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27 posts from March 2009

March 31, 2009

Obama administration hits pause on the repeal DADT button

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. (See analysis here.) 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.

That's three days before the same office must respond to a cert petition filed by James Pietrangelo, who together with 10 other plaintiffs, sued in the First Circuit to overturn DADT.  (The SG's office also got an extension of time in this case as well.) The wrinkle in that case is that SLDN, who originally represented all the plaintiffs, opposed the cert petition, and filed its own statement asking the Supreme Court to defer review of DADT pending further proceedings in Witt and attempts in Congress to repeal the policy.

I doubt that the SG will get any additional deadline extensions, so in the first week of May, we'll know how the White House will weigh in vis-a-vis the courts.

Witt is the one to watch. There is no reason for the SG to do anything in the other case but oppose cert and let the the First Circuit case that upheld DADT stand, especially since that's what even the lgbt advocacy groups want. But in Witt, the administration has to decide whether to seek review of a decision they lost. If they do, this Supreme Court will almost certainly grant cert and reverse the Witt decision, given the current state of precedent. But since that decision does not hold the policy facially invalid, DoJ could choose another path. Whether they do will be the acid test - the first - of where this administration is going to stand on lgbt rights.

Given what a basketball fan the big O is, it shouldn't be a surprise that he knows how to run a four-corner stall when he wants to.  Meanwhile, public opinion has moved, even if the politicos haven't. According to Pew Foundation polls, a 60 per cent majority of Americans had figured out roughly four years ago that DADT was a loser, albeit with the typical splits among social groups:

"Republicans are divided over this proposal: 501-3 a majority of conservative Republicans (57%) oppose allowing gays and lesbians to openly serve in the military compared with 37% who favor letting them serve. By about two-to-one (62% to 30%), moderate and liberal Republicans favor permitting gays and lesbians to serve in the armed forces.

"Eight-in-ten liberal Democrats (79%) support allowing gays to serve in the military while just 18% oppose the proposal. A smaller majority of conservative and moderate Democrats (60%) favors permitting gays to serve openly while 29% are opposed.

"More women than men favor letting gays and lesbians serve in the military (66% vs. 52%). There also are large differences among religious groups in views on this issue. By about five-to-one (77% to 15%), the religiously unaffiliated favor allowing gays to serve; smaller majorities of white Catholics (65%) and white mainline Protestants (62%) express this view. By comparison, 38% of white evangelical Protestants support allowing gays to serve openly in the armed forces while 55% are opposed."

When will the beltway boys catch up?

March 30, 2009

Second wave feminists stuck in the first stage of grief: "is there a future for our so-called movement"?

The American Prospect has just posted this perceptive essay by Courtney Martin, a daughter of 70s feminism, inspired by a speak-out in New York on the "Unfinished Business" of the women's movement:

... Most of the voices from the audience sounded eerily similar. They spoke longingly about the exuberant past, characterized by abundant energy and "sisterhood." They lamented that no locatable movement exists anymore, that no one is organized, that no one is out in the streets. At one point, [Esther] Broner even admitted, "I interpret everything through that time."

With the utmost respect for Broner, whom I found refreshing and radical, I think that this approach is at the center of contemporary feminism's biggest challenge. We are intergenerationally fractured, right down to the most foundational of questions: Is there a formal feminist movement anymore? Does there need to be?

Members of the second-wave generation developed their feminist identity during the heyday of direct action. They had ecstatic, very physical experiences of feminism. They went to meetings -- so, so many meetings. They pounded the pavement. They participated in direct-action spectacles like taking over the offices of The Ladies Home Journal. They yelled until their vocal chords were raw.

Now these women are older, many of them happily shifting into what Jane Fonda calls "the third act" -- a stage of life when they don't give a shit what anyone else thinks, and they want to see the world live up to its God damn potential, once and for all. They start dying their hair funky shades of red. They urge their husband to get a hobby as they head out for another expletive- and laughter-filled lunch with their friends -- other women who are funding feminist causes, editing feminist publications, and leading local feminist efforts. In some ways, it's a return to their earnest youth -- a time less fraught with the compromises that come with juggling families and careers. They're prioritizing changing the world again. And as such, they seem to experience an old hankering for an unapologetic women's movement that they can see, hear, and touch.

