educational institution or institution of learning, or society that is exempt from the religious discrimination provisions of title VII of the Civil Rights Act of 1964.” On Wednesday, the Senate approved, by voice vote, an amendment from six Republican senators led by Senator Rob Portman (R-Ohio) to ban state and local governments from “retaliating against religious groups that take action only permissible because of the religious exemption clause” in ENDA. It was approved by voice vote Wednesday morning. While LGBT groups were not enthusiastic about the Portman amendment, they didn’t oppose it.

But nearly every LGBT group and supporter opposed the Toomey Amendment. It sought to expand the exemption to include entities “managed by a church or religious organization, officially affiliated with a particular religion, or [that] teach a curriculum directed toward propagating a particular religion.” It would also apply to organizations with “both religious and secular functions.”

Speaking on behalf of his amendment Thursday morning, Toomey said ENDA “makes a strong stand” for equality. But he said religious freedom is also an important value. He said he thinks his amendment “strikes an appropriate balance.” He said he was concerned the courts have not been consistent in recognizing which religious institutions should enjoy the religious exemptions that currently exist in the Civil Rights Act. ENDA amends the Civil Rights Act to include “sexual orientation” and “gender identity.”

Senator Tom Harkin (D-Iowa) spoke in opposition to Toomey’s amendment, saying that changing the existing language of the Civil Rights Act will call into question language that employers are already familiar with and know how to comply with. He said the Toomey amendment “officially affiliated with a particular religion” to discriminate.

“This is a new term that is undefined in the text of the amendment and could lead to thousands of pro-profit businesses being allowed to discriminate,” said Harkin. He said an employer might be considered “affiliated” simply by receiving a newsletter from a religious group. “It threatens to gut the fundamental purpose of ENDA,” said Harkin.

Baldwin, the senate’s only openly gay member, said the current religious exemption in ENDA is a “very carefully negotiated bipartisan” religious exemption. She urged the Senate to reject Toomey’s amendment.

The Senate did so, by a vote of 43 to 55.

The Senate then voted 64 to 34 to approve a procedural motion to close debate on ENDA.

ENDA supporters were clearly hoping for a robust vote in support of the underlying bill and were heartened that not one senator, over the course of four days of allotted debate time, spoke in opposition to ENDA.

Senator Jeff Flake (R-Ariz.) did express concern about the addition of language to protect people on the basis of gender identity. Flake indicated he had prepared an amendment that did not make it to the floor, but suggested that his concerns were addressed.

“When I voted for ENDA in the House in 2007, it did not contain the provisions with regard to gender identity,” said Flake. “Those added provisions have concerned me in terms of potential costs of litigation or compliance. I still have concerns, and I hope that as we work through the process and this bill moves onto the House that we can find ways to make sure that employers can implement these provisions in a way that is reasonable and proper.”

Thanking Baldwin for working with his office on “these issues,” Flake said, “I have a better appreciation for what needs to be done and what we can do with this legislation as it moves through the process.”

Baldwin, speaking at the press conference after the first two votes were taken, said “For folks, like myself, in the LGBT community, the opportunity to be judged in the workplace by your skills and qualities, your loyalty, your work ethic, is an important pronouncement for this nation.”

She talked also about the “symbolic impact” of the vote.

“When we something is wrong and it shouldn’t be done,” said Baldwin, “that sends a powerful message to prevent discrimination in the first place.”

“This is a really tremendous milestone,” said Baldwin, “ –a day I will never forget in my service in the senate.”

© 2013 Keen News Service. All rights reserved.

 

 

U.S. House gay caucus gets new member

michaud_mike
Mike Michaud

In a surprise announcement, U.S. Rep. Michael Michaud, a Democratic candidate for governor next year, acknowledged that he is gay.

Michaud (pronounced Mee-show), 58, said he was making the acknowledgement publically because of “whisper campaigns, insinuations and push-polls” by opponents seeking to gain some advantage in next year’s gubernatorial race by outing him as gay.

“Yes, I am. But why should it matter?” wrote Michaud in an op-ed submitted to the Bangor Daily News, Portland Press Herald, and Associated Press Sunday evening. “Growing up in a large Franco-American Catholic family, it’s never been in my nature to talk about myself. I write this now merely to let my opponents and the outside interests who fund them know that I am not ashamed of who I am. And if seeing someone from my background, in my position, openly acknowledge the fact that he’s gay makes it a little bit easier for future generations to live their lives openly and without fear, all the better.”

In a video interview with the Portland Press Herald Monday, Michaud indicated he made his decision very recently to come out and informed his family of his decision only Sunday.

