Judiciary committee passes measure to repeal DOMA

Sponsor acknowledges votes aren’t there yet to get Respect for Marriage Act approved by Senate


Sen. Dianne Feinstein

Lisa Keen  |  Keen News Service

The U.S. Senate Judiciary Committee on Thursday, Nov. 10, voted to recommend passage of a bill to repeal the Defense of Marriage Act.

The bill is the Respect for Marriage Act. Thursday’s 10-to-8 vote along partisan lines had been originally scheduled for Nov. 3 but was postponed a week at the request of Republicans on the committee.

Republican Charles Grassley criticized Committee Chairman Patrick Leahy, a Democrat, for putting the bill on the committee’s agenda, saying the committee should, instead, be taking up “bills that can pass” and which address the country’s financial problems.

Grassley said the measure “lacks the votes to pass the Senate” and that, even if it does pass the Senate, “it will not be taken up in the House,” which is controlled by Republicans.

Grassley repeatedly referred to the measure as the “Restoration of Marriage Act,” instead of the “Respect for Marriage,” and said it would not accomplish “restoration of any rights,” but rather create “new rights that same-sex couples have never had under federal law.

He also said there is a “universal religious view” that marriage is “about procreation and child-bearing.”

“To me, this debate is about stable families, good environments for raising children, and religious belief,” said Grassley. “It is not about discriminating against anyone. No society has limited marriage to heterosexual couples because of a desire to create second-class families.”

He rebuffed the argument of many, including the bill’s chief sponsor, Sen. Dianne Feinstein, D-Calif., that the fight to repeal DOMA is reminiscent of the fight to repeal laws that barred interracial marriages. Quoting Wade Henderson, president of the Leadership Conference on Civil and Human Rights, Grassley said such comparisons can be “deeply offensive” to African-Americans.

Log Cabin Republicans President R. Clarke Cooper offered some support for Grassley’s concerns about “priorities,” but said the committee debate was “a principled discussion about the meaning of federalism, the priorities of our nation in a challenging time, and what marriage means in America today.”

Feinstein noted in her remarks Thursday that a large group of corporations filed a legal brief recently highlighting the ways DOMA burdens them with red tape and requires they treat employees differently if they are gay.

Shin Inouye, a White House spokesman, issued a statement saying, “President Obama applauds today’s vote by the Senate Judiciary Committee to approve the Respect for Marriage Act, which would provide a legislative repeal of the so-called ‘Defense of Marriage Act.’ The president has long believed that DOMA is discriminatory and has called for its repeal.

“We should all work towards taking this law off the books. The federal government should not deny gay and lesbian couples the same rights and legal protections afforded to straight couples,” the statement said.

Evan Wolfson, head of the national Freedom to Marry group, noted that support for the Respect for Marriage Act has grown to 31 co-sponsors in the Senate and 133 in the House.

“The historic growth in support among lawmakers for repealing DOMA mirrors the growth in public support for the freedom to marry to what is now a solid majority nationwide,” said Wolfson.

Recent polling has begun to show a consistent trend in public opinion supporting the right of same-sex couples to get married. A survey of 1,001 adults nationwide by ABC and the Washington Post in July found 51 percent “think it should be legal for gay and lesbians couples to get married.”

Supporters of the legislation will need 60 votes to overcome what will almost certainly be a filibuster of the legislation should Senate Majority Leader Harry Reid bring it to the floor. Politico.com noted that Feinstein acknowledged to reporters after the hearing that the bill does not have those 60 votes and that she has not spoken to Reid about the bill.

© 2011 by Keen News Service. All rights reserved.

This article appeared in the Dallas Voice print edition November 11, 2011.

—  Kevin Thomas

Judiciary Committee considering gay nominee to federal court

Michael W. Fitzgerald

Republican senator labels Fitzgerald as an activist over his involvement in case involving FBI’s previous ban on gay agents

LISA KEEN | Keen News Service

A fourth openly gay nominee to the federal district court bench — one who has been fairly heavily involved in both gay and non-gay legal and political issues and who spent “hundreds of hours” doing pro bono work that led to the elimination of a gay ban on FBI agents — has gone before the U.S. Senate Judiciary Committee.

The nominee’s gay-related history prompted the only Republican in attendance on his confirmation hearing to label the nominee an “activist.”
President Obama nominated Michael W. Fitzgerald in July to sit on the U.S. District Court for Central California. The office of U.S. Sen. Barbara Boxer, D-Calif., who recommended him for the position, sent out a press release saying if he is confirmed by the Senate, “Fitzgerald would make history by becoming the first openly gay federal judge confirmed to serve in California.”

Fitzgerald, 52, was one of five nominees considered during the hearing Tuesday, Oct. 4. Boxer introduced him to the committee, noting that he had served as a federal prosecutor on the Organized Crime and Drug Enforcement Task Force with the U.S. Attorney’s Office in Los Angeles, “where he prosecuted international drug rings and money-laundering — including what was at that time the second largest cocaine seizure in California history.”

The American Bar Association, noted Boxer, had given Fitzgerald a rating of “well qualified” on a unanimous vote.
Acting Committee Chair Sen. Dick Durbin, D-Ill., noted that Sen. Dianne Feinstein, D-Calif., had also submitted a “blue slip” in favor of Fitzgerald’s appointment.

