Archive for the ‘LGBT’ Category

Supreme Court rulings on DOMA, Prop. 8 unlikely to end matters

Tuesday, June 18, 2013 by:Carolyn Lochhead

Uberlawyer David Bois said Tuesday a loss on Prop 8 in the Supreme Court this month won’t be the end of the fight he and Ted Olson are waging for marriage equality.

“We will bring lawsuits in other states” to force the 38 that ban same-sex marriage to recognize them under the full faith and credit clause of the Constitution.

And Sen. Kirstin Gillibrand, D-NY, said Congress still needs to repeal the Defense of Marriage Act even if the Supreme Court overturns the law this month. That’s because the court will rule only on Section 3, which bans federal recognition of same-sex marriages, but not Section 2, which allows a state to refuse to recognize a same-sex marriage from another state.

Gillibrand said that means a same-sex couple married in New York who retires to Florida or any other state that does not not allow same-sex marriages would not have their marriage recognized. “We will repeal DOMA regardless” of how the court rules, Gillibrand said. Sen. Dianne Feinstein, D-Calif., is the lead sponsor of the repeal bill, the Respect for Marriage Act.

Gillibrand and Bois, a lead lawyer with former Solicitor General Olson in the case that challenges California’s Proposition 8, banning same-sex marriage, spoke at an event sponsored by the center-left group Third Way. The group has a useful graphic explaining the complex permutations of possible rulings in the two cases.

Legal analysts widely expect the court to strike down DOMA in United States v. Windsor, in which lesbian widow Edith Windsor of New York was forced to pay the government $360,000 in estate taxes she would not have owed had her marriage been recognized.

Analysts expect the court to reject the argument by Bois and Olson in Hollingsworth v. Perry that California’s Prop. 8 violates the equal protection clause of the Constitution, thus extending the right to same-sex marriage across all 50 states. The Court is expected instead to deny the Prop. 8 appeal, allowing lower court decisions that overturn the initiative to stand and in effect making same-sex marriage legal only in California.

Jane Schacter, a Stanford University professor of constitutional law, said even repealing DOMA would not solve the question of state recognition.

“Even if DOMA were repealed tomorrow, states traditionally have relied on their own principles and public policies to decide to recognize another state’s marriage,” Schacter said. “It’s not as if DOMA for the first time empowered them to do that.”

For decades, states differed on marriage rules, such as whether to allow first cousins to marry. Schacter said the Supreme Court has never applied the full faith and credit clause of the Constitution to compel states to recognize out-of-state marriages that are illegal in their own state.

Differences in state laws on same-sex marriage are “going to complicate things, no question about that,” Schacter said. “Just getting rid of DOMA doesn’t get rid of that complication.”

A fifth of gays, lesbians live in states where they can marry

Wednesday, May 15, 2013 by:Carolyn Lochhead

UCLA’s pro-gay Williams Institute think tank reports today that with the addition of Minnesota to the ranks of states that have legalized same-sex marriage, more than a fifth, or 22 percent, of gays and lesbians now live in states where they can marry.

That’s up from five percent just three years ago. Six months after voters defeated an initiative to ban same-sex marriage in Minnesota, the state became the third in May alone to permit such marriages, joining Rhode Island and Delaware. Thirteen states, counting the District of Columbia, now permit same-sex marriage. Others are Washington, Maryland and Maine voters approved same-sex marriage in November. The District of Columbia and the states of Connecticut, Iowa, Massachusetts, New Hampshire, Vermont and New York.

If Illinois and California join that train, the percentage of gays and lesbians who could marry in their states would leap to 41 percent, the report said.

The Supreme Court is expected to rule on California’s Prop. 8 at the end of June. The court is expected to rule on narrow grounds, possibly upholding lower court decisions that ruled the initiative unconstitutional. That would in effect legalize same-sex marriage in California.

Illinois is considering legislation, SB10, to legalize same-sex marriage. It has passed the House and is under consideration in the state Senate. Democratic Gov. Pat Quinn said he would sign it.

