Bad news: Referendum 71 on Washington Ballot

From the Seattle Times:

A referendum that could overturn Washington state's "everything but marriage" domestic partnership law has qualified for the November ballot.

The secretary of state's office said Monday that sponsors of Referendum 71 had 121,486 valid petition signatures - enough to put the newly expanded domestic partnership law to a public vote.

A secondary check of rejected signatures was not complete, so the number could increase.

The new law was supposed to take effect on July 26, but was delayed until the signature count was complete. Now, it won't take effect unless it is approved in the Nov. 3 election.

The measure would expand existing domestic partnerships to give gay and lesbian couples all the state-provided benefits that married heterosexual couples have.

Remember: Vote YES to approve rights for gay couples. Vote YES to protect ALL families. MOre info: http://approvereferendum71.org/

Meanwhile, the Times reports that donors cannot be hidden.

Earlier Thursday, the PDC denied a request by Protect Marriage to redact and seal the names, addresses and occupations of donors. Donor information already had been made public, in accordance with state law.

The group had cited threats of violence against supporters and churches in its request.

Larry Stickney, a key organizer behind R-71, told the PDC he's received death threats and hundreds of "vile, obscene, threatening, nasty" e-mails. He said he found someone in his yard a few weeks ago photographing his house.

But the commission said the group had not proved that disclosure of the information would result in "unreasonable hardship" to contributors, and that keeping the names from the public would thwart the purpose of the public-disclosure law: to avoid secrecy in campaigns.

While Protect Marriage did provide the commission with some threatening e-mails and blog postings, it "provided no evidence from or about donors that have demonstrated that they have received threats of violence against their lives or property," or that they were being targeted for boycotts, PDC Assistant Director Doug Ellis said at the hearing.

That ruling applies only to donors to R-71.

Time to take the white hoods off, finally. The state should not hide people who vote against the rights of their fellow citizens from facing their compatriots.

What about Perry?

Perry vs. Schwarzenegger is challenging Prop8 on Federal grounds. Some questions:

I see three major questions looming, in addition to the specific issues of fact and law presented in the case:

What will the ramifications (if any) be of placing the control of one of the biggest ever lgbt rights lawsuits in the completely private, non-transparent realm of big firms? .....

Will the case be litigated in a way that forces the courts to address the constitutionality of all state law restrictions on same-sex marriage, as the public statements surrounding the case imply? Or will it be litigated on extremely narrow grounds, i.e. as a challenge to a voter rescission by ballot initiative of a right previously declared fundamental by a state's supreme court, affecting a group previously declared a suspect class also by that state's supreme court, when the material components of the right in question continue to exist (through registered domestic partnership), so that the only state interest being served is the expression of animus implicit in limiting access to the preferred label? In other words, will the Perry case ultimately be only about California, litigated in a way that its only possible impact will ever be on California? If the answer is yes, it will be a lot easier to win (although not nearly so important in a strictly legal sense).

Lastly, what will the impact be of Perry on the effort to repeal Prop 8? Emotions are running high and ragged in California about whether to put repeal on the 2010 ballot (a prospect that(a prospect that diminishes in likelihood every day) or whether to wait, presumably until 2012. But how - if at all - will the dynamics change if the trial court rules that Prop 8 is unconstitutional, maybe a year from now, in summer 2010? Or if the Ninth Circuit finds it unconstitutional in 2011? It takes time and money to put a question on the ballot. Will such rulings energize the repeal effort or the retention effort, or maybe both? What will be the impact if the federal courts uphold Prop 8, as the California Supreme Court did?

Obama watch: the view from Chicago (video Sunday)

Bigots attacking Harvey Milk

From EQCA e-update:

On Tuesday, extremists started a coordinated attack on the Harvey Milk Day Bill.

Catholic Exchange, the premier Catholic website, placed an **URGENT** message on their homepage urging their readers to call Governor Schwarzenegger and stop the bill.

The Christian News Wire also carried a story calling Harvey a notorious sexual predator, a public liar, a terrible model for kids and demanded the Governor veto the bill.