Fitzgerald is a partner in Corbin, Fitzgerald & Athey, which bills itself as a “boutique litigation firm” specializing in white-collar crime and civil cases in his native Los Angeles.

The biographical information he sent to the committee lists his membership in four gay-related organizations: the Lesbian and Gay Lawyers Association of Los Angeles (no years of membership are identified), the Harvard-Radcliffe Gay and Lesbian Caucus (from 2006 to present), the Los Angeles Gay and Lesbian Center Leadership Task Force (from 2007-2008) and the Stonewall Democratic Club (“late-1990s”).

The biographical information also indicates Fitzgerald participated in the campaign to defeat California’s same-sex marriage ban, Proposition 8.
He also notes that he spoke at a press conference about a settlement in the case of Buttino v. FBI, in which — in 1993 — the Federal Bureau of Investigation agreed to stop banning openly gay people from serving as FBI agents.

Fitzgerald’s summary of the Buttino case, in response to the requisite Senate questionnaire, noted that Frank Buttino was an agent with the FBI who was “outed” by an anonymous source to Buttino’s supervisor. The supervisor stripped Buttino of his security clearance and, therefore, his ability to serve as an agent.

“At my request,” wrote Fitzgerald, one of his earlier law firms, “Heller Ehrman decided to represent Mr. Buttino at trial on a pro bono basis. I obtained class certification and then represented Mr. Buttino and the class [of all gay and lesbian FBI employees] at trial.”

After several days of trial, noted Fitzgerald, the FBI agreed to settle the case out of court. In doing so, the FBI, he said, “renounced its prior policy of viewing homosexuality as a ‘negative factor’ in regard to security clearance,” agreed to hire an openly gay agent, and restored Buttino’s pension.

Durbin asked Fitzgerald about the Buttino case. Sen. Mike Lee, R-Utah, described Fitzgerald as a “activist” but then quickly added that he does not “subscribe to the view that having been an activist in one area or another disqualifies anyone from ascending to the bench .…” But Lee said it was the committee’s duty to make sure nominees “know the difference between advocacy and jurisprudence” and will “not engage in any kind of political activism while on the bench.”

He asked how Fitzgerald’s prior advocacy would affect him on the bench.

“Sir, I don’t believe that it would have any influence on my service as a federal judge,” said Fitzgerald. “I would not bring any personal or political views to bear on any of the cases that I determined as a United States district judge.”

He also said he is aware of the necessity to recuse himself not only when he personally believed there might be a conflict of interest but also when a “reasonable onlooker” might think so.

Fitzgerald indicates that he did not serve in the military “because men born between March 29, 1957, and Dec. 31, 1959, were not required to register.”

He earned an A.B. magna cum laude from Harvard University in 1981 and graduated from the Berkeley School of Law in 1985. He clerked for 2nd Circuit U.S. Court of Appeals Judge Irving Kaufman and worked three years in the criminal division of the U.S. Attorney’s Office in Los Angeles.

The Senate Judiciary Committee’s ranking members, including the ranking member Charles Grassley, R-Iowa, were not present. Nor was ranking majority member Patrick Leahy, D-Vt.

Republican Sen. Lee noted 85 percent of President Obama’s judicial nominees have been approved and that was “comparatively generous treatment” of nominees by the Republican side.

Acting Chairman Durbin quickly noted that Senate Majority Leader Harry Reid had needed to call for a forced vote (cloture) to try and put the nominations of 25 of those nominees on the floor.

Senators on the committee have a week to submit additional questions to the nominees in writing. The committee could vote on Fitzgerald’s nomination within a few weeks.

© 2011 Keen News Service. All rights reserved.

—  John Wright

Senate hearing on DOMA repeal is set

‘Respect for Marriage Act’ has 27 co-sponsors so far, all Democrats

LISA KEEN | Keen News Service

The U.S. Senate Judiciary Committee has scheduled Wednesday, July 20, at 10 a.m. to hear testimony on a bill to repeal the federal Defense of Marriage Act.

The specific bill in question is the “Respect for Marriage Act” (S. 598), introduced by Sen. Dianne Feinstein, D-Calif., for herself and Sens. Kirstein Gillibrand, D-NY, and Patrick Leahy, D-Vt.

Leahy, chairman of the Judiciary Committee, announced last week he would hold a hearing on the bill — the first Congressional hearing on a proposal to repeal DOMA.

The Respect for Marriage Act would also stipulate that, “for the purposes of any federal law in which marital status is a factor, an individual shall be considered married if that individual’s marriage is valid in the State where the marriage was entered into. …”

It also calls for recognition of marriages licensed in other countries.

The bill currently has 27 co-sponsors, including Sens. Barbara Boxer, D-Calif., Sherrod Brown, D-Ohio, Richard Durbin, D-Ill and John Kerry, D-Mass.

No Republicans have yet co-sponsored the bill.

Live webcasts of Senate Judiciary Committee hearings can be viewed at the committee’s website: judiciary.senate.gov.

© 2011 by Keen News Service. All rights reserved.

—  John Wright