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23 posts from October 2010

October 31, 2010

What to watch for on election night

Polls (see chart at right) say that fewer than half the voters in this election will be motivated by a candidate's position on abortion and only a third are much concerned with gay marriage. Whether these issues are foremost in voters' minds or not, however, the outcomes Tuesday night will have a huge impact on sexuality/gender law and policy for at least the next few years. Aside from the endlessly predicted changes 662-7 (or not) in who controls Congress, the most consequential outcomes are likely to be in state government, especially in the gubernatorial and state attorney general contests.

Here's my list of what to watch for when you're changing channels or checking twitter:

Gubernatorial and AG races

  • California - Everyone knows that the outcome of the battle between Jerry Brown and Meg Whitman for the governorship may have an impact on Perry v. Scharzenegger, the challenge to Prop 8. Less well known is that the contest between Democrat Kamala Harris and Republican Steve Cooley to be Attorney General could have the same impact
  • Florida - As in California, both the governor and the AG in Florida can independently make litigation decisions when state law is involved. There are likely to be diametrically opposite decisions made if Dem Alex Sink is elected governor versus Republican Rick Scott, or if Dem Dan Gelber or Republican Pam Bondi becomes attorney general.
  • Illinois - Republican Bill Brady is battling Dem incumbent Pat Quinn; one clear contrast is Brady's vehement opposition to civil unions, which Gov. Quinn supports. If Brady is elected, any chance to move Illinois into the civil union category would disappear for at least the length of his term.
  • Maine - From Lisa Keen: "Equality Maine, the state LGBT civil rights group, says Tea Party Republican candidate Paul LePage would not only veto a marriage equality bill if one came to his desk, but "supports gutting the Maine Human Rights Act," which prohibits discrimination based on sexual orientation and gender identity. [Both] Democratic candidate Libby Mitchell [and] Independent candidate Eliot Cutler support same-sex marriage...
  • Minnesota - Dem candidate Mark Dayton has promised to sign a gay marriage bill; in response, anti-equality groups financed an ad suppporting Republican Tom Emmer, because "gay marriage has consequences."
  • New Hampshire - Last year, Democratic Gov. John Lynch, who said he opposed gay marriage, signed a bill legalizing it after lawmakers approved provisions affirming religious rights. Lynch is up for re-election, facing a Republican who opposes same-sex marriage, and the National Organization for Marriage is running ads against the governor depicting his signing of the bill as a betrayal of voters.
  • New York - Republican candidate Carl Paladino promised to veto a marriage equality bill and criticized Dem Andrew Cuomo for taking his children to a gay pride parade. The latter move may have tanked his campaign, although it was already a hot air balloon waiting to burst. Polls show Cuomo, who supports gay marriage, massively ahead.

Judicial retention in Iowa - Three of the judges who joined the Iowa Supreme Court's decision requiring an equal marriage law are before the voters for an up-or-down retention vote. Conservatives have organized an unprecedented campaign against them, and polls predict a close race.

House of Representatives:

  • CA 45 - Openly gay Palm Springs Mayor Steve Pougnet is challenging incumbent Mary Bono Mack in this "Inland Empire" district, which offers one of the very few chances the Dems have to take a seat now held by a Republican. 
  • MA 4 - Barney Frank's re-election was a foregone conclusion until rumors spread that he was in trouble, seemingly validated by Bill Clinton traveling to the district to campaign for him and Barney loaning his campaign $200,000.  If Barney loses, it means the Dems are getting wiped out.
  • PA 8 - Former GOP Rep. Mike Fitzpatrick is looking for revenge against two-term Democrat Patrick Murphy, who defeated him in 2006. Murphy has been the lead champion in the House of repealing DADT. 
  • RI 1 - Openly gay Providence Mayor David Cicilline is running to replace Patrick Kennedy, who retired. 

Trial court judgeship in Alameda CA Superior Court - Now an administrative law judge, Victoria Kolakowski could become the nation's first openly transgender member of the judiciary.

