A newspaper publisher in Omaha has announced a policy change that will allow gay and lesbian couples to share the news about their weddings — as long as they’re legally recognized as weddings. Advocate.com: Daily News
Last week, John wrote a post about the LGBT Law Association conference, noting the panel on LGBT issues and the Obama administration included a slew of Obama apologists. That panel took place today.
Scott Blair, an AMERICAblog reader and NYU Law student, wrote to us from Miami, where he is attending Lavender Law, the National LGBT Bar Association Annual Meeting. He was at the plenary session, “Real Change: LGBT Issues and the Obama Administration.” Scott provided his observations:
When I first saw the event, I don’t think I was alone in expecting it to be a mostly celebratory piece on President Obama’s accomplishments. Instead, there seemed to be a consensus, even from the most vehement supporters of Obama, that the President has failed to follow through on his promises to the LGBT community and has been in many ways a disappointment.
The panel consisted of Matt Nosanchuck (Senior Counselor to the Attorney General for the Civil Rights Division of the Department of Justice), Paul Smith (a partner at Jenner & Block LLP, Co-Chair of the Board of Directors of Lambda Legal), Courtney Joslin (a Professor at UC Davis and the chair of the ABA Commission on Sexual Orientation and Gender Identity), Elaine Kaplan (General Counsel at the Office of Personnel Management), Jon Davidson (Legal Director at Lambda Legal), and Tobias Barrington Wolff (Professor of Law at the University of Pennsylvania and Obama’s LGBT Advisor during his campaign).
The panel opened with a discussion of the Office of Personnel Management and the DOJ listing the changes brought under the Obama administration, along with some surprising information. Matt cited the passage of the hate crime bill as something that we can attribute to President Obama, and gave credit to the DOJ’s testimony in Congress in support of the bill, and President Obama’s support for it. Surprisingly, Matt referred to Matthew Shepard Act as a heavy lift in Congress, with attacks from both the left and the right. Along with lifting the HIV travel ban, and (perhaps most significantly), the fact that federal agencies can’t discriminate on the basis of gender identity, there seemed to be a feeling that the White House had accomplished a great deal in what’s clearly been a hostile environment for any sort of legislation. The rest of the panel was, however, far from convinced.
I could give a blow by blow of the panel, but a lot of it is familiar to AMERICAblog readers. The DOJ claimed it had a duty to defend all laws so long as they could be constitutional; Jon pointed out numerous instances where the DOJ has not defended a law.
The highlights were as follows:
1) Nobody could explain where ENDA went to, in light of the repeated promises (which were pointed out by the panel) from Pelosi, Barney Frank, and the rest of the Democratic leadership that we would have a vote on this soon. The explanation for this was put on the “worsening political situation,” but as Jon pointed out, the window of opportunity for LGBT legislation is closing. As one panelist put it, “We are eighteen months into the Obama administration with no federal protection based on sexual orientation. This is remarkable.”
It was pointed out that the federal government now bans discrimination in federal employment based on sexual orientation and gender identity. This does not seem a comfort to LGBT individuals facing discrimination in the private industry, but the only person on the panel who thought ENDA had a chance of passing this year was Tobias Wolff, who suggested it could pass in a lame duck session. The rest of the panel seemed to think it was dead.
2) DADT proved surprisingly divisive. Everyone on the panel who discussed it expressed unhappiness that Obama has not issued a stop-loss order to stop expelling soldiers. The DOJ was criticised for arguing that gays and lesbians are only entitled to rational basis protection, which unfortunately Matt didn’t get a chance to address directly. Tobias claims that the repeal only happened this year due to White House pressure, and this is why we saw Ben Nelson and other senators support the compromise. Jon was critical of the compromise, which does not indicate when we will stop expelling gay and lesbian soldiers. And concern was expressed that the Democrats may not pass it before they lose control of the House. What this meant was unclear; several panelists (those not working for the DADT) were also unhappy about the shape of the “survey” about DADT. I think there’s a fear that the survey results will be negative, and then the Democrats will lose control of the House, leaving Obama to say “Too bad, so sad.”
3) Marriage oddly attracted the most attention. Tobias, who was perhaps the most supportive of the president’s position, agreed that “The president is flat wrong. He is in the wrong place on this issue. I spent a year and a half as the campaign’s principal representative saying that on the record,” but no one on the campaign criticized Tobias for disagreeing with the president. Tobias also thought that, “given the existential threats”, such as the economy and health care, it’s not surprising LGBT legislation has gotten so little coverage. Jon disagreed vehemently; as he put it, why can’t the president walk and chew gum at the same time? “It may be the best administration we’ve ever had, but it doesn’t mean we shouldn’t ask for what we deserve.”
Courtney pointed out her role in getting the American Bar Association to pass a resolution supporting the right of same-sex couples to marry, which recently passed overwhelmingly. She didn’t mention it, but I couldn’t help but think that a Democratic president who studied constitutional law is now to the right of the American Bar Association.
