hunter of justice

Will DoMA case change the constitutional standard for sex/o discrimination?

    The issues are now joined in Gill v. OPM, the GLAD case challenging the constitutionality of DoMA.  Unlike the Perry case in California, the decision in Gill will have no effect on state marriage laws.  The plaintiffs are same-sex couples or surviving spouses in Massachusetts, and are arguing that the denial of federal benefits due them is unconstitutional.

    The most important legal issue in the case is the standard of review, the question of how stringently a court will examine the reasonableness of a law that distinguishes between persons based on, in this case, sexual orientation. There is no federal court decision on the books that adopts a heightened level of scrutiny in an Equal Protection Clause analysis of sex/o classifications.  The plaintiffs are also arguing that the denial of federal benefits also infringes their due process/liberty-based right to maintain family relationships.

    In its brief filed two months ago, the Obama Justice Department made its third attempt to defend DoMA without setting off a firestorm of protest from lgbt groups.  The most significant aspects of the latest DoJ brief are what isn't there: the pieces of argument made in an earlier brief filed in a California case. Noxious arguments that discouraging same-sex marriage promoted the interests of children (which DoJ has now specifically disavowed) and that DoMA is justified by the government's interest in preserving scarce resources (ie benefits) and in not using tax funds raised in states that don't recognize same-sex marriages for same-sex couple benefits -- these three assertions have fallen by the wayside.

    What DoJ was not willing to do, however, was to change its argument about the correct standard of review. DoJ asserts that the traditional, highly deferential form of rational basis review applies to sex/o classifications. Under this standard, the challenged law is entitled to a strong presumption of constitutionality; there can be a very loose, inexact fit between the purpose of the law and the means used to achieve it; the court may hypothesize possible purposes that Congress may have had; and the law will be upheld if any conceivable set of facts can provide a rational basis for it.

    What everyone knows but DoJ does not acknowledge is that the Supreme Court did not use this traditional approach to rational basis review in either Romer or Lawrence.  If it had, it would not have reached the results that it did. Unfortunately, the Court also did not identify which standard it was using, leaving lower courts open to essentially limiting the impact of those two decisions to only cases with close-to-identical facts, which will arise only rarely.

    The plaintiffs' brief in Gill argues for heightened scrutiny or, alternatively, that DoMA fails to satisfy even the most deferential form of rational basis review. I don't know what the district court will do, but I think there is an excellent chance that plaintiffs will win before the Court of Appeals for the 1st Circuit, possibly using the standard proposed by Justice O'Connor in her concurrence in Lawrence, which is basically heightened rational basis when there are signs that the challenged law was based on animus toward a group.  DoMA certainly fits the bill.

    Whoever wins on appeal, the other side will seek review in the Supreme Court. Timing is completely impossible to predict, but it seems likely that this case will reach the Supreme Court around 2011 or 2012. And of course there is no way to know exactly who will be on the Court at that time.  But it sure looks possible that this case, too, will effectively be decided by Justice Kennedy.

Name changes and forced outing: a small victory

by guest blogger Harper Jean Tobin - cross-posted to TransEquality Blog

Governments force transgender people to disclose that they are transgender all the time. They make us carry around little pieces of paper and plastic with our birth-assigned sex listed on them, just begging any police officer, bank teller, customs official, airline agent or the like to ask just what are you anyway? They keep that old sex designation in computer files – your driving record, your Social Security record, Medicare record – that get shared here and there. They make us appear in open court, or take out an ad in the newspaper, to announce that we’re changing out name from Kate to Kevin, or from Kevin to Kate. They say this is necessary for “accuracy” and “fraud prevention.” These government systems very seldom recognize the very real dangers of the official outing of trans people in so many areas of our lives – the dangers not only of embarrassment, discrimination and harassment, but the very real danger of violence when we are outed against our will to untold numbers of strangers. So it was refreshing recently to see one government body – namely a court in Westchester County, New York – show a genuine recognition of these dangers.

State courts hear thousands upon thousands of petitions each year from individuals seeking to change their names. These petitions are usually granted perfunctorily, and very rarely result in written opinions, let alone published ones. Except, it seems, when they are filed in New York, and by a transgender person. Since 1968, I’m aware of at least at least seven New York published court opinions dealing solely with a transgender person’s name-change petition. Over the years transgender New Yorkers have fought to get courts to apply the name-change statute fairly to them. In 2003 a trans woman won a decision that, contrary to earlier opinions, proof of a surgical procedure was not required for her name change. Earlier this year a young trans man won his case on appeal, repudiating dozens of cases in which judges had required clinical documentation of a person’s gender identity for a name change.

