DOMA

How DOMA Harms Real People in Real Ways: Exhibit A

The Justice Department today refused to step in to prevent the deportation Genesio Oliveira, a Brazilian man recently reunited with his husband, an American citizen, in Massuchusetts. In March, Oliveira and his husband followed the procedure to obtain a green card for Oliveira, as the immigrant spouse of an American citizen. But because the Defense of Marriage Act prevents the federal government from recognizing same-sex marriages, they were out of luck.

Oliveira’s case became a high-profile cause after his husband, Tim Coco, invested in ads to bring attention to the couple’s plight. Senator John Kerry also took up the case.

Coloradoan Joshua Vandiver and his Venezualan husband Henry Velandia face the same legal roadblock. Watch them tell their story:

In June, a federal judge in Massachusetts ruled unconstitutional the section of DOMA that prevents the federal government from recognizing same-sex marriages, finding that the law was motivated simply by “irrational prejudice.” The Obama Administration has appealed the ruling.
 

PFAW

LGBT Community Speaks Out Against Gold’s Gym

Karl Rove’s Super PAC American Crossroads has received millions of dollars in funding from TRT Holdings and its owner, Robert Rowling. TRT Holdings under Rowling’s leadership owns the companies Omni Hotels and Gold’s Gym. TRT Holdings donated $2,341,000 to American Crossroads, and Rowling himself gave the pro-GOP group $2.5 million. As reported in After Citizens United: A Look into the Pro-Corporate Players in American Politics, American Crossroads and its sister group Crossroads GPS plan to spend well-over $50 million to elect Republican majorities in the House and Senate. Now, activist Michael Jones, through the online community Change.org, is calling on consumers to hold Gold’s Gym accountable for the company’s substantial donations to the pro-corporate, right-wing political organization.

After criticizing Target and Best Buy for contributing hundreds of thousands of dollars to a Minnesota political organization that supports a staunchly anti-gay candidate for Governor, supporters of LGBT equality are now attacking Gold’s Gym and its parent company, TRT Holdings. Most of the candidates American Crossroads supports also have astoundingly anti-gay and anti-equality opinions and records.

Jones has launched a petition that calls out Gold’s Gym, which “markets and caters to LGBT customers,” for using money from their corporate accounts to effectively support candidates “who want to take away civil rights for LGBT Americans.” Jones writes:

Who would have thought that giving money to Gold's Gym could have such ugly consequences for the LGBT community?

Among the candidates that the owner of Gold's Gym is working to elect include Nevada GOP senate candidate Sharron Angle, who is challenging Sen. Harry Reid. Angle, you might recall, has previously said that women who are raped should turn their lemons into lemonade, and that LGBT people should be barred from adopting children. And that's only the tip of iceberg. In years past, Sharron Angle put her blessing behind an insert that went out to voters that said homosexuality would lead to the destruction of the United States, and called gay people "sodomites" and "perverts." She even endorsed a statement that said there was no evidence to suggest homosexuality was biological, and that scientists who argue otherwise are flawed.

Thanks, Gold's Gym!

But Sharron Angle isn't the only candidate that American Crossroads is supporting. There's also Rep. Roy Blunt in Missouri, who is currently running for an open U.S. Senate seat in the state. Blunt has a whopping 0% rating from the Human Rights Campaign when it comes to legislation focused on the LGBT community, and has voted against the Employment Nondiscrimination Act (ENDA), in favor of a constitutional amendment banning same-sex marriage, and in favor of banning gay adoptions in Washington, D.C. And in his current campaign for U.S. Senate, he's made the preservation of the Defense of Marriage Act (DOMA) a hot issue, suggesting that if he loses his race, DOMA will die and gay people will be allowed to get married all over the country. Ah, the horror!

Once again, thank you, Gold's Gym.

American Crossroads also supports Colorado’s Ken Buck, who said that homosexuality was a “choice…like alcoholism,” and New Hampshire’s Kelly Ayotte, who believes that gay and lesbian couples should not have the right to adopt children, among other anti-equality Republicans.

Now, four Gold’s Gyms in the San Francisco Bay Area just released a statement saying that they will leave the Gold’s Gym brand as a response to TRT Holding’s political donations.

