Jo Becker's new book

Reporter Jo Becker was embedded in the Prop8 campaign and has written a book about it.

The problem some commenters have is that her book gives all the credit for marriage equality to Chad Griffin and Ted Olson, with decidedly short shrift to other activists like Andrew Sullivan, Evan Wolfson, and Mary Bonauto.

Several prominent LGBT writers have scolded Becker for apparent hagiography.  I have to say, comparing Chad Griffin with Rosa Parks (as apparently she does on the first page) seems a bit much.  

The fact remains that Prop8 was overturned on a technicality, and the $6m effort of Boies and Olson to ride to the rescue on nationwide marriage equality didn't work.

Nathaniel Frank:

Ultimately, Becker implies that the righteous impatience—and even impetuousness—of Griffin and Olson were responsible for driving a “tectonic shift on the issue of marriage equality” and “bring[ing] marriage equality to the nation.” Note: This hasn’t happened yet—fewer than half the states have marriage equality—so this suggestion is absurd on its face. Becker simply assumes that her protagonists caused, rather than reflected, a shift already well under way....  

In reality, the Griffin-Olson team joined the cause at the 10-yard line, did terrific work in moving the national conversation forward, and tried a risky strategy to win nationwide marriage equality at the Supreme Court—which failed. They added (back) exactly one state, California, furthering the successful state-by-state strategy that was already winning because of the lifelong work of Evan Wolfson, Mary Bonauto, and countless other gay advocates. That work will be responsible for national marriage equality when it finally happens.

Chris Geidner

Forcing the Spring just doesn’t get it right. 

Emblematic of the problems that plague the book is Becker’s treatment of the speech that screenwriter, and eventual AFER board member, Dustin Lance Black gave at the OutGiving conference for LGBT donors held by Tim Gill’s Gill Foundation in March 2009. 

“If there was applause, Black didn’t remember any,” Becker writes. “Instead, he recalled an ocean of pursed lips and crossed arms, and that he was literally trembling as he walked off stage. … Tim Gill … denounced Black outright, telling the crowd he was naive and misguided.” 

Video from the event provided to BuzzFeed, though, shows that the speech was interrupted with applause five times. At the end, at least some members of the audience gave Black a standing ovation, the video shows....

So, she actually lies about the speech.  And this is reporting?  Geidner concludes,

The small universe of people who constitute Becker’s sourcing for the book — and her apparent unwillingness to explore alternative reasons for or views of the developments those sources discuss — make the book a dangerous draft of history.

 

Where we are legally

Scottie Thomaston at Prop8TrialTracker has an excellent run down of all the legal cases around marriage and DOMA.  And there are  a lot of them:

The Supreme Court
Gill v. OPM:
Massachusetts v. HHS:
Windsor v. USA  
Golinski v. OPM 
Perry v. Brown, 

The District Courts
Blesch v. Holder 

The Appeals Courts
Dragovich v. US Dept of Treasury:
Pedersen v. OPM
Windsor v. USA   (Petitioning to skip this step)
Golinski v. OPM:(Petitioning to skip this step)

DOMA update

Things are moving fast in multiple lawsuits against DOMA. Chris Geidner fills us in:

Gill v. Office of Personnel Management and Massachusetts v. Department of Health and Human Services: These two cases, decided by the First Circuit on May 31, are waiting on a filing by the Department of Justice and/or the House Bipartisan Legal Advisory Group to the Supreme Court asking the high court to hear the case.
...
Golinski v. Office of Personnel Management: This case, an appeal from U.S. District Court Judge Jeffrey S. White's Feb. 22 trial-court opinion striking down the law, is being briefed before the Ninth Circuit....
...
Windsor v. United States: DOJ filed a notice of appeal in the case in which U.S. District Court Judge Barbara Jones found Section 3 of DOMA unconstitutional on June 6.
...
Dragovich v. Department of Treasury: No notice of appeal has been filed from this May 24 decision, which involves both state and federal defendants due to the specific DOMA-impacted law -- affecting tax treatment for a California-offered long-term care plan -- being challenged.
...
McLaughlin v. Panetta and Cooper-Harris v. United States: These two cases are addressing the constitutionality of different military and veterans' benefits given to married, same-sex couples. ...On June 6, DOJ was granted a request in McLaughlin to stay the case, or put it on hold, until the final mandate is issued by the First Circuit in the Massachusetts case. BLAG is seeking a similar delay in Cooper-Harris...
...
Pedersen v. Office of Personnel Management: This case is pending in federal trial court in Connecticut. It has been fully briefed, and the parties are awaiting a decision.

DOMA on trial

Today, there is an appeal in the 1st circuit federal court about DOMA. This follows up on the Gill.... case where legally married lesbians and gays in MA claim it is unconstitutional to deny them benefits that are given to their fellow MA citizens. The original district court agreed. Now, it's up at the 1st circuit, where the DoJ is arguing against DOMA and your tax dollars via Speaker John Boehner are paying to support DOMA. Incidentally, here's a nice little irony: Paul Clement, the lawyer arguing that DOMA is a perfectly legitimate intrusion of the federal government into a state's right to determine who is or isn't legally married, is the same attorney who argued that the Affordable Care Act is an unreasonable intrusion of the federal government into states' rights. Complete background from the estimable Poliglot here.

