The Bilerico Project

Marriage after Maine

nanhunter@bilerico.com (Nan Hunter) — Thu, 05 Nov 2009 19:30:00 -0500

As heartbreaking as it was for the people on the ground and as callous as this may sound, Maine 09 was just another move in the two steps forward, one step back dance that social change movements are. The overall strategy on marriage has been to win in enough states to create a tipping point before seeking a nationwide resolution. Perry v. Schwarzenegger, the big gamble of a case now in federal court in California, might change that strategy, but a loss in any one state won't. Instead, what comes out of Maine are little lessons that are new and big questions that are old.

The little lessons are tactical points: Heavy turn-out is not necessarily a good sign for a minority rights issue. Religiosity isn't everything (Maine is one of the four least religious states in the country). A huge fundraising advantage may be necessary but definitely is not sufficient. And we should trust only automated polling - when people respond to other people instead of to computers, a chunk of them say they will vote to legalize gay marriage, then actually cast their ballots against it.

More importantly, following the jump are three major issues reinforced by the Maine experience as ones that people need to wrap their minds around.

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Legal issues in ENDA 2009 version, Round 1

nanhunter@bilerico.com (Nan Hunter) — Sat, 26 Sep 2009 12:00:00 -0500

Wednesday's hearing before the House Education and Labor Committee probably could not have gone better for supporters of ENDA. You can watch it and access copies of all the written testimony at the Committee's website. Special cheers to witnesses Vandy Beth Glenn, Bill Eskridge and Brad Sears. (See other Bilerico posts for a detailed summary and Jillian Weiss's excellent call to take action.

There were no fireworks at the hearing, doubtless due in large part to the fact that only a handful of Republican members attended, at least one of whom is an ENDA co-sponsor. The most striking aspect of the tone in the hearing room was how technical most of the legal discussion was - no arguments over covering this group of people, no moral claims, no indication that including transgender people was anything other than a no-brainer. BUT - this was only the hearing.

The two Republican witnesses came across like a mispaired duet: one speaking for employers, one for religious conservatives, with no overlap in their arguments.

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DoJ sings new tune on DoMA

nanhunter@bilerico.com (Nan Hunter) — Mon, 17 Aug 2009 16:00:00 -0500

The Department of Justice has just filed a new brief in the Smelt case that defends the constitutionality of DoMA, but also states the Obama administration's opposition to DoMA as a policy matter and explicitly repudiates anti-gay arguments based on parenting. It was DoJ's earlier brief in this case that prompted a firestorm of criticism from lgbt advocates.

The new brief continues to argue that sexual orientation classifications are subject to only rational basis review and that Congress was justified in enacting DoMA. So the bottom line defense hasn't changed. (There was never much reason to imagine that DoJ would fail to defend DoMA in court, however, especially in this across-the-board challenge.)

The most powerful and important aspect of this new brief is its categorical statement that there is no rational basis for the arguments in favor of discrimination that are grounded in claims about procreation and child-rearing. (See quotes after the jump.) This puts the federal government on record as to these claims in a way that has never happened before.

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Transgender rights, the President's memo and legal history

nanhunter@bilerico.com (Nan Hunter) — Mon, 22 Jun 2009 12:30:00 -0500

I've gotten so many questions about legal issues related to federal employees in the past week of Obummer-ness that I thought it might be useful to provide a bit of historical context. In my blog's post about the memorandum that the President signed on Wednesday night, I briefly described the history of the "unrelated to job performance" law that the new memorandum cites, and the potential it holds to protect federal employees against discrimination based on gender identity. The full story goes all the way back to the mid-sixties.

The relevance now is certainly how it might improve the lives of federal government employees who are trans, but also the potential it holds to help pass ENDA.

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What does the NH religious exemption mean?

nanhunter@bilerico.com (Nan Hunter) — Tue, 19 May 2009 17:30:00 -0500

Today the New Hampshire state Senate Judiciary Committee is expected to add the language that Governor Lynch has requested to an unrelated bill and bring it to the full Senate for a vote tomorrow. If it passes the Senate, the plan is that the House also would vote on it tomorrow. If Governor Lynch signs the bill, it will take effect January 1, 2010.

What does the new language mean? Is a trojan horse or meaningless redundancy? (The entire provisions appear in one of Alex's recent posts.)

The source of this language is two other New England marriage laws, the ones from Connecticut and Vermont, that contain very similar provisions. The New Hampshire proposal essentially combines language from those two laws to produce the fullest scope for a religious exemption yet enacted in a marriage equality bill.

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First thoughts on Iowa marriage decision

nanhunter@bilerico.com (Nan Hunter) — Fri, 03 Apr 2009 12:00:00 -0500

First, hats off to Lambda Legal for a truly spectacular job in winning this case. In retrospect, this decision may come to seem almost as important as the first one in Massachusetts. Why?