I don't blame them. All of their stories -- about marching in the streets, about taking over offices, about riding around the country in vans, falling in love – not only sounds like they had a whole lot of fun, but also managed to make some profound political changes. But I also recognize that it is a time that has passed. Not only is the women's movement -- as it was known in the 1960s -- over, but women my age don't even agree on what a "woman" really is.

Sometimes I feel as if my generation -- women in our 20s and 30s -- are feminism's Frankensteins. After all, Broner herself was responsible for building some of the first women's studies programs in the nation. Now a generation is graduating from them using words like "genderqueer" -- meaning that one doesn't identify exclusively as male or female. We generally aren't down for the subtle messaging by many older women who believe that females in positions of power are inherently less violent or more community-minded than their male counterparts, a view that Bitch magazine founder Lisa Jervis hilariously called "femmenism."

Continue reading "Second wave feminists stuck in the first stage of grief: "is there a future for our so-called movement"?" »

March 29, 2009

Gay icons pick icons for exhibit of "gay icons"

The National Portrait Gallery in London asked a panel of 10 prominent gay people, including Elton John, Ian McKellen, Sarah Waters and Billie Jean King, to name their icons (gay or straight) for an exhibit on "Gay Icons." The result, opening in July, will include Princess Diana, Nelson Mandela, Virginia Woolf, Maya Angelou, Harvey Milk, mathematician Alan Turing, sculptor Rosa Bonheur, cellist Mstislav Rostropovich, tennis star Althea Gibson and more (the full list has not been released yet).

The Guardian's Barbara Ellen calls the list "a gently lapping sea of academia-pleasing, well-behaved, hushed library tone, don't scare the horses gay goodliness. There's a cursory sprinkling of Joe Ortons and Quentin Crisps to keep the people in the cheap seats happy, presumably so that the thicker, less moneyed/metropolitan homosexual can cry: 'Phew, I've heard of that one.'" But, she notes, no screamers.

I concur; this list has a low glam count.

Check out this interview with the deputy director of the Portrait Gallery who provides a very British explanation.  I wonder if she checked Wikipedia, which actually has a "gay icons" entry replete with names. Imelda Marcos, anyone?

"Heckuva Job" award goes to ...

The morality police have come up with another really smashing idea: prosecute teenagers who send sexually suggestive photos of themselves to friends.  (When done by cellphone, this is "sexting.") The Wall Street Journal reports that district attorneys in Ohio, Utah, Vermont, Virginia and  Wisconsin have tried to stop this practice by filing charges against teens who send and receive the  pictures.

Hunter's Heckuva Job Award, though, goes to ... Wyoming, County, PA prosecutor George Skumanik, who opined that teens who sext are accomplices to the charge of producing child pornography. Mr. Skumanik now has to defend the lawsuit that he so richly deserves.  According to the ACLU, which represents three of the teens and their parents:

In February 2009, Skumanick sent a letter to the parents of approximately twenty Tunkhannock students, including the ACLU's clients, threatening the students with criminal felony charges if they did not agree to be placed on probation and participate in a counseling program he devised. A course outline indicates that the program will help the girls "[g]ain an understanding of how [their] actions were wrong," "gain an understanding of what it means to be a girl in today's society," and "[i]dentify non-traditional societal and job roles."

The district attorney told a group of parents and students in February that he has the authority to prosecute girls photographed in underwear, like the ACLU's clients, or even in a bikini on the beach, because the photos are "provocative."

There are so many things to love about this strategy. First, it's obvious from the description of these re-education camps that they aren't planning to do any for boys. What a surprise.

Second, the primary targets - sexually precocious teenage girls - are a group who society just loves to punish in order to protect. Think of the many wonderful disciplinary strategies developed in their name over history. Parental consent laws! Curfews! Long ugly skirts!