In the end, corporations should not just face petitions from consumers to stop financing political groups, but should be restricted from spending money in elections in general. Nine in ten Americans want “clear limits on how much money corporations can spend to influence the outcome of an election,” and Gold’s Gym and other companies should know that the public does not want them using their money from their general treasuries to influence elections.

 

PFAW

Court Stops Right-Wing Anti-Marriage Referendum

An appeals court ruled this morning that the DC City Council has every right to refuse to hold a referendum aimed at shooting down the city’s four-month-old marriage equality law.

The push to end DC’s marriage law was led by Bishop Harry Jackson, an anti-gay activist who has allied with national right-wing groups like the National Organization for Marriage and the Family Research Council in his quest to undo the law.

The DC Council refused to let Jackson introduce a referendum to ban gays from marrying in the District, citing a policy that prohibits ballot intiatives to authorize discrimination. In January, a lower court agreed with the Council, and today the DC Court of Appeals upheld that decision. The Appeals Court’s decision was split 5-4, but the judges were unanimous on one key point: that Jackson’s referendum constituted discrimination.

The DC Council passed the marriage equality law in an 11-2 vote in December; marriage licenses became available in March.

All in all, it’s been a good July for marriage equality.
 

PFAW

The “Irrational Prejudice” Behind DOMA

Yesterday, a federal judge in Massachusetts struck down a key part of the Defense of Marriage Act on two separate constitutional challenges. Judge Joseph Tauro, a Nixon appointee, ruled that the provision banning the federal government from recognizing gay people’s marriages violates the Constitution’s guarantee of equal protection, and the principle of state sovereignty.

Tauro’s opinion in the equal protection case includes some strong words on the motivation behind DOMA, the 1996 law designed to push back against states granting marriage equality. The main purpose of the law was to disadvantage a particular set of people simply out of dislike for them, he writes…and that sort of motivation doesn’t pass constitutional muster:

This court simply “cannot say that [DOMA] is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual context from which [this court] could discern a relationship to legitimate [government] interests.” Indeed, Congress undertook this classification for the one purpose that lies entirely outside of legislative bounds, to disadvantage a group of which it disapproves. And such a classification, the Constitution clearly will not permit.

In the wake of DOMA, it is only sexual orientation that differentiates a married couple entitled to federal marriage-based benefits from one not so entitled. And this court can conceive of no way in which such a difference might be relevant to the provision of the benefits at issue. By premising eligibility for these benefits on marital status in the first instance, the federal government signals to this court that the relevant distinction to be drawn is between married individuals and unmarried individuals. To further divide the class of married individuals into those with spouses of the same sex and those with spouses of the opposite sex is to create a distinction without meaning. And where, as here, “there is no reason to believe that the disadvantaged class is different, in relevant respects” from a similarly situated class, this court may conclude that it is irrational prejudice that motivates the challenged classification. As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution.

It seems pretty straight-forward to conclude that the Constitution doesn’t allow Congress to discriminate against people just because they dislike them…but, of course, conservative groups are already calling itactivism.”
 

PFAW

Not the End of DOMA (Reprise)

This week, there was a new development in a California case where a federal judge on the U.S. Court of Appeals for the Ninth Circuit in February ruled the Defense of Marriage Act unconstitutional. The Los Angeles Times reports the new development:

In a legal end-run around the 1996 Defense of Marriage Act, a federal judge Wednesday ordered compensation for [Brad Levenson,] a Los Angeles man denied federal employee benefits for his spouse because they are both men. ...

[In February, U.S. 9th Circuit Court of Appeals Judge Stephen] Reinhardt, who is responsible for resolving employee disputes for public defenders within the 9th Circuit, had ordered the Administrative Office of the U.S. Courts to process Levenson's application for spousal benefits. But the federal Office of Personnel Management stepped in to derail the enrollment, citing the Defense of Marriage Act, which prohibits federal government recognition of same-sex marriage.

Levenson appealed, seeking either an independently contracted benefits package for Sears or compensation for the costs they incurred in the absence of coverage. Reinhardt ordered the latter, based on a back pay provision in the law governing federal defenders' employment.