The decision was unanimous, the first time that any marriage case has been won without a dissent or, for that matter, by more than a one-vote margin.
The decision cuts off any impulse in the legislature to opt for civil unions, saying that "a new distinction based on sexual orientation would be equally suspect."

...the statutory language must be applied and interpreted in a manner allowing gay and lesbian people full access to the institution of civil marriage.

The victory came in Iowa, widely perceived as an all-American, proudly midwestern, emphatically non-New England state.

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Obama hits pause on the repeal DADT button

nanhunter@bilerico.com (Nan Hunter) — Tue, 31 Mar 2009 16:30:00 -0500

Given the debacle that led to Don't Ask Don't Tell at the beginning of the Clinton administration, I don't really blame Obama for wanting to prioritize other things first, like taking over the auto industry. The White House, the Justice Department and Congress all seem to have put DADT repeal deep in the file marked "after the 2010 midterms."

SecDef Gates remarked as much on Sunday, when he told a reporter that

Any change in the policy would require a change in the law. We will follow that law whatever it is. That dialog though has really not progressed very far at this point in the administration. I think the President and I feel like we've got a lot on our plates right now and let's push that one down the road a little bit.

Meanwhile, the two lawsuits on a possible Supreme Court track have also been slowed down. In one, Witt v Air Force, the ACLU of Washington won a ruling that the Defense Department had to prove actual harm to unit cohesion would follow absent discharge of a 19-year veteran Air Force nurse. The Solicitor General's office originally had until April 3 to decide whether to seek Supreme Court review or let the case go back to the district court and attempt to make the required showing (or try to settle it). Now, at the SG's request, their deadline has been extended (for the second time) until May 3.

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The new peace proposal on marriage

nanhunter@bilerico.com (Nan Hunter) — Mon, 23 Feb 2009 15:00:00 -0500

In today's N Y Times, there is a jointly-authored proposal for a compromise on marriage by David Blankenhorn (self-described liberal anti-gay marriage advocate) and Jonathan Rauch (self-described gay conservative). It's likely to be the beginning of an effort to build support for this approach. Look for a panel on it later in the spring at Brookings, where Rauch is a fellow.

Blankenhorn and Rauch call for a federal law that would make these changes:

Recognize as civil unions all same-sex couples who have married or registered in their states for civil unions, and extend federal marriage benefits and duties to this group;
Condition this recognition on the states according "robust religious conscience exceptions" for religious organizations that object to same-sex marriage; and
Enact new federal provisions that shield religious organizations from federal law penalties if they refuse to recognize same-sex marriages.

First, credit where credit is due: this proposal will break the ice and hopefully start a useful conversation that focuses on a federal law geared to benefits. And, it cannot have been easy for these two voices to have reached agreement. I credit them both with good faith and good intentions.

That said, I've got problems.

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The dangers of sexual harassment law reflected in verdict for firefighters

nanhunter@bilerico.com (Nan Hunter) — Thu, 19 Feb 2009 11:00:00 -0500

Four San Diego firefighters have won a sexual harassment suit based on a claim that being ordered to represent the department by participating in a gay pride parade led to catcalls directed at them and their being forced to watch gay men simulate sex acts. It's a verdict that trivializes the kind of at-work quasi-terrorism that can constitute sexual harassment, but also one that illustrates the danger of how easily sexual stigma can be manipulated.

The San Diego story is a small battle in an ongoing sex/gender/culture war, not only in the broader society, but also doubtless in this particular fire department, where the chief, Tracy Jarman, is openly lesbian. Jarman did not order the group to participate after they objected, so the suit was not directly aimed at her. But it's hard to believe that the four guys who brought this suit feel really comfortable with a gay female boss.

The case represents the danger from open-ended sexual harassment law, creating an invitation for suits such as this one, which Harvard Law School Professor Janet Halley described as "sexuality harassment" litigation. The sexualized nature of the harm is used to magnify an unimportant event into a serious injury. In effect, sexual harassment law is being used here to recuperate the idea behind the old gay panic defense to assault or even murder, that extreme over-reaction to same-sex sexual propositions (or in this case, simply speech) is justifiable. It's a double standard with a vengeance.

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Analyzing the Prop 8 litigation

nanhunter@bilerico.com (Nan Hunter) — Mon, 05 Jan 2009 14:30:00 -0500

As of today, both the defenders of Prop 8 and its challengers will have filed their briefs with the California Supreme Court in the litigation seeking to overturn the popular vote that has reinstated a ban on same-sex marriage. (Amicus briefs are due in two weeks.) A number of commentators have opined that those seeking to have Prop 8 invalidated have little chance of success.

My view: not so fast.

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Tying up those loose ends from 2008

nanhunter@bilerico.com (Nan Hunter) — Fri, 02 Jan 2009 10:00:00 -0500

2008 was an incredible political year, mostly because the guy who everyone thought was placing his mark for a future presidential race ended up winning the big prize himself. Oh yes, and he's African-American. And he carried North Carolina, Virginia and Indiana.