My favorite aspect of the anti-sexting campaign, though, is its wonderful counseling program, the one being set up so that these wayward types can "gain an understanding of what it means to be a girl." Including free lessons in "non-traditional societal roles." And people wonder why feminist has become a dirty word. This sounds like cultural revolution as devised by a team made up of Phyllis Schlafley and Catharine MacKinnon.

You're doing a heckuva job, George.

UPDATE: The federal court issued an injunction against George's plan.

March 27, 2009

Kansas jury acquits doctor who performed late-term abortions

After years of investigations and four days of testimony, jurors in Wichita took just 45 minutes on Friday to acquit a controversial abortion doctor of charges that he performed 19 illegal late-term abortions in 2003. Kansas law permits late-term abortions when two independent doctors agree that the pregnant woman would be irreparably harmed by giving birth. Prosecutors charged that the doctor, George Tiller, had an improper financial relationship with a doctor from Lawrence, Kristin Neuhaus, who provided a second opinion in the 19 cases cited.

Dr. Tiller’s clinic is one of three in the United States that perform late-term abortions, and he has been reviled by anti-abortion forces for decades. In 1986, a bomb exploded on the roof of his clinic here, Women’s Health Care Services. In 1991, some 2,000 protesters were arrested outside during summer-long protests; in 1993, Dr. Tiller was shot in both arms by an anti-abortion activist while driving away from the clinic. Protests continue there almost daily.

“It’s been a long ordeal for his patients, Dr. Tiller and his family,” the lead defense lawyer, Dan Monnat, said Friday outside the courtroom. “They’re just happy it’s over.” Dr. Tiller could have faced a year in jail and a $2,500 fine on each of 19 counts.

Two dozen law officers stationed themselves in the courtroom to maintain order as the verdict was read, and spectators, most of whom identified themselves as abortion opponents, were searched before entering. A few appeared to pray, but there were no outbursts. Anti-abortion protesters demonstrated outside the courthouse all week.

The Rev. Patrick J. Mahoney, director of the Christian Defense Coalition in Washington, called the verdict “a setback.” Mr. Mahoney said that had jurors voted for conviction, “they would have put him out of business.” But Mr. Mahoney, who had predicted that the trial would “energize” anti-abortion forces, said it was a “very technical case” that was not relevant to other legal and legislative challenges to abortion.

Assistant Attorney General Barry Disney, who prosecuted Dr. Tiller, said the quick verdict probably resulted from the fact that the issue before jurors was clear and concise. “There wasn’t a lot for them to go back there and argue,” Mr. Disney said.

During testimony, both Dr. Tiller and Dr. Neuhaus, the only witness called by prosecutors, denied that there was anything improper about their financial relationship. Dr. Neuhaus testified that she misspoke during a 2006 deposition when she called herself a “full-time consultant” for Dr. Tiller.

The trial is not the end of Dr. Tiller’s legal problems. The state Board of Healing Arts is investigating a complaint that mirrors the accusations made in the trial.

Source: N Y Times

Sebeliustiller2  What the Times article omits is the connection, however slight, between Dr. Tiller and Govenor Kathleen Sibelius, President Obama's nominee as Secretary of HHS.  The right-wing has gone apoplectic over the Sibelius nomination because of her defense of reproductive rights and ties to Planned Parenthood and to Dr. Tiller. They know each other!  Govenor Sibelius invited Dr. Tiller and his staff to the governor's mansion!  She accepted an award from Planned Parenthood! Oh my!

Japan to recognize same-sex marriages from other nations

According to the Associated Press reporting from Tokyo, there is about to be a major first in East Asian recognition of same/sex relationships -

The Justice Ministry plans to enable Japanese nationals to marry same-sex partners who have citizenship in countries where gay marriage is legally approved, ministry sources said Thursday.

The ministry will issue certificates necessary for such marriage of Japanese citizens and foreigners, the sources said, adding the ministry will soon convey the decision to its legal affairs bureaus across the nation, the sources said.