Breaking: Another court finds DOMA unconstitutional

In the case Golinski vs OPM, DOMA has been found unconstitutional in another district court.  In this case, legally married Californian Karen Golinski sought medical benefits for her spouse.  This will probably go on appeal to the 9th circuit.  Interestingly both Judge Tauro (in MA, in Gill) and Judge White (in Golinski) are Republican appointees.  More background here.

This isn't the first time.  DOMA (the defense of marriage act) was previously found unconstitutional in district court in the cases consolidated as Gill v OPM, and that is under appeal in the 1st circuit.   So (as with Prop8), despite opinions against it, we still endure it.

From  Poliglot, quoting the decision

The Court finds that neither Congress' claimed legislative justifications nor any of the proposed reasons proffered by BLAG constitute bases rationally related to any of the alleged governmental interests. Further, after concluding that neither the law nor the record can sustain any of the interests suggested, the Court, having tried on its own, cannot conceive of any additional interests that DOMA might further.

It's hard to get excited since it was over a year ago that Judge Tauro had similar findings.  There are at least 8 DOMA cases at various stages of litigation.  And still my marriage is not federally recognized.

Congress to defend DOMA with your tax dollars

Okay, so the country is divided pretty equally on marriage equality, with a narrow majority favoring equality. If you throw civil unions into the mix, there is a strong majority in favor of some form of recognition of committed gay couples. The anti-equality folks are slipping further the fringe, equating gays with incest and pedophila.

As we've discussed many times, DOMA prevents the federal government from recognizing legal marriages between same sex partners from Equality States. So, for example, the federal government treats me and my wife as single despite our valid marriage license.

Not surprisingly, there are a number of cases in various circuits of the federal court system challenging this on equal protection grounds (again, we've covered them extensively here at GMC). With the decision of the Obama administration not to defend DOMA, Congress has stepped in. Speaker Boehner has allotted $500,000 to a politically powerful law firm, King and Spalding, to defend these DOMA cases.

Now, while that's a lot of money, in the grander scheme of things, it's not really much at all. The Prop8 trial so far has cost more than $1.5million in attorney fees to Ted Olson's firm. And that's just for ONE case.  Poliglot uncovers evidence that the $500,000 from the government is no cap at all. That is, you the taxpayer may be on the hook for millions and millions of dollars to defend the following multiple cases:

In addition to the Windsor v. United States case in which King & Spalding attorney Paul Clement already has filed a motion on behalf of the BLAG seeking to intervene in the case, two appeals in the U.S. Court of Appeals for the First Circuit (Gill v. Office of Personnel Management and Massachusetts v. United States), a case at the trial court level in Connecticut (Pedersen v. Office of Personnel Management) and federal court employee Karen Golinski's attempt in a federal court in California to get health benefits for her wife (Golinski v. Office of Personnel Management) are ongoing, there also are six other cases listed by the Department of Justice in a Feb. 25 memorandum sent by Assistant Attorney General Robert Weich to Boehner as being impacted by the DOJ DOMA decision.

And in the final irony, the law firm King and Spalding boasts of its gay-friendly diversity policies.

But wait--there's more.

The government contract to K&S specifically forbids attorneys at the firm from advocating for DOMA repeal, even if they are not involved in the litigation. Yes, apparently, they are trying to muzzle the personal activities of individuals not involved in the case.

Metroweekly tells us that this muzzle may be illegal in some states.

Jon Davidson, the legal director at Lambda Legal, told Metro Weekly that in some states the provision might be illegal. Davidson specifically pointed to California, where King & Spalding has two offices, in which Labor Code Section 1101 states that "[n]o employer shall make, adopt, or enforce any rule, regulation, or policy ... [f]orbidding or preventing employees from engaging or participating in politics ...."

Talking about the statute, which would be applicable in King & Spalding's San Francisco and Silicon Valley offices, Davidson said, "It's not just illegal, it's criminal. It also gives rise to civil liability."
...

Neither of the two partners named on King & Spalding's "LGBT Lawyers" page on its website – Diversity Committee chair Samuel M. Matchett or Sam Griffin – responded to multiple requests seeking comment about the impact of the DOMA representation on LGBT recruitment at the firm.

Disgusting as it is, there is a certain irony to this.

The firm chosen to defend DOMA prides itself on LGBT diversity. I'm sure they are bright and accomplished. So that suggests that LGBT unfriendly firms with the appropriate qualifications maybe aren't so sharp (we saw that in some of the Prop8 case work). The sad thing, though, is that the firm in question is willing to sell its principles for money.

What a perfect Republican firm THAT is.