Now is the time to take action and show your support for Harvey’s legacy and for our community.

The Governor’s office has dedicated a special, automated phone line for you to express your support.

Phone the Governor right now at 916.445.2841, and call one of his district offices.

Capitol Office: 916.445.2841
Fresno Office: 559.477.1804
Los Angeles Office: 213.897.0322
Riverside Office: 951.680.6860
San Diego Office: 619.525.4641
San Francisco Office: 415.703.2218

You can also tweet @Schwarzenegger with your support.

More news from Wisconsin

I've written a lot recently in how the Bad Guys are attacking even Domestic Partnerships. (See here). In Wisconsin, they have a hate amendment, but recently they passed a domestic partnership policy that allows "dozens" of rights, you know, like hospital visitation?

Naturally the haters jumped in immediately with their anger that this was JUST LIKE MARRIAGE so they have filed suit against it. And the Republican WI Attorney General Van Hollen will not try to defend the law.

As reported by the LA Times

The governor blasted Van Hollen's decision, saying the law is defensible. He released a copy of a memo from University of Wisconsin law professor David Schwartz that found the law did not conflict with the marriage amendment.
....
The governor and lawmakers have expressed confidence that the law will be upheld since the legal benefits granted are a fraction of the more than 150 given to married couples.

Registering will make it easier for same-sex couples to complete legal transactions like transferring property and executing wills and allow partners to obtain health insurance through employers that extend coverage to domestic partners.

Partners also will be guaranteed the right to visit each other in hospitals and care facilities, make end-of-life-decisons and take off work under the Family and Medical Leave Act to care for each other. They will not have the right to jointly file taxes, among others.

The nonpartisan Legislative Council concluded the law should survive a legal challenge because it does not give "comprehensive, core aspects of the legal status of marriage to same-sex couples." Those include the ability to divorce and to share marital property.

Yeah, dangerous stuff there--visiting partners! Insurance benefits!

To quote again that US News article, the Christian Conservatives have to fight the fact that a majority of Americans believe their should be some benefits for same sex couples

I'm not saying religious conservatives are acting purely politically—many do believe that providing benefits to gay couples is a sneaky way of legalizing gay unions. But given those poll numbers, it also makes political sense for religious conservatives to try to reframe the benefits issue as a gay marriage issue.

Gay rights advocates, meanwhile, see benefits and gay marriage as much different issues, since extending some benefits to gay partners still excludes key benefits of marriage.

We must recognize that it isn't marriage these people oppose. They oppose any recognition or respect for gay couples and gay families. Call it what it is: bigotry, pure and simple.

Support FairWisconsin.

More flip-flops than the discount bin at Target...

Time has a column about the flip-flops on marriage equality from the Obama Administration.

[A]s I have pointed out before, Obama loves to raise political donations; he has plainly begun to worry about his standing among the rich homosexuals who used to fawn over him. As the New York Times' Adam Nagourney first reported, the California legal brief was one reason that a prominent gay supporter of Obama's went to the Oval Office in late June to express, for 15 full minutes, the gay community's deep disappointment.

And so this week we get a new legal brief from the Obama Administration in the California case, this one denuded of the execrable incest defense. This time.... Obama flip-flops again - now back to his campaign position. (It must be dizzying to work in the White House these days.) Now the Administration says it opposes DOMA and wants it overturned - but that tradition dictates that it defend the law. And that is why, the White House said in a statement, "the Department of Justice has filed a response to a legal challenge to [DOMA], as it traditionally does when acts of Congress are challenged." ....

Legalistically speaking, the tradition argument is true, but it's yet another Obama dodge.....As Eugene Volokh of UCLA told me Aug. 18, there is nothing in the constitution or the law that would have prevented the Department of Justice from sitting on the sidelines in the DOMA case.

Nothing except politics. Obama's triangulation between left and right has become excruciatingly obvious on this issue, and he's not quite as deft a politician as Bill Clinton at keeping his left flank at bay. I wouldn't be surprised if, next summer at the 32nd Fire Island Pines fundraiser for Lambda, I hear booing when the President's name is mentioned.