State legislatures -

  • New Hampshire House and Senate - From Lisa Keen: "This bellwether state enacted a marriage equality law just this year and already three bills have been filed seeking repeal in 2011. Meanwhile, the Democratic majority in both the state House and Senate are in peril...  [T[he margins of victory on the marriage equality bill in 2009 were razor thin... If Republicans do take back the majority in the legislature, a repeal bill has a strong chance of succeeding. 
  • New York - The incredibly dysfunctional NY State Senate has been on a roller-coaster, with Republicans having controlled it forever, more or less, until the 2008 election when Dems barely got control, but then couldn't deliver a majority vote for either marriage equality or a prohibition on discrimination based on gender identity. Paul Schindler at Gay City News identifes the critical races for this election cycle and maps out the chess pieces in play to try to line up the necessary votes on those two issues, a byzantine gambit that can't possibly be summarized in a paragraph. 
  • CA Assembly 5 - Andrew Pugno, one of the leaders in the campaign to pass Prop 8, is running in this Sacramento-area district to become a member of the state legislature.  Sure would be nice if he lost.
  • NC House 60 - Marcus Brandon could become only the fifth openly gay African-American member of a state legislature in the U.S.

State constitutional amendments - The Colorado right to life constitutional amendment is again on the ballot; in 2008, it got only 27% of the vote. Time to put a nail in the coffin of this idea. 

The impact of sexuality on American religion

From a review in The American Prospect of American Grace: How Religion Divides and Unites Us, by Robert D. Putnam and David E. Campbell:

...The book's story is one of a religious earthquake and two aftershocks. The earthquake was the disaffection from religion occurring in "the long Sixties." Church attendance plummeted. So did the percentage of Americans saying that religion was "very important" in their life. At every stage of their life, boomers would always lag behind their parents by 25 percent to 30 percent in regular churchgoing. The authors know well that these were the years of the civil-rights, anti-war, and women's liberation movements, of pot, acid, the pill, Roe v. Wade, and Watergate. But with a refreshing directness and only a bit of embarrassment, they emphasize sex. Between 1969 and 1973, the fraction of Americans stating that premarital sex was "only sometimes wrong" or "not wrong at all" doubled, from 24 percent to 47 percent, a startling change in four years -- and then drifted up, never to decline. Attitudes toward premarital sex turn out to be one of the strongest predictors of a host of other political and religious changes, including that of the first great aftershock, the evangelical upsurge of the 1970s and 1980s.

That reaction to "the long Sixties" has been extensively analyzed. Less so the second great aftershock, the rise of the "nones" after 1990 when young people, in particular, began rejecting identification with any religion, though not necessarily with a variety of religious beliefs and practices. More and more young Americans, according to polls, came to view religion as "judgmental, homophobic, hypocritical, and too political," overly focused on rules rather than spirituality. "The Richter rating of this second aftershock is greater than that of the first aftershock and rivals that of the powerful original quake of the Sixties," Putnam and Campbell write.

The second aftershock, however, only exacerbated the so-called God gap. The slightly shrinking evangelical camp became all the more identified with Republican conservatism. The new nones, mostly of a liberal stamp to begin with, increased the identification of Democrats with secularism.

Not that the identification of religious groups with one party or another was new in American history. A century ago a Methodist (outside the South), whether churchgoing or not, was more than likely a Republican; a Catholic, whether churchgoing or not, was more than likely a Democrat. What is new is the identification of religiosity itself, regardless of faith, with political partisanship. Today a churchgoer, whether Methodist or Catholic, is more likely to be a Republican while their indifferent or lapsed counterparts are more likely to be Democrats.