A new DOMA case

On Friday, a new DOMA case began: Golinski v OPM. I've told you previously about the ongoing effort of Karen Golinski, an employee of the Ninth Circuit court of appeals, to get medical coverage for her wife. (The Ninth Circuit is hearing the Prop8 appeal.)

Chief Judge Kozinski, who heard Golinski's employee grievance, agreed, because the Ninth does not allow discrimination on the basis of orientation. But the Office of Personnel Management refused to comply because of DOMA. (It's a great irony that OPM is headed by John Berry, the highest ranking gay appointed by President Obama.)

Now, Ms Golinski is suing OPM in US District Court. The Advocate reports,

Part of Lambda's argument against OPM in this case is that DOMA is unconstitutional, specifically because it discriminates based on sex and sexual orientation and it infringes on the right to privacy. Lambda is arguing that the U.S. Supreme Court's decision in Lawrence v. Texas, which in 2003 overturned laws against sodomy, set a precedent for the federal government respecting one's familial relationships.

Lambda Legal also plans to tell district court judge Jeffrey White that he need not find DOMA unconstitutional to rule that Golinski's spouse is entitled to health insurance. "OPM, under the authority of President Obama, is part of the Executive Branch of the federal government, and lacks authority to override internal personnel decisions made by the Judicial Branch as it works to end discrimination against lesbian and gay court employees," says a press release from Lambda Legal.

It's worth reminding you that OPM has already been sued twice on DOMA: First in Gill v OPM. In this case, a legally married Massachusetts resident sued for a federal work benefit for her wife. Federal Judge Joseph Tauro found that the clause of DOMA that prevents federal recognition of legal same sex marriages was unconstitutional. Obama's Department of Justice is appealing the ruling. (The appeal is necessary if it is to extend beyond Massachusetts--it has to get into the Circuit courts of appeal and up to the SCOTUS).

The second case, currently pending, is Pederson v OPM, which challenges state and private entities that rely on DOMA to deny benefits to married same sex couples.

Now we can add Golinski v. OPM. As always, I will follow these here..

Picture from the Advocate

New DOMA suits expand issues beyond previous case

From MetroWeekly:

At first glance, the lawsuit looks similar to the Gill v. Office of Personnel Management lawsuit that resulted in a successful trial court ruling in July.

The lawsuit expands upon Gill, though, in a particularly significant way -- reaching to state and private corporation discriminatory treatment resulting from DOMA.

In Gill, only federal programs and federal government-provided benefits were questioned -- from Social Security to passports to taxes. In today's lawsuit, Pedersen v. Office of Personnel Management, state and private entities' actions are brought into the lawsuit.

The actions are challenged not because of discretionary decisions made by the state or private entities, but instead because of those programs' adherence to federal laws and regulations. An example comes from Count IV of the complaint, Janet Geller and Joanne Marquis v. Timothy F. Geithner and Douglas H. Shulman:

Under existing [Internal Revenue Code] statutes and regulations as well as New Hampshire state law, Jo would receive a medical subsidy spousal benefit from the [New Hampshire Retirement System] to help pay for her legal spouse Jan’s private health insurance premiums, but for DOMA, 1 U.S.C. § 7, which prohibits the NHRS as a tax-qualified plan from providing the benefit to an otherwise qualified retiree’s spouse if that spouse is of the same sex.

With regards to private companies, GLAD's lawsuit details the actions taken by Bayer Corporation against Gerald V. Passaro II, the widower of Thomas M. Buckholz. Buckholz had been an employee of Bayer for more than 20 years. From the lawsuit:

Under the terms of the Bayer [Corporation Pension] Plan, and in compliance with applicable federal law, where a Participant, like Thomas Buckholz, who has vested and has a nonforfeitable right to benefits under the Bayer Plan, dies prior to his annuity start date, the Participant's surviving spouse shall be paid a Preretirement Survivor Annuity. (Bayer Plan, §5.6(a)).

As a result of the application of DOMA, 1 U.S.C. § 7, through ERISA and the Internal Revenue Code, Jerry has been denied the vested qualified preretirement survivor annuity (QPSA) available to all spouses of vested participants in defined benefit pension plans in the equivalent situation as Jerry finds himself today even though he is legally Tom's surviving spouse under Connecticut law.

Update on DOMA cases

There were actually two cases, which I had conflated in some of my earlier posts.

Gill vs. Office of Personnel Management: argued by GLAD, this case brings suit on behalf of several legally married Massachusetts couples who were treated unequally by the Federal Government. Nancy Gill works for the postal service but is unable to cover her wife on the USPS plan or obtain other work benefits that are available to heterosexual married couples, and argued this violated equal protection principles since she is legally married.

Commonwealth vs. Department of Health and Human Services, argued by the Massachusetts State Attorney General, was based on the fact that the federal government told the state that it could not extend benefits (like the state Health insurance program) to same-sex spouses, on penalty of losing federal aid dollars. This case argued that DOMA infringed improperly on the state's sovereign right to determine who is married.

