Box Turtle Bulletin

Twelve States File Brief Supporting Transgender Coverage Under Civil Rights Laws

Notes: In states other than Arkansas, North Carolina and Tennessee, local jurisdictions may provide additional anti-discrimination protections beyond those provided by state law. On June 30, a federal judge issued an injunction preventing Mississippi’s so-called “religious freedom” law from going into effect. (Click to enlarge.)

Twelve states, led by Washington state Attorney General Bob Ferguson, have filed a brief in federal court supporting the Obama Administration’s policies to include non-discrimination protections for transgender students and employees under current civil rights laws which prohibit discrimination on the basis of gender. The brief was filed in the Northern District of Texas, where Texas is the lead plaintiff on behalf of thirteen states in a lawsuit seeking to block the Obama Administration’s policies.

According to Dominic Holden at Buzzfeed:

“The bottom line is that the federal guidance at issue here threatens no imminent harm,” reads a draft of the brief provided to BuzzFeed News.

The filing is led by Washington State Attorney General Bob Ferguson, whose brief adds that federal protections for transgender people are “strongly in the public interest.”

Ferguson elaborated on getting involved in the litigation in an interview with BuzzFeed News, explaining, “I think this case could go all the way to the Supreme Court, and I want to make sure the trial court has our perspective and the perspective of like-minded states.”

I haven’t seen a copy of the brief. Buzzfeed reports that the brief argues, “Contrary to Plaintiffs’ claims, our shared experience demonstrates that protecting the civil rights of our transgender friends, relatives, classmates, and colleagues creates no public safety threat and imposes no meaningful financial burden.”

States joining Washington’s brief are California, Connecticut, Delaware, Illinois, Maryland, Massachusetts, New Hampshire, New Mexico, New York, Oregon, Vermont, as well as Washington, DC. All but New Hampshire and New York cover gender identity in addition to sexual orientation under their non-discrimination laws. New York has recently extended gender identity protections under regulations implemented by the state’s Division of Human Rights, which enforces the state’s non-discrimination laws.

(Click to enlarge.)

Twelve other states have joined Texas in its federal lawsuit, and nine others have joined a a similar lawsuit being led by Nebraska. Two lawsuits in North Carolina seek to enjoin the Obama Administration from implementing its transgender protection policies.

Two others lawsuits have been lodged against North Carolina over HB2, which prohibits municipalities from enacting local non-discrimination ordinances based on either sexual orientation or gender identity, and which requires transgender people to use the rest room based on the gender listed on their birth certificates.

On Tuesdsay, Federal District Court Judge Thomas Schroeder set a November 14 trial date to consider whether the four North Carolina lawsuits should be tried jointly or organized in a different manner. But moments ago, the ACLU, which joined with Lambda Legal to represent plaintiffs in one of those lawsuits challenging HB2 has sent out a press release saying that Judge Schroeder will hear arguments on Monday, August 1, on a motion for a preliminary injunction blocking the state from enforcing its anti-transgender provisions.

ACLU Announces Three Marriage Lawsuits

Fresh off its victory in Windsor v. U.S. which struck down Section 3 of the Defense of Marriage Act as unconstitutional, the ACLU’s is filing three more lawsuits, in Pennsylvania, North Carolina and Virginia. In Whitewood v. Corbett, the ACLU is challenging Pennsylvania’s statute which bans same-sex marriage. In Fisher-Borne v. Smith, the ACLU will amend its lawsuit seeking adoption rights to include the right to marriage. In the Virginia case, the ACLU and Lambda Legal are still in the planning stages, with plaintiffs and precise details of the case still being worked out. They expect to file that lawsuit later this summer.

Meanwhile, the ACLU and the National Center for Lesbian Rights have filed a motion with the New Mexico Supreme Court, asking it to order state officials to allow same-sex couples to marry. State law is currently silent on the question. Other lawsuits are working their way through Arkansas, Hawaii, Illinois, Nevada, New Jersey and Michigan.

You Will Never in a Million Billion Years Guess Who the ACLU Hired

GoProud’s Jimmy LaSalvia:

As part of the broad-based effort to involve conservatives in the movement to encourage the freedom to marry, the ACLU has hired conservative strategist Jimmy LaSalvia. LaSalvia is the founder and former executive director of GOProud and will work with the ACLU to do outreach to gay conservatives, particularly within the Tea Party.

It’s part of the ALCU’s new $10 million “nationwide campaign to bring Republicans into its efforts to strike down barriers to the freedom to marry in states across the country.” Heading that campaign is  Steve Schmidt, who had served as one of President George Bush’s top strategists during his 2004 re-election campaign, and a key advisor for California Gov. Arnold Schwarzenegger’s 2006 re-election and Sen. John McCain’s 2008 presidential campaign.