As reported on this blog back in February, this case is less than it might seem at first blush. DOMA remains the law of the land. Rather than being a traditional court case, this is an internal employee grievance procedure within the office of federal public defenders of the Ninth Circuit. As a result, the judge is not acting in his capacity as a judge. Instead, he is acting in his capacity as the designated administrative decision-maker for the Ninth Circuit's Standing Committee on Federal Public Defenders.

Since it's not a traditional court case, it imposes no binding precedent and is not going to be appealed to the Supreme Court.

Nevertheless, the new order does add an important new element to the conversation over DOMA's constitutionality. And coming from a federal circuit court judge, its reasoning has resonance, even if it is not binding precedent.

In the new order, Judge Reinhardt repeats his February analysis of DOMA's constitutional infirmities, rejecting various arguments in its favor. He also addresses a new argument and determines that it, too, fails under the rational basis level of scrutiny, the easiest of standards to meet:

Recently, the government has advanced an additional argument in defense of DOMA: that the statute serves a legitimate governmental interest in maintaining a consistent definition of marriage at the federal level for purposes of distributing federal benefits while individual states consider how to resolve the issue of marriage equality for same-sex couples. ... Even under the more deferential rational basis review, however, this argument fails. DOMA did not preserve the status quo vis-à-vis the relationship between federal and state definitions of marriage; to the contrary, it disrupted the long-standing practice of the federal government deferring to each state's decisions as to the requirements for a valid marriage. ...

Congress thus sided with those states that would limit marriage to opposite-sex couples, and against those states that would recognize the marriages of same-sex couples. Taking that position did not further any government interest in neutrality, if indeed such an interest exists.

And just where did this additional argument come from? From Barack Obama's very own Justice Department.

Equality cannot wait. It's time to dump DOMA.

PFAW

A Not-So-Great End to a Very Good Week

In many ways it was a very good week for anyone interested in LGBT equality. Marriage equality legislation took a big step forward in the District of Columbia, federal hate crimes legislation was signed into law after a decade long fight, and today the President reauthorized the Ryan White Act and announced that he would take the final steps to rescind the HIV travel ban. So it’s too bad that the week ended on a disappointing note.

In a brief filed today in federal court, the DOJ moved to dismiss the challenge against DOMA lodged by the state of Massachusetts on behalf of the legally married same-sex couples in the state who are nevertheless being denied federal benefits.

To be clear: Massachusetts is right in this case and the DOJ is wrong. DOMA is unconstitutional and should be struck down.

But the brief (much like most of the other briefs we’ve seen) took pains to point out that the President is defending the law not because he likes it, but because he’s compelled to. In fact, the brief points out, the President is opposed to DOMA and supports its repeal.

Great. Let’s do that.

It’s time for the President to make clear that repealing DOMA is a priority, and that his support is more than lip service. No one expects repeal to be immediate, but it won’t happen without Presidential leadership.

Then we can have good weeks, that are just plain old good weeks.

(If you want to push the process forward, don’t forget to sign our Dump DOMA petition.)
 

PFAW

National Equality March

Sunday, October 11, 2009 marked Coming Out Day and the National Equality March in Washington DC. The sun was shining but it wasn’t too hot. There was a large crowd of tens of thousands of people who came from near and far to attend the march. There were lots of college students who came from all over the country to march. The area was well guarded with police officers on segways and on foot. The atmosphere was peaceful and upbeat.

I only encountered a few protesters saying that gay people are going to hell and that they are here to save us. These protesters also had anti-choice posters with pictures of aborted fetuses. Although I am not sure how gay rights and abortion are related, my guess is these right wingers just wanted to lump all the liberally minded causes together.

Most of the homemade signs addressed the Defense of Marriage Act and Don’t Ask Don’t Tell. One favorite sign: “Obama—let mommy marry momma!” and the chant “Hey-hey! Ho-ho! Homophobia has got to go!” I carried my handmade sign reading “Pass a trans-inclusive ENDA” while a friend I marched with carried their sign reading “Equali(t)y—the T is not silent!” although there were very few other signs addressing ENDA or other gender identity-specific sentiments. Our chant of “Hey-hey! Ho-ho! Transphobia has got to go!” caught on for a while but didn’t seem to gain as much momentum as some of the other chants.