Both of these challenged just section 3 of DOMA, which states that the federal government will not recognize legal state marriages between same sex couples. (Section 2 excuses states from recognizing each other's marriages. That was not addressed.) The Judge found that Section 3 was invalid under two constitutional tests: equal protection (Gill) and a violation of the 10th amendment that delegates broad powers to the states (Commonwealth).

It's a great pair of opinions by Judge Joseph Tauro, appointed to the bench by Richard Nixon. From the Gill decision (and with my emphases):

This court can readily dispose of the notion that denying federal recognition to same-sex marriages might encourage responsible procreation, because the government concedes that this objective bears no rational relationship to the operation of DOMA. Since the enactment of DOMA, a consensus has developed among the medical, psychological, and social welfare communities that children raised by gay and lesbian parents are just as likely to be well-adjusted as those raised by heterosexual parents.But even if Congress believed at the time of DOMA’s passage that children had the best chance at success if raised jointly by their biological mothers and fathers, a desire to encourage heterosexual couples to procreate and rear their own children more responsibly would not provide a rational basis for denying federal recognition to same-sex marriages. Such denial does nothing to promote stability in heterosexual parenting. Rather, it “prevent[s] children of same-sex couples from enjoying the immeasurable advantages that flow from the assurance of a stable family structure,” when afforded equal recognition under federal law.

Moreover, an interest in encouraging responsible procreation plainly cannot provide a rational basis upon which to exclude same-sex marriages from federal recognition because, as Justice Scalia pointed out in his dissent to Lawrence v. Texas, the ability to procreate is not now, nor has it ever been, a precondition to marriage in any state in the country....

I like that dig at Scalia, who was vehemently opposed to the decriminalization of homosexuality in the Lawrence case. This takes out the procreation argument.

But more generally, this court cannot discern a means by which the federal government’s denial of benefits to same-sex spouses might encourage homosexual people to marry members of the opposite sex. And denying marriage-based benefits to same-sex spouses certainly bears no reasonable relation to any interest the government might have in making heterosexual marriages more secure.

What remains, therefore, is the possibility that Congress sought to deny recognition to same-sex marriages in order to make heterosexual marriage appear more valuable or desirable. But to the extent that this was the goal, Congress has achieved it "only by punishing same-sex couples who exercise their rights under state law." And this the Constitution does not permit. 

"For if the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean" that the Constitution will not abide such "a bare congressional desire to harm a politically unpopular group."

That takes out the "defending/protecting straight marriage" Meme. Remember those opposed to marriage equality have never been able to point at any deleterious result in Massachusetts or other states.

Neither does the Constitution allow Congress to sustain DOMA by reference to the objective of defending traditional notions of morality. As the Supreme Court made abundantly clear in Lawrence v. Texas and Romer v. Evans, “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law....”

In other words, take YOUR religion out of MY rights.

....In sum, this court is soundly convinced, based on the foregoing analysis, that the government’s proffered rationales, past and current, are without “footing in the realities of the subject addressed by [DOMA].” And “when the proffered rationales for a law are clearly and manifestly implausible, a reviewing court may infer that animus is the only explicable basis.[Because] animus alone cannot constitute a legitimate government interest,” this court finds that DOMA lacks a rational basis to support it.....Indeed, Congress undertook this classification for the one purpose that lies entirely outside of legislative bounds, to disadvantage a group of which it disapproves. And such a classification, the Constitution clearly will not permit.

. ....And where, as here, “there is no reason to believe that the disadvantaged class is different, in relevant respects” from a similarly situated class, this court may conclude that it is only irrational prejudice that motivates the challenged classification.As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution.

The dislike and fear paraded through the Prop8 trial are dismissed by this Judge of the 1st US DIstrict Court as the bias they are. You don't get to discriminate just because you don't like us.

What next? Well, as with the Perry case, the next step would be appeal to the (1st?) Circuit Court of Appeals, and after that to SCOTUS. The interesting thing here is that the government is defending DOMA: Pres Obama's Justice Department is arguing that while it is discriminatory, it is still constitutional. And Pres Obama is supposed to be a "fierce advocate" for GLBT rights. So the Administration has got a tiger by the ear, here.

If the decisions stand, I'm not sure of the breadth; do they only apply to states and marriages within the geographical confines of the 1st District, or would it apply across the country?

Does this affect the Perry (Proep8) case? That's a much broader case with a more sweeping question: whether or not same sex marriage bans are Constitutional. The DOMA cases didn't address that at all, they simply asked, given same sex marriages, whether it is Constitutional for the Federal Government to discriminate. (The reason Prop8 is not being defended by the government is that neither the Governor nor the Attorney General in CA supported Prop8, and they refused to defend it. Therefore THAT case is being defended explicitly by the promoters of Prop8.) I'm sure that Judge Walker will read these opinions, but I don't know how it might affect his decision.