Or as the Advocate put it:

When gay people marry: The Horror! The Horror!

Recently, a Chicago Trib writer asked a number of prominent opponents of marriage equality what is it is that they think will happen if gays marry.

At first, none of them answered, although after a while Maggie Gallagher dove in and said that, gasp, if same sex marriage is legalized, then children will learn about gays! And religious people will be persecuted! As Conor Clarke, writing at Andrew Sullivan's blog remarked,

Is this really the best they can do? First, none of these things are "simple, concrete predictions about measurable social indicators." ....Gallagher's list amounts to this: As support for gay marriage grows, the public institutions and sentiments that oppose gay marriage will become increasingly marginalized.

A new scholarly book recently published called When Gay People Get Married addresses the question with actual data. As the publisher's blurb reports,

The evidence shows both that marriage changes gay people more than gay people change marriage, and that it is the most liberal countries and states making the first move to recognize gay couples. In the end, Badgett compellingly shows that allowing gay couples to marry does not destroy the institution of marriage and that many gay couples do benefit, in expected as well as surprising ways, from the legal, social, and political rights that the institution offers.

That certainly agrees with my experience, being married, as I've previously reflected.
And what's happening here in the US? As discussed at Talk2Action (h/t Toujours Dan), Massachusetts still has the lowest divorce rate of any state (data here ). And where are the highest rate of divorce? There's a big cluster in the South, which corresponds very well with the Bible belt. Interestingly born-again Christians reportedly have some of the highest rates of divorce.

So actual data suggest that same sex marriage is good for gay people, does not negatively affect the marriages of straight people, and that those opposed to same sex marriage on faith grounds are no less likely, and may even be more likely, to divorce themselves.

One hopes these data will be used to rebut the lies for the upcoming Federal Prop8 case, and the lies being told in Maine in the run-up to their election.

Anti-PropH8 group going after Iowa

They don't give up, they are like zombies. From the LA Times:

Opponents of same-sex marriage launched a campaign today to re-ban gay marriage in Iowa.

The National Organization for Marriage, which was active in getting Proposition 8 approved by voters in California, sent out an appeal for donations to run advertisements on behalf of political candidates who oppose same-sex marriage.
.....
Brian Brown -- who spearheaded the National Organization for Marriage's efforts in California, and is now the group's executive director -- also wrote supporters that donations could be used nationwide, to “allow us to rapidly intervene … in key races across the country where a handful of House or Senate seats could make the difference between whether a same-sex marriage bill or state marriage amendment passes or fails.”

So, whaddya going to do about it?

Smelt dismissed on a techinicality

From Lawdork:

This was the challenge that led to the now-infamous Department of Justice Motion to Dismiss on June 12, which led to the President’s Oval Office ceremony on June 17 and speech about LGBT equality at a White House reception on June 29. Just this past week, DOJ filed a far-less-overreaching reply brief in the case.

The Smelt case was filed in California state court and then removed to federal court contained claims, among other areas, regarding interstate travel and how DOMA impacted the plaintiffs’ travel. This, of the four federal court marriage challenges, was the weakest, by far. It had the procedural problems that led to today’s dismissal and contained weaker arguments based on less clear areas of the law.

Three other cases remain active in federal court.

Why it's easy for Christians conservatives to be anti-gay

We've commented here before that there's a real conflict between how Chrisitian denominations of all sorts treat divorce, and how they treat homosexuality. The Biblical strictures against divorce are far more numerous, and far less ambiguous, than those against homosexual behavior. And yet, with the conspicuous exception of the Roman Catholics (although even they have an "out" through the annulment process), pretty much everyone allows divorce, allows remarriage, and allows the divorced to be priests and bishops (or pastors and elders, as the case may be). Everyone can find it in themselves to understand and forgive the marriage that didn't work out, or even more, to imagine themselves in a situation where they need that potential relief.