Make that eight, with a ruling from the Supreme Court in Westchester County on November 10. In this case, another young trans man petitioned for an exception to the standard New York practice of publishing a notice of the name change in an area newspaper. Many jurisdictions have such a requirement, and only some of them provide for a discretionary exception. Past petitioners in New York had gotten such an exception because they were victims of domestic violence. In this case, the court pointed to numerous reports indicating the high rates of bias-motivated violence against transgender people, and to the recently passed Hate Crimes Prevention Act. The judge concluded that “while petitioner did not, and hopefully could not, cite a personal experience of violence or crime against him based on his gender identity, he has made a compelling argument as to why, at the age of twenty, he has a right to feel threatened for his personal safety in the event his transgender status is made public.” Accordingly, the judge granted the exemption, made the name change immediately, and ordered that the court records be sealed. The case is In re E.P.L., --- N.Y.S.2d ----, 11/16/2009 N.Y. L.J. 40, 2009 WL 3764453 (N.Y. Sup. Ct. Westchester Co. Nov. 10, 2009).

This is not a binding legal precedent, and it doesn’t speak directly to trans people’s issues with passports, Social Security records, and on and on. But it does reflect a rare official recognition that government-mandated outing is dangerous for trans people. And that’s a start.

Why the Stupak amendment is unconstitutional

By Cardozo Law Professor Marci Hamilton, published in Writ:

...Although many have attacked the Amendment as a policy matter, the constitutional arguments against it have been underplayed. That is a shame, because under any reasonable reading of the Constitution, the Stupak Amendment is unconstitutional: Indeed, it violates three different constitutional principles.

How the Stupak Amendment Violates The Establishment Clause

First, the Amendment violates the Constitution's separation of church and state. The anti-abortion movement is plainly religious in motivation, and its lobbyists and spokespersons represent religious groups, as is illustrated by the fact that the most visible lobbyists in the Stupak Amendment's favor have been the Catholic Bishops. This is a brazen and frank attempt to impose a minority's religious worldview on the entirety of American healthcare. (A majority of Americans have favored a woman's right to choose for many years.) There is no secular purpose for the extension of the Hyde Amendment to all private health insurance plans as well. Accordingly, whatever secular purpose might be devised by those trying to defend the Stupak Amendment in court would be a sham purpose, intended to cover the frankly religious pandering the Amendment represents.

One of the clearest Establishment Clause principles is that the government may not impose a certain group's religious beliefs on those with different beliefs. The principle was articulated by the framer of the First Amendment, James Madison, in his important work "Memorial and Remonstrance," and it has been a mainstay of Establishment Clause doctrine. The Stupak Amendment violates this principle by imposing on the entire country a religious worldview that millions of Americans do not share. Moreover, this imposition of religious belief in the private sphere is in the context of healthcare, which every American needs.

How the Stupak Amendment Violates The Equal Protection Clause

The Stupak Amendment also discriminates on the basis of gender. Only women have to deal with the difficult question of abortion. Conspicuously missing are parallel exemptions barring funding for Viagra, or for, say, prostate surgery treatments, which can leave a man sterile and therefore operate as a birth control measure.

In addition, the exemption (the purpose of which is, again, obviously a religious one) does not serve any medical end, when serving medical ends is presumably the overall and most important purpose of the Health Care Reform Act. If health is truly to be served, then refusing to permit women to obtain even private health insurance that covers unplanned pregnancies, or pregnancies involving fetuses with fatal abnormalities, is not just discriminatory, but outright irrational.

How the Stupak Amendment Violates Substantive Due Process and Privacy Rights

Finally, the Stupak Amendment attempts to curtail -- across the board – the privacy rights that Roe v. Wade and its progeny secured for women. While other restrictions on abortion (including the Hyde Amendment) have been upheld by the Supreme Court, this is a far more expansive and repressive move against women, and it surely institutes an undue burden on a woman's right to obtain an abortion in consultation with her doctor. Although it is not clear precisely where the boundary line lies, it is very clear that this move transgresses any reasonable interpretation of the line the Court's cases draw.

