Judiciary committee passes measure to repeal DOMA

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

Feinstein.Diane

Sen. Dianne Feinstein

Lisa Keen  |  Keen News Service
lisakeen@me.com

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
lisakeen@me.com

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

WATCH: The DOMA debate 15 years before Sen. Cornyn skipped Wednesday’s hearing on repeal

Sen. John Cornyn, a member of the Judiciary Committee, skipped Wednesday’s hearing on the Respect for Marriage Act.

ThinkProgress has posted the below compilation of some of the hateful comments made on the House floor during debate of the Defense of Marriage Act before it was passed in 1996. The point is to highlight the sea change that has taken place in America since then on LGBT equality and same-sex marriage — which is underscored by the reluctance among Republicans today to use it as a wedge issue. On Wednesday, ThinkProgress notes, only two Republican senators showed up for the committee hearing on the repeal of DOMA, and only one spoke up against the Respect for Marriage Act.  One of those who spoke in support of DOMA 15 years ago, as shown in the video, was Texas Congressman Tom DeLay, then the GOP whip, who warned that “attacks on the institution of marriage will only take us further down the road of social deterioration.” Fast forward to Wednesday, when one of the GOP members of the Senate Judiciary Committee who didn’t show up for the hearing was Texas’ John Cornyn, who once suggested in the draft of a speech that same-sex marriage would lead to man-box turtle marriage. Things have indeed changed, even in Texas.

—  John Wright

WATCH: Full Senate hearing on DOMA repeal

Photo by Jamie McGonnigal/EqualityPhotography.com

In case you missed it, below is video of Wednesday’s historic Senate hearing, in it entirety, on the Respect for Marriage Act, which would, of course, repeal the so-called Defense of Marriage Act. Read our recap of the hearing here. Now that the hearing is over, some may be wondering what the future holds for the DOMA repeal legislation. The short answer is — probably nothing in the current Congress. There are enough votes on the Senate Judiciary Committee to mark up the bill and send it to the floor, but it would face an uphill battle there and has zero chance of passing the Republican-controlled House. Andrew Sorbo, a 64-year-old retired school teacher who testified about the impact of DOMA in the wake of his 30-year partner’s death, summed it up best after the hearing: “As a student of history, I’m very cognizant of how this is the beginning of probably a long process. I think it very well may be that it’ll reach the Supreme Court before the Congress acts.”

—  John Wright

Senate committee holds 1st-ever hearing on repealing DOMA

LISA KEEN | Keen News Service

U.S. Rep. John Lewis, D-Ga., a legendary civil rights activist, led off today’s historic hearing to discuss repealing the Defense of Marriage Act, likening it to laws decades ago that requires separate water fountains and restrooms for “whites” and “coloreds.”

“I find it unbelievable in the year 2011,” said Lewis, “that there is still a need to hold hearings and debates about whether a human being should be able to marry the person they love.”

But there was a hearing, and there was debate.

Republican Sen. Charles Grassley of Iowa, the ranking minority member on the Senate Judiciary Committee, came well prepared to do battle, bringing in a full complement of his allowed witnesses, minus one whom he said was afraid to testify against repeal of the Defense of Marriage Act (DOMA) for fear of being harassed.

Photo by Jamie McGonnigal/EqualityPhotography.com

But none of the committee’s other Republican members — who include John Cornyn of Texas — showed up to ask questions, and Democratic senators who support the Respect of Marriage Act (SB 598), the bill to repeal DOMA, were also well prepared.

Sen. Al Franken, D-Minn., called DOMA an “immoral and discriminatory” law and he challenged Grassley’s chief witness, an official with the mammoth Focus on the Family group. (Watch video from ThinkProgress above.) The witness, Thomas Minnery, claimed a federal study found that children raised by a male-female married couple are happier and healthier than children raised by other families.

“I checked the study out,” said Franken, referring to a 2010 study published by the U.S. Department of Health and Human Services. “It doesn’t say what you said it does,” said Franken. The hearing room erupted in laughter. “It says ‘nuclear family,’ not opposite-sex married families, are associated with those outcomes.”

Minnery said he understood “nuclear family” to mean heterosexual.

“It doesn’t,” said Franken, bluntly. “It says, ‘Two parents who are married to one another and are the adopted or biological’ parents of their children. I don’t know how we can trust the rest of your testimony if you are reading studies these ways.”

Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., opened the hearing by saying he called it to “assess the impact” of the law on American families. He said the 1996 law “goes well beyond the harm to a family’s dignity,” harming it economically, health-wise, and in other ways.

Several of Leahy’s seven witnesses provided personal, often dramatic, stories to illustrate those harms. Ron Wallen, a 77-year-old man from Indio, Calif., said his life was thrown into “financial chaos” after his life partner for 58 years succumbed after a long illness. Because he was not eligible to receive his same-sex spouse’s Social Security benefits and pension, said Wallen, his household income dropped from $3,050 per month to $900 per month.

Susan Murray, an attorney who help usher in Vermont’s landmark civil union law and who represents numerous same-sex couples, said many people simply did not understand what a civil union was. And she said she has found that many corporations believe DOMA prevents them from providing equal benefits to their employees.

“Companies think the law allows them to discriminate,” said Murray.

Andrew Sorbo, a history teacher in Catholic schools in Connecticut, talked about “always having to use the pronoun ‘I’” in his classroom.

“I could not say, ‘We are going on vacation,’ because the next question would be, ‘Who is the other person?’” said Sorbo.

“DOMA,” he said, “is an insult to our dignity and our sense of equality.” He said he was “appalled and baffled” by the fact that those in Congress who oppose same-sex marriage “can’t understand how they are the philosophical descendants of those who defended slavery, who defended the laws against mixed race couples, and who defended the laws that allowed the separate but equal statutes that Rep. Lewis spoke of.”

The mainstream media gave some attention this week to a statement by White House Press Secretary Jay Carney, during a routine briefing on Tuesday, that President Obama supports the Respect for Marriage Act.

Carney, in response to a question, said Obama “has long called for a legislative repeal” of DOMA.

“He is proud to support the Respect for Marriage Act … which would take DOMA off the books once and for all,” said Carney.

Numerous LGBT groups issued statements, applauding the statement from Carney that the president supports the Respect of Marriage Act. They consider Obama’s support for the repeal measure specifically to be a significant step forward in his position.

During the 2008 presidential campaign, a spokesman for Obama said he’s supported the repeal of DOMA since 2004. But after he became president, his Department of Justice initially mounted a vigorous defense of the law in courts, arguing, among other things, “DOMA does not discriminate against homosexuals in the provision of federal benefits.”

After considerable outrage from the LGBT community, the DOJ softened its arguments in court briefs. And then, in a dramatic announcement in February of this year, Attorney General Eric Holder said that he and President Obama believe DOMA is unconstitutional and that laws disfavoring LGBT people should have to pass the strictest form of judicial scrutiny.

Rep. Lewis seemed to have been referring to President Obama when, in his remarks, he chastised those who are “comfortable sitting on the sidelines” and called on “elected officials … to lead, to be the headlights, not taillights.”

Ranking minority member Grassley was the only Republican senator to comment and ask questions during the hearing, saying — at times with the vigor of a preacher – that DOMA is “not an expression of dislike for gay and lesbian people.” He and other opponents of the bill pointed out that many of the Democrats on the committee — including Chairman Leahy and Sens. Dick Durbin of Illinois and Charles Schumer of New York — voted in favor of DOMA in 1996. The fact that they voted for DOMA, said Ed Whelan of the Ethics and Public Policy Center, “refutes the empty revisionist claim that DOMA embodies an irrational bigotry against same-sex couples.”

Whelan said it is “a profound confusion to believe that the values of federalism somehow require the federal government to defer to or incorporate the marriage laws of the various states in determining what marriage means in the provision of federal benefits.”

Whelan also said that repealing DOMA would “have the federal government validate” same-sex marriage and “require taxpayers to subsidize the provisions of benefits. And, he said, repealing DOMA would “pave the way” for polygamists and other polyamorous unions to be recognized under federal law.

Bill sponsor Sen. Dianne Feinstein, D-Calif., who chaired the committee for a portion of the hearing, said DOMA denies rights and benefits to legally married same-sex couples. And she vowed that, “However long it takes” to repeal DOMA, “we will achieve it.”

The hearing was covered live by C-SPAN and will be rebroadcast from time to time.

© 2011 Keen News Service. All rights reserved.