“It was a very difficult decision,” said Michaud. “It was a personal decision and one I wish I didn’t have to make, but the fact that there was, you know, suspicions out there, push-poll, I thought it was important to let the people of the state of Maine know upfront. That’s why I made the decision to say, ‘Yes, I am gay.’”

The Herald reported that “Michaud has long sidestepped questions about his sexuality, leading some of his ideological opponents to afix a political motive to his announcement.” Among the motives offered were that Michaud was attempting to attract progressive voters away from independent candidate Eliot Cutler, a popular politician with a more liberal record.

Michaud, a former mill worker who represents Maine’s largest geographic and more conservative district, had a 100 percent score with the Human Rights Campaign in the first two terms of his first five terms, then 85, 97, and 95 in subsequent terms. The Bangor paper noted that in 2004, he told Project Vote Smart that marriage should be limited to one man and one woman.

But Project Vote Smart website and HRC records indicate a mostly pro-gay record for Michaud. He voted against a federal constitutional ban on same-sex marriage, declined support for the Employment Non-Discrimination Act when it didn’t include gender identity, and voted for repeal of Don’t Ask, Don’t Tell. But he did not co-sponsor a bill to repeal the Defense of Marriage Act.

Michaud is running against independent Cutler and the ultra-conservative Republican incument, Paul LePage, for the governor’s office.

Michaud joins one other openly gay candidate for governor next year: Heather Mizeur, a delegate in the Maryland state house, running there.

His inclusion means there are now seven openly LGBT members of the U.S. House.

New Jersey becomes Number 14!

In a surprise development, the New Jersey Supreme Court on Friday denied the state’s request to delay a lower court order that allows same-sex couples to begin obtaining marriage licenses there starting Monday, October 21. The news makes New Jersey the 14th state, plus the District of Columbia to provide for marriage equality.

NJ Chief Justice Stuart Rabner

In a surprise development, the New Jersey Supreme Court on Friday denied the state’s request to delay a lower court order that allows same-sex couples to begin obtaining marriage licenses there starting Monday, October 21.  The news makes New Jersey the 14th state, plus the District of Columbia to provide for marriage equality.

It was a unanimous decision from the seven-member court, which just days earlier agreed to review the merits of that lower court decision in an oral argument scheduled for January.

Typically, when a higher court agrees to review the merits of a lower court decision, it postpones implementation of the lower court decision.

Chief Justice Stuart Rabner (an appointee of former Democratic Governor Jon Corzine) wrote the 20-page opinion on the issue of the stay. At the top of that decision, he noted that the state supreme court was also unanimous in 2006 when it ruled that the New Jersey constitution “guarantees same-sex couples in committed relationships the same rights and benefits as married couples of the opposite sex.” He said that, while an existing lawsuit challenges the legislature’s decision to give same-sex couples civil union licenses instead, the U.S. Supreme Court decision striking down the federal Defense of Marriage Act “changed the contour” of that pending lawsuit.

Windsor “changed the landscape,” said the court.

New Jersey Superior Court Judge Mary Jacobson ruled September 27 that the decision in the DOMA case, U.S. v. Windsor, requires New Jersey to allow same-sex couples to marry in order to have access to the same federal benefits as straight married couples. She said the state should begin issuing licenses to same-sex couples on October 21 and denied the state’s request to stay that ruling until the state supreme court could rule.

In its opinion, the state supreme court agreed with Jacobson’s reasons for denying the stay, saying that the harm being done to same-sex couples in New Jersey by not being able to marry is “real” and that the state “has not shown a reasonable probability” of succeeding on its challenge on the merits of Jacobson’s decision.

“This is a huge victory for New Jersey’s same-sex couples and their families,” said Hayley Gorenberg, deputy legal director for Lambda Legal, which led the challenge to New Jersey’s law. “Beginning October 21st, New Jersey’s same-sex couples will be able to marry and have the critically important rights, benefits, and protections they need for their families. Take out the champagne glasses – wedding bells will soon be ringing in New Jersey!”

Even before the state supreme court made its announcement, Newark Mayor Cory Booker announced he would preside over marriages of same-sex couples in Newark on Monday.

House LGBT caucus shows division during budget battles

As Congress continues to wrestle with a bitter partisan divide that has crippled its ability to set a budget, keep the federal government open, and enable the nation to pay its bills, a few openly LGBT members of the U.S. House have surprised many by occasionally voting with Republicans.

Jared Polis
As Congress continues to wrestle with a bitter partisan divide that has crippled its ability to set a budget, keep the federal government open, and enable the nation to pay its bills, a few openly LGBT members of the U.S. House have surprised many by occasionally voting with Republicans.

Out of 33 contentious roll call votes in the House in October, Rep. Sean Maloney (D-NY) and Kyrsten Sinema (D-Ariz) have voted with Republicans 10 times. Rep. Jared Polis (D-Colo.) has done so six times.

