Box Turtle Bulletin

House Republican Leaders Appeal DOMA Ruling

As expected, Congressional Republican leaders have appealed Wednesday’s ruling striking down Section 3 of the Defense of Marriage Act as unconstitutional to the Ninth Circuit Court of Appeals. The Bipartisan Legal Advisory Group (BLAG), under the direction of House Speaker John Boehner, stepped in to defend DOMA when the Obama administration’s Justice Department found that DOMA was unconstitutional. Wednesday, U.S. District Court Judge Jeffrey S. White, a George W. Bush appointee, agreed, saying that there is no rational basis for the provision which bars the federal government from granting employment benefits to legally married spouses of gay employees.

Chris Geidner at Metro Weekly notices that the appeal filing includes this statement: “The Democratic Leader and the Democratic Whip decline to support the filing of this notice of appeal.”

Federal Court Strikes Down Section 3 of DOMA

Chris Geidner at Metro Weekly has the breaking news that Federal District Court Judge Jeffrey S. White found that Section three of the Defense of Marriage Act is unconstitutional. Karen Golinski is suing the Office of Personnel Management for denying her request for equal health insurance benefits for her wife:

In part, U.S. District Court Judge Jeffrey S. White today found that Section 3 of DOMA violates the equal protection rights of Golinski, finding that heightened scrutiny applies — as urged by the DOJ — and noting that it might not even pass rational basis — the lowest — legal scrutiny:

The Court concludes that, based on the justifications proffered by Congress for its passage of DOMA, the statute fails to satisfy heightened scrutiny and is unconstitutional as applied to Ms. Golinski.

Although the Court finds that DOMA is subject to and fails to satisfy heightened scrutiny, it notes that numerous courts have found that the statute fails even rational basis review.

This finding exceeds the Justice Department’s determination that DOMA, section 3, which prohibits the federal government from recognizing fully-legal same-sex marriages, requires heightened scrutiny and is unconstitutional at that level. Because of the Justice Department’s finding, the Obama administration has stopped defending Section 3 in court. The Bipartisan Legal Advisory Group (BLAG), led by the Republican leadership in the House of Representatives, is defending DOMA in the case.

Judge White, a Bush administration appointee, cited a 2001 US Supreme Court discrimination case in finding that DOMA unconstitutionally discriminates against same-sex couples.

Even though animus is clearly present in its legislative history, the Court, having examined that history, the arguments made in its support, and the effects of the law, is persuaded that something short of animus may have motivated DOMA’s passage:

Prejudice, we are beginning to understand, rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.

BLAG has the option of appealing the decision to the Ninth Circuit Court of Appeals. Two other similar cases in Massachusetts resulted in DOMA’s Section 3 being declared unconstitutional there. Those cases are now on appeal with the First Circuit Court of Appeals.

One Third of US Senators sponsor repeal of DOMA

Senator Dianne Feinstein is the chief sponsor of Senate Bill 598, which would remove from Federal law the following language:

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.

And replace the following language in the code:

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.

with this language:

‘Sec. 7. Marriage

‘(a) For the purposes of any Federal law in which marital status is a factor, an individual shall be considered married if that individual’s marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State.

‘(b) In this section, the term ‘State’ means a State, the District of Columbia, the Commonwealth of Puerto Rico, or any other territory or possession of the United States.’.

At present, Senator Feinstein has the following 30 co-sponsors. Visually, this looks like the following, with light green representing one US Senator from that state and dark green representing both. Currently there are no Republicans who have signed on as co-sponsors of the bill, but there is reason to hope that some may sign on and more may vote for the bill.

Daniel Akaka [D-HI]
Michael Bennet [D-CO]
Jeff Bingaman [D-NM]
Richard Blumenthal [D-CT]
Barbara Boxer [D-CA]
Sherrod Brown [D-OH]
Maria Cantwell [D-WA]
Benjamin Cardin [D-MD]
Chris Coons [D-DE]
Richard Durbin [D-IL]
Al Franken [D-MN]
Kirsten Gillibrand [D-NY]
Thomas Harkin [D-IA]
Daniel Inouye [D-HI]
John Kerry [D-MA]
Amy Klobuchar [D-MN]
Herbert Kohl [D-WI]
Frank Lautenberg [D-NJ]
Patrick Leahy [D-VT]
Carl Levin [D-MI]
Jeff Merkley [D-OR]
Barbara Mikulski [D-MD]
Patty Murray [D-WA]
Bernard Sanders [I-VT]
Charles Schumer [D-NY]
Jeanne Shaheen [D-NH]
Mark Udall [D-CO]
Tom Udall [D-NM]
Sheldon Whitehouse [D-RI]
Ron Wyden [D-OR]

In addition, Senator Bob Menendez (D-NJ) has announced his intention to join the list.