Matthew Yglesias nails it:

I think this explains a lot about the appeal of anti-gay crusades to social conservative leaders. Most of what “traditional values” asks of people is pretty hard. All the infidelity and divorce and premarital sex and bad parenting and whatnot take place because people actually want to do the things traditional values is telling them not to do. And the same goes for most of the rest of the Christian recipe. Acting in a charitable and forgiving manner all the time is hard. Loving your enemies is hard. Turning the other cheek is hard.

Homosexuality is totally different. For a small minority of the population, of course, the injunction “don’t have sex with other men!” (or, as the case may be, other women) is painfully difficult to live up to. But for the vast majority of people this is really, really easy to do. Campaigns against gay rights, gay people, and gay sex thus have a lot of the structural elements of other forms of crusading against sexual excess or immorality, but they’re not really asking most people to do anything other than become self-righteous about their pre-existing preferences.

Human nature being what it is, we can pretty easily imagine the anti-gay crusaders having NO problem with taking up the banner for this cause, probably in a sense of relief that they aren't asked to really address anything that might actually affect them.

It's very easy to tell someone else to suck it up and carry a cross--as long as you don't have to carry it with them.

My mom used to exhort me to consider "walking a mile in the other person's moccasins" (something I'm still not very good at; BP will tell you that I am an opinionated and fierce partisan). But really, isn't that what we all have to struggle to do before we judge anyone?

Yglesias in turn points us to a column by Ross Douthat in the NY Times:

More than most Westerners, Americans believe — deeply, madly, truly — in the sanctity of marriage. But we also have some of the most liberal divorce laws in the developed world, and one of the highest divorce rates. We sentimentalize the family, but boast one of the highest rates of unwed births. We’re more pro-life than Europeans, but we tolerate a much more permissive abortion regime than countries like Germany or France. We wring our hands over stem cell research, but our fertility clinics are among the least regulated in the world.

In other words, we’re conservative right up until the moment that it costs us.

Message from Maine (video Sunday)

Curing the variant

Periodically, a story pops up in the news about a child near death from a treatable disease, because her family doesn't believe in antibiotics, or other forms of modern medicine. I have no doubt that the parents in these cases genuinely love their children, but they earnestly interpret their Bible as preventing them from using modern interventions. "It's God's will", they say. "Who are we to go against it?"

Most of us in our modern society tut-tut when we hear this, dismayed over this clear mis-use of religion in a way that results in unnecessary pain, grave harm or even death to a child. We simply don't understand how the parents can be so willfully anti-modern, especially where their child is concerned. After all, what is more precious than a child? Wouldn't any parent do anything to save their child? How can they resist modern knowledge and understanding, knowing that their child will die? What they see as "normal" and "natural", the vast majority of us see as abuse.

So this led me to the broader question of how we define "normal" and when we pathologize it. For example, most of us consider left-handedness "normal" and unremarkable, a minor human variant that doesn't affect the predominant right-handed culture. Most hearing people consider congenital deafness a defect to be treated (e.g., by cochlear implants); however, Deaf people often resent their deafness being pathologized, and many forcibly resist being absorbed into a dominant hearing culture. Or consider cleft palate: this is a "naturally occurring" birth defect that we do our best to treat surgically and heal. All of these conditions are "normal", all of them are "natural". So how do we decided what to pathologize as a defect to be treated, as opposed to a variant to be accepted?

Our example of the child denied antibiotics gives one clue. Some people turn to their Bible to determine what is normal, natural, and acceptable to their concept of God. But for them to say they do this outside of the context of modern knowledge is disingenuous. For centuries, left-handedness was pathologized on religious grounds (and still is in some cultures); the efforts to "convert" the left handed led to serious psychological trauma in some cases. We know better now.

Or do we?

Let's consider our GLBT brothers and sisters. Western medicine and science accepts homosexuality as a natural variant, not a pathology, that occurs across cultures and ethnic groups at a fairly consistent rate. Some people are closer to viewing the GLBT community as the Deaf community: one that rejects being identified as a pathology that is imposed upon it by a dominant culture. And, finally, there are those who, as the parents using the Bible to reject antibiotics, similarly use the Bible to reject their gay children in the face of knowledge and science. I argue that there is a distinct parallel between the parents who point to a few texts in the Bible about promiscuous sex, and those who point to the Bible to justify killing their child by withholding treatment. We reject the one. We should reject both.