With the combination of perfect weather, good company, and an excellent cause, I left the march feeling excited about how many young people were at the march and the energy that we—as young activists—have towards LGBT issues. And even as we push to repeal DOMA and Don’t Ask Don’t Tell, it’s important that we make sure that the ENDA gets the grassroots support it deserves.

PFAW

President Obama, Census Bureau Looking at Ways to Recognize Same-Sex Marriages in 2010 Census

Pres. Obama and the White House are now looking at ways to include same-sex marriages, unions and partnerships in 2010 Census data – another small step of what we hope will be a larger agenda toward equal justice under the law for gays and lesbians in America. Last year, PFAW launched a petition drive urging the Census Bureau to reverse its policy of ‘editing’ the data from same-sex couples who accurately report that they are legally married, and re-classifying them as “unmarried partners.” From the Wall Street Journal:

The White House said Thursday it was seeking ways to include same-sex marriages, unions and partnerships in 2010 Census data, the second time in a week the administration has signaled a policy change of interest to the gay community.

The administration has directed the Census Bureau to determine changes needed in tabulation software to allow for same-sex marriage data to be released early in 2011 with other detailed demographic information from the decennial count. The bureau historically hasn't released same-sex marriage data.

The gay community strongly supported President Barack Obama during the 2008 election. But some gay activists say they have been frustrated by what they see as his slow approach to rolling back discriminatory policies.

White House spokesman Ben LaBolt said "the administration continues to make progress on the president's longstanding commitment to promoting equality for [lesbian, gay, bisexual and transgender] Americans."

This is a positive step forward although there’s no word on an actual policy proposal yet. In the meantime, People For the American Way is helping activists tell President Obama and Congressional leaders to “Dump DOMA.” You can find the petition here.

PFAW

Obama Takes Small Step for LGBT Equality When He Promised a Leap

Since taking office, the American people have seen a flurry of activity from the Obama administration, ranging from increased diplomatic efforts abroad to fixing the economic crisis at home. There is one area, however, where we've seen far too little movement―gay rights.

Last night, President Obama signed a presidential memorandum that will extend certain job benefits to same-sex partners of federal employees.

Over the past several months, the Director of the Office of Personnel Management and the Secretary of State have conducted internal reviews to determine whether the benefits they administer may be extended to the same-sex partners of federal employees within the confines of existing laws and statutes. Both identified a number of such benefits.

For civil service employees, domestic partners of federal employees can be added to the long-term care insurance program; supervisors can also be required to allow employees to use their sick leave to take care of domestic partners and non-biological, non-adopted children.

For foreign service employees, a number of benefits were identified, including the use of medical facilities at posts abroad, medical evacuation from posts abroad, and inclusion in family size for housing allocations. 

While it is a small step in the right direction, it is hardly the action that Senator Obama spoke of so often on the campaign trail:

I support the complete repeal of the Defense of Marriage Act (DOMA)– a position I have held since before arriving in the U.S. Senate. While some say we should repeal only part of the law, I believe we should get rid of that statute altogether. Federal law should not discriminate in any way against gay and lesbian couples, which is precisely what DOMA does. 

It seems that rather than take real action to repeal DOMA, the administration is offering a gesture to the LGBT community, a gesture without much weight behind it.

President Obama promised all of us that he would push to end the discrimination caused by DOMA; Let your voice be heard and tell the Obama administration that you want it repealed. Sign our petition to end DOMA now!

PFAW

Despite Promise, Obama Defends DOMA

Today, President Obama’s Justice Department, in a motion to dismiss a lawsuit against the Defense of Marriage Act, argued that DOMA is constitutional. The Administration argues that DOMA “does not impinge upon rights that have been recognized as fundamental.”

I remember the thrill I felt when candidate Obama condemned DOMA and promised to eliminate it. He even put that promise on the White House website. But several weeks ago, in lieu of eliminating DOMA, he instead eliminated the promise from the website.