The National Organization for Marriage, which proposed the Minnesota ban, announced Tuesday it would sue the Internal Revenue Service, now in very hot water for targeting Tea Party groups for added scrutiny. NOM alleges that the agency leaked its tax documents to the Human Rights Campaign.

Supreme Court leery of finding broad right to marriage in Prop. 8 case

Tuesday, March 26, 2013 by:Carolyn Lochhead

The Justices of the Supreme Court appeared skeptical Tuesday about finding a constitutional right to same-sex marriage in a landmark case challenging California’s Proposition 8, the initiative banning such unions that voters approved in 2008.

Justice Anthony Kennedy, considered the pivotal vote on the court, said extending same-sex marriage rights to all 50 states, as the star legal team of Ted Olson and David Boies and San Francisco city attorney Dennis Herrera asked, could invite the court into “uncharted waters.”

Still, Kennedy expressed concern about the tens of thousands of California children living in homes headed by gay and lesbian couples whose unions are seen by the state as inferior to marriage.

Several justices explored the implications of a narrower ruling, including one that would let stand lower court decisions finding Prop. 8 to be unconstitutional. That would make same-sex marriage legal in California but not require it in other states that now ban it.

Chief Justice John Roberts wondered whether the fight over marriage was “just about the label” because California grants to gay and lesbian couples all marital rights short of the term marriage.

Roberts drew an analogy to efforts to expand the term marriage to a child deciding whom to call a friend. “I suppose you can force the child to say, this is my friend, but it changes the definition of what it means to be a friend,” Roberts argued.

Olson shot back that “certain labels” have a great deal of meaning in the law and culture, such as the word “citizen.”

“It’s like you were to say you can vote, you can travel, but you may not be a citizen,” Olson said.

Olson told reporters after the arguments not to read too much into the justices’ questions and that the case itself had educated the public and changed attitudes about same-sex marriage.
“I’m not sure what the United States Supreme Court is going to do,” Olson said, “but we’re very glad they listened.”

Olson, top Republican lawyer, emphasized that his teaming with Boies, a Democrat and his former opponent in Bush v. Gore, was intended to demonstrate that same-sex marriage is about liberty and equal protection, not partisanship or ideology.

Two of the plaintiffs, Kris Perry and Sandy Stier of Berkeley, stood with two of their four children, teenage twins Spencer and Elliot. Spencer said he and his brother are “very, very proud sons,” and they “look forward to the day when we are treated equally.”

Perry would not speculate on the outcome of the case but said she was relieved it was reaching its climax and looked forward to the decision, expected at the end of June.

See a transcript of the lively arguments here. Audio available here.

Among the high (or low) points was an odd repartee from Justice Antonin Scalia to Justice Elena Kagan. Kagain was challenging the Prop. 8 proponents argument that the sole state interest in marriage is to promote “responsible procreation” among heterosexuals who otherwise might have babies willy nilly.

Kagan said if that were the case, why not ban marriage for those older than 55. Scalia, in an odd moment, joked that the late Sen. Strom Thurmond, R-NC, a former segregationist and notorious Lothario who fathered a mixed-race child as a young man, along with several children at an advanced age — and died at 100 — was not heading the Judiciary Committee when Kagan was confirmed, as he was when Scalia was confirmed. He seemed to suggest that Kagan would think differently of elderly male fertility had she had Thurmond’s example before her.

Scalia also repeatedly referred to California Attorney General Kamala Harris as “he.”

From NFL players to Karl Rove, opposition melting to same-sex marriage

Monday, March 25, 2013 by:Carolyn Lochhead

As the Supreme Court prepares to hear two momentous cases on same-sex marriage this week, opposition is evaporating. From National Football League players to Karl Rove, who said he could imagine the next GOP presidential nominee endorsing same-sex marriage, everyone seems to be coming out of the closet in favor of gays and lesbians securing the right to marry. Missouri Sen. Claire McCaskill, a Democrat in a perilously swing state, is but the latest.