On the other hand, there was this ditch called Prop 8 that the lgbt marriage equality movement stumbled into. Oh yes, and we may be in a depression to rival the ones our parents and grandparents talk about. And we're still mired in - count 'em - two wars.

So for better or worse, let's wrap this sucker up. Herewith my modest proposals for tying up the loose political ends of 2008:

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A new twist in the Prop 8 litigation

nanhunter@bilerico.com (Nan Hunter) — Sun, 21 Dec 2008 19:00:00 -0500

CA Attorney General Jerry Brown surprised all sides in the Prop 8 litigation by filing a 90-page brief in the state supreme court that takes a unique position in the case, not agreeing completely with either side. In general, a state attorney general is expected to defend the validity of all state laws, regardless of whether s/he believes they are proper, unless exceptional circumstances dictate otherwise. Brown argued that Prop 8 should be invalidated by the court, but on a natural rights ground that no one else has argued, for which there is no direct precedent.

Opponents of Prop 8 sought to have it rescinded by invoking a murky distinction in CA law between amendments to the constitution, which voters can adopt, and more fundamental revisions to the constitution, which require a longer, more cumbersome process. Led by NCLR lawyers, the challengers argued that Prop 8 made "far-reaching changes to the nature of [the state's] governmental plan" and was such a fundamental abrogation of a minority group's constitutional rights that it amounted to an evisceration of judicial authority. For that reason, they argued, it was a revision, not an amendment, to the state constitution.

The AG's brief argued that Prop 8 was not a constitutional revision, but instead a change of fairly narrow scope, affecting only the particular question of marriage, not the structure of government. But the AG is also arguing that because the state supreme court had found the right to marry to be an "inalienable" liberty right, voters could not amend the constitution to withdraw it from a class of persons. The brief asserts that rights found to be "inalienable" enjoy a privileged place in the constitutional scheme, and that voters lack the power to amend the state constitution to abrogate those rights unless there is compelling justification.

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The defense of the defense of marriage - and post Prop 8 right-wing rhetoric

nanhunter@bilerico.com (Nan Hunter) — Sat, 13 Dec 2008 17:30:00 -0500

With the Democrats having control of the White House and Congress, there won't be any federal marriage amendment moving anywhere in the next two years, and probably no time soon, if ever again. As icing on the cake, its chief sponsor in the House - Marilyn Musgrave of Colorado - was defeated last month.

So the anti-equality crew is reframing the congressional debate as one over whether to save DoMA from future efforts to repeal it. Toward that end, right wing politics now has a new web page if not a new idea. The Alliance Defense Fund has launched Protect DoMA. Aside from a northern Virginia P.O. box, Protect DoMA's chief asset appears to be a hunky Latino "model and actor" endorsing its message.

What is most interesting to me about this new angle on the old arguments are the clues that it contains to the right's long-term strategy, coming off their victory in passing Prop 8.

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Iowa marriage argument - good try

nanhunter@bilerico.com (Nan Hunter) — Wed, 10 Dec 2008 13:00:00 -0500

Lambda Legal did their usually excellent job of lawyering with the challenge to the Iowa marriage law that was argued this morning before the Iowa Supreme Court. (Kudos to lead counsel Camilla Taylor!) But the court did not seem particularly receptive. (You can watch a webcast on the Des Moines Register web page; read the briefs at the court's web page.) Although one can never confidently predict an outcome from hearing the argument, since judges routinely play devil's advocate with their questions, I would be very surprised if this case puts Iowa into the short list of states with marriage equality.

The attorney defending the law (a mini-DoMA adopted 10 years ago) warned that radical homosexuals (ok, he didn't say that, but he communicated that) were out to "destroy marriage to gain equality." So to save marriage, we have to deny ... You get it.

It's laughable as a legal argument, but an effective sound bite, not least because the response is always to fall into the trap of arguing, oh no, we love marriage, it's great, fabulous, just what we've always wanted, bring on the drunken dancing relatives.

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The Obama era, legally speaking

nanhunter@bilerico.com (Nan Hunter) — Thu, 20 Nov 2008 17:00:00 -0500

The bittersweet combination of the Prop 8 loss and the Obama win, combined with the Dems picking up more seats in both houses of Congress, means that a much greater focus on federal-level policy-making is in the offing in lgbt politics. In thinking about what should be prioritized, the first cut is between what the new Congress can do and what steps can the new administration take with confidence that Congress won't overrule a progressive initiatives.

There are certainly lots of possible goals, but I would suggest two executive orders and three major pieces of legislation as the primary targets for the lgbt rights movement over the next four years. Five in four, you might say. Not that these should be the only objectives: there is much that can be done at the congressional and agency levels as well.

I would argue, however, that these five would be the most effective and pragmatic solutions to the issues facing the largest number of lgbt Americans.

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