The votes have included amendments seeking to defund or delay President Obama’s Affordable Care Act, a measure that most, if not all, LGBT organizations support.

The Republican efforts have failed thus far because most of the bills involved required two-thirds majority to pass the House. The votes have seldom reached that threshold, plus they have no chance of passing the Democratic-controlled Senate.

But some activists are taking notice of Democrats crossing the aisle and they’re not happy about it.

In a blog for Huffington Post, gay political commentator Michelangelo Signorile singled out two of the three for frequently voting with Republicans and conservatives.

“Since taking office, Sinema has voted with the GOP against economic justice issues that progressives, including LGBT activists, view as crucial,” wrote Signorile. “Both she and U.S. Rep. Sean Patrick Maloney, an openly gay former Clinton aide…have voted with big ganks and Wall Street time and again.” Sinema and Maloney, he said, “voted to jeopardize Obamacare or shut down the government.”

“Think about this: On what is arguably the most important debate in Congress, two of nine Democrats who voted with the tea party-led blackmailers are openly gay or bisexual,” wrote Signorile. “Two of only five openly gay or bisexual members of the House voted with the extreme far right to undermine the president.

At a gay media forum in New York City October 2, Ann Northrop, co-host of GayUSA (gayusatv.org), said it was “horrible” that gay and bisexual Democrats in Congress were voting with the GOP, calling them “Republicans in sheep’s clothing or Democrats in name only.”

“What that does,” she said, “… is give the Republicans cover to say [their bills are] bipartisan…. They’re basically saying everybody should be compromising –that’s ridiculous.”

Sinema and Maloney were two of 17 Democrats to vote September 29 for a continuing resolution (CR) bill that included amendments to repeal a funding mechanism and delay implementation of the Affordable Care Act (ACA), President Obama’s health care reform law. Sinema and Maloney were two of nine Democrats to vote October 1 for a CR that included an amendment to delay the ACA’s individual mandate.

 

Sinema and Maloney have taken particular heat for being among 22 Democrats to vote with the GOP in July to delay a key provision of the ACA –the individual mandate.

Sinema told the Arizona Republic she supported a one-year delay because some states have not yet created online “marketplaces” where citizens can sign up for specific insurance plans.

“A one-year delay of the individual mandate,” Sinema told the Republic, “will ensure that Arizonans get that certainty.”

A spokesperson for Polis said, “Jared is committed to working with Democrats and Republicans to re-open the federal government. He believes that we have the opportunity to do that if Speaker Boehner will allow for a vote on a clean CR. In particular, Jared is proud to have supported a bi-partisan bill that would reopen our National Parks so that the many jobs that revolve around tourism and Rocky Mountain National Park in areas like Estes Park in Colorado, are safe.

And a spokesperson for Maloney said the New York representative voted for a continuing resolution to fund the government because he has “thousands of federal employees” in his Congressional district. And while he voted for a CR that would have delayed penalties for individuals who did not sign up for health insurance by the deadline, she noted that President Obama secured a similar delay for businesses, and Maloney believes families should have the same “flexibility.”

Not everyone is critical of the partisan jumps.

Richard Socarides, a political commentator for New Yorker magazine and former White House aide, said he thinks “one could legitimately disagree with some of positions they have taken on the merits, depending on your point of view.” But he added that “it’s not right or smart to say that because they are LGBT Democrats they should always support the president and never work with Republicans.”

Political blogger Mike Rogers said it’s important to look at the individual votes. For instance, Polis voted with Republicans October 4 to support a continuing resolution that would have restored funding to the Federal Emergency Management Agency (FEMA).

“Jared’s district … just went through a devastating flood,” noted Rogers. “If he voted against [the FEMA funding], he’d be followed by a mob.”

He gets why Sinema would have voted with Republicans to support a continuing resolution for the National Park Service.

“Arizona’s economy is in real trouble. The parks there are their lifeblood in many areas,” said Rogers.

But he says Sinema was wrong to vote to delay the ACA.

“A one year delay will kill Obamacare. Period. It will be over and

never pass in another 70 years,” said Rogers.

“I’m not saying that I would rather see a GOPer than Sinema, Maloney or the rest,” said Rogers, “but we still need to pressure these people to be Democrats.”

An October 11 article in MotherJones notes that a few Democrats, including Sinema and Maloney, “serve in districts carried by Mitt Romney in 2012,” and are considered vulnerable in 2014. But Polis, the article notes, is in a safe Democratic district. A spokesman told MotherJones that Polis wants a “clean” continuing resolution but that he was proud to support one that included funding just for the National Park Service “so that the many jobs that revolve around tourism and Rocky Mountain National Park…are safe.”

