Justice Department Did NOT Step In As BLAG Pulls Out
July 19th, 2013
A Report that the Justice Department filed a brief opposing a request by gay veterans and their spouses for judgment in their favor their challenge to veterans’ benefits statutes led to some confusion as to what the Justice Department’s objections really were. One interpretation was that the Justice Department was trying to take up the work of the GOP-controlled House Bipartisan Legal Advisory Group (BLAG) after BLAG announced that they would drop their efforts to prevent the veterans spousal and family benefits from being extended to married same-sex couples. But according to the actual filing by the Justice Department:
In light of the Supreme Court’s decision in Windsor, striking down Section 3 of DOMA, the Department of Defense will now construe the definitional provisions of “spouse” in Titles 10and 32 to include same-sex spouses See Extending Benefits to Same-Sex Domestic Partners of Military Members, Memorandum for Secretaries of the Military Departments, Feb. 11, 2013, available at http://www.defense.gov/news/Same-SexBenefitsMemo.pdf (“In the event that the Defense of Marriage Act is no longer applicable to the Department of Defense, it will be the policy of the Department to construe the words ‘spouse’ and ‘marriage’ without regard to sexualorientation, and married couples, irrespective of sexual orientation, and their dependents, will begranted full military benefits.”). The Department of Defense intends to expeditiously make available benefits provided under Titles 10 and 32 to the same-sex spouses of servicemembers. To that end, the Department of Defense is currently working to revamp its Defense Enrollment Eligibility Reporting System (“DEERS”), a computerized database of military sponsors, families and others who are entitled to various military benefits. Indeed, the central claim in the Complaint is Plaintiffs’ inability to enroll in DEERS, which in turn has prevented Plaintiffs fromfiling claims for military benefits.
Because the Supreme Court has already struck down Section 3 of DOMA in Windsor, there is no need for this Court to grant any declaratory relief with respect to Section 3 of DOMA.There is also no need for this Court to grant declaratory or injunctive relief with respect to the definitional provisions of Titles 10 and 32. As noted above, the government will apply these provisions in light of Windsor to include same-sex spouses. There is no longer any dispute with respect to Defendants’ obligations to process and consider Plaintiffs’ claims for military benefits because the government agrees that it needs to do so, and is working to do so as it implements the Supreme Court’s decision in Windsor. Given the government’s agreement, there is no longer any case or controversy with respect to Plaintiffs’ Titles 10 and 32 claims.
The Justice Department then went on to argue that, with DOMA3 out of the way and the Defense Department moving to implement the Windsor decision, the court had no jurisdiction on procedural grounds. BLAG was seeking to block veterans spouses from accessing veterans benefits altogether, which is precisely the opposite of what this motion says.
July 19th, 2013
Australia and New Zealand are friendly rivals, a bit like brothers who are ever competing with each other. So, naturally, when New Zealand achieved marriage equality laws, well…
And on August 19, 2013, Paul McCarthy and Trent Kandler are going to be the very first Aussie gay couple to be wed in New Zealand under the Marriage Amendment Act which will also take effect that very same day.
The couple had won the Tourism New Zealand promotion.
Tim Burgess, Tourism New Zealand’s General Manager said that, “Trent and Paul’s entry was unique, inspiring and had a distinct Kiwi flavor. Their affection for New Zealand shone through and we immediately knew that we had the perfect Australian couple to come and tie the knot in New Zealand. We are looking forward to helping Trent and Paul “Make History” in Wellington next month, it is going to be a wonderful celebration.
Justice Department steps in after BLAG pulls out
July 19th, 2013
Earlier today we learned that the House Bipartisan Legal Legal Advisory Group (BLAG), under the direction of Republican Speaker of the House John Boehner, had ceased defending any of the laws which seek to distinguish between opposite-sex and same-sex marriage. Most of us assumed that meant that there was no opposition to the judge in McLaughlin v. Panetta awarding spousal benefits.
But in an odd turn of events, the Obama Administration has stepped in to oppose the assignment of benefits. (Chris Geidner at BuzzFeed, who has been all over this story).