Judge in Golinski asks uncomfortable questions for those who favor discrimination

Today Justice Jeffrey White heard testimony as to whether the federal Defense of Marriage Act (DOMA) was in violation of the US Constitution when it was applied to deny spousal benefits to Karen Golinski, a legally married federal employee. In advance, White, a George W. Bush appointee, provided a list of questions that he wanted addressed. It can’t have been a happy day for Paul Clement when he saw them.

The list of ten questions began with:

1. The passage of Section 3 of the Defense of Marriage Act (“DOMA”) marks a unique departure from the recognition the federal government historically has afforded to State marital status determinations.

It quickly trotted on to such inquiries as “What is the authority for the position that only the right to opposite-sex marriage is fundamental as opposed to the right to marriage generally?” and “How does BLAG distinguish the line of authority treating classifications based on religious affiliation as a suspect class from classifications based on sexual orientation?” and “How does BLAG’s argument about the tradition of heterosexual marriage differ from the miscegenation context?”

And surely when he came to number 9 Clementi must have cringed:

9. To the extent the Court decides the issues presented on the motion for summary judgment…

This does not mean that White will rule in Golinski’s favor or that the ruling will apply broadly should he do so. But it does suggest that White has no concerns about the arguments made by Golinski’s counsel but is finding the arguments presented by DOMA’s defense to rely on assumptions that White was not willing to make.

Adding sway to Golincki’s case, the head of the civil division of the Department of Justice showed up to argue in her behalf. This is but the second time that Assistant Attorney General Tony West has personally appeared in court to represent the Government and his appearance signaled the significance with which the Obama Administration has begun to take the issue of marriage equality.

Of course one can never tell how a judge will make their determination. But, at this point, things look encouraging.

Booed Soldier Shares His Reaction

Capt. Stephen Hill (left) and his partner, Joshua Snyder, at home in Columbus, Ohio. (AP Photo/Jay LaPrete)

It was unprecedented in the annals of presidential politics: on September 23, an active-duty American soldier stationed on the front lines was loudly booed by audience members with nary an admonishment from any of the GOP presidential candidates on stage, and none of the Commander-In-Chief wannabees offer a word of thanks for his service. Now nearly two months later, Army Capt. Stephen Hill described to the Associated Press his reaction to that shocking display of disrespect:

“When the actual booing occurred, my gut dropped out, because my first inclination was, did I just do something wrong?” he said. “The answer, obviously, wasn’t very supportive of gay people, and there was a lot of fear of how the Army would take the question.”

He did not have to wait long to find out. At breakfast later that morning, the segment was playing on the chow hall television. Hill immediately tracked down his commander, who told him she had no problem with what he’d done but that she would need to run it up the chain of command. She later relayed the response.

“She said, ‘What the military’s most concerned with is that you are OK, because it’s a lot of pressure on you and we want to make sure if there is anything we can do to help,'” he recalled.

Hill also remembered that Santurum’s answer was solely about sex. Hill, who is married, found Santorum’s answer as adding to the insults.

“This is not about sex,” Hill said. “A special privilege is not hiding pictures in my house or God forbid, taking mortar fire again and not knowing if Josh will be recognized. I’m fighting every day to protect everyone’s rights as human beings, and it seems counterintuitive for me to be fighting for those rights and not have them.”

Capt. Hill and his husband, Joshua Snyder, have joined other same-sex military couples in suing the federal government for the same benefits as straight military couples.

What if there were a god named Fred who hated lies?

Now I know that here at BTB we have readers from diverse places and a wide variety of beliefs. Some, like me, have a belief system that includes the divine while others are skeptical or dismissive about claims of supernatural beings that cannot be substantiated. From orthodoxy to atheism to skepticism and uncertainty, BTB accepts us all.

