Following reports that United States Attorney General Eric Holder will announce his resignation today, the Human Rights Campaign released a statement praising him while calling for President Obama to nominate an out LGBT cabinet member.
“Some Attorneys General wait for history, others make history happen. Attorney General Holder made history for the LGBT community,” said Chad Griffin, president of HRC. “He was our Robert F. Kennedy, lightening the burden of every American who faces legal discrimination and social oppression. We owe him a profound debt of gratitude for his legacy of advocacy and service.”
“The President has expressed a commitment to appointing a cabinet that reflects the full diversity of the American people, and there are many richly-qualified candidates available to serve as the first openly-LGBT cabinet secretary. It would be a natural extension of this administration’s enduring commitment to equality to send a message of visibility and inclusion by nominating such a candidate to serve in this historic role,” Griffin added.
U.S. Attorney General Eric Holder told ABC News’ Pierre Thomas on Monday that the Justice Department will be filing a brief in the Utah same-sex marriage case urging the U.S. Supreme Court to uphold a lower-court ruling and block states from banning same-sex marriage.
Holder said that filing the brief would be “consistent with the actions we have taken over the past couple of years,” in which the Justice Department has refused to defend the federal Defense of Marriage Act. Holder said that decision was “vindicated by the Supreme Court,” which ruled last year in Windsor vs. United States that the sections of DOMA allowing the federal government not to recognize same-sex marriages performed in jurisdictions that recognize such marriages are unconstitutional.
Holder told Thomas that he believes banning same-sex marriage is unconstitutional and that such bans cannot survive the standard of heightened scrutiny. He called the fight for LGBT rights “a defining civil rights challenge of our time,” and that LGBT people are waiting for an “unequivocal declaration that separate is inherently unequal.”
Attorney General Eric Holder said for the purpose of receiving federal benefits, the more than 1,000 marriages performed in Utah are valid.
He said that since the Windsor decision issued in June 2013, the Justice Department has been working tirelessly to implement it.
“These couples should not be asked to endure uncertainty regarding their status as the litigation unfolds,” he said.
Same-sex marriage became legal in Utah after a court ruling on Dec. 20. It remained legal until Jan. 6 when the state obtained an injunction.
Today, Utah Attorney General Sean Reyes instructed county clerks to finish the paperwork for those marriages that had been solemnized despite the injunction. He said the paperwork is an administrative function, not a legal one, so the state will continue not to recognize those marriages as valid.
The definition used for almost a century was, “The carnal knowledge of a female, forcibly and against her will.”
The new definition released in a press release today is, “The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.”
“These long overdue updates to the definition of rape will help ensure justice for those whose lives have been devastated by sexual violence and reflect the Department of Justice’s commitment to standing with rape victims,” Attorney General Holder wrote in his press release. “This new, more inclusive definition will provide us with a more accurate understanding of the scope and volume of these crimes.”
One leading advocate has called 2011 an “epic” year for marriage equality. But was it really?
While only one state — New York — enacted full marriage rights for same-sex couples, it was the most populous state to have done so thus far.
Five other states also moved closer to marriage equality than ever before. Public opinion shifted dramatically toward supporting equality. And the Obama administration announced that it no longer considers a key part of the Defense of Marriage Act constitutional.
On the negative side, however, three states failed to pass marriage equality bills that had been introduced in their legislatures, and two states passed bills to put measures on their ballots in 2012 that will seek to ban marriage for same-sex couples under their state constitutions.
Despite the negatives, Evan Wolfson, president of the national Freedom to Marry group, said in an interview that 2011 was “an epic year of real transformation.”
On the federal level, Attorney General Eric Holder wrote a letter to Congress in February, stating that the administration believes Section 3 of the Defense of Marriage Act is unconstitutional and that the federal Justice Department will no longer defend the law in court.
Section 3 of DOMA states that the federal government will not, for any federal purposes, recognize the marriages of same-sex couples.