The Justice Department, however, goes on to claim two reasons why the court should not rule in the veterans and their same-sex spouses on their claims regarding Title 38. The first is an argument that “no plaintiff has sufficiently alleged that he or she has applied for or would be entitled to veterans’ benefits but for the definitional provisions in Title 38.”
“We disagree with that and will be addressing that with the court,” an attorney for the plaintiffs, Christopher Man with Chadbourne and Park, told BuzzFeed Thursday night.
The second reason, according to Justice Department lawyers, is that the court doesn’t have “jurisdiction to hear any claim for veterans’ benefits” because the Veterans’ Judicial Review Act “provides an exclusive review scheme for veterans to pursue benefits claims, including raising constitutional challenges to statutes and regulations that govern veterans’ benefits.”
While the second reason may have some technical merit (outweighed, I believe, by the question before the judge about the constitutionality of unequal treatment), the first is mouth-gapingly nonsense. It is difficult to fathom how suing in federal court for benefits is not sufficient evidence that Major McLaughlin would have applied for them had they been available.
House Republicans stop anti-marriage efforts
July 18th, 2013
In a slightly oddly worded filing, the House Bipartisan Legal Advisory Group (BLAG), under the direction of Republican Speaker of the House John Boehner, has ceased defending any of the laws which seek to distinguish between opposite-sex and same-sex marriage. The BLAG’s last-minute filing in a case involving service member’s marital benefits was the venue through which this retreat was announced. (BuzzFeed)
The Supreme Court recently resolved the issue of DOMA Section 3’s constitutionality. See United States v. Windsor, 570 U.S. __ (2013), 2013 WL 3196928 (U.S. June 26, 2013). The Windsor decision necessarily resolves the issue of DOMA Section 3’s constitutionality in this case. While the question of whether 38 U.S.C. § 101(3), (31) is constitutional remains open, the House has determined, in light of the Supreme Court’s opinion in Windsor, that it no longer will defend that statute. Accordingly, the House now seeks leave to withdraw as a party defendant.
In other words, while Windsor only addressed DOMA3, not the myriad of laws that are written such that they limit application to male-female marriage, the decision on DOMA3 made clear the court’s intent. And so – unlike the Proposition 8 supporters in California – the Republicans in the House will not spend any more time or money fighting the minutia in court.
This is a bit further than I expected.
The broad stroke exclusion of gay couples found in DOMA3 was struck down as unconstitutional. This does not mean, from a legal perspective, that every exclusion of same-sex couples is unconstitutional. The BLAG could have continued on a case-by-case basis to argue that while broad exclusion is not allowed, in the instances at question there are good and valid governmental interests in upholding unequal laws and it’s possible that they would prevail in some.
So this decision to pull out and the language utilized suggests that more than just a legal determination has been made. This also heralds a shift in political will.
Today is Boehner’s deadline to oppose service member benefits
July 18th, 2013
BuzzFeed reminds us that not all of the legal questions relating to federal same-sex marriage benefits have been answered.
The House Republican leadership faces a Thursday deadline to decide if it will continue to defend laws that limit veterans benefits to opposite-sex couples in the wake of the Supreme Court ruling striking down a similar provision in the Defense of Marriage Act.
“We’re reviewing the impact of the Supreme Court’s decision, and don’t have any announcement to make at this time,” House Speaker John Boehner’s spokesman, Michael Steel, told BuzzFeed on Wednesday when asked if the defense of the veterans’ statutes would continue.
This is a no-win situation for Boehner.
The Republican Party has a real problem on their hands when it comes to marriage equality. The country in increasingly supportive and even many of those who oppose equality don’t want strident anti-gay action to be taken. But “the base” of the party is strongly opposed to equality, so for the last year Boehner has “defended” DOMA (while trying hard never to discuss it and, in some instances, not even filing even the most flimsy of responses).
This particular situation is even more troublesome for Republican leadership. Service members are also a base of the Republican Party, and opposing military benefits sets one loyal party group against another.