According to the NY TImes, legal scholars are split on whether this will hold up in appeal, but nearly everyone says it will be appealed. Lots of reactions compiled by Andrew Sullivan worry this could be an expensive victory, if it's overturned.

The DOMA arguments

Yesterday, arguments were heard in a targeted challenge to DOMA, in Gill v. Office of Personnel Management. From GLAD's press release:

Bonauto presented a three-pronged legal argument: By singling out only the marriages of same-sex couples, DOMA violates the equal protection clause of the United States Constitution; DOMA represents an unprecedented intrusion of the federal government into marriage law, which for 230 years has been legislated by states; and by denying federal protections to families, DOMA burdens the marriages of same-sex couples and their right to maintain family integrity.

The DoJ attorney defending DOMA agrees that the president opposes it, but argued that it is constitutional and must be defended. Which he did, aggressively. But he had to deal with the fact that prior to DOMA, the federal government accepted the definition of marriage from each individual state. For example, some states allow marriage between cousins; others do not. But if the marriage is legal in the state in which it was performed, traditionally the federal government has accepted that state's determination.

From the Advocate:

[Judge Tauro] asked Bonauto whether the government had legitimate arguments in saying DOMA was necessary to preserve a “status quo” concerning the federal understanding of marriage or to adapt federal law to the changing understanding of marriage incrementally.

“No, your honor,” said Bonauto: DOMA did not preserve a status quo, it upended one. Bonauto pointed out that prior to DOMA the federal government accepted each state’s definition of marriage.

It was on this point that Judge Tauro pressed the government most vigorously, asking Department of Justice attorney Scott Simpson, “When did it become a federal matter — dealing with marriage?”

Simpson, who has been DOJ’s point man for defending DOMA, tried to step around the question, but Tauro redirected his question more bluntly. “Specifically, point to an incident,” said Tauro, when marriage has been a federal matter prior to DOMA. Simpson had to concede: “it’s true” that, up until DOMA, the federal government has “simply followed the states’ definition of marriage.”

More arguments will follow.

Good sites for updates:
Prop8trialtracker
Hunter of Justice
LGBT POV
And of course, the Advocate and GLAD.

Federal Court to hear DOMA challenge

I've told you about the Gill case, in which Massachusetts is challenging DOMA on the grounds of equal protection for its married gay citizens. The Obama DoJ has released a series of briefs ranging from rankly insulting to denying standing. (Yes, that's our fierce advocate's DoJ, not only defending DOMA but doing it with relish). Previous commentary here. From GLAD's press release:

Judge Tauro will hear GLAD’s motion for summary judgment as well as the federal government’s motion to dismiss. The hearing will address the issue of whether DOMA Section 3 is constitutional six years after the first same-sex couples in the country started marrying in Massachusetts, the result of GLAD’s groundbreaking marriage case, Goodridge v. Department of Public Health.

As a result of DOMA, passed by Congress in 1996, plaintiffs in GLAD’s lawsuit have been denied survivor benefits on a deceased spouse’s pension; denied health insurance coverage for a spouse on a federal family plan; denied Social Security spousal, death, and widower benefits; and denied the ability to file federal income taxes jointly as married.

Fingers crossed.

DOMA: The stories behind Gill

In the Federal Case Gill, Massachusetts is bringing a suit because legally married Massachusetts citizens are deprived equal rights. That means that the ca. 1400 rights given to married couples under Federal law, are denied to them.

They are same sex couples, and while their marriages are perfectly legal, at least in Massachusetts, they are lesser citizens federally.

Why does it matter?

Read their stories here.

In these stories, loving couples, widows and widowers, from all walks of life, describe how DOMA hurts their families. A new story will be added each week, so please check back ofte

More legal updates: DOMA, Perry, and DPBO

It's been a while since I last updated you on the anti-DOMA court cases, that argue that DOMA unfairly penalizes legally married couples. At that time I pointed out that Obama's DoJ was arguing the remaining case, Gill, should be dismissed. GLAD has now responded (PDF):

"Both sides agree that our plaintiffs have taken on the commitments of marriage, played by the rules, paid into the system, and been denied benefits because of DOMA," says GLAD Legal Director Gary Buseck.

"Now we're asking the court to say once and for all that the federal government must end its blatant double standard of providing rights and protections to all married couples except gay and lesbian married couples."

I wonder if this case will be strengthened by the NInth Circuit orders we discussed on Friday. One thing we know for sure: this won't end soon. (Update: Lawdork has commentary.)

Next, there's the ongoing saga of Perry, which is the case challenging Prop 8 in Federal Court. A while ago, the Judge ordered the Prop 8 supporters to release their documents. Seems a big part of the case relies on whether or not the proponents were motivated by simple animus, or by actual concern about marriage and children. They don't want to turn the papers over, and have appealed up to the Ninth Circuit. Yet another order came out last week demanding that, in the absence of a stay, they have to turn them over. A great blog to follow this is Prop 8 & the Right to Marry which is based on legal commentary. I've book marked it in the information blogroll, on the left sidebar.