Holder’s letter said the administration believes laws disfavoring persons based on sexual orientation should have to pass the most stringent judicial review — heightened scrutiny. And he said the administration would argue so in two cases challenging DOMA in the 2nd Circuit.
LGBT legal advocacy group Lambda Legal, in its December “State of the Law 2011” report, called Holder’s letter “game changing.” Wolfson said it represented “an immense historical shift.”
Another sign of this shift, Wolfson said, was the repeal of “don’t ask, don’t tell,” the military’s ban on openly gay servicemembers. DADT repeal will help fuel the marriage equality effort, Wolfson said, “because Americans are now going to see the women and men serving our country as openly gay members of couples and openly gay members of families.”
On the state level, the biggest win in 2011 came in New York, where lawmakers passed a marriage equality bill in June. When Gov. Andrew Cuomo, Dem., signed the bill, he doubled the percentage of same-sex couples living in states that allow them to marry.
New York is also the only state to have passed marriage equality through a Republican-led legislative chamber, its state Senate.
Cuomo, by adding his vocal support to the bill, “put his political capital on the line,” Wolfson said. His success prompted Politico.com to call him a “national contender” and leader of the Democratic Party’s progressive base.
The Washington Post said his triumph made him “a first among equals when it comes to the jockeying for the 2016 Democratic presidential nomination.”
Wolfson said, “The freedom to marry went from being a perceived and presumed ‘third rail’ that politicians ran from to now being a pathway to political gain.”
Five other states came closer to marriage equality than ever before. Maryland for the first time passed a marriage equality bill out of a legislative chamber, its Senate, although the measure fell short of winning in the House. And Delaware, Hawaii, Illinois and Rhode Island each passed civil union legislation.
But there were disappointments, too.
In Colorado, a civil unions bill was killed on a party-line vote in the Republican-led House Judiciary Committee, after passing the Democrat-controlled Senate.
And in Rhode Island, the civil unions bill disappointed many because a bill for full marriage equality had been on the legislature’s agenda. It was dropped after it failed to gain enough support, despite large Democratic majorities in both chambers and Independent Gov. Lincoln Chafee’s promise to sign it.
LGBT groups were also disappointed with a provision in Rhode Island’s civil unions bill providing extensive exemptions on religious grounds for those who don’t wish to recognize those unions. Chafee himself said the civil unions law “fails to fully achieve” the goal of providing same-sex couples with equal rights.
In the courts
Two states saw progress in lawsuits that could lead to marriage equality. In New Jersey, marriage equality advocates have sued the state, claiming that the state’s existing civil unions laws do not provide them with full equality — an equality the state Supreme Court said in October 2006 is guaranteed by the state Constitution.
In California, a three-judge panel of the federal 9th Circuit Court of Appeals heard oral arguments Dec. 8 on procedural matters related to the case to determine the constitutionality of Proposition 8, the state’s ban on marriage for same-sex couples. Regardless of the outcome, the case will almost certainly be appealed to the full 9th Circuit court and/or the U.S. Supreme Court.
Ups and downs in states
Three states successfully played defense in 2011.
Iowa, New Mexico and Wyoming held firm against attempts to pass bills for ballot measures that sought to ban marriage for same-sex couples under their state constitutions. If passed, Iowa’s bill would have taken away the right to marry that same-sex couples gained in 2009.
But there were some clear setbacks in 2011 as well.
North Carolina and Minnesota passed bills for ballot measures in 2012 that seek to ban marriage for same-sex couples under the state constitutions. And Indiana and Pennsylvania started the process for such ballot measures, which could see further action in 2012.
In Maine, however, LGBT advocates gained enough signatures to place a measure in favor of marriage equality before voters on the 2012 ballot — although advocates in California and Oregon decided to postpone such attempts and continue to build support.
These ballot measures could be impacted by what was perhaps the most significant win in 2011: a shift in public opinion towards support for marriage equality.