So here’s betting that Boehner woke up late, forgot his watch, lost his briefcase, and got tied up in meetings all day and just, gosh darn it, just didn’t have time to file a motion today.
Marriage goes to the Queen
July 16th, 2013
Jim already put up the story, but I love the fireworks pictures.
A rational call for tolerance
July 15th, 2013
We have won the war over equality (though the battle rages on) and we must now begin to think of what kind of victors we shall be. Will we demand the spoils of war, or will we help rebuild and respect local and individual cultural mores. Will we be tolerant with those who have disagreed or who continue to disagree?
Orson Scott Card has recently illustrated the most absurd end of the spectrum of responses. His call for “tolerance” is nothing more than a demand that those who won the war now enrich those they defeated.
But there may be other who do deserve tolerance, or at least autonomy. Bart Hinkle, in the Richmond Times-Dispatch, makes a case for such.
It was a great day when the Supreme Court struck down the federal Defense of Marriage Act and threw out a California case that could have undermined gay marriage in the Golden State. On that day, gay and lesbian citizens won something profoundly important: acknowledgment of the right to live as they choose, without interference from others who think they know better.
Now the question is: Will gay and lesbian citizens acknowledge that everybody else has the same right? Some certainly will. But others are challenging the notion – and thereby undermining the case for their own hard-won victory.
UK Lords pass marriage equality
July 15th, 2013
The upper, unelected chamber approved the Marriage (Same Sex Couples) Bill without a vote in London today. Some members of the house wore pink carnations to mark the occasion.
The legislation has already been passed by the Commons amid opposition from more than 100 lawmakers from Cameron’s Conservative Party. The bill will now return to the Commons, where amendments introduced by the Lords will be considered. If they’re accepted, the bill will be sent to Queen Elizabeth II for her signature before becoming law.
Ohio’s Petro to endorse marriage initiate
July 5th, 2013
From the Columbus Dispatch
Republican Jim Petro, Ohio’s former attorney general and state auditor, is expected to endorse a 2014 Ohio ballot measure that would permit same-sex marriages in the state.
Marriage a consideration in Chilean presidential election
July 5th, 2013
In Chile, a president can serve more than once, but not consecutive terms. Former President Michelle Bachelet (2006 – 2010) appears, at present, to be the likeliest winner of this year’s contest. (The Economist)
She ended her presidency in 2010 with a sky-high approval rating of 84%. Barring an upset, Michelle Bachelet looks set to return for a second term next year with her popularity undiminished. On June 30th she comfortably won a primary election in the Concertación, Chile’s centre-left coalition, taking 73% of the vote. Little seems to stand between her and victory in November’s election. She would be the first president in 81 years to win a second term (consecutive terms are not allowed).
Ms Bachelet also promises a more liberal approach to social affairs. She says she wants to legalise gay marriage and allow abortion in some limited circumstances (Chile is among the handful of Latin American countries that ban abortion outright, even when the mother’s life is in danger).
Prominent conservative rabbi in LA to conduct marriages
July 5th, 2013
Founded in 1906, Los Angeles’ Sinai Temple is one of the nation’s larger and more vibrant Conservative synagogues, serving the affluent Westwood community. It is also one of the spiritual home of many Persian Jews who fled Iran when the Iranian Revolution turned that nation into an intolerant theocracy.
There’s an interesting article in the NY Times about how the decision by Rabbi David Wolpe to bless same-sex marriages has upset and challenged that congregation.
Petty tacky move by RI Senate Prez Paiva-Weed
July 3rd, 2013
From WPRI comes an odd little story that illustrates the tacky pettiness of Rhode Island Senate President Teresa Paiva-Weed.
For many years Paiva-Weed stood in the way of the Ocean State’s Senate voting on marriage equality. But earlier this year, after the Senate’s five Republicans joined with a large majority of Democrats, Pavia-Weed could stand in the way no longer and Rhode Island joined all of its New England neighbors in marriage equality.
But that certainly didn’t stop her from being petty.