Servicemembers Kicked Out Under DADT To Receive Full Separation Pay

This settlement of a class action lawsuit between the American Civl Liberties Union and the Department of Defense strikes me as a very big deal. According to this ACLU press release:

Former service members who are part of a class action lawsuit challenging a Defense Department policy that cuts in half the separation pay of those who have been honorably discharged for “homosexuality” will receive their full pay after a settlement announced today. 

…Under the settlement, all service members covered by the lawsuit will be contacted by the government and notified that they are eligible to opt in to the settlement and receive 100 percent of the separation pay that they would have received had they been discharged for any other honorable reason. Federal law entitles service members to separation pay if they have been involuntarily and honorably discharged from the military after completing at least six years of service in order to help ease their transition to civilian life.

The settlement covers service members who were discharged on or after November 10, 2004, which is as far back as the settlement could extend under the applicable statute of limitations.

It’s one thing to repeal DADT. It’s quite another to go back and compensate those who were wronged by the discriminatory law. The lawsuit’s lead plaintiff was former Air Force Staff Sgt Richard Collins, a nine year veteran who was dismissed under DADT after a co-worker saw him exchanging a kiss with his boyfriend — while off base. It doesn’t completely fix the problem — Collins’s career is still over — but it is nevertheless very good news.

Lawsuits Planned To Legalize Same-Sex Marriage In Illinois

As I said earlier in today’s Agenda, Lambda Legal and the ACLU will be filing separate lawsuits today in a bid to legalize marriage equality in Illinois. According to The Chicago Tribune:

The gay rights group Lambda Legal and the American Civil Liberties Union of Illinois each plan to file a lawsuit Wednesday against the clerk of Cook County, claiming that not issuing marriage licenses to gay and lesbian couples violates the equal protection and due process clauses of the Illinois Constitution.

…A total of 25 couples from across the state are plaintiffs in the two lawsuits. Each couple tried to get a marriage license from the Cook County clerk’s office in May and was denied based on the Illinois Marriage and Dissolution of Marriage Act, which prohibits marriage “between 2 individuals of the same sex” and states: “A marriage between 2 individuals of the same sex is contrary to the public policy of this State.”

Cook County Clerk David Orr’s office issued a statement from the clerk, who is out of the country: “The time is long past due for the state of Illinois to allow county clerks to issue marriage license to couples who want to make their commitment. I hope these lawsuits are the last hurdle to achieving equal marriage rights for all.”

Illinois has been providing civil unions for almost a year. The lawsuit is being filed on the basis that civil unions, rather than being equal to marriage, is actually reinforcing discrimination against gay and lesbian couples. According to The Chicago Sun-Times:

Illinois’ constitution, more than other states’ constitutions, spells out rights that advocates for same-sex couples see as guaranteeing a right for people of any gender to marry, despite laws the Legislature passed in 1996 prohibiting same-sex marriage.

…The ACLU case will argue that the right to privacy in Illinois’ Constitution protects against a ban on gay marriage. California’s constitution had a similar right to privacy cited by that state’s high court in upholding a right to same-sex marriage. That law is under review in federal appellate court.

Lambda also argues that Illinois’ ban on “special legislation” that benefits one group over another prohibits a ban on same-sex marriage.

DOMA: recap, summary, and analysis

It has been a day since Attorney General Holder announced the Obama Administration’s position on the constitutionality of Section 3 of the 1996 Defense of Marriage Act, and we are beginning to get a sense of how this will impact individuals in various states. Some of this is consistent with early assumptions and thinking, some is different from my earlier thoughts, and some is as yet unclear.

DOMA

Before we discuss the impact, let’s revisit the law. DOMA had three sections and, to better understand the issue, here is the law as it is on the books:

Section 1 named the act: “This Act may be cited as the `Defense of Marriage Act’.”

Section 2 revised chapter 115 of the United States Code, which deals in part with the full faith and credit aspects of states’ interaction, and gave permission to the states to ignore any marriage laws of other states that relate to same-sex couples:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

Section 3 revised Title 1, Chapter 1 of the United States Code to define “marriage” and “spouse.” Prior to DOMA, these terms were defined by the states and not by the federal government. It is significant and telling that DOMA’s third section was placed in such a prominent position in the US Code; it says that for all of our social contract, our form of government, our protections and requirements and obligations and rights, before we consider anything else, we shall exclude same-sex couples from consideration:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

The challenges and the Administration’s postion:

The challenges to DOMA to date are as follows:

Commonwealth of Massachusetts v. United States Department of Health and Human Services (1:09-cv-11156-JLT) – Massachusetts has defined its marriage laws according to its community standards as, since the inception of the nation, states have been allowed to do. However, upon Massachusetts’ recognition of marriage between same-sex couples the federal government ignored the state’s issuance, recording and recognition, instead choosing to implement Congress’ definition of marriage. Massachusetts Attorney General Martha Coakley sued the Department of Health and Human Services to defend the state’s rights and the case was heard by Federal First Circuit Court Judge Joseph Tauro.