But let’s try a thought experiment. Let’s all suppose that there is one god, and that his name is “Fred”. (Fred either has six arms or two and is either inordinately fond of fried chicken livers or finds chicken repulsive – depending on which Order of Fred you ask. The ascetic monks of Outer Urboo even claim that Fred has tentacles and flies. But none of that is material to our story.)

We also assume that Fred is omniscient and that he has established a code of behavior. And, for sake of our experiment, let’s assume that within that code, Fred highlights ten specific things that humans are forbidden to do. And finally, let’s agree that in this hypothetical situation, that one of the ten forbidden behaviors is “bearing false witness”.

To be clear: often for simplicity’s sake, people talk about deities banning lying. But Fred is very specific. He forbids any instances in which you present yourself to others as a witness about a matter (as one who has information that others lack) and then give testimony about that matter that is false or intended to deceive. That is a really big no-no in Fred’s book.

With me so far?

Okay, now – within that context – consider a hypothetical email message sent out by Fred’s Followers in response to the effort to repeal the Federal Defense of Marriage Act (which prohibits the Federal Government from recognizing same sex marriages). They warn their readers, as FF tracks such things and are better informed, of what the consequences would be of this bill passing. They are, in the words of our deity, “bearing witness” about the bill.

The repercussions are enormous:

• States laws protecting marriage as between “one man, one woman” will become null and void – including the 31 states who have voted on constitutional amendments.
• The military will be thrown into complete chaos and disarray, as Department of Defense leaders try to figure out housing, benefits, and “same-sex spouse” sensitivity training regimens.
• Churches will come under fire from radical homosexual activists. Ministers and churches will be sued for “religious discrimination” for refusing to perform or allow gay “marriages.”
• Public schools will be forced to indoctrinate our children, teaching them that homosexual marriage is both natural and acceptable.

Let’s take a quick look at these claims to see if Fred would approve. The relevant language from S 598 is as follows:

Sec. 7. Marriage

(a) For the purposes of any Federal law in which marital status is a factor, an individual shall be considered married if that individual’s marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State.

So how do the claims of Fred’s Followers match up to reality? How did FF do?

Claim 1. As we can see, nothing in S 598 addresses state laws at all. Not only are they not made “null and void”, they aren’t even up for consideration.

This bill only would define the federal government’s rules of recognition and further would actually recognize and honor the restrictions on marriage imposed by those 31 states. While a soldier in Alabama might have her marriage recognized on base, it must have been conducted in one of the states in which she could marry and there’s no requirement that the Fred-fearing people of Alabama not point at her and scream “single, single, single brazen hussy of the leeeeesbian variety” if they so choose.

Now it is possible, even likely, that the various state DOMA amendments will be found by the United States Supreme Court to be in violation of the US Constitution. But until such time as the Supreme Court steps in and reminds the states that “any person” does not have an asterisk, states will be free to continue to be as exclusionary and unfair as AFA’s readers wish them to be.

Conclusion: claim 1 has no truth whatsoever.

Claim 2. Currently the Department of Defense leaders are experiencing a small amount of disarray as they try and comply with the provisions of DOMA that prohibit them from treating gay service personnel the same as straight personnel. Like most employers, they would prefer to just have one set of rules that apply to everyone.

But recent efforts to simplify (e.g. applying chaplain marriage structure equally) resulted in outcry from folks like Fred’s Followers and congressional meddling and a lot of back-peddling to please those who do not wish for gay people to be accorded the same rights and privileges as heterosexuals. And Defense officials are still not entirely certain how to apply (or, actually, deny) benefits for gay soldiers. Ironically, rather than throw them into disarray, it would be a tremendous relief for the military if DOMA to no longer intruded into their obsession for procedure and order and equal application of rules.

Conclusion: not only is claim 2 false, the opposite is true.

Claim 3. This claim is deceptive in its wording and deliberately so.

The US Constitution provides churches with the freedom to conduct such rites as they choose and to set whatever parameters they like for refusal. That is not in question. So FF says that churches will be “under fire”. And, indeed, they will. From their own members.