Rhode Island has an odd little procedure that they use throughout the year. Individuals who are otherwise not authorized to conduct marriages get special permission to be one-time officiants. It’s a formal process, but it’s generally a non-controversial and all-in-one-fell-swoop kind of procedure, called “Consent Calendar”.
For example, it might say something like this:
It is enacted by the General Assembly as follows:
SECTION 1. Notwithstanding any other general or special law to the contrary, Jessica Attorney, Esq., of Barrington, Rhode Island, may join Joe Fellow and Sally Sweet in marriage within the City of Providence, Rhode Island, on or about November 30, 2013. Jessica Attorney, Esq., is hereby authorized and empowered to join the foregoing persons in marriage pursuant to and in accordance with chapter 15-3 of the general laws, entitled “Solemnization of Marriages.”
SECTION 2. This act shall take effect upon passage.
But something out of the ordinary took place this time.
On Wednesday night, Senate leaders used the consent calendar to quarantine the solemnization-of-marriage bills for same-sex couples from those for straight ones.
Consent Calendar #2 contained 11 bills, all of which appeared to authorize marriage ceremonies for same-sex couples. Consent Calendar #3, by contrast, contained 23 bills – 15 of them allowing marriage ceremonies for straight couples, plus eight bills on other topics passed earlier by the House.
The Senate voted 30-0 shortly after 8 p.m. to pass Consent Calendar #3, but then Senate President M. Teresa Paiva Weed, D-Newport, moved on without taking up Consent Calendar #2, leaving the various same-sex couples’ solemnization-of-marriage bills in limbo.
I can understand those who ideologically oppose equality out of some misguided fear about how same-sex marriage might impact society. But to deny specific same-sex couples the officiant of their choice is just contemptible.
New FMA proposal has four flat tires and a busted radiator
June 28th, 2013
Rep. Tim Huelskamp (R-Kan.) saw the DOMA decision as an opportunity, his ride out of obscurity. So he was the first to trot out with an announcement the he, Rep Huelskamp, would be introducing a federal constitutional amendment to ban gay marriage. Surely this is a proposal that will fire up the base, get him in the spotlight, and soon he’d be cruising the political fast lane in a pink Cadillac with white-wall tires.
But so far it’s been a bit of a bumpy ride. Turns out that not even red state Republicans are ready to climb on board. Not even his fellow Kansans. Not even his own district.
One local state representative didn’t have an opinion because its “a federal matter and he is a state legislator” (oddly, most Republicans in Washington had the opposite opinion). His local GOP Chairman “was in county commission meetings all day yesterday” so he wasn’t following the news.
But the best response had to be this one: (HuffPo)
State Rep. J.R. Claeys (R-Salina) stressed that a gay marriage ban is not a “legislative priority of mine” and said he doesn’t see a chance for Huelskamp’s amendment ever passing. Asked if he believes Huelskamp should have made the proposal, Claeys answered: “I am not sure how to diplomatically sidestep this question.”
So to Huelskamp, I offer this advice: yeah, about that political clunker you have on cinder-blocks in your front yard… you may want to lose that, you’re bringing down property values in the neighborhood.
Australia dumps Gillard
June 28th, 2013
extremely rare unusual move, Australia’s governing party dumped its leader and, in the process, Prime Minister Julia Gillard. In her place, Labor reinstalled Kevin Rudd, who had similarly displaced by Gillard in 2010, as party leader and yesterday he was sworn in as Prime Minister.
What this means for marriage in that nation is anyone’s guess. Although Labor overwhelmingly supports equality, Gillard had steadfastly opposed the move. Last month Rudd endorsed same-sex marriage.
But whether Rudd is able to achieve equality may be secondary to whether he has time. Much of the motivation in Gillard’s ouster was driven by elections looming in September and polls showing that Tony Abbott’s Liberals (the more conservative party) held as much as a 70% lead.
In one of his first acts as Party leader, Rudd called on Abbott to allow a conscience vote on marriage equality. So far there is no response.