Finally, I want to draw your attention to a particularly "nasty" form of "treatment" directed at lesbian women in particular: the concept of "curative rape". This has hit the press and the internet numerous times recently.

• Item: In South Africa, men are encouraged to rape women to cure them of their lesbianism. Some of their victims are brutally murdered.
  
  
• Item: A woman in Utah , devoutly Mormon, hires a man to rape her lesbian daughter, reasoning that the only reason her daughter is gay is that she hasn't "known" a man.
  
  
• Item: A lesbian woman is raped in Richmond CA as the perpetrators use sexually derogatory terms.

We all know (I hope) that rape isn't about sex. It's about violence. And rape directed at lesbian women is violence that treats homosexuality as a pathology, rather than a variant. How dare these lesbians reject men! It is the flip side of a "gay panic" defense: she needs to know a "real" man. It's sick, disgusting, and frightening.

And it comes from treating a variant as a pathology: something to be rejected, feared and "cured". It's why many GLBT people view Christians as people intent on harming them. Rather like denying a treatment to a dying child.

H/T Madpriest for the Utah story. Cross posted at Friends of Jake. and Daily Kos WGLB Friday

Maine needs our help

In less than 80 days, Maine's version of Prop8 (called Prop1) will be on the ballot.

Frank Schubert, who ran the Yes on Prop 8 campaign, is leading the attack on our northeastern brothers and sisters.

They have raised more money than the good guys.

Time to support Equality Maine, folks! Let's prove we can WIN.

And Mainers: VOTE NO ON 1!

Census 2010: Stand up and be counted

The 2010 census will for the first time count married gay couples. In the past, it seems they either re-categorized us as straight, or recategorized us as unmarried. However, the Advocate rports tht they claim that they can only count us in the raw data, because the software that processes the data can't handle same sex marriage, and will recode us as "unmarried". To address this,

Although the Obama administration announced in June that officials would look for ways to accurately count same-sex marriages, the coding process and the software that reads the forms when they come back still reflect the former policy.

A Commerce Department aide said Census preparation takes almost 10 years and the software would not be able to be altered in time for the once-a-decade count......

As a fix, officials decided to release the raw data on married same-sex couples before that data is processed and tabulated by the software.
.....
"Later in 2011, the Census Bureau will release detailed tabulations from the 2010 Census, including counts from the relationship question," said a statement from the Commerce Department. "A footnote will indicate that there are no same-sex couples included in the husband/wife relationship category. At the same time, the Census Bureau will release counts from the relationship question, by state, that show the unedited data [that is, which do not recode same-sex couples who report themselves as husband/wife].

"The Bureau will start producing reports on the data in 2012, and according to the statement, "the Director has determined that one of these special reports will focus on the question of how same-sex couples report their relationships and what the unedited data reveal about this issue."

There was a booth at our local pride parade that encouraged us to be accurate: only if you are legally married (not DP'd or unioned), make sure you tick off the box for "married".

DPs and Unions do not appear on the form.

How can it take 10 years to build software????

As the LA TImes commented :

The Obama administration has delivered a logic-defying interpretation of the act, which prohibits the federal government from recognizing same-sex marriage: It does not stop the Census Bureau from reporting the number of married gay couples, the president's lawyers said. Yet isn't counting these marriages the purest form of recognizing them?.....

Neither the census nor the survey will differentiate between same-sex couples who are legally married and those who consider themselves so. In the 2000 census, before any states recognized gay marriage, one-third of the people in same-sex households identified their partners as spouses. But the census already takes the word of heterosexual couples as to whether they're married, so the new count will be fair. It just won't be very informative.

The 13-year-old Defense of Marriage Act has always been discriminatory, and now it is out of sync with the realities of a changing society. With same-sex marriage legalized in six states, the District of Columbia recognizing such marriages performed elsewhere and an estimated 18,000 married gay couples living in California, what's needed aren't convoluted interpretations of the federal law but a push from President Obama for Congress to repeal it.