There wasn’t time for Q&A during the panel, but I did get to ask Matt a question afterwards about the DOJ’s stance that it has a duty to defend the constitutionality of all laws. In Perry, Republican governor Schwarzenegger and the Attorney General of California both decided that Proposition 8 was unconstitutional, and argued so in court. This seems to be analogous to Obama deciding that DOMA or DADT were unconstitutional, and so I asked Matt whether he thought California had made the wrong decision by refusing to defend Proposition 8′s constitutionality.
His answer was a bit unclear; he wasn’t sure about how the balance of powers were allocated in California (presumably Schwarzenegger is some sort of God-Emperor whose word is law), and he said Proposition 8 different because it was a constitutional amendment that passed by referendum, unlike a piece of legislation that was passed by Congress. This seems to be a very, very thin reed on which to draw. Matt’s stance is also a bit ironic, because in the campaign for California’s Attorney General, Democrats are urging the GLBT community to donate to the Democratic candidate because he wouldn’t defend Proposition 8. (The GOP Candidate for Attorney General did oppose Proposition 8, but thinks it’s the duty of the government to defend all laws).
I’ll conclude with a comment from Tobias, which seemed to reflect Elaine and Matt’s views as well. He argued that “for the first time, gay Americans have a government which cares about them.” Maybe. But I wonder if any of the soldiers who have been discharged on Obama’s watch think he cares about them. And I wonder if gay couples across the nation think a president who still believes they shouldn’t get married think that Obama is the president we deserve.
Fine, then we’ll settle for “Des Moines values,” where a unanimous high court led by a Republican appointee also granted civil marriage equality to same-sex couples. Corn’s more nutritious than sourdough anyway.
American For Truth’s Peter LaBarbera says the Alliance Defense Fund and fellow Proposition 8 proponents were “namby-pamby” in a defense that constituted “legal malpractice,” setting up a situation that he’s calling calling Prop8Gate.
Liberty Counsel’s Matt Barber wanted to see “ex-gays” and officials from the scientifically-discredited NARTH on the stand:
Meanwhile Good As You’s Jeremy Hooper is sitting in NYC whispering the words “fight, fight, fight!” under his breath, reveling in the unwitting insight that these “pro-family” players are fleshing out through their public rifts.
Although limited to Fehrenbach at this time, how the court responds to the request filed Wednesday could shape subsequent legal efforts to end the policy.
“The emergency temporary restraining order applies to Victor directly, but the larger case would apply facially to all of ‘don’t ask, don’t tell,’” said SLDN spokesman Trevor Thomas.
On the political front, the request arrives just weeks before the Senate is expected to vote on the DADT repeal that passed the House in May. The Fehrenbach case illustrates the urgent need for lawmakers to act.
“The discharge of Lieutenant Colonel Fehrenbach would dramatically underscore that ‘don’t ask, don’t tell’ is still the law and all gay and lesbian service members should be on notice,” said SLDN executive director and Army veteran Aubrey Sarvis. “Clearly there is an urgent need for the Senate to act on legislation currently pending that would allow for repeal.”
When the Perry v. Schwarzenegger decision was announced earlier this week there was – to quote Monty Python – much rejoicing. But immediately following the excitement and celebration there came a dark echo of caution: “This isn’t over,” it said. “There are still appeals to the Ninth Circuit, and eventually, to the Supreme Court. Anything could happen.”
Except, what if that’s only half right? What if part of the “anything” that could happen is that Judge Vaughn Walker’s decision isn’t appealed, never goes to the Ninth Circuit (much less SCOTUS) and Prop 8 is permanently, fabulously, dead?
In a motion filed late yesterday, lawyers for the plaintiff couples and the City of San Francisco argued that marriages should be allowed to begin immediately, rather than be stayed pending appeal. One of their arguments was that an appeal might never happen. They argued this because the governmental defendants – the Governator and the once (and future!) Governor Moonbeam – are not appealing and the Yes on 8 proponents – who were let in at the trial court as intervenors – don’t have standing to appeal.
In a nutshell, from a non-lawyer, it seems that Justice Ginsburg, in the opinion to Arizonans for Official English v. Arizona (which was decided on other grounds), expressed “grave doubts” as to whether the proponents of a ballot measure had standing to appeal a federal court ruling in the absence of governmental actors making an appeal. In other words, the Yes on 8 folks might not have the right to appeal Walker’s decision. This, apparently, is why Imperial County tried to get in on the case in the eleventh hour – the haters realized that without a government entity willing to appeal, they could be shit out of luck. But Walker shut them down, both saying they didn’t have a good reason to be let in and that they waited until after the deadline, so they really are SOL. So unless Schwarzenegger or Jerry Brown have a sudden change of heart and decide to appeal the ruling (or Imperial County convinces a higher court that they really should be in on the case) Walker’s ruling could be the final word.
That would mean that the case doesn’t go up, Prop 8 is struck down, and marriage returns to California with no worries about SCOTUS. In the meantime, Gill v. OPM will go up, with a much smaller ask of the Supremes, which should give everyone a better idea as to whether or not a ruling in favor of marriage equality in a Perry type case is even a possibility at this point. If so, there’s 37 other states where this kind of suit can be filed and go forward (and hopefully there will be a few more states in the pro-marriage equality column at that point). If Gill makes it clear SCOTUS isn’t going to save the day, well, then we can go back to the state-by-state strategy with California firmly in the “win” column.