The Stupak Amendment is also a harbinger of future constitutional violations, for it erects a slippery slope of top-down control of the spectrum of healthcare options. Abortion is surely just the first foray of the religious lobbyists' battle to take away Americans' right to choose among the full panoply of healthcare options. Attempts to control and halt the funding of both emergency and ordinary contraception surely are not far behind, for such attempts are part of the very same politico-religious platform that includes the Stupak Amendment. There is no more obvious violation of Griswold v. Connecticut – which established that laws prohibiting contraception are unconstitutional under the Court's right-of-privacy doctrine -- than for the federal government to reduce the affordability and, therefore, the availability of contraceptives for all Americans.

Conservative Senators who are pandering to religious interests (and/or simply imposing their own religious beliefs on the country) have been quoted recently as saying that they will not permit the Health Care Reform Act to backtrack on abortion issues. But backtracking is a misleading description of what the religious lobbyists are seeking. The truth, instead, is that the Stupak Amendment is a far reach beyond the already repressive Hyde Amendment, and that the advent of the federalization of healthcare is giving anti-abortion religious believers a one-stop lobbying opportunity on an issue that they were previously having to address on a state-by-state basis.

In sum, if the millions of Americans who believe in choice do not act quickly and in a concerted fashion, then we will have a historic rollback of women's liberties. That would be a true disaster, for not only is the Stupak Amendment repressive and regressive, but it also violates constitutional rights.

Will Supreme Court grant cert in Christian Legal Society case?

A cert petition that has been lingering before the Supreme Court since last summer raises the question of whether a Christian student group's constitutional rights were violated when a public law school refused to grant it official status because the group excluded gay and non-Christian students in violation of the school's non-discrimination policy. Clearly, someone on the Court is interested in granting cert: the case has been on the Court's conference calendar five times (counting today), but still no decision on cert has been announced. This week, the clerk of the Court sent a letter to the Ninth Circuit clerk's office requesting that the complete record in the case be transferred to the Supreme Court, a step that is normally taken only after cert is granted.

If the Court does add Christian Legal Society v. Martinez (No. 08-1371) to its docket, the debate over the conflict between religious liberty and anti-discrimination law will jump to the top of the list of important constitutional law issues related to sexual orientation. The decision could set the terms for what is increasingly the central philosophical question in lgbt rights law: the extent to which religious entities (or even individuals) should be exempt from civil rights protections for sexual orientation. (Additional background here)

If any decision is reached today on granting cert, it will be announced on Monday. Given that there is little chance that the Justices have fully reviewed the lower court documents yet, however, the case may well be rescheduled for its sixth time on the conference calendar.  The Court's next conference is November 24.

Excerpts from the lower court opinion after the jump -->

Sotomayor unleashed

The current issue of Latina magazine contains a feature on the personal side of Justice Sotomayor, written by a good friend, Sandra Guzman. The magazine has posted excerpts on its web page, including the following:

One evening this past spring, as we prepared dinner for a group of friends, I asked her for some advice. She listened closely as I relayed my marital problems. I still recall her words, which I carry in my heart to this day. She told me that we have been wrongfully taught the Cinderella fairy tale as a paradigm of what happy relationships are supposed to be. And when we fall short of that, we suffer for it. To find happiness in love, she said, we have to make up our own rules. It’s not easy, but it’s doable. The process may involve unlearning what we have been taught and then figuring out what makes us happy. There are all types of relationships and arrangements to choose from. Of course, the trick is finding a companion who shares those values.

Love is not the only area where Justice Sotomayor has faced her fears and worked her way through them. Even as recently as April, she had doubts about her potential rise to the Supreme Court. She had been on President Clinton’s Supreme Court short list, but no seats became vacant. When Obama won the White House, the legal world hedged their bets on the brilliant judge with the impeccable résumé. But weeks before Obama made public his pick to replace Souter, Sotomayor called her confidante and good friend [NY attorney Lee] Llambelis, telling her that she wanted to pull her name from consideration.

“You have to understand that Sonia is a very private person,” Llambelis explains. “She didn’t want to go through another public vetting process and a potential public dressing-down by those on the Republican right who opposed her nomination. Sonia was happy being a Federal Appeals judge, loved her life in New York and felt fulfilled. She worried about having less time to spend with her mother, family and friends, particularly given her mom’s age and potential health complications.” Llambelis recalls listening to her friend, whose “I can” mantra was being drowned out by last-minute uncertainty. She told her to think beyond herself. “At this point, this is not about you,” Llambelis said to her. “It’s about little girls and boys, brown and black, who live in the projects and in poor communities around our nation, who can dream bigger if you are in the Supreme Court. You cannot back down now.” Sotomayor promised to think about it overnight. And in the morning, she woke up with a lighter heart and a bigger purpose.