Gill v. the Office of Personnel Management (1:09-cv-10309-JLT) – Nancy Gill and Marcelle Letourneau, along with other same-sex couples married under the laws of the commonwealth of Massachusetts, argued that Section 3 of DOMA violated the equal protections provisions of the US Constitution. They were represented by Gay & Lesbian Advocates & Defenders (GLAD) and the case was consolidated with others (see above) and argued before Judge Joseph Tauro in conjuction with Commonwealth.

On July 8, 2010, Tauro found that Congress had exceeded its authority by seeking to assume powers that were reserved to the states (Commonwealth). Separately, he found that there was not even a rational basis for unequal treatments between legally married heterosexual couples and legally married homosexual couples (Gill).

My observations at that time were

These cases do not discuss whether states may deny marriage equality, only whether the federal government may do so. If it is constitutionally permissible to discriminate against gay people in matters of marriage, only states may enact that discrimination.

Taken together, it seems clear that Tauro finds that a distinction based on marriage is permissible. But one that is based on sexual orientation is not. This would seem to suggest that because states can determine marriage laws (Commonwealth), it can either allow or refuse same-sex marriage (until otherwise restricted). So those legally married same-sex couples in Massachusetts, Iowa, Connecticut, Vermont, New Hampshire, Washington DC, New York and Maryland and some 18,000 couples in California would be married in the eyes of the federal government while those in civil unions or domestic partnerships would not.

The Justice Department appealed Tauro’s decision on October 12, 2010 and filed a brief on January 14, 2011 defending DOMA.

Dragovich v US Dept. of Treasury (4:10-cv-01564-CW) – The Legal Aid Society sued on behalf of California public employees who were not allowed to include their spouses in CalPERS’ long-term care plan due to federal restrictions on the state program’s recognition of marriages and spouses.

On January 18, 2011, Ninth Circuit Federal Judge Claudia Wilkin refused the government’s motion to dismiss in a response that strongly indicated that Wilkin would find that Section 3 of DOMA violated both the due process and equal protection provisions of the US Constitution.

Pedersen et al. v. Office of Personnel Management (3:10-cv-01750-VLB) – Following on their success in Gill, GLAD filed in the Second Circuit Court on behalf of Joanne Pedersen & Ann Meitzen, a legally married couple under Connecticut law along with couples married in Vermont and New Hampshire.

Pedersen was filed on November 9, 2010, and the first round of filings are due on March 31. At that time the Department of Justice can file for dismissal and GLAD can file for summary judgment.

Windsor v. United States (1:10-cv-08435-BSJ)- This case, filed by the ACLU, has a unique fact pattern. Edie Windsor and Thea Spyer married in Canada in 2007 and their marriage was recognized by their home state of New York (which does not currently grant marriage licenses to same-sex couples). When Spyer died, her estate was taxed with no consideration to their marriage status.

Windsor was filed on November 9, 2010, concurrent with Pederson, and the date for the defense to file a motion to dismiss is March 31, 2011. (Holder’s letter places this date at March 11, but the docket states March 31. In either case, it is quite soon)

To recap, Commonweath deals with the rights of states to define marriage. Gill, Dragovich, Pedersen, and Windsor all deal with the rights of individuals to due process and equal access. None of these cases challenge Section 2 of DOMA or question whether one state must recognize same-sex marriages conducted in another.

What the Administration announced:

In his letter to Speaker of the House Boehner, the attorney general laid out a legal determination and a consequential plan of action. The legal determination was two-fold.

First, Holder recognized that in those court districts in which the appropriate level of scrutiny for anti-gay discrimination had no precedent, the defendants would be required to argue for such a level. And the Department of Justice found itself unable to make a cogent argument that only rational basis be applied.

The Supreme Court has established a three part test to determine whether rational basis or a stricter level of scrutiny be considered: a history of discrimination, immutable characteristics comprising a discrete group, and political powerless minority subject to majority whim. On all three of these, the DOJ found itself incapable of arguing for rational basis and thus found that only strict scrutiny could be applied to sexual-orientation based discrimination.

Secondly, Holder acknowledged that his office was incapable of presenting any argument in favor of anti-gay discrimination that could stand up to strict scrutiny. While theoretically rational basis arguments can be pie in the sky (though they must at least be rational), strict scrutiny required tangible real and compelling reasons for the discrimination that were tied to the legislature’s actual reasoning and there just wasn’t anything to present.