See the NFL player brief here. Find all the Prop. 8 amicus briefs here. And all the DOMA briefs are here. Nearly 300 businesses have weighed in, citing the cost and difficulty of DOMA’s denial of federal tax and employment benefits to married same-sex couples.

The Wall Street Journal editorial writers made their best case for standing athwart history and yelling stop, borrowing their arguments from the briefs supporting DOMA and Prop. 8. They are also attempting a counterfactual to conservative columnist George Will’s argument that DOMA should be struck down on federalism grounds, because marriage is the quintessential state domain.

The editorial writers warn ominously that if Justice Anthony Kennedy doesn’t leave things to the voters in places like Alabama and North Carolina, he will “incite another Forty Years War,” as the Roe v. Wade decision did on abortion. “A same-sex marriage ukase would achieve that rare thing, harming advocates and opponents and everyone else in between,” they declare.

David Boies, co-counsel with former Bush Solicitor General Ted Olson, who is asking for a Prop. 8 ruling that declares same-sex marriage a constitutional right, answered that the relevant political precedent is not Roe, but Loving v. Virginia. Boies said told us last week that there was “not a ripple” of opposition from states that still banned interracial marriage in 1967 when the court ruled such bans unconstitutional.

If the court rules against same-sex marriage, it remains to be seen whether conservative states mount a counter-rebellion in the face of rising GOP defections. What is clear now is that a ruling to uphold DOMA and Prop. 8 would only delay the inevitable.

California Attorney General Kamala Harris is in Washington for the arguments, having refused to defend Prop. 8. San Francisco city attorney Dennis Herrera and his legal team, partners with Boies and Olson, are also here preparing for oral arguments Tuesday. San Francisco, a co-plaintiff in the Prop. 8 case, from the outset defended former Mayor Gavin Newsom’s 2004 decision to issue marriage licenses to gay and lesbian couples, later invalidated by the California Supreme Court, which said Newsom lacked legal authority.

Spokesman Matt Dorsey called Tuesday the culmination of a “nine-year odyssey” that has seen a shift in cultural attitudes that no one could have imagined when the city filed suite in 2004 to launch “the first government challenge to anti-gay marriage laws in U.S. history.”

Some states with marriage bans not defending DOMA

Wednesday, March 20, 2013 by:Carolyn Lochhead

Indiana is taking the lead among 17 states signing a brief in support of the 1996 Defense of Marriage Act, to be argued before the Supreme Court March 27. But 38 states ban same-sex marriage. That means a majority of states with bans are not even trying to defend DOMA, which defines marriage for federal purposes as the union of one man and one woman.

Among the states with bans, 17 signed the brief supporting DOMA and 21 did not.

Two of those states, California and Minnesota, are obvious omissions. California officials are also refusing to defend Prop. 8, the voter passed initiative that bans same-sex marriage in the state and was ruled unconstitutional in a district court and the Ninth Circuit. The high court will hear the Prop. 8 case March 26, when Ted Olson and David Boies, antagonists in Bush v. Gore, unite to try to shoot down all state marriage bans as an unconstitutional. Find their brief here.

Minnesota voters last November defeated a state constitutional amendment to define marriage as a union of one man and one woman, the first state ever to do so.

The Indiana amicus is signed by the attorneys general of Alabama, Alaska, Arizona, Georgia, Idaho, Indiana, Kansas Michigan, Montana, North Dakota, Oklahoma, South Carolina, Texas, Utah, Virginia, West Virgina and Wisconsin.

States banning same-sex marriage through either legislation or the state constitution that did NOT sign the brief are: Arkansas, California, Colorado, Delaware, Florida, Hawaii, Illinois, Kentucky, Louisiana, Minnesota, Mississippi, Missouri, Nebraska, Nevada, North Carolina (the latest to ban marriage through a constitutional amendment approved overwhelmingly by voters last year) , Ohio, Oregon, Pennsylvania, South Dakota, Tennessee and Wyoming.