In her short tenure so far on the court, the justice we have witnessed is no shrinking violet. She asks tough questions and is not intimidated by her rookie status. Sotomayor’s charm and confidence surprise very few people who know her, including the man who nominated her. While President Obama’s staff was preparing Sotomayor for the confirmation hearings in a White House office called the War Room, the team covered all the potentially explosive questions and briefed her on every minute detail, including how to dress for the cameras. They even advised her to keep her nails a neutral shade, which she did. But on the day of the White House reception celebrating her appointment, Sotomayor asked the president to look at her freshly manicured nails, holding up her hands to show off her favorite fire engine–red hue. The president chuckled, saying that she had been warned against that color.

She sure had, but Sotomayor was not finished. She then pulled her hair back behind her ears, exposing her red and black semi-hoop earrings, a beloved accessory among Latinas across America—from the South Bronx to Houston to East Los Angeles.

Obama joked that she had been briefed on the size of the earrings as well. Without skipping a beat, Sotomayor replied: “Mr. President, you have no idea what you’ve unleashed.” He responded, “Justice: I know and remember it’s a lifetime appointment. And I and no one can take it back.” And that, as they say, is the final verdict.

Who's on first? Congress and states reshuffle lgbt issues - Updated

In  last week's election, Maine, New Jersey and Virginia delivered a triple whammy to progressives.  Although it is a mistake to treat these results as a herald of conservative resurgence - polls also show strong support for a public option in health reform, for example - it is nonetheless silly to deny that winning the elections in those three states (or two, or one) would have been a lot better than losing all of them. Instead, marriage bit the dust in yet another ballot contest; and Dems in Congress are spooked by the loss of the two governorships, no matter how many op-eds proclaim that the results were driven by local issues.

So what happens as a result?  As one of the most vulnerable and expendable of Dem priorities, lgbt issues look considerably shakier than they did two weeks ago.

In Congress, Rep. Barney Frank - who, whatever his faults, often speaks realpolitik to wishful thinking - now says that ENDA will likely get to the House floor in February.  This is not what advocates were thinking two weeks ago, when the sense was that mark-up in the House, followed by a floor vote, could happen before Thanksgiving, certainly before Christmas.  Instead, Barney is predicting that domestic partner benefits for federal employees is likely to jump the queue, moving ahead of ENDA in the sequence of lgbt rights legislation. Okay, federal employee benefits is an important issue. But ENDA is the bill that will shift workplace dynamics and help achieve basic material equality for every lgbt person in the nation who is employed. 

The difference between the two? ENDA includes transgender persons; partner benefits does not implicate that issue. In other words, this is ugly. And dangerous. It is ESSENTIAL that both the House and the Senate pass ENDA before the 2010 election season begins in a few months, around spring break in academic-speak. (In some, mostly Beltway, politics-obsessed quarters, it began on November 5, 2008.)

(UPDATE 11/17 - The mark-up in the House committee on the Domestic Partners Benefits and Obligations Act will be next Wednesday, November 18. You can watch it here. The mark-up on ENDA was originally set for the 18th, but has been postponed, with no new date set.)

And in the states -

In New Jersey, the plan was always that the lame duck legislative session would enact a marriage law, regardless of who won the governor's race. That is still the plan, but it looks less like a lock than it once did.  Soon to be ex-Governor Jon Corzine will sign a marriage law if it gets to him in the two months remaining in his term. After that, incoming Governor Chris Christie has vowed to veto such a bill. Although the top job changed hands, there was essentially no change in the party breakdown in the legislature. So will the deal to pass a new marriage bill hold, or will the Maine vote scare off enough legislators to delay any possibility in NJ for another four years? Apparently, there is little doubt that a marriage bill would make it through the state house, but the state senate vote is likely to be a squeaker.

And New York ...What can I say -- New York's state legislature has been dysfunctional for so long that even the smallest sign of adulthood looks like up from here. Governor David Paterson, who is as strong a supporter of marriage equality as any non-gay politician anywhere, has apparently struck a deal with state senate leaders to guarantee that there will be vote on the issue before Christmas. (See Gay City News for a fascinating account of the machinations.) Which side will win this vote is anybody's guess.