The ministry has so far rejected the issuance of such certificates to Japanese citizens seeking to marry same-sex partners of foreign nationality as such marriages are not approved under domestic law.

For Japanese nationals, whether they are gay or not, to marry foreigners in foreign countries, they must obtain certificates from the ministry by submitting documents including their name, birth data, sex and nationality, and similar information about their marriage partner.

Under the latest decision, the ministry will issue a new type of certificate which will only clarify that the person has reached the legal age for marriage and that he or she is single.

"We were not able to get (the ministry) to forgo the clarification of sexuality. But I want to hail the Justice Ministry's decision as a step forward (for gays)," said Taiga Ishikawa, who represents gay support group Peer Friends.

Ishikawa said that Japanese gays were not able to get married to a gay foreigner even if their marriage partner's country approved of same- sex marriage, because the Justice Ministry would not issue the certificate." And without marriage they were unable to obtain visas for their partners to live together," Ishikawa said.

Obama law prof update: Conservatives attack progressive feminist

Since my last post a month ago, the White House got around to formally announcing Harold Koh's designation as chief lawyer at the State Department, and Jonathan Cannon withdrew his name as nominee for Deputy Administrator at EPA. By far the most important developments center on Dawn Johnsen, the President's nominee to head the Office of Legal Counsel at Justice.

The Senate Judiciary Committee voted Dawn's nomination out of committee late last week, but it was a party-line vote with all Republicans except Specter, who abstained, voting against her. Dawn should be proud of these enemies. Republican Senator John Cornyn of Texas called her a "hardened partisan."  Cornyn was a major defender of Alberto Gonzalez, so his cred on this point is in the sub-basement. Plus, he's working hard to torpedo judicial nominees as well. Because of these hypocritical antics, Dawn's nomination may have to endure a battle in the Senate. Kudos to the NY Times, which ran an editorial yesterday calling for her confirmation:

Ms. Johnsen is superbly qualified and has fought for just the sort of change the office needs. The Senate should confirm her without further delay. ... There is no corner of the executive branch in greater need of a new direction than the Office of Legal Counsel. The impressive Ms. Johnsen is an excellent choice to provide it.

The attacks stem from her reproductive rights work and her scholarship addressing DoJ issues such as executive branch abuse of power. She'll be a terrific head of OLC.

UPDATE: Two law prof nominees for the Treasury Department were announced Saturday: Michael Barr (Michigan) as Assistant Secretary for Financial Institutions and Beth Garrett (Southern Cal) as Assistant Secretary for Tax Policy.

March 26, 2009

Nadler to lead charge against Section 3 of DoMA

Lots of lgbt law types are having lots of conversations about repealing parts of DoMA and extending federal recognition to couples in civil unions. Most of the strategy development centers on Section 3 of DoMA, which directs the federal government to recognize only different-sex marriages for purposes of all federal laws and regulations.

Now The Hill - Congress's own neighborhood rag - is reporting that Rep. Jerry Nadler is prepping a DoMA repeal and modification bill that staffers want to move after hate crimes and ENDA:

Once hate-crimes legislation and ENDA are passed, a measure sponsored by Sens. Joe Lieberman (I-Conn.) and Susan Collins (R-Maine) and Reps. Baldwin and Ileana Ros-Lehtinen (R-Fla.) that would provide domestic partner benefits to federal employees will hit the floor. They hope to introduce the bill next week.

“This is long overdue and I think this is the year to do right by so many lesbian and gay workers with partners,” Ros-Lehtinen told The Hill. “The federal government is the nation’s largest civilian employer, and it’s about time [gays and lesbians] receive these benefits.”

Meanwhile, Rep. Jerry Nadler (D-N.Y.) will offer a measure to strike at the heart of the law that hurts the chances of gay marriage the most, though his bill is considered a long shot. Nadler will move to eliminate Section 3 of the Defense of Marriage Act, the 1996 law that defined marriage as the “legal union between one man and one woman.”

Opponents argue this is an attempt to chip away at the controversial law. “Instead of killing the Defense of Marriage Act with a bang, they plan on killing it with a whimper,” said Tom McClusky, vice president for government affairs at the Family Research Council.