And today, he argues that DOMA does not discriminate against gays and lesbians (or, to use the Administration’s language, homosexuals):

“DOMA does not discriminate against homosexuals in the provision of federal benefits. … DOMA does not distinguish among persons of different sexual orientations, but rather it limits federal benefits to those who have entered into the traditional form of marriage.” (motion to dismiss, page 30)

The Administration’s reasoning is as illogical as that used by segregationists to defend laws prohibiting interracial marriage. So it’s ironic that the brief was filed today, on the 42nd anniversary of the Loving v. Virginia decision striking down laws that would have barred President Obama’s own parents from marrying.

We need to remind President Obama of his promises. It’s long past time to Dump DOMA.

PFAW

New Hampshire Joins the Fight for Marriage Equality

As you may know, Governor John Lynch of New Hampshire signed a marriage equality bill into law yesterday. Previously, Gov. Lynch had supported civil unions, but not not same-sex marriage. In a statement released yesterday, the governor made clear that his feelings on the matter had shifted course, thanks to the case made by activists, same-sex couples, and the general public:

"Two years ago in this room, I signed civil unions into law. That law gave same-sex couples in New Hampshire the rights and protections of marriage. And while civil unions was recognized as a step forward, many same-sex couples made compelling arguments that a separate system is not an equal system.

They argued that what might appear to be a minor difference in wording to some, lessened the dignity and legitimacy of their families."

New Hampshire joins the growing list of states that have passed laws supporting full marriage equality: Massachusetts, Connecticut, Vermont and Maine, along with Iowa.

The governor signed the bill amid cheers of praise, as he was joined in the Executive Council Chamber by lawmakers and activists who had fought so hard to make marriage equality a reality.

Bishop V. Gene Robinson, an openly gay religious leader who heads the Episcopal Diocese of New Hampshire, spoke at a celebratory rally. He "told supporters to savor the moment so they can tell their children and grandchildren 'you were here and you made it happen.' "

Gov. Lynch didn't miss out on an opportunity to point out that same-sex couples still face unequal treatment from the federal government:

"Unfortunately, the federal government does not extend the same rights and protections that New Hampshire provides same-sex families, and that should change."

The law will take effect January 1, 2010, and by that time, hopefully, more states will have followed suit.

PFAW

Marriage Equality on the March

As if Ben and Jerry’s wasn’t enough reason to love Vermont, it looks like marriage equality legislation is moving forward in the state legislature:

A Vermont Senate committee voted to advance a bill that would legalize same-sex marriage in the state.

The senate Judiciary Committee voted 5-0 on Friday to advance a bill that was the topic of an emotional public hearing on Wednesday that drew hundreds to the Statehouse.

Governor Douglas has said he opposes the bill, but hasn’t said that he’d actually veto it if it got to his desk.

Of course, even if same-sex couples in Vermont can get married, they’re still prevented from receiving the federal protections that marriage affords their heterosexual friends. Just another reason why we should Dump DOMA.

PFAW

Hardly the End of DOMA.

Late last week, you may have seen headlines about a federal judge on the U.S. Court of Appeals for the Ninth Circuit who ruled the Defense of Marriage Act unconstitutional. For anyone in favor of equal justice under law (and opposed to DOMA) this was good news. Unfortunately, the ruling is extremely limited. For your convenience, we’ve answers a few of the questions we've heard about the decision.

Q: What happened?

A: The case involved Brad Levenson, a public defender in the federal court system whose employer -- the Office of the Federal Public Defender -- denied his husband spousal health insurance benefits because of the Defense of Marriage Act (DOMA). Rather than simply accepting this state of affairs, Levenson filed a complaint with his employer -- the 9th Circuit Court of Appeals.

Judge Stephen Reinhardt of the Ninth Circuit heard the case and issued a ruling that DOMA is unconstitutional, finding no rational basis to deny benefits to some legally married spouses and not to others.

Q: So does that mean DOMA is no longer in effect, at least within the states comprising the Ninth Circuit?

A: No, DOMA is still in effect there and everywhere else throughout the country.

Q: Why is that? Doesn't a circuit court opinion bind all federal courts within that circuit?