If we get to New Year's Day 2010 and neither New York nor New Jersey has legalized gay marriage, that campaign will be hitting its lavender ceiling much sooner than the advocacy groups expected.

Stupak amendment would result in massive cut in abortion access

The Stupak amendment to the House health reform bill, adopted by a 240 to 194 vote, does not explicitly bar any insurance plan from covering abortion, yet it achieves that effect by barring any plan that accepts federal subsidy dollars at all from including abortion coverage from the insurance exchange through which plans will be sold.  Few, if any, insurance plans will have a body of enrollees that does not include at least some receiving premium subsidies. The abortion access issue had been building for months, and finally exploded as a floor vote became imminent. (See my first post from July here; additional background here, here, and here.)  The Kaiser Family Foundation has posted helpful Qs and As. Following is an analysis of the final amendment by Jessica Arons, from Wonk Room:

Here’s what the Stupak Amendment does:

1. It effectively bans coverage for most abortions from all public and private health plans in the Exchange: In addition to prohibiting direct government funding for abortion, it also prohibits public money from being spent on any plan that covers abortion even if paid for entirely with private premiums. Therefore, no plan that covers abortion services can operate in the Exchange unless its subscribers can afford to pay 100% of their premiums with no assistance from government “affordability credits.” As the vast majority of Americans in the Exchange will need to use some of these credits, it is highly unlikely any plan will want to offer abortion coverage (unless they decide to use it as a convenient proxy to discriminate against low- and moderate-income Americans who tend to have more health care needs and incur higher costs).

2. It includes only extremely narrow exceptions: Plans in the Exchange can only cover abortions in the case of rape or incest or “where a woman suffers from a physical disorder, physical injury, or physical illness that would, as certified by a physician, place the woman in danger of death.” Given insurance companies’ dexterity in denying claims, we can predict what they’ll do with that language. Cases that are excluded: where the health but not the life of the woman is threatened by the pregnancy, severe fetal abnormalities, mental illness or anguish that will lead to suicide or self-harm, and the numerous other reasons women need to have an abortion.

3. It allows for a useless abortion “rider”: Stupak and his allies claim his Amendment doesn’t ban abortion from the Exchange because it allows plans to offer and women to purchase extra, stand-alone insurance known as a rider to cover abortion services. Hopefully the irony of this is immediately apparent: Stupak wants women to plan for a completely unexpected event.

4. It allows for discrimination against abortion providers: Previously, the health care bill included an evenhanded provision that prohibited discrimination against any health care provider or facility “because of its willingness or unwillingness to provide, pay for, provide coverage of, or refer for abortions.” Now, it only protects those who are unwilling to provide such services.

One in three women will have an abortion in their lifetime. Eighty-seven percent of employer plans offer abortion coverage. None of that will matter if the Senate takes its cues from the House. In every other way, this bill will expand access to health care. But for millions of women, they are about to lose coverage they currently have and often need.

Memo to the appointments committee: how to interview minority candidates

The hiring conference for entry-level law professors, known universally and grimly as the meat market, starts today. Having survived my one year as a candidate and many years on the hiring side of the table, I herewith pass on the following advice from a non-lawyer, but similarly experienced, historian, my friend Claire Potter, aka the Tenured Radical:

...[I]n lieu of giving bad advice to candidates, I thought I would give advice to those people who were doing the interviewing instead. And it's a particular kind of advice: how not to look like a fool when interviewing what we now call a "diversity candidate." Now for the sake of brevity, let's say the candidate is either a man or a woman (technically all women are diversity candidates), but may also be either of color or queer (technically queer people are never diversity candidates. Unless they are -- for some other reason.) Because these categories are too internally various, and because in fact there is surprising overlap in some of the ways you could possibly offend the people who occupy them, let's call them: Martians. And we'll assume for the sake of clarity in what follows that "you" are not a Martian, and that "I" am. Are you ready? Let's begin.