Supporters of gay-rights measures are concerned that conservative Democrats will make up a larger bloc of votes than centrist and socially libertarian Republicans who might back the proposals. Baldwin said members of the LGBT caucus have been holding conversations, especially with newer members, and many have been receptive.

“Part of this is generational,” Baldwin said, noting that younger Americans tend to be more accepting of gays and lesbians. “Part of the upside of all these great new members is that many of them are young and they represent their generation’s attitudes.” House leaders support the measures, but Senate Democratic leadership refused to speculate on when they would be brought up.

March 25, 2009

Americans split 50-50 on acceptance of homosexuality

According to Pew Research Center's Forum on Religion & Public Life, half of Americans and 56 per cent of mainline Protestants believe that homosexuality is a way of life that should be accepted by society. The figure reaches 70 per cent or close to that for Episcopalians and members of the United Church of Christ. The denomination that most closely mirrors the overall population's views is the United Methodist Church. Members of historically black churches are significantly less likely to agree (39 per cent) than mainline Protestants, but much more likely than evangelical Protestants (26 per cent).


March 20, 2009

Ninth Circuit shoots down CLS appeal in Hastings case

In a one-paragraph, unpublished order issued just a week after oral arguments, the Ninth Circuit has ruled that the UC Hastings College of Law cannot be required to recognize and fund a religious student group that discriminates in the selection of members and officers. Christian Legal Society v Kane, 2009 WL 693391. At issue was Hastings' open membership rule prohibiting discrimination based on religion or sexual orientation of members.

The order states in its entirety:

The parties stipulate that Hastings imposes an open membership rule on all student groups-all groups must accept all comers as voting members even if those individuals disagree with the mission of the group. The conditions on recognition are therefore viewpoint neutral and reasonable. Truth v. Kent Sch. Dist., 542 F.3d 634, 649-50 (9th Cir.2008). 


The Alliance Defense Fund has filed a cert petition in the Truth case. (See summary of oral argument and link to cert petition.) CLS, which has chapters in 165 (out of roughly 200) law schools, is also expected to seek Supreme Court review.

From National Law Journal:

Hastings' attorney, Ethan Schulman of Folger Levin & Kahn in San Francisco, said the issue has arisen repeatedly in test cases at various university campuses across the country. The most recent was Feb. 6 in San Diego. In that case, U.S. District Judge Larry Burns granted summary judgment for San Diego State University against a challenge by Christian student groups.

The CLS case is one of a half-dozen test cases the group has filed in recent years against law schools around the country over similar nondiscrimination pledge requirements. The 9th Circuit decision to side with Hastings may put it in direct conflict with the 7th Circuit.

CLS attorney Timothy J. Tracey, of the Springfield, Va.-based Center for Law and Religious Freedom, argued that the school's denial of official recognition deprives it of some funding, access to recruit students at official events and access to the school Web site and other publications. The school does provide meeting space.

Feminism, Law and Masculinity

Call for Papers: Feminism, Law, and Masculinity

The Feminism and Legal Theory Project of Emory University School of Law has issued a call for papers for a workshop, "Feminism, Law, and Masculinity," to take place Sept 11-12 2009:

Emory_law This workshop will explore the relevance of masculinities studies to feminist legal theory and activism. We have long struggled, both within and without the academy, to understand how law defines the feminine by articulating, constructing, and regulating women and the female body. Similarly, and more broadly, feminisms have focused on the place of gender in the construction of social relations that too often fail to protect the interests of women. This work notwithstanding, the place of masculinity has received relatively little attention. We hope to facilitate social and cultural resistance to assertions of hyper-masculinity, particularly those that arise in response to feminism itself.

We will interrogate the privileged positioning of the male body that results from its being cast as normative. We also invite papers which engage feminist ethics or approaches to address the relevance of masculinity to feminist legal theory. We particularly welcome submissions locating masculinity within those areas of study feminism has identified as key: violence, reproduction, state responsibility, poverty, and rights....