Gay and Lesbian and equality-loving heterosexual Presbyterians will pressure the Presbyterian Church (USA) to allow clergy to conduct same-sex weddings and to establish standard language by which to do so. But that has nothing at all to do with S 598. They are already doing so. In denomination after denomination and congregation after congregation, churches are seeking wisdom and discernment over how same-sex attracted congregants fit into the body of faith and “radical activists” of all inclinations are telling their stories and sharing their insight.

And the idea of gay couples suing churches over “religious discrimination” is so obviously false as to be laughable. The whole point of denominational autonomy – and surely there is no one who does not acknowledge that the First Amendment protects denominational autonomy – is to discriminate between rites, beliefs, and practices. The Church of Fred has no obligation to provide a venue for marriage ceremonies to anyone and the Fredite priests have no obligation to perform them. And nothing in that will change with S 598.

Conclusion: claim 3 has no kernel of truth whatsoever.

Claim 4. This one is similar to Claim 1. Schools and their curriculum are under state and local control; nothing in S 598 will or could force public schools to teach anything at all about marriage – gay, straight, natural, acceptable, or in accordance with the Ancient and Most Holy Broom-Jumping, Hora Dancing, Egg Stomping, Henna Painting, Dowry Gifting Rites of Connubial Bliss established by the Good and Gracious Fred, himself.

Conclusion: not only is claim 4 a flat out lie, it’s a rather obvious one as well.

Fred’s followers may be fools who lack the intellectual capability of distinguishing between an apple and a pineapple. They may be so mind-numbingly stupid, so tragically impeded, or so hopped up on Delphic vapors that they actually believe what they wrote.

And Fred, being gracious, just might look at his followers sadly and wonder, “how did I end up as the god of a bunch of idiots?” Perhaps their simple-mindedness would incline Fred towards mercy. And being fictional, after all, Fred’s Followers aren’t hurting anyone.

But, as I’m sure you guessed, this story isn’t really fiction. And the American Family Association, the real organization who crafted the above email and sent it out to all of those on their email list, is hurting people. And they are not fools. The AFA knew that they were disseminating false witness. Those who receive and respond to an AFA Action Alert may be so divorced from the law and how it works that they could believe that S 598 will result in their pastors being sued or the Military devolving into chaos, but the Wildmon family and their employees are not.

So this raises a most peculiar conundrum.

The American Family Association claims that they believe in a deity. They state that they believe in God and promote virtue by upholding in culture that which is right, true and good. The god they talk about is a holy and righteous god that cannot abide sin. Their god has provided forgiveness but he also demands repentance and change. Their god intends to throw all liars into a lake of eternal punishment for willfully breaking his commandments.

And yet the American Family Association has borne false – blatantly, inarguably, false – witness. Again.

So how can this be? If the God that holds you over the pit of hell, much as one holds a spider, or some loathsome insect over the fire, abhors you, and is dreadfully provoked, then how can you, one of his followers, flagrantly and repeatedly defy a commandment so important to God that it made it into his top ten list?

If Don and Tim Wildmon and the others who pay their bills though anti-gay activism at the American Family Association believe in the god they preach, why then don’t they fall on their knees in fear and trembling and beg their god for mercy? Why don’t they dedicate their remaining days to recanting their lies and healing the damage they have caused?

Because they don’t believe. They couldn’t. And that’s their biggest lie of all.

DOMA Repeal Bill Passes Out Of Senate Committee

The Senate Judiciary Committee passed the Respect for Marriage Act (RMA) this morning on a 10-8 vote after two hours of debate. The RMA would not only repeal the Defense of Marriage Act (DOMA), it would also require the federal government to recognize the marriage of any couple “valid in the state where the marriage was entered into.” This provision would also apply even if the couple lived in a state where the marriage wasn’t recognized.

The Washington Blade reported yesterday that three amendments had been proposed to the bill. But in today’s hearing, ranking minority committee member Sen. Chuck Grassley (R-IA) said, “We know where the votes are,” and declined to offer the amendments.

A similar bill to repeal DOMA has been introduced in the House, but the GOP-controlled chamber is not expected to take up the bill.