1. Do not tell irrelevant stories about your friends who are Martians, or that your daughter decided to come out as a Martian last year and how great you feel about it. I understand that you are doing this to make us Martians feel as though we are among friends, and to demonstrate your absolute lack of Martianophobia or your committed anti-Martianism. I appreciate that. Really, I do. But you know what? It suggests just the opposite. It suggests that the Martian in your presence, who is me, is making you uncomfortable, and that you are bravely overcoming it. We Martians are used to being in the minority, but it makes us impatient to have other people remind us of it all the time -- in the name of pro-Martianism, no less. So we will all do better during the interview if you stick to scholarship, teaching and what the actual requirements of the job are.

2. Do not take me to a Martian restaurant for dinner. First of all, a Martian restaurant that is not on Mars, or in a place with a significant Martian population, is likely not to be any good. It will serve Martian food cooked to the taste of the non-Martians who populate your planet. So I will find this depressing. But furthermore, it suggests that I, as a Martian, am in danger of feeling alienated on your planet because I may not be able to access my "culture." Though a Martian, as a scholar and an intellectual, I probably feel I am a little more cosmopolitan than that.

3. While we are at dinner, stay away from topics that betray how invisible the other Martians on campus or on your planet are to you. Telling me that I may wish to live on the planet one light year away because it has a larger Martian population is one way of conveying this, as is: explaining that retaining single Martians is so difficult because it is so difficult to meet and other, marriageable, Martians on your planet; or announcing that, incredibly, there is a Martian Episcopalian church that serves the entire planet right in your canyon! So even though there aren't many Martians on campus, there will be a terrific community for me. On Sundays. (Did I say I was religious? Are you sure?)

4. Admit it if your college does a crappy job of recruiting and serving the needs of Martians. Most colleges and universities that are not on Mars do -- it's not up to you to apologize for it. As in (1), don't tell me about the one Martian who graduated Summa and won the department prize twelve years ago. And although there may be serious Martian politics on campus, don't assume that I share your view of what it means to be progressive on these issues, even -- or especially -- if you are a fellow Martian.

5. Refrain from hinting to me coyly that there is someone I "really need to meet" but not telling me why. This is the most frequent way that people have of dropping a few hairpins that I am a Martian (duh), and this other person is a Martian, but being a person who doesn't really "see" or believe in interplanetary differences, you aren't going to say the word "Martian" (wink, wink.) Most Martians find this tiresome. We aren't at a job interview to meet other Martians: we're there to get a job. And if meeting another Martian on campus is important to me, I'll tell you so.

6. Try to police your references to Martian stereotypes, whether social or intellectual. Don't ask me, for example, why I ended up a historian and not a flight engineer; don't tell me that the special barber I need to cut the hair around my antennae is in the next town over (we don't all have antennae, ok?); and don't, for heaven's sake, if I am interviewing for a Renaissance Literature position, reassure me that the Martian Studies program is very welcoming. Don't put the chair of Martian Studies on my schedule without asking me, if I am not interviewing in Martian Studies, or set up lunch with the one other out Martian to talk about how I might like to work up a Martian survey course once I get a firm grip on the courses I am actually being hired to teach.

And last of all -- if you make any of the above errors, please forget about it and move on -- don't embarrass all of us by dwelling on your faux pas and trying to repair the damage. Martians are used to being in the minority, and we can take care of ourselves, thank you very much.

ENDA in the Senate: how the hearing went

Bottom line: the hearing on S. 1584, the Senate side version of ENDA, was smooth sailing. Both this and the House committee hearing were probably more theater than anything else.  Apparently, theater on this topic is not terribly appealing to members of Congress, since only three Senators (committee chair Harkin plus lead sponsor Merkley and Franken) stayed for the full hearing; only one additional Senator (Bennet) attended for part of it. On the House side, most Dems and even a couple of Republicans put in an appearance. Attendance is irrelevant to the end result, though - the hearing stage is now completed, and the committees in both chambers can move to mark-up, hopefully this month.

One difference in the dynamic of the hearing was that the attention paid to the two Republican witnesses - a management side lawyer and a religious broadcaster - was the opposite of what happened in the House hearing.  There, committee members seemed interested only in particular points of employment law that arguably could be clarified.  In the Senate, those issues were largely ignored, and instead the religious broadcaster drew a number of questions.

You can watch the hearing and read copies of the testimony here.

New proposal attempts to thread abortion needle in health reform

Anti-abortion House Dems, whose number is large enough to defeat health reform, have balked at the compromise worked out earlier to avoid the use of federal funds for abortion and are insisting on additional conditions. From the NY Times:

Under the House bill, health plans are neither required nor forbidden to cover abortions. Under [Rep. Brad] Ellsworth’s proposal, if the public plan decides to cover abortion, it would have to hire private contractors to handle money that might be used for that purpose.