What changed? Issues of family and personal, especially sexual, morality that were always religiously salient became politically salient, that is, posed sharp choices between the parties. This was particularly the case with abortion and same-sex marriage. Would recent history be different if the conflicts over abortion and same-sex relationships had been fought out as much within the parties as between them, as has often been the case with free trade, military spending, Middle East policy, aid to education, and a number of other issues? "When abortion was emerging as a major issue during the 1970s," Putnam and Campbell note, "Democrats were somewhat more likely to oppose abortion than Republicans because, in that period, Catholics were overwhelmingly Democratic and pro-life. It was not until the Democratic and Republican parties took distinctive stands on abortion in the 1980s that the issue became a predictor of party sympathies."...

October 29, 2010

How blue is this dog?

As election day finally nears, the vicissitudes of life have led me to spend a chunk of time in Wilmington, NC, my hometown. It's a conservative place, and the Congressional district in which it is located (NC-7) has sent an extremely conservative Democrat to Washington as its representative for 14 years. Mike McIntyre has been endorsed by the National Rifle Association, Chamber of Commerce and National Right to Life. He voted against ENDA in 2007, when it did not include gender identity, and against health reform. And yes - he's the Democrat. 

About the only way you would know that he's a Democrat is from the ads being run by his opponent,Ilario Pantano, which never pass up a chance to mention Nancy Pelosi. Judging from this ad campaign, McIntyre and Pelosi are tighter than a Republican's ass (to paraphrase a local saying), a relationship that no doubt has come as a surprise to both of them. Moreover, it's the "McIntyre-Pelosi stimulus" that has run up the deficit and also, how is not explained, the unemployment rate. Bet you didn't know this guy McIntyre had so much power.

In other words, watching TV gave me a window into the trenches of the fight over control of the House of Representatives, a fight that the Dems can't win without the blue dogs. I've heard this discussed and described endlessly by analysts, but there's nothing like seeing something up close. By local standards, what is a huge amount of outside money is pouring into this race. The "McIntyre-Pelosi" ads blanket local TV, as do ads with McIntyre's main theme: that Pantano wants to privatize Social Security. Pantano has the Tea Party endorsement.

Both the Democratic Congressional Campaign Committee and Americans for Prosperity, among others, are trying to add NC-7 to their respective columns by financing these ads, and polls have showed the two candidates in a dead heat. According to the Hill, this shouldn't be a surprise because southern Dems in Congress are an extremely endangered species. My sleepy hometown has apparently become a bellwether.

What has most amazed me about the race is how little substance there is to it, on either side. Mr. Pantano is a native New Yorker and former Marine (who was charged with murder while serving in Iraq, but the charges were dropped) whose ads say virtually nothing about what he supports except that it clearly would not be Nancy Pelosi. Congressman McIntyre, when he isn't calling out Pantano on Social Security, emphasizes endorsements by area mayors and how he has "conservative values." A few days ago, he announced that he supported the anti-immigrant law in Arizona. Thank god gay marriage is not an issue in this race - who knows what these two would endorse. What's missing - I saw no ads by McIntyre that explain why he voted for the stimulus, or from Pantano that actually make an argument for, say, repealing the income tax (which he supports).

This is one of those 2010 races in which, unlike in most years, all politics is national. Yet, at the end of the day, what reaches the voter is virtually an idea-free zone.

I expect to be watching NC-7 closely on election night. You know the old saying: as Wilmington goes...

October 28, 2010

Obama: DADT is wrong but won't answer whether he believes it is unconstitutional

From Joe Sudbay's transcript of his exchange with the President during Obama's session with five bloggers:

And one of the things I’d like to ask you -- and I think it’s a simple yes or no question too -- is do you think that “don’t ask, don’t tell” is unconstitutional?

THE PRESIDENT: It’s not a simple yes or no question, because I’m not sitting on the Supreme Court. And I’ve got to be careful, as President of the United States, to make sure that when I’m making pronouncements about laws that Congress passed I don’t do so just off the top of my head.

I think that -- but here’s what I can say. I think “don’t ask, don’t tell” is wrong. I think it doesn’t serve our national security, which is why I want it overturned. I think that the best way to overturn it is for Congress to act. In theory, we should be able to get 60 votes out of the Senate. The House has already passed it. And I’ve gotten the Secretary of Defense and the Chairman of the Joint Chiefs of Staff to say that they think this policy needs to be overturned -- something that’s unprecedented.