—  John Wright

What’s Brewing: Senate DOMA hearing; Gov. Perry’s Religious Right trifecta; NY marriage

Tony Perkins, president of the Family Research Council, has been named a chairman of Rick Perry’s Aug. 6 day of prayer.

Your weekday morning blend from Instant Tea:

1. The Senate Judiciary Committee this morning will conduct the first-ever hearing on the Respect for Marriage Act, which would repeal the so-called Defense of Marriage Act. The DOMA repeal legislation was endorsed Tuesday by President Barack Obama. Today’s historic hearing begins at 9 a.m. Central time. You can watch live on the committee’s website by going here.

2. We’ve long known that Gov. Rick Perry’s Aug. 6 Day of Prayer is being funded by the American Family Association, but now it looks like Perry has achieved the trifecta of Religious Right involvement. The AFA announced Tuesday that Tony Perkins of the Family Research Council and Penny Nance of Concerned Women for America have been named co-chairmen of the event. From Right Wing Watch: “Even though Perry and the AFA are adamant that the prayer rally is apolitical, the fact that leaders of three of the most prominent Religious Right political groups in the country are hosting the event along side a potential presidential candidate makes us think otherwise.”

3. Fearing overwhelming demand this coming Sunday — the first day same-sex couples can marry — New York City officials have announced a lottery system that will guarantee 764 couples access to one of the city’s five clerks offices.

—  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
lisakeen@me.com

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

Oetken sidesteps questions on brief in sodomy case

Paul Oetken

Gay court nominee says arguments in brief he wrote for Lawrence v. Texas expressed his client’s views, not necessarily his

LISA KEEN  |  Keen News Service
lisakeen@mac.com

When openly gay federal district court nominee Paul Oetken went before the U.S. Senate Judiciary Committee in March, Sen. Charles Grassley was the only Republican who showed up.

 

He introduced Oetken, who was born in his home state of Iowa, but had no questions.

But not all questioning takes place in front of cameras. Some takes place on paper, and that’s where Grassley grilled Oetken over his positions on gay-related issues, and Oetken responded in a way that might make some LGBT activists cringe.

“Do you personally believe that government classifications based on sexual orientation deserve a heightened level of scrutiny?” asked Grassley, in one of 17 questions to Oetken.
Grassley’s question concerned a brief Oetken wrote for the National Gay and Lesbian Bar Association and submitted to the U.S. Supreme Court in support of overturning laws prohibiting same-sex sexual relations.

The case was Lawrence v. Texas and, in 2003, a majority of the Supreme Court did overturn such laws. Oetken’s brief argued that the courts should use the strictest form of scrutiny when examining laws that treat gay people differently.

In responding to Grassley, Oetken put some distance between himself and the brief, saying, “I have not expressed a personal view on this subject. The arguments in the amicus brief that I co-authored in Lawrence v. Texas were arguments made on behalf of clients.”

“Although I believed that there was a good faith basis in Supreme Court precedent for making those arguments [in the brief], they do not necessarily reflect how I would approach these issues as a district judge,” wrote Oetken.

Oetken also put some distance between his brief and the Supreme Court’s decision, noting that, “The Supreme Court in Lawrence v. Texas did not decide that case under the Equal Protection Clause, but rather under the Due Process Clause, and it therefore did not decide the issues addressed in my amicus brief in that case.”

Oetken also said, “If confirmed as a district judge, I would apply the applicable precedents of the Supreme Court and the Second Circuit.”

Republican Sen. Jeff Sessions also submitted written questions about Oetken’s brief in Lawrence. Sessions noted that Oetken had argued that the issue of physician-assisted suicide should be decided by each state legislature.

He quoted Oetken saying, the issue of physician-assisted suicide “should stay where it belongs, in the legislatures” because the states’ “varied approaches to the issue may, over time, aid in forming a national consensus, making it possible for Congress to resolve it through national legislation.”

But Sessions was interested in how Oetken could argue, in 2002, to leave the suicide issue to the states and then argue, in 2003, “that Texas’ anti-sodomy law was something that warranted federal intervention. …”

Oetken, again, noted that the Lawrence brief included “arguments made on behalf of clients.”

His argument to leave the suicide issue to the states, he said, was appropriate given that there was no federal legislation addressing it.

Oetken’s nomination was reported out of committee on April 7 and is awaiting a vote by the full Senate.

© 2011 Keen News Service. All rights reserved.

—  John Wright