It is important to understand that the Administration did not say that it was refusing on unwilling to defend the law but rather that it was incapable of defending the law. There simply were no arguments to present to the court.

Those who claim that the Administration is “choosing which laws to defend” are either confused or dishonest. Those who say that this will “nationalize” same-sex marriage and impose it on unwilling states are either confused or dishonest. Those who go on TV and spout completely false information about this decision are either irresponsible or dishonest. I’m inclined to suspect ‘dishonest.’

In consequence, the DOJ announced that it would not present arguments to the judges in Pedersen and Windsor that these cases should be tried under rational basis. Should the judges independently determine that no stricter scrutiny than rational basis would be considered, the DOJ was capable of defending DOMA on rational basis pie in the sky notions.

But unless the judges independently determined that rational basis was the standard, the Department of Justice would not attempt to justify DOMA under stricter scrutiny because they had no arguments to present.

What does this mean?

Immediately, nothing. The law remains on the books, the Administration will continue to administer the law, and gay couples have no more federal recognition than two random roommates living in a dorm.

However, it is a very short time before this could all change. The House of Representatives has a small window in which to decide whether to defend DOMA in court. Should they fail to do so, then in March the courts will be presented with a motion for summary judgment (a request for a trial-less determination) which argues that DOMA Section 3 is unconstitutional, and in response the DOJ will say, “I got nothing.”

Presented with only one side, it is extremely probable that the judges will find for the plaintiffs and order the federal government to recognize their marriages. This could be limited to specific circumstances for individual plaintiffs or applied broadly against the United States and applicable to all same-sex marriages. However, without appeal to the US Supreme Court, then these decisions will only apply to same-sex married couples in Second Circuit states (Connecticut, Vermont, New Hampshire, and New York).

Should the House intervene, a not-unlikely possibility, then the House will be allowed to present arguments that only rational basis be applied and that DOMA’s discrimination achieves a governmental function. However, they will do so with the additional burden or explaining why not only the plaintiffs but the Department of Justice are incorrect in their interpretation of the Constitution.

Meanwhile the Massachusetts and California cases continue. It is difficult to know exactly how the Administration’s decision will play into these cases. Having announced that you believe DOMA Section 3 to violate the US Constitution, courts are less likely to believe the sincerity of arguments otherwise.

While GLAD has no certainty about how Gill is impacted, Massachusetts Attorney General Martha Coakley (at least publicly) believes that the DOJ will drop their appeal of Commonwealth (Globe).

“We assume they will withdraw their briefs. Unless we hear otherwise, we believe the Department of Justice’s intention is not to defend any of these cases,” said Coakley, whose suit contended that the federal law unfairly created two classes of married people.

Should the government withdraw its appeal in Gill and Commonwealth, then Judge Tauro will order the United States to recognize Massachusetts’ same-sex marriages. It is unclear whether the House would have any standing to appeal this DOMA decision.

But unless the federal government opts not to appeal to the Supreme Court and the House opts not to intervene, this issue will eventually end up before the Supreme Court (as it could through Dragovich or Perry). And there are a few ways the court could go.

Should they decide to hear Commonweath first, that could make all of the other cases moot. They could determine that states have, as they always have had, the right to define marriage. Doing so could avoid or delay any requirement to determine whether in such definition a state can distinguish between same-sex and opposite-sex marriages as Commonwealth does not address that issue.

Should they decide that the federal government has a newly found right to establish family law, then they would have to deal with the various other cases which deal with discrimination against individuals. This could be an interesting direction.

Although these cases are federal cases and speak only to what the federal government can do, should the SCOTUS find that federal anti-gay marriage law violates the constitutional rights of individuals, it is difficult to see how that would not also be true of the states. While we have assumed that Ted Olson and David Boies would be the ones to argue the unconstitutionality of banning same-sex marriage, it is possible that due to timing (delays or expedition) it could be GLAD or the ACLU.

Bozeman, MT To Support Marriage Rights

The Bozeman, Montana, city commission is expected to pass a resolution voicing support for a lawsuit by seven same-sex couples for marriage rights in the state of Montana. Two Bozeman couples are part of the lawsuit.  All five members of the city commission say they support the resolution, and Mayor Jeff Krauss believes that Bozeman can set an example for all of Montana:

“These couples are really walking out on a limb to put their faces forward, to put their stories forward, and I think they deserve the support,” Krauss told the Chronicle.

…A draft of the resolution the Bozeman City Commission plans to consider states that, “the Montana ‘marriage amendment’ precludes same-sex marriages, it does not preclude all couples from having the same fundamental rights of individual dignity, privacy, due process and the pursuit of life’s basic necessities guaranteed to all Montanans under the Montana Constitution’s Declaration of Rights.