And so my hope and expectation is, is that we get this law passed. It is not just harmful to the brave men and women who are serving, and in some cases have been discharged unjustly, but it doesn’t serve our interests -- and I speak as Commander-in-Chief on that issue.

October 27, 2010

Prop 8 challengers' briefs offer 9th Circuit many paths to yes

All the plaintiffs' side briefs - both the parties and the amici - have now been filed in Perry v. Schwarzenegger, and it's an impressive bunch. There are two parties' briefs: the Olson/Boies brief for the individual plaintiffs and the brief for the City and County of San Francisco. (San Francisco is also a plaintiff.) In addition there are more than 20 amicus briefs (posted here) from a variety of professional, academic, religious, civil rights and medical organizations.

The next step is that Proponents of Prop 8 will file a reply brief on November 1, and then oral argument will be heard December 6. There is no deadline for when the court must rule after it hears oral argument.

The individual plaintiffs' brief is the core document for the challengers; it is both excellent and not so interesting at the same time. The reason that it lacks excitement is that it does its job extremely well, which is to defend the powerful opinion below on two main points: that the well-established principle that marriage is a fundamental right should apply to same-sex marriages and that the only plausible purpose of Prop 8 was to render gay Californians unequal to other state citizens, a purpose that subverts the very core of the Equal Protection guarantee. (Think Romer.) The fireworks in this case are in Judge Walker's opinion. Also, before reaching the merits, this brief highlights another important point: the argument that the Proponents lack standing to appeal.

I found the San Francisco brief somewhat more interesting because its role apparently is to put before the court an argument not focused on below: that "Prop 8 is not rationally related to legitimate government interests in light of California's particular constitutional and statutory guarantees." (emphasis added) Most prominent is the assertion that the Proponents' main argument in justification of Prop 8 - that it promotes "responsible procreation" - is exactly wrong in California because Prop 8 has zero impact on the state's parenting-related law.

California law distinguishes between marriage and parenting, treats lesbian and gay parents identically to heterosexual parents, recognizes that irresponsible procreation and childrearing are not limited to situations where children are conceived accidentally, and gives no preference to parents of different genders.  As a constitutional amendment, Proposition 8 could have changed any or all of these laws.  But it did not.  Having left unchanged the state constitutional provisions and laws treating same-sex parents the same as opposite-sex parents, Proposition 8 cannot plausibly be construed as a measure designed to encourage opposite-sex parenting over same-sex parenting. 

Clever argument. I doubt that the Court of Appeals will hang its reasoning entirely on this hook, but what is between the lines in this brief is an invitation to the court to rule in a way that is limited to only one state, and does not implicate 44 other junior DoMAs.  A narrow ruling would be much less vulnerable if the case reaches the Supreme Court.

October 26, 2010

Quiz: Which is more terrifying, the Iowa Supreme Court or this ad?

 

And what's even scarier is that the Des Moines Register reports that polls show a tie between supporters and opponents on the retention vote for the three state supreme court judges on the ballot, all of whom joined the ruling that gay couples must be allowed to marry.

See other attacks on judicial independence at Slate.  HT: Doug Nejaime.

October 25, 2010

More thinking through the Don't Ask Don't Tell appeal question

Penn Law Professor Tobias Wolfe has published a lucid analysis that identifies some of the misperceptions feeding the demand that the administration not appeal the District Court ruling in the Log Cabin Republicans case. I agree with Tobias' point of view. And as is so often the case in litigation, Judge Phillips' decision, together with the Witt case, has produced a powerful indirect effect. After a week of bungling and mixed messages in response to these court decisions, a new directive from Sec. Gates has essentially shut down DADT discharges:

Effective immediately and until further notice, no military member shall be separated ... without the personal approval of the secretary of the military department concerned, in coordination with the under secretary of Defense for personnel and readiness and the general counsel of the Defense Department. These functions may not be delegated.