Dale Carpenter, a professor of civil rights law at the University of Minnesota and author of Flagrant Conduct, a reportorial masterwork on the Lawrence v. Texas decision, said Wednesday on a call arranged by the conservative Federalist Society that he assumes that in the non-participating states, “there are executive law enforcement officers who do not support their state ban…There are public officials across the country who have evolved on this over time. Either that, or they don’t care enough about the issue to take the trouble to make this part of their legacy.”

To be sure, only DOMA’s section 3 is at issue, which defines marriage for federal purposes as the union of one man and one woman. Section 2, which says that no state is required to accept gay or lesbian marriages from other states, is not before the court.

A new Reuters/Ipsos poll shows a 55 percent majority nationwide supporting same-sex marriage, following a Washington Post poll earlier this week showing support jumping to 58 percent, an all-time high. The Post reported that the results have flipped since 2006: “As recently as 2010, opponents of same-sex marriage outnumbered supporters. As recently as 2006, they outnumbered them by a double-digit margin, 58 percent to 36 percent.”

GLAD has all the briefs here, including the one by states opposing DOMA.

Bill Clinton says he signed unconstitutional DOMA

Friday, March 8, 2013 by:Carolyn Lochhead

Former President Bill Clinton

Former President Bill Clinton, a Democrat who signed into law and implemented a wave of anti-gay rules and legislation, including the Don’t Ask, Don’t Tell ban on gays in the military, now repealed, and DOMA, the 1996 Defense of Marriage Act, now before the Supreme Court, issued an op-ed today repudiating, sort of, his action.

Clinton: “The justices must decide whether it is consistent with the principles of a nation that honors freedom, equality and justice above all, and is therefore constitutional. As the president who signed the act into law, I have come to believe that DOMA is contrary to those principles and, in fact, incompatible with our Constitution.”

He stops well short of an apology, saying only that “our laws may at times lag behind our best natures.”

In fact, he says he sought to soften DOMA’s effect, which took the full force of law with his signature, saying he included a signing statement, which has no force of law: :”When I signed the bill, I included a statement with the admonition that ‘enactment of this legislation should not, despite the fierce and at times divisive rhetoric surrounding it, be understood to provide an excuse for discrimination.’”

His gay former aide Richard Socarides notes Richard Socarides that it is “extremely rare for former Presidents to admit mistakes made in office, and rarer still for one to disavow a major piece of legislation.”

The Supreme Court will hear oral arguments on DOMA March 27.

Clinton’s bungling of the gays in the military issue upon first taking office in 1993 not only led to codifying the ban but unsettled his first year in office. By 1996, Republicans had discovered same-sex marriage as a potent wedge issue. Clinton succumbed easily, as did an overwhelming majority of the Senate, with the quite notable exceptions of California’s two senators, Dianne Feinstein and Barbara Boxer, and the House.

Socarides captures the atmosphere at the time: “Inside the White House, there was a genuine belief that if the President vetoed the Defense of Marriage Act, his reëlection could be in jeopardy.”

Now it’s safe for Clinton to come out. Perhaps his actions have been weighing on his conscience.

Leon Panetta extends military benefits to same-sex couples

Monday, February 11, 2013 by:Carolyn Lochhead

As one of his last acts in office, Defense Secretary Leon Panetta extended additional military benefits to gay and lesbian couples Monday, saying discrimination based on sexual orientation “has no place in the Department of Defense.”

These encompass 20 benefits such as education, hospital visitation, casualty notification, travel, transportation, identification cards, family counseling, relocation assistance, access to Morale, Welfare and Recreation programs and other benefits that will be available to gay and lesbian couples who sign a declaration attesting to their committed relationship. Find the memo and all benefits available here.

However, Panetta said some benefits such as health care and housing will remain limited to married heterosexual spouses under the restrictions imposed by the 1996 Defense of Marriage Act, also signed by former President Bill Clinton. DOMA forbids same-sex spouses from receiving the same federal benefits that heterosexual spouses are entitled to, such as Social Security benefits and immigration privileges. The Supreme Court will rules on DOMA’s constitutionality this year.