Update: Here’s a video of Sen. Al Franken (D-MN) fact-checking Sen. Chuck Grassley (R-IA) on the supposedly unchanging definition of marriage:

The Daily Agenda for Thursday, November 10

TODAY’S AGENDA:
Senate Judiciary Committee to Hold Markup for DOMA Repeal: Washington, D.C. The Senate Judiciary Committee will hold an Executive Business Meeting this morning to go over, among other things, Senate Bill 598, known as the Respect for Marriage Act, which would repeal the Defense of Marriage Act.  This bill was scheduled to be marked up last week, but Republicans on the panel forced a delay for a week. The Washington Blade has obtained copies of three proposed  amendments:

Of the three amendments, only one is germane: a measure that would strike Section 2 of the Respect for Marriage Act. That portion of the bill enables federal benefits to flow to married gay couples even if they live in states that don’t recognize marriage equality. Under the bill as it currently stands, a couple could marry in a state such as New York, where same-sex marriage is legal and still receive federal benefits if they move to a state such as Michigan, which doesn’t recognize same-sex marriage. The other two have no relevance to the Respect for Marriage Act, but still can be offered under Senate rules, which allow non-germane amendments to legislation.

The committee, chaired by Sen. Patrick Leahy (D-VT) will meet at 10:00 a.m. in Hart Senate Office Building, room 216, and will be webcast here. The House version of the Respect for Marriage Act has 128 co-sponsors, but because the House is under Republican control, it is extremely unlikely it will take action on the bill.

Frank Mugisha to Receive the Robert F. Kennedy Human Rights Award: Washington, D.C. Ugandan LGBT advocate Frank Mugisha will be presented the prestigious human rights award in a ceremony at the Kennedy Caucus Room of the Russell Senate Office Building. The award will be presented by Kennedy’s widow, Ethel Kennedy, and Senator John Kerry, Chairman of the Senate Foreign Relations Committee.

United States Conference on AIDS: Chicago, IL. Billed as the largest AIDS-related gathering in the U.S., the conference organized by the National Minority AIDS Council will kick off today, bringing together over 3,000 workers, including case managers, physicians, public health workers, advocates, people living with HIV/AIDS, and policy makers, to build national support networks, exchange the latest information and learn cutting-edge tools to address the challenges of HIV/AIDS. The three day conference begins today at the Sheraton Chicago Hotel and Towers.

TODAY’S BIRTHDAY:
Phyllis Lyon: 1924. The Oklahoma native earned a degree in journalism from the University of California at Berkeley in 1946 and worked as a reporter for a California paper before moving to Seattle to work at a magazine in 1950. That’s where she met the love of her life, Del Martin. They became a couple in 1953 when they moved to San Francisco together. “We really only had problems our first year together,” she later told The Washington Post. “Del would leave her shoes in the middle of the room, and I’d throw them out the window.” Del responded “You’d have an argument with me and try to storm out the door. I had to teach you to fight back.” Their life together was all about fighting back. In 1955 Phyllis and Del, along with six other women, formed the Daughters of Bilitis, the first national lesbian organization in the U.S. Phyllis was the first editor of the DOB’s groundbreaking newsletter, The Ladder from 1956 to 1960, when Del took over. Pseudonyms were common then, and Phillis edited The Ladder as “Ann Ferguson” for the first few months, but she dropped it to encourage their readers not to hide. By October 1957, they had 400 subscribers across the country. In 1964, they helped found the Council on Religion and the Homosexual, bringing together national religious leaders and gay and lesbian activists for a national discussion of gay rights. Phyllis was also the first open lesbian to serve on the board of the National Organization for Women in 1973. Phyllis and Del were also active in San Francisco’s Alice B. Toklas Democratic Club.

On February 12, 2004, Phyllis and Del married for the first time when San Francisco mayor Gavin Newsom ordered that marriage licenses be granted to same-sex couples. That marriage lasted until August 12, but not because the couple split up. That was when the California Supreme Court voided several thousand marriage licenses given to same-sex couples. Del and Phyllis were deeply dissapointed. “Del is 83 years old and I am 79,” she said. “After being together for more than 50 years, it is a terrible blow to have the rights and protections of marriage taken away from us. At our age, we do not have the luxury of time.”

But they had the luxury of just enough time. They were married again on June 16, 2008 after the California Supreme Court ruled that prohibiting same-sex marriage was against the state constitution. Del and Phyllis were given the honor of being the first same-sex couple to be married, and they wore the same outfits in which they were first married in 2004. Del passed away two months later, on August 27, 2008.