“Same-sex couples are denied the basic legal rights of different-sex couples to succession to property upon the death of a spouse, employment rights, tax benefits, health insurance, rights to visitation in the event of illness, health care decisions, fish and game law licensing and many more,” the resolution continues.

The American Civil Liberties Union filed the lawsuit on behalf of fourteen plaintiffs against the state of Montana in July. The ACLU claims that the state is violating the Montana Constitutional by denying same-sex couples many of the rights that married couples enjoy in health care, financial matters, inheritance, and other matters. The lawsuit calls for providing these rights through a civil union or domestic partnership arrangement in order to comply with the state constitution’s ban on same-sex marriage.

ACLU sues for domestic partnerships in Montana

In 2004, Montana residents voted by 67% to revise their state constitution to include:

Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state.

However, this amendment does allow for other forms of couple recognition, and the ACLU has now sued the state to provide recognition to same-sex couples.

Seven committed same-sex couples today filed a lawsuit against the state of Montana for failing to provide legal protections to same-sex couples and their families in violation of the Montana Constitution’s rights of privacy, dignity and the pursuit of life’s basic necessities and its guarantees of equal protection and due process. The goal of this lawsuit is ensure that same-sex couples are able to protect their families with the same kind of legal protections that opposite-sex couples are offered through marriage.

Because there is a constitutional amendment in Montana barring marriage for same-sex couples, the couples in the lawsuit are seeking the protection of state-recognized domestic partnerships, similar to those in place in several other states.

Donaldson and Guggenheim v. Montana

El Paso Restaurant Guards Release Statement Calling Kissing “Lewd Behavior”

Two of about 100 people protesting outside the Chico's Tacos restaurant in El Paso, Texas. (Ruben R. Ramirez/El Paso Times)

It looks like a kiss is still a very radical act. The security firm hired by Chico’s Tacos has responded to the uproar over the five men who were kicked out of the El Paso, Texas restaurant after two of them kissed. It turns out that kissing is now lewd behavior:

The security company’s general manager, Robert Gamboa, released a statement Friday that said the guard encountered eight men, not five. The statement said the men were disruptive and caused a disturbance when the guard approached them.

“While at their seats, two members of the group did proceed to engage in kissing and other lewd conduct,” the statement said. “It wasn’t until another member of the group started to dance around in the aisle like a ballerina, that our officer approached them and asked them to settle down or they would be asked to leave.”

Carlos Diaz de Leon, one of the five men kicked out is described at being appalled at the statement. He insisted that there were only five men in the group and that no one was dancing. “That security company is ridiculous,” he said. He led a protest by about a hundred people in front of the restaurant Friday.

El Paso has an anti-discrimination ordinance which prohibits, among other things, restaurants from refusing to serve anyone based on sexual orientation. But that didn’t stop private security guards hired by the restaurant from ordering the men to leave after two of them kissed, saying that “faggot stuff” wasn’t allowed. Both parties called police, but instead of enforcing El Paso’s anti-discrimination law, officers threatened to cite the men with violating a statute prohibiting “homosexual conduct,” saying that kissing was forbidden in public. An EPPD spokesman later compounded the problem by saying that the couple could have been charged with criminal trespass.

The ACLU is calling for an official inquiry into the reported anti-gay discrimination, as well as the response by the El Paso Police Department.

Three Pro-Gay Groups Respond To AFER’s Letter

Chris Geidner has gotten some reactions from the National Center for Lesbian Rights, Lambda Legal, and the ACLU concerning the letter from the America Foundation for Equal Rights (the group behind the Olson and Boies lawsuit challenging Prop 8) sent to those groups demanding that they not seek to intervene in the suit:

Looking at [AFER board president Chad] Griffin\’s letter, it is clear that — far from being blindsided by the Perry lawsuit — the LGBT legal organizations were well aware of and chose not to participate in the filing of this lawsuit. It is also clear, though, that the groups have been working with the lawyers for the case since its filing to discuss strategy and a way to “integrate” the groups more fully in the case.

When contacted Thursday, James Esseks, the co-director of the ACLU\’s LGBT Rights Project, said of the distinction between the groups\’ initial response and their filing on Wednesday, “People can disagree about when and whether to jump into the pool, but once you do it makes sense to swim as hard as possible to get to the other side. . . . We\’re all in the pool; it\’s not just those plaintiffs.”

..Toward the beginning of Griffin\’s letter, he stated of the groups that “it is inconceivable that you would zealously and effectively litigate this case if you were successful in intervening.” Esseks, of the ACLU LGBT Rights Project took strong objection to that, saying, “Any suggestion that [the groups] would want to lose a marriage case is off-the-wall to me. It\’s unfathomable.” Likewise, Shannon Minter, the legal director at NCLR responded in a statement that “Our only focus right now is on doing everything we can to help win the case.”