Other news: The Domestic Partners Benefits ad Obligations Act (DPBO) passed out of markup Wednesday. A description of the arguments pro and con here. As we discussed last summer, This would allow federal employees with legal same sex partners to have access to proper employment benefits, like health care and pensions. Ironically, however, because of DOMA, those who are legally married, rather than DP'd, might not have relief under this act...like Mr Levenson in the case we discussed Friday. So it enshrines a separate category of not-quite for GLBT people.

Benefits for married gays ? the Ninth Circuit speaks

As reported in the LA TImes

A federal judge today ordered compensation for a Los Angeles couple denied spousal benefits by the federal government because they are gay men.

U.S. 9th Circuit Court of Appeals Judge Stephen Reinhardt deemed the denial of healthcare and other benefits to the spouse of federal public defender Brad Levenson to be a violation of the Constitution's guarantee of due process and discrimination on the basis of sexual orientation, which is prohibited by California state law......

Two same sex couples, employees of the Federal Courts, had each married during the Californian Interregnum. Each filed a complaint when they weren't allowed to insure their spouse. By law, such complaints are adjucated by the court, and in each case, the responsible judge ordered that these legally married spouses should have benefits.

But the Federal Government Office of Personnel and Management (OPM) balked, because of DOMA. They told the insurance company not to process the benefits.

So Judge Reinhardt has ruled that if Mr Levenson and his husband can't get benefits, they need to get compensation equivalent to the value of the coverage that was denied. The judge is Not Happy that the Fed disobeyed his order.

The judge's order is expected to resolve the injustice Reinhardt has cited in previous orders in Levenson's case. But it also recognizes the status quo of federal government rejection of gay marriage under the Defense of Marriage Act. Several other challenges by those denied federal benefits, like filing joint tax returns, are making their way slowly through the federal courts.

(That would be Gill et al which we've discussed. More on that next week).

Now, something very interesting here is that another Judge on the Ninth Circuit, Chief Kozinski, had similarly found for HIS staffer, and like Judge Reinhardt, ordered her to be given benefits. He is quite annoyed that the order was ignored, or rather, that OPM interfered. He has now come back with a new order (PDF) too. In fact, he's gone further than Judge Reinhardt, and rather than simply ordered compensation, he's taking on the executive.

OPM's actions implicate an even more fundamental concern: the autonomy and independence of the Judiciary as a co-equal branch of government. In effect, OPM has claimed that its interpretations of the rights and benefits of judicial employees are entitled to supremacy over those of the Judiciary. That's incorrect, and the Executive must henceforth respect the Judiciary's interpration of the laws applicable to judicial employees. ....

He goes on to scold OPM and the executive in no uncertain terms about interfering in the equal branch of the judiciary. And he makes it very clear and unambiguous:

I have determined that, even as limited by DOMA, the FEHBP permits judical employees to provide health insurance coverage to their same-sex spouses....

Hat-tip Dr Primrose, a commenter on Friends of Jake.

BREAKING: DoJ argues to dismiss 2nd anti-DOMA case

A while ago, I updated you on the ongoingfederal court cases relevant to marriage equality: Gill and Smelt, on DOMA, and Perry, on Prop8. Smelt was subsequently dismissed, on a technicality.

Gill originates in Massachusetts and argues that it is unconsitutitonal to treat legally married Massachusetts citizens differently under federal law simply because they are gay. According to the NY TImes, Obama's DoJ has just filed a brief asking for the dismissal of Gill. This is another brief that says, "we don't like DOMA, but it's the law and we think it's constitutional".

Lawdork comments,

On the substance of its defense of DOMA, DOJ plays a little too cute, parsing the marriage prohibitions as a state matter and DOMA as just a matter of federal benefits. Id. at 14 (”DOMA deprives same-sex couples of certain federal benefits that are tied to marital status. There is no fundamental right, however, to marriage-based federal benefits.”)......

DOJ then asserts that First Circuit precedent prohibits the District Court from considering this case under the strict scrutiny review urged, in part, by GLAD in its Complaint. Strict scrutiny review is the most search review, in which the government needs to show a “compelling interest” for the law and show that the law is “narrowly tailored” to that interest. DOJ argues:

The First Circuit has concluded, however, that sexual orientation does not constitute a suspect classification under the Fifth Amendment, and that holding is binding on this Court. . . . .

Then, in urging that DOMA be upheld under rational basis — the most deferential — review, DOJ goes into a new and interesting argument, essentially that DOMA prevents federal government benefits from being a mismatch differing by state based on the whims of those states. I’ve not seen an argument like this before:

As the state legislative and constitutional activity in the years since DOMA was enacted demonstrates, same-sex marriage is a contentious social issue. Given the evolving nature of this issue, Congress was constitutionally entitled to maintain the status quo pending further evolution in the states. Otherwise, “marriage” and “spouse” for the purposes of federal law would depend on the outcome of this debate in each State, with the meanings of those terms under federal law potentially changing with any change in the status of the debate in a given State. Federal rights would vary dramatically from State to State. Congress could reasonably have concluded that there is a legitimate government interest in maintaining the status quo and preserving nationwide consistency in the distribution of marriage-based federal benefits.