If you know of something that belongs on the Agenda, please send it here. Don’t forget to include the basics: who, what, when, where, and URL (if available).

As always, please consider this your open thread for the day.

Boehner Triples Outlay For Defending DOMA

Despite an era of massive cost cutting in Congress, U.S. House Speaker John Boehner (R-OH) has tripled the original $500,000  cost cap for the legal defense of the Defense of Marriage Act to $1.5 million:

According to recently approved contract modification dated Sept. 30, House General Counsel Kerry Kircher has agreed to pay Bancroft LLC private attorney Paul Clement a sum not to exceed $750,000 to defend DOMA, but this cap may be raised to $1.5 million under written notice.

“It is further understood and agreed that, effective October 1, 2011, the aforementioned $750,000.00 cap may be raised from time to time up to, but not exceeding, $1.5 million, upon written notice of the General Counsel to the Contractor specifying that the General Counsel is legally liable under this Agreement for a specific amount,” the contract modification states.

Democrats on the Committee of Administration have blasted the increase, and charged that the contracting process lacked “any semblance of transparency.”

Obama Blasts GOP For Failure To “Stand Up For the Men and Women Who Wear The Uniform”

In remarks before a gathering of the Human Rights Campaign, President Barack Obama blasted Republicans for standing silently on stage while audience members booed a gay American soldier during a GOP debate last week. Six candidates — Former Massachusetts Gov. Mitt Romney, Texas Gov. Rick Perry, Texas Rep. Ron Paul, pizza magnate Herman Cain, Minnesota Rep. Michele Bachmann, and former House Speaker Newt Gingrich — have maintained their silence for more than a week. Obama called them out:

We don’t believe in a small America. We don’t believe in the kind of smallness that says its okay for a stage full of political leaders, one of whom could end up being the President of the United States, being silent when an American soldier is booed. We don’t believe in that. We don’t believe in standing silent when that happens. We don’t believe in them being silent since.

You want to be commander in chief? You can start by standing up for the men and women who wear the uniform of the United States, even when it’s not politically convenient.

We don’t believe in a small America. We believe in a big American, a tolerant America, a just America, an equal America that values the service of every patriot. We believe in an America where we’re all in it together and we see the good in one another. And we live up to a creed that is as old as our founding, “E Pluribus Unum” — out of many, one. And that includes everybody. That’s what we believe. That’s what we’re going to be fighting for. I am confident that’s what the American people believe in. I’m confident because of the changes we’ve achieved these two and a half years, the progress that some folks said was impossible.

Effort to Repeal DOMA Picks Up Republican Support

Rep. Ileana Ros-Lehtinen (R-FL) has signed on as cosponsor of the Respect for Marriage Act, a proposed bill that would repeal the Defense of Marriage Act. Ros-Lehtinen’s consponsorship now give the RMA bipartisan support:

“I voted against the constitutional amendment defining marriage [in 2006] so I’m pleased to cosponsor the repeal of DOMA and work with my colleagues on marriage equality,” said Ros-Lehtinen, who represents Florida’s 18th district, which includes South Beach, most sections of Miami, and the Florida Keys.

Though the south Florida representative has a long history of voting in favor of LGBT rights, her decision to join 124 House Democrats in cosponsoring the Respect for Marriage Act nevertheless is a bold move, given the Republican House leadership’s defense of DOMA in multiple legal challenges after the Obama administration announced in February it would no longer defend the law.

Rep. Ros-Lehtinen is vice-chair of the House LGBT Equality Caucus, where she has been supportive of anti-discrimination measures, equal access to adoption and foster parenting, and changes to the tax code to level the playing field for employer-sponsored health care.

New York’s new role

One of the consequences of marriage equality that doesn’t get much attention in the debate is the way in which it impacts a state’s involvement in lawsuits. And yet, this is no small matter.

States have rights. Constitutionally, our nation has divided its powers between issues of national concern (such as defense) and issues of state autonomy (such as licensing of professionals). Family law, including the criteria for marriage, has been traditionally considered to be the purview of the state while the role of the federal government has been primarily limited in this area to interstate conflicts or civil rights protections.