Supporters of abortion rights, like the Planned Parenthood Federation of America, said the proposed restrictions went too far. Laurie Rubiner, vice president of Planned Parenthood, said Mr. Ellsworth’s proposal would “tip the balance away from women’s access to reproductive health care. Abortion should not be treated any differently from any other medical benefit or procedure,” Ms. Rubiner said. “It is our hope and expectation that the secretary would decide to include coverage of abortion in the public option.” [The bill calls for the Secretary of HHS to decide the criteria for benefits.]

On the other hand, Liz Farrar, a spokeswoman for Mr. Ellsworth, said, “We think the public option will become the pro-life option.”

The bill stipulates that in every part of the country, there must be at least one insurance plan that provides coverage of abortions and at least one that does not.

Douglas D. Johnson, legislative director of the National Right to Life Committee, said Mr. Ellsworth’s proposal was “a phony compromise. It serves no purpose except to assist Speaker Pelosi in peeling votes away from an amendment that would flatly prohibit the public plan from paying for elective abortions,” Mr. Johnson said. That amendment was offered by Representative Bart Stupak, Democrat of Michigan. Mr. Johnson said Mr. Ellsworth’s proposal authorized “a money-laundering scheme under which the health secretary would hire an agent to pay abortion providers.”

The Congressional Research Service said recently that money received by the government insurance plan, including premiums, “may be classified as federal funds or government funds.” But in a memorandum analyzing the House bill, Prof. Laurence H. Tribe of Harvard took issue with that conclusion, which he described as “an exercise in sophistry.” Under the House bill, he said, abortion services could be financed “only by special private premiums that are segregated” from other money. Thus, he concluded, the House bill, “as it currently stands, does not authorize governmental funding of abortion.”

Gay marriage after Maine

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, here are three major issues reinforced by the Maine experience as ones that people need to wrap their minds around:

+ Marriage is different. For lots of progressives and lgbt people, marriage is simply the next frontier in an expanding civil rights movement. (Personally I dissent from the view that legalizing marriage is the apex of our goals, but I digress - that's another post.) We visualize it as linear because that is how we conceptualize it. But for a huge number of other Americans (at least if they are over 35), marriage really is different. Really different. Really. Maybe our team should consider ways to acknowledge that feeling without endorsing it.

+ Time may be on our side in the long run, but in the very short run of an election campaign, time feeds doubts about jettisoning the status quo. Both in Maine and California, early polls showed the good guys winning, but that lead evaporated in the run-up to the election. Draining a swamp of fear and prejudice can't be done with a three-month campaign, even a smart one.

+ Lastly, if the post-election surveys that are about to be done (if they haven't begun already) indicate that the homosexuals-indoctrinating-children-in-schools attack was as effective in Maine as it was in California, the gay marriage forces may want to consider an inoculation against that, even if the inoculation is painful. Let parents of young children register with the school if they want to opt their children out of teacher-initiated discussions of gay marriage. Not out of discussions of gay people and their families, but solely and specifically discussions of marriage. Most parents won't do it; most teachers won't be affected. It could make a difference.

ENDA chugging along

Both publicly and behind the scenes, things are moving on ENDA.

Tomorrow at 10 a.m., the Senate Health Education Labor and Pensions (HELP) Committee will conduct a hearing on this year's (trans inclusive) version of ENDA. You can watch it here; Beltway denizens can show up in person at the Dirksen Senate Office Building, Room 430.

The Republican witnesses in the Senate will be the same two who testified on the House side: management side lawyer Camille Olson and Religious Broadcasters Association official Craig Parshall.  Representing the Obama administration will be Tom Perez, the head of DoJ's Civil Rights Division.  Other Dem witnesses will be Illinois Attorney General Lisa Madigan, University of Colorado Law Professor Helen Norton, a Nike Corporation respresentative, and a Massachusetts police officer.

Behind the scenes, House members are hoping to schedule a mark-up (a session during which Education and Labor Committee members will offer amendments to the bill) soon. At that point, there will be a "chairman's mark" that will include any modifications that the sponsors wish to make before the bill moves to the House floor.  The chairman's mark effectively substitutes for the version of the bill as originally introduced. The floor vote on ENDA in the House will probably occur about a week after the mark-up.