GLAD's press release in response:

Mary L. Bonauto, GLAD’s Civil Rights Project Director and co-lead counsel in Gill, said “Nothing in the government’s brief addresses the fact that DOMA is the sole exception in a long history of the federal government deferring to the states’ determination that people are married. Obviously we disagree with any argument that DOMA is constitutional. Married same-sex couples are being treated differently from other married couples. To us, that’s a clear-cut violation of the promise of equal protection.”

Gary Buseck, GLAD’s Legal Director said, “We’re seeking justice for the widows and widowers who are denied death benefits, for people who can’t get on their spouse’s health plan, for parents who can’t file taxes jointly and pay thousands extra each year that they could put away for their children’s education or family emergencies.”

I am so tired of my rights as a US citizen been argued in this way.

The new DoJ brief and the argument about children

We've talked here (or rather, I've talked into the vaccuum) about the fact that gay families are raising children, and I've argued that the ability of the opposition to exploit "protecting the children" as a reason to opposed equality is based on fallacies.

The new DoJ reply brief (discussed here) may have actually helped expose those fallacies. As reported in the Volokh Conspiracy

Much more significantly, and to me surprisingly, it now appears to be the view of the executive branch that the social interests in child-rearing and procreation do not even rationally justify the exclusion of gay couples from marriage:

Unlike the intervenors here, the government does not contend that there are legitimate government interests in "creating a legal structure that promotes the raising of children by both of their biological parents" or that the government's interest in "responsible procreation" justifies Congress's decision to define marriage as a union between one man and one woman.

This new position is a gift to the gay-marriage movement, since it was not necessary to support the government's position. It will be cited by litigants in state and federal litigation, and will no doubt make its way into judicial opinions. Indeed, some state court decisions have relied very heavily on procreation and child-rearing rationales to reject SSM claims. The DOJ is helping knock out a leg from under the opposition to gay marriage.

Next comes this passage, suggesting that empirical learning has bolstered the case for gay and lesbian parenting:

Since DOMA was enacted, the American Academy of Pediatrics, the American Psychological Association, the American Academy of Child and Adolescent Psychiatry, the American Medical Association, and the Child Welfare League of America have issued policies opposing restrictions on lesbian and gay parenting because they concluded, based on numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents.

The idea that same-sex parents are inadequate or at least sub-optimal has been a major point in the public-policy opposition to SSM, and was used to support passage of DOMA. The DOJ now implies that DOMA is anachronistic, a holdover from a benighted time when we didn't know so much about the quality of gay parenting. The parenting concern has also been a reason for deference by state courts: as long as there was still a legitimate debate over the quality of same-sex parenting, courts ought to defer to states' judgments that traditional families are best. While the DOJ hasn't exactly endorsed the view that the parenting debate is over, this passage certainly points us in that direction.

LawDork agrees, and wonders if this DoJ brief will affect ongoing litigation, including a gay adoption case in Florida:

The immediate question this raised for me was whether this language could find its way down to Florida, where the court of appeals will soon be hearing the appeal of In re: Gill, a challenge to Florida’s ban on adoption by gay people. As I discussed in a preview of the case last month:

....Notably, the case included extensive presentation of evidence about the foster children’s circumstances and, more generally, expert witness evidence regarding children raised in families headed by lesbian or gay parents .

Wouldn't it be a divine irony that a brief ostensibly defending DOMA can be cited to eliminate one of the most pervasive lies used against us?

Anti-DOMA suits update

You may remember a great kerfuffle a while back, over the release of a DoJ brief about DOMA. That case, Smelt, was not viewed as a particularly good one to challenge DOMA but the unnecessary harshness of the brief caused a firestorm in the blogs for days (go here for a list of all my posts on this topic).

On Monday, the DoJ released a reply brief to Smelt. Pam' s House Blend has the backstory on this AP report:

The Obama administration filed court papers Monday claiming a federal marriage law discriminates against gays, even as government lawyers continued to defend it......

In court papers, the administration said it supports repeal of the law. Yet the same filing says the Justice Department will defend the statute in this case because a reasonable argument can be made that the law is constitutional.....

"The United States does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing and is therefore not relying upon any such interests to defend DOMA's constitutionality," lawyers argued in the filing.

Okay, so they are still defending it....but they now have put in writing that they believe DOMA is wrong.

I can't help believe that this is an improvement. I expect the usual suspects will be up in arms about any defense, but it's typical of the Obama approach of softly softly. The law needs to be defended on principle, even if they believe it should be repealed through appropriate channels.