But the Defense of Marriage Act (DOMA) is an exception. It presumes, in paragraph 3, that the federal government holds veto power over marriage and can – for any matter that impacts any federal program – replace the state’s criteria with its own. If the marriage criteria in Vermont doesn’t meet the approval of the Senator from Alabama or the Congressman from Mississippi, then by securing a bare majority of fellow legislators they can dictate to Vermont which of its citizens can be considered married for Social Security, taxation, and health care, and which are deemed by Alabama and Mississippi to be unworthy.

This encroachment into the territory of the states was likely in violation of the US Constitution from the start. But that didn’t really matter for so long as states were limiting marriage to opposite sex couples. Courts are not receptive to abstract victims or potential loss of theoretical rights; to present your case, you need to be an aggrieved party.

And when New York’s legislature enacted marriage equality, it became an aggrieved party. Having authorized same-sex marriages, the state not only assumed the burden of protecting these marriages, but became itself a victim of federal infringement through DOMA3, and assumed the burden of protecting itself.

Actually, New York is a bit unusual in that the state recognized – though through legal interpretation rather than legislation or judicial determination – out-of-state same-sex marriages prior to their vote. So there has been, for some time, a theoretical right (though perhaps not obligation) to protect such couples as were abiding in the state but married elsewhere. But the vote removed any ambiguity; marriage equality is now the public policy and interest of the state.

And so, New York State Attorney General Eric T. Schneiderman has begun to defend the state’s interests. In an amicus brief (pfd) filed in the case of Windsor v. United States, in which a widow was denied tax provisions granted to heterosexual widows, he said:

By refusing to recognize for federal purposes marriages that are valid under state law, DOMA intrudes on matters historically within the control of the States, and undermines and denigrates New York’s law designed to ensure equality of same-sex and different-sex married couples. Thus DOMA threatens basic principles of federalism. Moreover, it classifies and determines access to rights, benefits, and protections based on sexual orientation, and also based on sex.

Schneiderman’s also objects to the discrimination of New Yorkers on the basis of sexual orientation and sex, and those objections are important. That is an obligation of a state and the brief is valuable in that matter. But Windsor’s lawyers can defend her interests and do so competently.

Where Schneiderman’s argument is invaluable is where it is unique, it’s defense of its own interests.

But DOMA departs from the tradition of federal respect for the States’ definition of marriage, flatly rejecting the definition of marriage in New York and five other States and thereby elevating the choices of some States above those made by other States. In doing so, DOMA threatens “the constitutional equality of the states [that] is essential to the harmonious operation of the scheme upon which the Republic was organized.” Coyne v. Smith, 221 U.S. 559, 580 (1911).

As Schneiderman implies, some State’s criteria for marriage is being applied, and it isn’t New York’s. To elevate Alabama’s laws to a national status and impose them on New York is precisely the sort of concern that consumed the constitutional convention and the US Constitution was written specifically to negotiate to what extent the separate autonomous states would act as one. Even individual rights were an afterthought.

From that time forward, Congress could not grant itself authority over matters belonging to the states. These are matters of the states alone, and the role of the federal government, congressional or judicial, has been interstate disputes and protecting the rights of the individual against the state. But Congress overstepped its bounds, and New York has joined that small club of states who have a cause to complain.

This position echoes and reinforces the position taken by Martha Coakley, the Attorney General for the Commonwealth of Massachusetts, in Commonweath v. HHS. Her lawsuit also seeks to defend the rights of Massachusetts to define the criteria for marriage for its citizens.

Politically, this issue is an area in which our opponents are awkward and in conflict. Long loud advocates for states’ rights and federalism and smaller centralized government, Republicans are uncomfortable talking about DOMA and its provisions. It is quite one thing to deny equality to gay people but the idea of championing the usurpation of a state right by Washington threatens not only party rhetoric, but a core principle which many Republicans hold dear.

Which is perhaps one reason why you don’t hear much from Congress or from party leadership in defense of DOMA. The presidential candidates, especially those who seem to be counting on the presumed stupidity of their base, try to simultaneously appeal to anti-gay prejudice and states right advocates by babbling nonsense about “respecting the decisions of the states” and also “supporting a constitutional amendment”.