I don’t think the letter from AFER suggests that any of the groups would actually want to lose the case. What it does suggest is that a group that doesn’t believe that a case should have been filed may not be as effective as those who do.

Chris argues that the groups are right to try to intervene in order to broaden the factual record for the inevitable appeals to the appelate court.

Anti-Prop 8 Legal Team to Pro-Gay Groups: Back Off

The American Foundation for Equal Rights has released a letter they wrote to the National Center for Lesbian Rights, Lambda Legal, and the ACLU of Southern California, asking the three groups not to intervene in the Boies and Olson challenge to California’s Prop 8 in federal court.  They recounted the many ways in which the three groups had previously opposed the lawsuit and raise a very legitimate concern now that those groups want to enter the lawsuit on the side of the plaintiffs:

In public and private, you have made it unmistakably clear that you strongly disagree with our legal strategy to challenge Prop. 8 as a violation of the Due Process and Equal Protection Clauses of the United States Constitution…. Having gone to such great lengths to dissuade us from filing suit and to tar this case in the press, it seems likely that your misgivings about our strategy will be reflected—either subtly or overtly—in your actions in court.

The letter provides an interesting detail surrounding the amicus briefs filed in the case calling for Prop 8 to be declared unconstitutional. According to the letter:

Even after you filed an amicus curiae brief urging the district court to grant our motion for a preliminary injunction against the enforcement of Prop. 8, you refused to characterize your position as one of “support.” Indeed, Jennifer Pizer of Lambda Legal went so far as to insist that we alter a press release that described your amicus curiae brief as “supporting” our suit. In response, we issued a second release addressing her concerns.

The letter also details several instances in which the Boies and Olsen team and AFER reached out to the three groups. After all that, AFER says that they “remain willing to work closely” with them, but not as co-council:

Your intervention would create a complex, multi-party proceeding that would inevitably be hampered by procedural inefficiencies that are directly at odds with our goal—and the goal of Chief Judge Walker—of securing an expeditious, efficient, and inexpensive resolution to the district court proceedings. As a result of your intervention, we could be mired in procedurally convoluted pre-trial maneuvering for years—while gay and lesbian individuals in California continue to suffer the daily indignity of being denied their federal constitutional right to marry the person of their choosing. … Delaying equal marriage rights in California serves none of our interests.

[Hat tip: Rex Wockner]

Click here to read the complete letter

Three Pro-Gay Groups Seek To Elbow Their Way Into Prop 8 Lawsuit

My first reaction on learning that Attorneys Theodore Olson and David Boies were filing a lawsuit in federal court to challenge the constitutionality of Prop 8, I was cool to the idea. But now with two other lawsuits from Massachusetts which are also challenging the Defense of Marriage Act, as well as the frustrations many of us are feeling over the distinctly unfierce advocacy taking place in Washington, I’ve changed my mind. I’m glad that Olson and Boies are going forward.

That said, I have to wonder what’s going on with three pro-gay groups who have petitioned the court to be admitted as parties to the case. The three groups — American Civil Liberties Union, Lambda Legal and the National Center for Lesbian Rights — have asked the judge to allow them represent three gay community groups in the lawsuit seeking to overturn Proposition 8.

These same groups were among the eight who immediately opposed the lawsuit when it was first announced. Last week, they reversed their position and filed amicus briefs in support of the plaintiffs, which is, I think, a very positive move. They seem to have warmed to the idea, much as I have.

But now all of the sudden they want to become parties of the lawsuit itself, even though they wanted nothing to do with the move in the beginning. Olson and Boies oppose their petition, saying that involving more groups would delay and unnecessarily complicate the proceedings. I agree. It worries me that one of the more important LGBT cases making its way in the federal courts could wind up having four different captains trying to pilot the ship. That alone should worry us.

But there’s something else that’s troubling. Kristin Perry, Sandra Stier, Paul Katami, and Jeffrey Zarrillo are the four Californians named as plaintiffs in the suit. They have the grievance, they’ve selected their lawyers, and they are ready to go to court to have their rights upheld. That’s what plaintiffs do in lawsuits. And so it seems to me that those four plaintiffs should have a right to have their case argued on their behalf by lawyers of their own choosing. They shouldn’t have to contend with three other outside groups with differing agendas who think they know better on how to try the case — especially when their first stab at knowing better was to publicly denounce the lawsuit to begin with.