LawDork comments,

From the brief itself to Obama’s statement and in light of the other changes being advanced by the Administration, I continue to believe that the original DOJ Smelt filing was made without the full appreciation (or knowledge) by higher-ups. I do think that the uproar following its filing has changed the approach of the Administration, and, for that, the debate was worthwhile. This filing and statement show an awareness of and sensitivity to that impact, while maintaining a clear principle to defend a law that repeatedly has been found to be constitutional.

Meanwhile, there's another case against DOMA making its way through the courts, Gill which is generally viewed as a stronger one. It challenges the distinctly different treatment of married couples in MA in dealing with federal agencies. Because these couples are being actively discriminated against now (as legally married) this is viewed as a very strong argument against DOMA, or at least against the part of it that prevents Federal Recognition of legal same sex marriage.

As highlighted by LawDork, the plaintiffs have amended their complaint with some more powerful language, particularly around the tax inequities. Here are some choice quotes from the amended brief.

Although each of the plaintiffs is similarly situated to all other married or widowed persons in the Commonwealth of Massachusetts, DOMA, 1 U.S.C. § 7, requires the plaintiffs to deny the existence of their families and the nature of their familial relationships. DOMA, 1 U.S.C. § 7, thereby causes confusion and complexity in a culture where people are expected to have one familial and marital status, whether dealing with private, state or federal entities.

The federal government’s refusal to recognize the plaintiffs’ marriages does not nurture, improve, stabilize or enhance the marriages of other married couples. Nor would the federal government’s recognition of plaintiffs’ marriages degrade, destabilize or have any other deleterious effect on the marriages of other married couples.

Congress has yet to identify a reason why gay and lesbian individuals who have met their obligations as taxpaying citizens and who are married to someone of the same sex must be denied protections available to persons who are married to someone of a different sex. Singling out same-sex couples who are married among all married persons is simply an expression of the intent to discriminate against gay people.

I wonder whether the DoJ "tipped its hand" in the Smelt case enough to allow more targeted arguments here. And what difference the new filing will make.

So to sum up: THREE cases underway in Federal Court. TWO anti-DOMA cases (Smelt, and Gill) plus ONE anti-Prop8 case also in federal court (Perry v. Schwarzenegger). The DOMA cases are defended by the DoJ as they apply to existing federal law. The Prop8 case is against the state of California but under Federal Constitutional grounds (the previous challenge was to the State Supreme Court under California constitution issues). It is defended by the pro-H8 folks, since the State of California agrees that Prop8 offends the equal protection clause of the US Constitution.

Silencing Harvey Milk

There's an effort in California to have May 22nd, Harvey Milk's birthday, noted as "Harvey Milk Day" in the state. Not a holiday, but simply a named remembrance of someone who was a tireless worker for social justice as well as the first openly gay man elected to public office in the state. (The governor doesn't agree.) Of course, Harvey Milk was the subject of a recent biopic, and was a victim of assassination.

In Ramona, CA, a rural, conservative town in the hills of San Diego County, a student who wanted to do a presentation on Milk was forbidden to present it to her classmates.

Jones was told she could not talk about Milk because it violated the school district's strict policy on "family life and sex education." Days later, Jones was told she could only give the presentation during recess, and students would be required to get parental permission before they could attend.

The school's policy stresses that parents will be notified if their children are being exposed to lessons about "human reproductive organs and their functions, processes, or sexually transmitted diseases" as well as "family life, human sexuality, AIDS, or sexually transmitted diseases."

Bonnie Jones, Natalie's mother, called the ordeal "unbelievable" in a press release on Wednesday. "To say my daughter's presentation is 'sex education' because Harvey Milk happened to be gay is completely wrong."

Unfortunately, this makes perfect sense in the current right wing strategy. It has nothing to do with Milk's sexuality, which (aside from the adjective "gay") has nothing to do with his story. It's not about gay marriage, which wasn't even on the radar when he lived. It's nothing explicit about his sex life. It's his act of existence...it's OUR act of existence, that the school, and the conservatives, want to eliminate. This is about enforced discrimination.

"Schools that act as if any mention of the existence of gay people is something too controversial or 'sensitive' to discuss are doing a disservice to their students," the ACLU's Elizabeth Gill said in a statement.

Indeed. No newspaper or television is free of "teh gay". Will and Grace, Queer Eye, the L Word, are all years old. It's not as though kids are unaware that some people are gay. What are they afraid of: Milk's sexuality, or his message of equality and social justice? "My name is Harvey Milk, and I'm here to recruit you!!" was not just a rallying cry for the GLBT community. It was how he brought together a coalition of groups for a progressive agenda in the City.

But they are trying to hide that because he was gay. Because we are gay, they are trying the same thing. Claiming we are too controversial for prime time has been increasing of late. Trying to hide us. To deny us rights, and protections. Do not be silenced. Be Harvey. As he said, “I finally reached the point where I knew I had to become involved or shut up.”. Now it's up to us to be the change we need.

The Day of Decision is Tuesday, May 26th. BE THERE!