There is speculation that Rudd may push his new-found support for marriage – which is supported by a strong majority of Australians – along with a change in environmental policies in a desperate play to regain popular support for the party. Without a shift, Labor is primed to lose half its seats.
Rand Paul on DOMA3
June 26th, 2013
Rand Paul, darling of the Tea Party, weighed in on the DOMA3 ruling: (ABC)
Sen. Rand Paul, R-Ky., told ABC News he believes the Supreme Court ruling on the Defense of Marriage Act was appropriate, and that the issue should be left to the states. He praised Justice Anthony Kennedy for avoiding “a cultural war.”
“As a country we can agree to disagree,” Paul said today, stopping for a moment to talk as he walked through the Capitol. “As a Republican Party, that’s kind of where we are as well. The party is going to have to agree to disagree on some of these issues.”
Republicans have, on whole, been pretty muted in response. This may well indicate that the party has abandoned its desire to pass a federal marriage amendment and even its ‘litmus test’ on the issue.
Republican Leadership: no more marriage fighting in Washington
June 26th, 2013
While many grass-roots conservatives will rally the troops and, well, send out fund-raising letters, the national Republican leadership seems intent on packing up the marriage issue and shipping it out of the Capital. (Politico)
House Speaker John Boehner, whose leadership spent millions to defend DOMA, said he was “disappointed” in the decision, but did not promise action in the Republican House.
“While I am obviously disappointed in the ruling, it is always critical that we protect our system of checks and balances,” Boehner said in a statement. “A robust national debate over marriage will continue in the public square, and it is my hope that states will define marriage as the union between one man and one woman.”
House Majority Leader Eric Cantor, a Virginia Republican, said he’s “disappointed in this decision, and the marriage debate will continue in the states”
Sen. John Cornyn of Texas, the No 2. Senate Republican, said “like it or not, the Supreme Court is the final word on constitutional matters.”
“It sounds to me that that battle will be moving to the states,” Cornyn said. “The issue is not going away and there are going to be havens of traditional values like Texas where I don’t think the law is going to be changed.”
Why yes, campaign donor and right wing grassroots activist, they support your effort to go against the nation’s growing consensus. Just somewhere else. Now move along while they do something that won’t hurt their reelection abilities.
NOM: it’s a staining stench
June 26th, 2013
You already know what the National Organization for Marriage (theirs not yours) has to say, but here’s their message in short.
“… dismay and outrage … illegitimate … will be rejected by tens of millions of Americans … demanded … miscarriage of justice … overturn the perfectly legal action … over 7 million California voters … rewards corrupt politicians … preserve the right of states … refuse to recognize faux marriages … over 52% of the vote … homosexual groups and activists … a homosexual judge in San Francisco … Ninth Circuit Court of Appeals … liberal judge Stephen Reinhardt … stench … stained … corrupt … betray the voters … illegitimate decision … refuse … rogue decision … corruption … so-called gay marriages … vast majority of American voters … marriage as the union of one man and one woman … major victory for those defending Proposition 8, especially Chuck Cooper and his firm, along with the attorneys at the Alliance Defending Freedom, and Andy Pugno of the Prop 8 Legal Defense Fund.”
Clearly there’s a staining stench over there in nomian reality which leads to delusion.
Next Step: civil union states
June 26th, 2013
The overturn of DOMA3 provides a number of benefits for citizens of the marriage equality states. But it simultaneously creates a situation of discrimination for those who live in civil union states.
Before today same-sex couples in New Jersey, for example, had all of the same rights as married couples in New York. That is to say, both were afforded all of the marriage rights and obligations that a state confers but none of the federal rights or obligations. Now, however, New York same-sex couples can avail themselves of a whole host of federal benefits while New Jersey couples remain subjected to a lesser status – not only in name, but in practice.
Currently the states with civil unions (or domestic partnerships) are Colorado, Hawaii, Illinois, New Jersey, Nevada, and Oregon (Wisconsin offers limited rights). Of these, Colorado, Nevada, and Oregon are banned by state constitution from offering equal marriage status to same-sex couples. Which leaves our next battlegrounds to be Hawaii, Illinois, and New Jersey.