But outside of the social-issue focused religious conservatives, you don’t hear many people defending the merits of DOMA. Even John Boehner, who has taken up the task of defending the law, talks more in terms of letting the courts rather than the President decide the law’s constitutionality and speaks only in the abstract about the nature of the law or defense of its merits. And even Texas Governor Rick Perry, a strong opponent to gay rights in Texas, surprised some conservatives with his take: (AP)

“Our friends in New York six weeks ago passed a statute that said marriage can be between two people of the same sex. And you know what? That’s New York, and that’s their business, and that’s fine with me,” he said to applause from several hundred GOP donors in Aspen, Colo. “That is their call. If you believe in the 10th Amendment, stay out of their business.”

Ultimately, there need be (and will be) a Supreme Court decision that finds that discrimination on the basis of sexual orientation by the federal, state, and other government is in conflict with the US Constitution. But now that more than ten percent of the nation’s citizens live with conflicting state and federal marriage criteria, it may be the violation of the Tenth Amendment upon which DOMA is decided.

DOJ’s defense of DOMA Section 3: “you’re right, my bad”

When the Justice Department announced that it would no longer be defending Section 3 of the Defense of Marriage Act against constitutional challenge, I assumed that meant that they would take the same approach that Gov. Schwarzenegger and AG Brown did towards Proposition 8: present no evidence and take no position.

However, in the case of Karen Golinski v. the United States Office of Personnel Management, the Administration did file in the case. Being the defendants, they filed a defense that begin this way:

Section 3 of the Defense of Marriage Act, 1 U.S.C, § 7 (“DOMA”), unconstitutionally discriminates. It treats same-sex couples who are legally married under their states’ laws differently than similarly situated opposite-sex couples, denying them the status, recognition, and significant federal benefits otherwise available to married persons. Under well-established factors set forth by the Supreme Court, discrimination based on sexual orientation is subject to heightened scrutiny. Under that standard of review, Section 3 of DOMA is unconstitutional.

DOJ Asks That DOMA Be Upheld In Bankruptcy Case

Two weeks ago, a California Bankruptcy judge cited the Justice Department’s determination that the Defense of Marriage Act required heightened scrutiny and declared that a married same-sex couple could proceed in their bankruptcy case as a married couple. The justice Department is now appealing the decision:

Although Attorney General and the President have concluded that Section 3 of DOMA, as applied to legally married same sex couples is subject to heightened scrutiny and is unconstitutional under that standard, the  President has instructed that Executive Departments and agencies continue to comply with Section 3 unless and until it is repealed by Congress or there is a definitive ruling by the Judicial Branch that Section 3 is unconstitutional.

In May, Eric Holder vacated at deportation order against an Irish national who had entered into a civil union with an American man. In that case, Holder asked the immigration judge to consider “whether respondent’s same-sex partnership or civil union qualifies him to be considered a ‘spouse’ under New Jersey law.” That directive persuaded another immigration judge — this one in Connecticut, a marriage equality state — to halt the deportation a Venezuela nation who was legally married to an American. Surely the California couple, who were legally married during the period when same-sex marriages were being granted in 2008, are considered spouses under California law, and are thus entitled to consistency in court. But with this bankruptcy appeal, the DOJ’s policy on DOMA enforcement has become an unmitigated mess.

dumb as…

This is what passes for intellect among the anti-gays in California. In a response to the Central California District of the US Bankruptcy Court finding DOMA to violate the constitution, OneNewsNow ran this:

Randy Thomasson, president of SaveCalifornia.com, says the ruling is another attack against traditional marriage.

Randy Thomasson”These federal judges should be fired. They are violating their oath of office to uphold the federal law. They are saying they just don’t see any reason for the federal law. They’re not obeying it,” he laments. “It’s not up to them to judge whether they like a law or not — it’s their job to enforce the law.”

The Los Angeles-based court came to the defense of the same-sex couple, who filed the petition after the Obama administration announced it would no longer defend DOMA. The ruling said that DOMA “deprives [the debtors] of the equal protection of the law to which they are entitled.” Thomasson offers this prediction:

“It’s going to go to the U.S. Supreme Court,” he says. “And I predict a 5-4 ruling from the U.S. Supreme Court with Anthony [Anthony] Kennedy being the swing vote.”

(pssst Randy… they aren’t appealing)