We'll see how those DOMA cases go....

Bad guys celebrate Perry hearing

JoeMyGod tells us that the Protect Marriage gang are exultant:

As the only party to Perry v Schwarzenegger that has consistently fought to preserve Prop.8, we are pleased with Judge Walker's decision to deny intervenor status to Campaign for California Families, the Our Family Coalition, Lambda Legal, and the National Center for Lesbian Rights. The motions for intervenor status clearly demonstrate the discord and disagreement that exists among gay activists as they continue to run roughshod in their efforts to overturn the will of the people in regards to upholding traditional marriage in California.

They are also cackling over the 2010 vs 2012 shenanigans.

Geoff Kors, Rick Jacobs, are you listening?

January 2010

That's when Perry v. Schwarzeneggerwill be heard. And the gay groups who were opposed to it before they were for it, were denied status as interveners. More from LawDork and Pam's House Blend.

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?

Mormon watch

The Mormons bankrolled Prop8, at the behest of the Roman Catholic Archbishop of San Francisco (formerly of Salt Lake City). This unholy alliance has damaged both faith communities. The Mormons have found themselves holding the bag, and their arrest of a gay couple for kissing in Salt Lake City has added to the insult. The press isn't good.

[O]bservers say the church's heavy-handed intervention into California politics will linger and has left the faith's image tarnished.

"What I hear from my community and from straight progressive individuals is that they now see the church as a force for evil and as an enemy of fairness and equality," said Kate Kendell, executive director of the San Francisco-based National Center for Lesbian Rights. Kendell grew up Mormon in Utah. "To have the church's very deep and noble history telescoped down into this very nasty little image is as painful for me as for any faithful Mormon."

Meanwhile, Pam's House Blend reports that the Mormons are fighting a civil equality bill in the UK.

Speculation is rife on the blogs that they are also underwriting NOM and the attack on marriage equality in Maine.

Helping to pass Proposition H8 in California: $43 million
Permanently being linked to anti-gay bigotry: priceless.

Lots of Mormons and Mormon families have split over this. The cost for the LDS church may be very high indeed and the injury to their own communities may run very deep. Is attempting to eliminate my civil marriage worth it, do you think?

I know many Mormons oppose their church's official stance on this. I hope they continue to raise their voices to support civil equality for all loving couples.

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.

Judge requires more info for PropH8 case.

In Perry v. Schwarzenegger the judge is Not Happy. As reported by LawDork,

In a brief, pointed order, U.S. District Court Judge Vaughn Walker on Wednesday made clear that he did not get what he wanted from the parties’ most recent filing in the Perry v. Schwarzenegger Proposition 8 court challenge. The order calls on “all parties, including all government defendants” to provide a more detailed case management filing to him by noon Monday. Judge Walker’s order directs the parties to include:

(1) The specific elements of the claims plaintiffs assert and the defenses, if any, defendants and intervenors contend apply;

(2) Admissions and stipulations that the parties are prepared to enter with respect to the foregoing elements and applicable defenses at issue;

(3) Discovery that the parties seek that may lead to the discovery of admissible evidence with reference to:
(a) Level of scrutiny relevant to plaintiffs’ claims;
(b) The campaign by which Proposition 8 was adopted;
(c) Character of the rights plaintiffs contend are infringed or violated;
(d) Effect of Proposition 8 upon plaintiffs and similarly situated individuals;
(e) Effect of Proposition 8 on opposite-sex couples and others not in same-sex relationships in California; and
(f) Other issues pertinent to the parties’ claims or defenses;
.....

(4) Subject matter (by discipline or expertise) of the opinion/expert evidence that the parties intend to present.

The CA Attorney General has agreed with the plaintiffs that Prop8 violates the Equal Protection Clause. And the judge is requiring that the defendants produce compelling evidence that same-sex marriage weakens traditional marriage and that children should be raised only in opposite-sex households.

And all this laid out by Wednesday.

This case is being fast-tracked in the Federal System. It has a make-or-break potential for marriage equality.

Update more about the case and lead attorney Ted Olson in the NY Times