Support for marriage equality nationwide rose about 1 percent per year between 1996 and 2009, but jumped to a rate of 5 percent per year in 2010 and 2011, according to a July analysis of over a decade’s worth of polling data by Joel Benenson, President Barack Obama’s lead pollster, and Jan van Lohuizen, President George W. Bush’s lead pollster.
Freedom to Marry commissioned the study.
The average level of support for marriage equality was 41 percent in 2009, but 51 percent in 2011, based on four leading national polls — CNN-ORC International, Gallup, Pew and Washington Post-ABC News.
This change is driven in part by “overwhelming generational momentum,” Wolfson explained, with almost 70 percent of voters under 40 supporting marriage equality.
But the analysis also concluded that since 2006, support has risen 15 percent among seniors, 13 percent among Independents and 8 percent among Republicans.
Additionally, it found that marriage equality supporters now hold their views as strongly as opponents, which was not the case in the past.
“The politics of the freedom to marry have changed dramatically, as has public support,” said Wolfson.
All told, he said, the events of 2011 mean that “We now have real wind in our sails as we go forward.”
Henry Velandia, a Venezuelan who is married to an American, had his deportation put on hold today by a judge in a New Jersey immigration court, according to the Associated Press. The decision in Velandia’s case came a day after U.S. Attorney General Eric Holder set aside a ruling in a similar case.
When Velandia’s visitor visa was about to expire, he applied for a green card through his employer but was denied. Although he and Josh Vandiver were legally married in Connecticut, the federal government refused to recognize their relationship under the Defense of Marriage Act.
Lavi Soloway, attorney for Velandia, told Dallas Voice in October that his client fears for his life if he has to return to Venezuela.
In the October immigration story, Dallas Voice reported that RafiQ Salleh was delayed in Singapore where he had gone to pick up the renewal of his two-year entrepreneur’s visa. He was back in Dallas by Christmas and his business survived thanks to the hard work of his partner and employees.
Dallas Voice will highlight several other immigration stories in the coming weeks. Some of the stories involve people trying to keep a same-sex spouse in the U.S. Another involves treatment by ICE that began with racial profiling but ended with brutal treatment based on sexual orientation.
SAN FRANCISCO — Gay rights advocates on Monday filed a challenge to a request by the Obama administration to keep the repealed “don’t ask, don’t tell” policy in place while the Pentagon prepares for an end to the ban on allowing gays to serve openly in the military.
In a brief filed in the 9th U.S. Circuit Court of Appeals in San Francisco, lawyers for gay political group Log Cabin Republicans said keeping the policy in place was “absurd.”
At issue is the constitutionality of Congress allowing the policy to stay in effect to give the Pentagon time to train troops and take other steps outlined in December when lawmakers repealed the 1993 law that put the ban in place. Under the new policy, the restrictions remain until the Pentagon certifies that the change won’t damage combat readiness.
The repeal came several months after a federal district judge issued an injunction barring enforcement of “don’t ask, don’t tell,” declaring in September that the policy was unconstitutional.
The Obama administration request to keep the policy in place was made in its brief challenging the injunction. Dan Woods, who is representing the Log Cabin Republicans, replied in the brief filed Monday.
“Even though a judge found this to be unconstitutional and the administration is not disagreeing with that, they are still investigating and able to discharge people,” he said.
Earlier this year, the administration said it would no longer defend the 1996 federal law that prohibits recognition of same-sex marriages.
President Barack Obama had concluded that any law that treats gay people differently is unconstitutional unless it serves a compelling governmental interest, Attorney General Eric Holder said when discussing the administration’s reasoning for that decision.
Just before the Texas Legislature’s deadline for filing new bills passed last week, one anti-gay measure and one hostile resolution were filed in the House of Representatives. It was the first time in six years that anti-gay measures have been introduced.
Rep. Paul Workman, a freshman Republican who represents the southwest corner of Travis County, introduced a resolution to urge U.S. President Barack Obama to defend the Defense of Marriage Act. In February, the president directed Attorney General Eric Holder to stop defending DOMA in court.