Reactions To Obama Administration’s Defense of DOMA

Reactions to news that the Obama administration is defending the so-called “Defense of Marriage Act” against a constitutional challenge before the U.S. Supreme Court are pouring in fast and furious. We go first to the Human Rights Campaign:

[HRC President Joe Solmonese said,] “Mr. President, you have called DOMA ‘abhorrent\’ and pledged to be a fierce advocate for our community.  As we approach the 40th anniversary of Stonewall, it is time for you to use your leadership to translate these principles into meaningful action.”

HRC also has grave concerns about the arguments that the Administration put forth in this case, arguments that simply do not reflect the experiences that LGBT people face or the contributions that they make. The Administration\’s brief claims that DOMA is a valid exercise of Congress\’s power, is consistent with Equal Protection or Due Process principles, and does not impinge upon rights that are recognized as fundamental.  The brief further claims that DOMA is a “neutral” federal position on same-sex marriages, and permits the states to determine on their own whether to recognize same-sex marriages. The most alarming argument, grounded neither in fact nor in law, reads as follows:

[DOMA amounts to] a cautious policy of federal neutrality towards a new form of marriage. DOMA maintains federal policies that have long sought to promote the traditional and uniformly-recognized form of marriage, recognizes the right of each State to expand the traditional definition if it so chooses, but declines to obligate federal taxpayers in other States to subsidize a form of marriage that their own states do not recognize.

“Same-sex couples and their families are not seeking subsidies,” said HRC President Joe Solmonese.  “We pay taxes equally, contribute to our communities equally, support each other equally, pay equally into Social Security, and participate equally in our democracy.  Equal protection is not a handout.  It is our right as citizens,” he said.

From Rea Carey, Executive Director of the National Gay and Lesbian Task Force Action Fund:

“DOMA is and has always been an immoral attack on same-sex couples, our families and our fundamental humanity. This law has only served to discriminate against Americans and belittle our nation’s heralded values embracing freedom, fairness and justice. The Task Force Action Fund demands President Obama and Congress immediately repeal this hateful law, which has left a moral scar on our nation and its worthy pursuit of equal justice for all.

“Unfortunately, the malicious and outrageous arguments and language used in the Department of Justice’s marriage brief is only serving to inflame and malign the humanity of same-sex couples and our families. This is unacceptable.

“This ugly chapter in our nation’s history must come to an end now with the repeal of DOMA.”

From Executive Director Geoff Kors of Equality California:

We are outraged the Obama Administration filed a brief defending the discriminatory Defense of Marriage Act — a law Obama promised to repeal when running for President. It is unacceptable that he is defending DOMA instead of supporting its repeal as unconstitutional. And the justification that Congress has the right to deny one minority equal benefits as a way to save money is truly offensive. We not only call on President Obama to order the Justice Department to file a supplemental brief reversing its position and instead urging the repeal of DOMA, but we also demand the president demonstrates that he is the ‘fierce’ advocate he once claimed to be by publicly calling for the end to all discrimination against LGBT Americans — including the immediate repeal of this law so same-sex couples legally married in their home state receive the same federal benefits and protections as opposite-sex couples

From a broad coalition of advocacy groups (no link yet):

We are very surprised and deeply disappointed in the manner in which the Obama administration has defended the so-called Defense of Marriage Act against Smelt v. United States, a lawsuit brought in federal court in California by a married same-sex couple asking the federal government to treat them equally with respect to federal protections and benefits. The administration is using many of the same flawed legal arguments that the Bush administration used. These arguments rightly have been rejected by several state supreme courts as legally unsound and obviously discriminatory.

We disagree with many of the administration\’s arguments, for example that DOMA is a valid exercise of Congress\’s power, is consistent with Equal Protection or Due Process principles, and does not impinge upon rights that are recognized as fundamental.

We are also extremely disturbed by a new and nonsensical argument the administration has advanced suggesting that the federal government needs to be “neutral” with regard to its treatment of married same-sex couples in order to ensure that federal tax money collected from across the country not be used to assist same-sex couples duly married by their home states. There is nothing “neutral” about the federal government\’s discriminatory denial of fair treatment to married same-sex couples: DOMA wrongly bars the federal government from providing any of the over one thousand federal protections to the many thousands of couples who marry in six states. This notion of “neutrality” ignores the fact that while married same-sex couples pay their full share of income and social security taxes, they are prevented by DOMA from receiving the corresponding same benefits that married heterosexual taxpayers receive. It is the married same-sex couples, not heterosexuals in other parts of the country, who are financially and personally damaged in significant ways by DOMA. For the Obama administration to suggest otherwise simply departs from both mathematical and legal reality.

When President Obama was courting lesbian, gay, bisexual and transgender voters, he said that he believed that DOMA should be repealed. We ask him to live up to his emphatic campaign promises, to stop making false and damaging legal arguments, and immediately to introduce a bill to repeal DOMA and ensure that every married couple in America has the same access to federal protections.