Congress repealed the Clinton-era “Don’t Ask, Don’t Tell” policy in December 2011. At the time of repeal, Panetta, a former Democratic House member from Monterey, promised to review the benefits available to couples.

“It is a matter of fundamental equity that we provide similar benefits to all of those men and women in uniform who serve their country,” Panetta said. “Taking care of our service members and honoring the sacrifices of all military families are two core values of this nation. Extending these benefits is an appropriate next step under current law to ensure that all service members receive equal support for what they do to protect this nation.”

But because DOMA remains in force, “There are certain benefits that can only be provided to spouses as defined by that law, which is now being reviewed by the United States Supreme Court,” Panetta said. “While it will not change during my tenure as secretary of defense, I foresee a time when the law will allow the department to grant full benefits to service members and their dependents, irrespective of sexual orientation. Until then, the department will continue to comply with current law while doing all we can to take care of all soldiers, sailors, airmen, marines, and their families.”

He said the implementation of added benefits for same-sex couples “will require substantial policy revisions and training” but will be available “as expeditiously as possible.” Panetta called the repeal of Don’t Ask, Don’t tell “one of the great successes” at Pentagon, saying implementation “has been highly professional and has strengthened our military community.”

Panetta also served as chief of staff to Clinton, a Democrat under whom major restrictions on same-sex couples were imposed. Nearly two decades later, the broadening acceptance of gays and lesbians has put Republicans increasingly on the defensive on the issue. President Obama gave Panetta a warm farewell at a military base near Washington Friday.

Obama embraces gay, lesbian bi-nationals on immigration

Tuesday, January 29, 2013 by:Carolyn Lochhead

As expected, President Obama endorsed inclusion of bi-national same sex couples in his own immigration framework announced in Las Vegas Tuesday, in contrast to Monday’s bipartisan Senate framework which omitted mention of gays and lesbians.

Obama did not mention bi-nationals in his Las Vegas speech but they were included in the written fact sheet, endorsing reform that “treats same-sex families as families by giving U.S. citizens and lawful permanent residents the ability to seek a visa on the basis of a permanent relationship with a same-sex partner.”

Currently, married gay and lesbian couples, of whom one partner is a U.S. citizen and the other a foreigner, are banned under the 1996 Defense of Marriage Act from the spousal immigration preference given to straight couples. DOMA is currently before the Supreme Court. If the court overturns DOMA, the issue should be moot for gay and lesbian couples married any of the nine states (and D.C.) that permit it.

Gay rights activists worry that in the long, tough negotiations ahead, the interests of the small number of gay and lesbian couples of whom one member is a foreigner (est. 28,500) could be ditched to woo GOP votes. (How many depends first on how deeply Senate Republicans splinter on immigration, and second, on whether House Speaker John Boehner would allow an immigration bill to come to the floor that would need Democrats to pass.)

Sen. John McCain, the Arizona Republican who joined the bipartisan Senate Gang of Eight for comprehensive immigration reform, on Tuesday morning dismissed the issue as less important than broader immigration issues. “It’s something that, frankly, is not of paramount importance at this time,” McCain said. “We’ll have to look at it … to gauge how the majority of Congress feels. … We need to get broad consensus on our proposal to start with.”

Boehner spokesman Brendan Buck warned against Obama’s leftward tilt: “There are a lot of ideas about how best to fix our broken immigration system. Any solution should be a bipartisan one, and we hope the President is careful not to drag the debate to the left and ultimately disrupt the difficult work that is ahead in the House and Senate.”

Sen. Chuck Schumer, D-NY, a chieftain of the Gang of Eight, praised Obama for leaving “space” to Congress to work out the details: “He is using the bully pulpit to focus the nation’s attention on the urgency of immigration reform and set goals for action on this issue. But he is also giving lawmakers on both sides the space to form a bipartisan coalition.”

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