Please email a paper proposal of several paragraphs length by March 30, 2009 to:
mfineman@law.emory.edu and m.o.thomson@law.keele.ac.uk

March 17, 2009

Big jump in discrimination complaints to EEOC

The EEOC has published its FY 2008 annual report, which shows a stunning increase - 15 per cent - over the previous year in the number of anti-discrimination complaints filed. The category with the biggest increase was age discrimination:

Chart from Wall Street Journal

March 16, 2009

Canada pay equity under fire

Progressives in Canada are fighting a proposal by the Harper government to abolish access to the Human Rights Commission for federal workers who want to bring pay equity complaints. In legislation introduced last November, the government seeks to cut back on women's rights to equity in compensation by several maneuvers, including redefinitions of the criteria used to evaluate whether a "women's job" is being paid fairly.  Most Orwellian, the government is proposing that the issue be made subject to collective bargaining after the Human Rights Commission loses jurisdiction, but that unions be forbidden from representing individual workers who grieve violations on this point under a collective bargaining agreement. Nutty neoliberalism? More details here.

March 15, 2009

Ginsburg keeps date to speak at Radcliffe; tells audience, "you have to spark a change in the kinds of lives people want to live"

99-ginsburg [The following is a combination of reports from the Harvard Crimson and the public affairs office.]

Last week's Radcliffe College conference , “Gender and the Law: Unintended Consequences, Unsettled Questions,” opened with a panel composed of Justice Ruth Bader Ginsburg; U.S. District Court of Massachusetts Judge Nancy Gertner; First Circuit U.S. Court of Appeals Chief Judge Sandra L. Lynch, and former New York Times Supreme Court reporter Linda J. Greenhouse. 

[Photo shows (L to R) Gertner, Ginsburg and Greenhouse]

The Justice spoke about her experiences as a female in the traditionally male-dominated field of law. When she attended Harvard Law School, Ginsburg said, she was one of only nine women in her class. Ginsburg began her legal studies at Harvard Law School in 1956; however, her husband was offered a job in New York and Ginsburg transferred to Columbia Law School, where she finished her degree. But, said Ginsburg, to the delight of her audience, “lately, Elena Kagan has said, ‘whenever you want a degree you can have one.’”

Ginsburg and her fellow panelists discussed how the law in general has changed as society has changed. In the 1960s and ’70s, when Ginsburg was beginning her career as a lawyer, people were beginning to question the status quo in terms of gender discrimination and the law.

“People were awakening to a form of discrimination that [had been] considered, ‘just the way it is,’ and students wanted to know more about this subject [gender and law] and what could be done to change the way things were,” said Ginsburg. “It was a headier time because it seemed so clear — the pace of change was so clear, what had to be done was so clear. But now it’s much more opaque, it’s less about … explicit discrimination, and now it’s more about subtle discrimination.”

Ginsburg acknowledged that progress now requires more than just legal action. “There are distinct limits to law,” Ginsburg said. “You have to spark a change in what people want to do, what kinds of lives they want to live.”

After Ginsburg described former Supreme Court Chief Justice William H. Rehnquist rehearsing to swear her in, Greenhouse said, “I think rehearsal’s a good thing when you’re swearing somebody in, right?” The reference was to Chief Justice John G. Roberts' blunder during President Obama's inauguration. The audience erupted in laughter for several seconds, while Ginsburg smiled and remained silent.

Greenhouse ended the proceedings with a general question about the future of law, to which Ginsburg replied: “As hard as times are, I remain optimistic about the potential of the United States.”

March 13, 2009

Video of Nussbaum symposium available

If you missed the symposium in honor of Martha Nussbaum at Columbia a fewImages weeks ago, not to worry. You can watch it online. 

The Feminism as Liberalism panel (Carlos Ball, Nancy Levit and Tracy Higgins)

The History, Identity and Sexuality panel (Mary Anne Case, Alice Kessler-Harris and Janet Jakobsen)

The Gender and Development panel (Saskia Sassen, Amrita Basu, and Aili Tripp)

Nussbaum's keynote