Signed:
American Civil Liberties Union
Gay and Lesbian Advocates and Defenders
Human Rights Campaign
Lambda Legal
National Center for Lesbian Rights
National Gay and Lesbian Taskforce

And from PFLAG:

Parents, Families and Friends of Lesbians and Gays (PFLAG) National expressed deep disappointment and strong opposition to the Department of Justice\’s recent arguments regarding the Defense of Marriage Act (DOMA) in the dismissal of a lawsuit filed on behalf of a gay couple who married in California.

“Since DOMA\’s enactment in 1996, PFLAG has vocally opposed this blatant and malicious law, which enables legal discrimination against our gay and lesbian loved ones and denies them the right to protect their families and receive equal treatment under the law,” said Jody M. Huckaby, executive director of PFLAG. “We are deeply offended by the DOJ\’s recent arguments and alarmed by the hurtful language that further denigrates our families and friends.”

“PFLAG continues to urge President Obama to explore options to repeal this immoral and unethical law that leaves our families and friends unprotected and unequal. DOMA hurts our families and friends by denying them more than 1,100 federal benefits legally recognized married couples currently receive from the federal government. When families are hurt, communities are weakened and all of America suffers. In the name of basic equality and fairness, we ask that the Administration fulfill its commitment to advancing equality for LGBT Americans by acting immediately to overturn this law,” Huckaby concluded.

Nashville, Knoxville Schools Unblock LGBT Web Sites

School districts in Nashville and Knoxville have responded to the American Civil Liberties Union’s lawsuit demanding that Tennessee school systems remove Internet filtering software which blocks students’ access to legitimate LGBT educational and informational web sites. The Knoxville superintendent said that the blocking software was against school board policy.

The school systems used filtering software provided by Education Networks of America, which categorized some 1,000 web sites as “LGBT” and blocked access to them. The same software however allowed access to ex-gay ministries. David Pierce, CEO of ENA, said that they have upgraded the system to distinguish between web sites which provide information and those are more adult oriented.

The ACLU says that they will now likely drop their lawsuit but they are holding off for now, pending assurances that the filtering software won’t re-block access to LGBT sites in the future.

Are Lawsuits The Best Way To Go?

I welcomed conservative Attorney Theodore Olson’s eagerness to try to overturn Prop 8 in federal court. But when I wrote that, I only addressed the fact that even conservatives are coming around to the idea that discrimination is fundamentally un-American.

What I didn’t address was the wisdom of trying to bring about change in the courts, especially when this particular tactic has almost no chance for success. I don’t think it’s wise to proceed in the courts. Eight prominent LGBT organizations agree:

In response to the California Supreme Court decision allowing Prop 8 to stand, four LGBT legal organizations and five other leading national LGBT groups are reminding the LGBT community that ill-timed lawsuits could set the fight for marriage back. The groups released a new publication, “Why the ballot box and not the courts should be the next step on marriage in California” (PDF: 70KB/3 pages). This publication discourages people from bringing premature lawsuits based on the federal Constitution because, without more groundwork, the U.S. Supreme Court likely is not yet ready to rule that same-sex couples cannot be barred from marriage. The groups also revised “Make Change, Not Lawsuits” (PDF: 105KB/7 pages). which was released after the California Supreme Court decision ending the ban on marriage for same-sex couples in California. This publication encourages couples who have legally married to ask friends, neighbors and institutions to honor their marriages, but discourages people from bringing lawsuits. [Hyperlinks added]

I tend to agree. The problem though is this: the LGBT movement has never been a monolith. Unlike the caricature painted by our opponents, there really has never been a behind-the-scenes entity to dictate a coordinated strategy. Advancement has been a messy process, at the ballot box, in the legislatures and in the courts.

But the whole reason that we have courts is they are the ones charged with dispensing justice for those with legitimate grievances. And when someone has a legitimate grievance, it’s hard to argue that they should not exercise their constitutional right to their day in court. This true whether that grievance is against negligent employer operating an unsafe work environment, a drunk driver whose recklessness resulted in the death of a loved one, or a state with discriminatory laws.

But I do think that the LGBT advocacy groups’ advice is what we need to heed now (PDF: 70KB/3 pages):

Rather than filing premature lawsuits, we need to talk to our friends, family and neighbors, and help them understand why denial of the freedom to marry is wrong. We need to build a vigorous, aggressive campaign to overturn Prop 8 and restore the freedom to marry in California. This is the moment to convince California and America that we should have the freedom to marry.

I hope Mr. Olson will consider deploying his considerable legal talents to help us win in other ways.