Notably, all six LGBT House members signed onto an October 5 letter to House Speaker John Boehner, demanding a vote on a continuing resolution that is free of controversial amendments.

Lambda, ACLU lawsuits get boost in New Jersey and Illinois courts

In Illinois and New Jersey courts, the marriage equality movement won two more victories, including a major development that puts New Jersey on track to become the 14th state to allow same-sex couples to obtain marriage licenses.

In Illinois and New Jersey courts, the marriage equality movement won two more victories Friday (September 27), including a major development that puts New Jersey on track to become the 14th state to allow same-sex couples to obtain marriage licenses. And it also thrusts the issue back into the political arena in both states and possibly the next presidential election.

In Garden State Equality v. Paula Dow, Superior Court Judge Mary Jacobson ruled that, in the wake of the U.S. Supreme Court decision striking the Defense of Marriage Act (DOMA), the New Jersey scheme of providing only civil union licenses to same-sex couples violates the couples’ state constitutional rights to equal protection.

The decision set October 21 as the deadline for the state to begin to issue marriage licenses to couples in New Jersey, but Republican Governor Chris Christie said, through a spokesperson, that he would appeal to the state supreme court. That supreme court ruled in 2006 that same-sex couples should have the same rights as straight couples but allowed the legislature to decide whether those rights could be granted through marriage or some other scheme. The legislature chose civil unions.

“If they move for an appeal or stay, we will fight that every step of the way,” said Haley Gorenberg, an attorney with Lambda Legal Defense, which pressed the case on behalf of six same-sex couples and the state LGBT political group, Garden State Equality.

Just hours before that decision was released, a judge in the Illinois circuit court for Cook County denied a motion from a group of clerks from five other counties to dismiss the two lawsuits seeking the right to marry for same-sex couples in Illinois. The ruling by Judge Sophia Hall enables Lambda Legal and the ACLU to press forward with their two lawsuits, Darby v. Orr and Lazaro v. Orr. The lawsuits, which have been consolidated, ask the court to invalidate the Illinois statute banning marriage licenses for same-sex couples.

The judge has set October 8 to set a schedule for briefs to be filed in preparation for the judge make a ruling on the law.

In both Illinois and New Jersey, the court cases come at politically sensitive times.

In Illinois, State Rep. Greg Harris has vowed to press again for passage of a marriage equality bill that was reportedly close to passage there in May. But Harris withdrew the bill in the final minutes of the session, saying some colleagues asked for more time to discuss the issue with their constituents. The bill had already passed the state senate. Marriage equality supporters are planning a March on Springfield event for October 22, when the legislature comes back into session.

But the political implications are even hotter in New Jersey, where voters will go to the poll in November to either re-elect Republican incumbent Christie or replace him with Democratic challenger Barbara Buono. Buono’s daughter, Tessa Bitterman of San Francisco, is openly gay, and Buono has sponsored a bill seeking to override Christie’s veto of a marriage equality bill last year. And Buono is hammering Christie’s over the latest effort to block marriage equality.

Meanwhile, Christie, who has a wide lead over Buono in current polls, is probably trying to say as little as possible about the marriage issue because whatever he says could come back and haunt him if he makes a bid for the White House in 2016. Standing against marriage equality could help secure his nomination by an increasingly conservative Republican party, but it could hurt his chances with the more moderate general electorate –one that is increasingly supportive of allowing same-sex couples to marry.

The Garden State Equality ruling came in response to a motion Lambda Legal filed shortly after the U.S. Supreme Court, in U.S. v. Windsor, declared unconstitutional the key provision of DOMA –banning federal recognition of marriage licenses obtained by same-sex couples.

New Jersey Attorney General Paula Dow attempted to argue at a hearing on the motion in August that any harm done to same-sex couples with civil unions in New Jersey was harm done by the federal government, not by state action. She said the state did provide equal benefits to married and civil union couples. But Lambda argued that, by limiting same-sex couples to civil unions, New Jersey was causing harm to the couples by blocking their ability to access federal benefits.

In Illinois, opponents of same-sex marriage noted that Judge Hall allowed the lawsuits to proceed on only two of the five grounds that Lambda and the ACLU had pressed. The two grounds on which the lawsuits can proceed challenge the state ban as a denial of equal protection to citizens based on sexual orientation and as a violation of their due process rights. Judge Hall rejected Lambda and the ACLU’s arguments that the ban also denies equal protection based on sex. She said discrimination based on sex is “distinct from” discrimination based on sexual orientation. She said the state’s right to privacy laws have not been interpreted to cover the right to personal decisions. And she said the state’s law against legislation targeted at specific groups was written to prevent laws favoring specific groups.

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.