In Hawaii, the legislature has been either voting down (or letting die) marriage equality bills, including one submitted in January of this year. However, this changes the picture and it is likely that marriage will finally come to the state which brought the issue to the nation’s attention.
Illinois’ speaker of the House let die a marriage bill just last month. Equality is likely when the House reconvenes in November.
But New Jersey will be the interesting battle. Governor Christie vetoed a marriage bill in February 2012. But he has also supported civil unions and asserted that “discrimination should not be tolerated”. Although marriage and civil unions simply are not equal, his position was not necessarily contradictory before today.
Now, however, a state can decide if federal benefits should be afforded to their gay citizens. Should the legislature send Christie another marriage bill – and I anticipate that they will – he will have to decide whether he opposes unequal treatment or whether he supports tradition and the teachings of his church. And as Christie has presidential aspirations, this might be the first indicator as to whether the Republican Party can acclimate to the new reality.
The opposition goes silent
June 20th, 2013
However, I think that a shift has occurred that is not well measured by polls. I believe that the nation has changed its views on who bears the burden of proof. This is, in many ways, a more important shift than merely those who favor or oppose same-sex marriage; it’s a shift in how the debate is conducted.
Until recently, there has been an understanding that many Americans opposed same-sex marriage, and that their objections would be voiced with conviction. Whether one agreed or disagreed, it was not considered to be outside of reasonable debate that a politician would hold their head high and declare that they “support traditional marriage” with more than a hint of “and you should too”.
And those who championed equality didn’t get off so lightly. We were expected to defend our position, to explain just why it is that our demands were justified or our ‘change in the rules’ is needed. We had the burden of proof. We started from a defensive position.
But now it is those who oppose equality that must explain themselves. Where once “I support the traditional definition of marriage” was sufficient, now even those who also fear including same-sex couples are not content with such a limited explanation. Now the trite phrase is issued – if at all – with more of an air of defensiveness than with a presumption that surely all reasonable people agree.
Other issues which divide the nation are strongly debated. And the public doesn’t think any less about those who strongly support or oppose positions on immigration, gun legislation, tax policy, or even Obamacare. You may disagree, but while your opponent is “wrong”, they are not “vile”.
But it seems to me that we have entered a phase in which one can be “not ready” or “not convinced” or “not yet evolved” on the issue of marriage equality. That’s simply opinion. But to be actively opposed suggests a character flaw, something with a whiff of nastiness and maybe even vile. The public – right and left – seem to have decided that you can support gay marriage or you can not support gay marriage, but you can’t oppose gay marriage any longer.
So more and more, those who can safely be assumed to favor heterosexual superiority simply choose to say nothing. Instead of defending their God-given moral view, they announce their support for states’ rights, defer to the wisdom of the courts, or just change the subject.
Politician after politician, those most skilled at detecting the currents of the populace, have suddenly found that they just aren’t all that worked up about the issue. Even George W. Bush, the man most tied to the campaign against equality, decided that he just doesn’t have an opinion anymore.
And today we have another good example.
The Palm Beach Post has an article about activists in Florida beginning a campaign to change minds in that state towards an eventual referendum to reverse their constitutional ban on marriage equality. It’s a nice article, but the most interesting paragraph is this:
Republican Gov. Rick Scott is staying out of the argument, however. Scott spokeswoman Jackie Schutz noted that voters put the ban in the constitution before he was governor and that he is focused on other issues.
Translated out of politician speak, Scott said, “My view on marriage is… ummm… look a squirrel.”
No DOMA or Prop 8 rulings today
June 20th, 2013
The Supreme Court did not deliver rulings on the constitutionality of the federal Defense of Marriage Act or California’s Proposition 8 today. The next date for the announcement of rulings is Monday, June 24.
Monday is the last scheduled day of this year’s calendar, though the Supreme Court could schedule another day of their choosing. And while such an additional day would be expected to be within the week, as SCOTUS has neither a boss nor any constitutional restrictions, they could drag this out as long as they wish.