So far the resolution, known as HCR 110, has no Senate counterpart bill.
Equality Texas Executive Director Dennis Coleman said a resolution doesn’t need a committee hearing before going to the floor. The resolution was added to the LGBT lobby group’s tracking list, but Coleman did not express concern.
“So far, we don’t see it as having any traction,” he said.
Rep. Warren Chisum, whose district covers part of the Panhandle and is known as one of the most conservative members of the House, has filed a bill to give the Texas attorney general more time to intervene in same-sex divorce cases.
The move comes after Texas AG Greg Abbott tried to intervene in the divorce of a lesbian couple in Austin but was declared ineligible by an appeals court because he had missed the deadline.
This bill would give that office up to 90 days after a divorce is settled to intervene.
Coleman laughed and said, “It was introduced because [the attorney general] missed the window. We want to give him more time so he doesn’t miss the window again.”
Coleman said that it was interesting that a legislature that was elected to get government out of people’s lives was considering bills that interfered more when it came to the lives of gays and lesbians.
Known as HB 2638, the bill has no co-sponsors and has not been referred to committee yet. A Senate counterpart was not been filed.
Now that the filing period for new bills has ended, Coleman said his organization’s main concern is amendments that could weaken pending legislation or add anti-LGBT measures to other laws.
Several bills addressing bullying have been introduced in both the Senate and House of Representatives. But not all those bills have gained ringing endorsements from LGBT activists, while the two that had advocates most hopeful have been stripped of language enumerating protected categories.
Sen. Wendy Davis and Rep. Mark Strama authored identical bills that have been amended and are now known as CS (Committee Substitute) SB 242 and CS HB 224. A House committee has already heard the bill. Coleman said that most of the testimony supported the bill and only two groups spoke in opposition.
Coleman said that as a result of the recent LGBT Lobby Day, Rep. Alma Allen of Houston has signed on as a new co-sponsor. He has spoken to others in both the House and Senate about adding their names.
Rep. Garnet Coleman of Houston introduced another anti-bullying bill in the House known as Asher’s Law, in memory of Asher Brown, a Houston 13-year-old who committed suicide last September.
Asher’s Law would mandate creation of suicide prevention programs for junior, middle and high schools. It requires training for counselors, teachers, nurses, administrators, social workers, other staff and school district law enforcement to recognize bullying and know what to do to stop it. A report would be submitted to the legislature by Jan. 13, 2013.
The bill also defines cyberbullying in state law for the first time.
That bill was placed in the public health committee. Dennis Coleman liked that the legislature was treating suicide as a public health issue and thought the bill had a good chance to move to the House floor from committee.
He said legislators favoring anti-bully laws have told him that they need to continue to hear from constituents, especially from teachers and principals.
This article appeared in the Dallas Voice print edition March 18, 2011.
The Obama administration made a blockbuster announcement Wednesday, Feb. 23, saying it has concluded that one part of the Defense of Marriage Act will not be able to pass constitutional muster in the 2nd Circuit and that DOJ would not defend that part of the law in two pending cases in that circuit.
It was a dramatic, unexpected, and significant move by the Obama administration and one that could trigger maneuvers by DOMA supporters to appoint an intervenor to defend the law. But beyond the eventual legal consequences of the announcement, the political impact was characterized by most LGBT leaders as historic and monumental.
“This is a monumental turning point in the history of the quest for equality for lesbian, gay and bisexual people,” said Jon Davidson, legal director for Lambda Legal Defense and Education Fund.
NCLR Executive Director Kate Kendell put it even more strongly.
“The President’s leadership on this issue has forever changed the landscape for LGBT people in this country,” said Kendell. “For the first time, the President and the Department of Justice have recognized that laws that harm same-sex couples cannot be justified. This is the beginning of the end, not just for the mean-spirited and indefensible Defense of Marriage Act, but for the entire panoply of laws that discriminate against same-sex couples.”