A: Yes, a circuit court opinion usually does just that. Normally, a circuit court opinion comes either from a three-judge panel or from all of the circuit judges. But this opinion came from just one judge, and it was more like an internal, administrative employment dispute resolution opinion.

Q: Why isn't it a regular court opinion?

A: Because the married couple claiming discrimination did not go to court and sue the federal government for the spousal benefits. Instead, Levenson, in his status as an aggrieved employee of the Office of the Federal Public Defender, filed an administrative complaint with his employer.

So Judge Reinhardt did not issue his opinion in his role as a federal appellate judge deciding the appeal of a lower court's legal holding in a conflict between two parties. Instead, he was acting in his capacity as the designated administrative decision-maker for the Ninth Circuit's Standing Committee on Federal Public Defenders.

Q: Circuit Court opinions are binding on lower courts in that circuit. Who is bound by Judge Reinhardt's decision on DOMA?

A: This is an internal administrative ruling by an employer about one employee's benefits. It certainly helps Brad Levenson and his husband. But in his capacity as the administrative decision-maker who was designated to hear Levenson's case, Judge Reinhardt doesn't hold a hierarchically superior position over the next decision-maker in the next employment dispute in the Office of the Federal Public Defenders within the Ninth Circuit.

Q: There was another case last month where a Ninth Circuit judge ordered the government to provide benefits to a same-sex spouse. Will that have more of an impact?

A: Not at all. It was another case where the judge was acting as the decision-maker in an employment dispute resolution. It involved a Ninth Circuit employee covered by the employment dispute resolution plan specifically applicable to Ninth Circuit employees, as opposed to the one applicable to members of the Federal Public Defender system.

In fact, when Judge Reinhardt issued his decision last week, he explicitly said that he was not bound by the January ruling, because two different employee dispute plans were involved. That shows how these decisions have little to no value as binding precedent.

Q: Is either case going to be appealed to the Supreme Court?

A: No, because these employment dispute resolutions are not regular Circuit Court opinions released as part of a criminal or civil judicial proceeding.

Q: Has anything changed for the widow who is denied her late wife's Social Security pension benefits, or for the American man whose non-citizen husband is threatened with deportation?

A: No. DOMA still denies gays and lesbians the more than one thousand federal rights and responsibilities that come with marriage. Last week’s news doesn't change that.

Q: What about a legislative remedy instead of a judicial one? Can Congress repeal DOMA?

A: Yes, definitely. President Obama is already on board and has called for repeal of this hateful law. We all need to work hard as hard as ever to get Congress to act.

PFAW

Trending Toward Greater Acceptance

GLAAD today published a new survey of Americans' feelings on GLBT issues.  The news, I'd say, is generally positive.

    • Three-quarters of U.S. adults (75%) favor either marriage or domestic partnerships/civil unions for gay and lesbian couples. Only about two in 10 (22%) say gay and lesbian couples should have no legal recognition. (Gay and lesbian couples are able to marry in two states, and comprehensive civil union or domestic partnership laws exist in only five others and the District of Columbia.)

    • U.S. adults are now about evenly divided on whether they support allowing gay and lesbian couples to legally marry (47% favor to 49% oppose).

    • Almost two-thirds (64%) of U.S. adults favor allowing openly gay military personnel to serve in the armed forces. (The current “Don’t Ask, Don’t Tell” law bans military service by openly gay personnel.)

But it also called to mind a fascinating piece by Ann Friedman in The American Prospect.

This is something I've heard a lot in the wake of the passage of California's Proposition 8, which bans same-sex marriage. "History is on our side! Don't worry, the demographic trends are with us!"

I'm sorry, but that's just not good enough. These are the kind of conciliatory comments that go part and parcel with the culture-war frame. Civil-rights era activists knew history was on their side. But their goal was not to make every white American comfortable with the idea of sharing public spaces and power with people of color. It was to guarantee people of color those rights, regardless of where the culture stood. That's the thing about rights. You have to claim them.

If you're interested in claiming a few rights, you should sign onto People For's petition to stop federal discrimination against some married couples and Dump DOMA.

PFAW