Attorney General Eric Holder announced Wednesday that the Department of Justice would not defend the constitutionality of Section 3 of DOMA in two of the four cases where that section of the law is currently under challenge. Those two cases are Pedersen v. OPM, filed by Gay & Lesbian Advocates & Defenders, and Windsor v. United States, filed by the ACLU.
Two other cases — in the 1st Circuit — also challenge Section 3, which prohibits federal recognition of any same-sex marriage, as does a more narrow case, Golinski v. OPM, in the 9th Circuit, at the district court level.
DOMA Section 2, which enables states to ignore valid marriage licenses issued to same-sex couples from other states, has not yet been challenged in court and Holder made no reference to it.
Since entering the White House, President Obama has said that DOMA should be repealed, but his administration continued to defend the law, saying, through various spokespersons, that Obama was concerned about setting a precedent that would make it easier for some future administration to pick and choose which laws it would defend.
Last summer, asked whether there isn’t a difference between enforcing existing laws and defending them in court, his Domestic Policy chief, Melody Barnes, said the president believed DOMA and “don’t ask, don’t tell” to be “discriminatory” but that he had not yet “made an argument” concerning their constitutionality.
“[W]e believe we have an obligation to defend the law if Congress had a rational basis for passing the law,” said Barnes.
In his announcement Wednesday, Attorney General Holder noted that the administration would still defend DOMA Section 3 in the two 1st Circuit cases because the 1st Circuit has ruled that rational basis is sufficient justification for treating people differently based on their sexual orientation. (He was apparently referring to the unsuccessful class action case challenging DADT). But Holder also noted that DOJ attorneys would argue that the court should, instead, apply a stricter test for DOMA.
Lambda Marriage Project Director Jenny Pizer said the 1st Circuit would make its own decision about whether to adopt Holder’s view.
“Any court is going to make its own determination about what the law requires,” said Pizer. “The government is usually given particular credence, but it is always court’s job to decide what the law requires.” But Pizer noted that the increasing volume of voices declaring the injustice of DOMA can have an influence, particularly given that the arguments made in support of DOMA “are not even coherent.”
It is possible — just as happened in California — that some other entity might attempt to mount its own defense of DOMA in the pending cases. Last October, U.S. Rep. Lamar Smith, R-Texas, filed a motion in the two 1st Circuit cases, seeking to be named intervenor-defendant. Smith, aided by the right-wing Alliance Defense Fund, said at the time that the Justice Department was providing “no defense at all” for DOMA. He withdrew his motion a few weeks later, without comment.
Lambda’s Pizer said she thinks it is “very likely” someone will ask the 1st Circuit for permission to serve as a defendant-intervenor in the DOMA cases. And she noted Congress has the authority to appoint its own counsel to defend the law. Such was the development in the California same-sex marriage case, Perry v. Schwarzenegger. The federal district court allowed the group that sought passage of Proposition 8, Yes on 8, to defend the law at trial. The 9th Circuit recently asked the California Supreme Court to determine whether any state law gives Yes on 8 the authority to appeal that district court decision in the federal appeals court.
A three-judge panel of the First Circuit is currently receiving written briefs from both sides in the DOMA cases and, presumably, will now receive a written brief from DOJ arguing that DOMA Section 3 should meet a heightened standard of review.
NCLR’s Minter said he believes the law “can’t survive” that standard.
Mary Bonauto, lead attorney on the DOMA cases for GLAD, could not be reached for comment. But ACLU Executive Director Anthony Romero, executive director of the ACLU, which has filed one of the 2nd Circuit cases, praised President Obama doing doing “the right thing.” Romero said President Obama’s action has “just propelled gay rights into the 21st century, where it belongs. Our government finally recognizes what we knew 14 years ago — that the so-called ‘Defense of Marriage Act’ is a gross violation of the Constitution’s guarantee of equal protection before the law. DOMA betrays core American values of fairness, justice and dignity for all, and has no place in America.”