It's far from elegant and it doesn't shutter the entire system, but it does essentially freeze a new status quo: no DADT discharges.

Following are excerpts from Tobias' article:

...When a federal court finds a federal statute to be in violation of the Constitution, as Judge Phillips did in the LCR case, we often speak of the Court "striking down" that federal statute, as if the court's order removes it from the books altogether. That is not, in fact, what happens. Federal courts don't have the power either to enact or to repeal federal statutes. What they have the power to do is declare federal statutes unconstitutional and issue orders prohibiting their enforcement.

Even when a defendant decides not to appeal a ruling in a case like this, the federal district court needs to retain some kind of ongoing jurisdiction over the case in order for the injunction to continue in effect. Otherwise, for example, there would be no one to turn to if a party thinks that the injunction is not being complied with and a contempt citation is necessary.

Thus, the observation that frequently gets made that there cannot be any appeal once the time for requesting the appeal expires -- in other words, that a decision not to appeal a ruling is permanent after the clock runs out -- is not the whole story in the case of an ongoing injunction prohibiting enforcement of a federal statute. Rather, even when a party to a lawsuit does not appeal the original ruling, the party can still come back to the court and ask it to modify or end the injunction on the grounds that enforcement of the order is no longer equitable or appropriate.

Some commentators have pointed out that LCR brought a facial challenge to DADT, rather than an as-applied challenge. That fact is indeed important, but it does not change the impact of this ruling at the district court level. A facial challenge argues that the statute cannot be applied constitutionally to anyone, while an as-applied challenge argues only that the statute cannot be applied constitutionally to someone in the plaintiff's specific circumstances... 

But ... a district court doesn't have the power to establish binding legal precedent for other courts, even within its own district. The significance of a facial challenge vs. an as-applied challenge comes into play primarily at the Court of Appeals or Supreme Court stage. When one of those courts grants a party a victory in a facial challenge to a statute, it establishes a legal principle that applies as precedent to everyone else in the Circuit (in the case of the Court of Appeals) or in the country (in the case of the Supreme Court). When the case is at the district court level, however, the difference between winning on a facial challenge and winning on an as-applied challenge is less significant...

According to my best understanding, here is the bottom line.

Even if the Obama administration were to embrace the LCR ruling and decline to take an appeal -- and even if members of Congress did not step in and continue pressing the appeal, which they could try to do -- the DADT statute would still be on the books. Only a repeal by Congress can change that. The only thing stopping the DADT statute from being enforced would be the court's worldwide injunction.

And if a hostile administration were to come into power in 2013 or 2017, that hostile administration could come to the court and ask it to lift or modify the injunction...

This does not resolve the debate over what the Obama administration should have done in this case. Some people might take the view that allowing the injunction to stand right now would make it easier to enact a legislative repeal of DADT, even if the injunction itself is not a permanent solution. I think that the opposite is true -- that allowing the worldwide injunction to stand would make legislative repeal politically impossible in the present moment. There is room for disagreement on that issue.

But the assumption that has informed much of this debate -- that not appealing the LCR ruling would mean that DADT would be permanently gone, once and for all -- is incorrect.

October 22, 2010

Florida adoption case symbolizes vast cultural change

If you want a sign of how profoundly social views of homosexuality have shifted in the last 20 years, look no further than what happened today in Florida, when conservative AG Bill McCollum decided not to ask the Florida Supreme Court to review an appellate court decision that the state law banning gay men and lesbians from adopting children is unconstitutional.

The law was passed in 1977 in a flurry of anti-gay bigotry inspired by Anita Bryant's victory in repealing an anti-discrimination ordinance that had been enacted in Dade County. The ACLU has brought lawsuits in state and federal and then state again courts for 20 years in the effort to eliminate the prohibition of gay adoption. Last month they won a decision in an intermediate state appellate court, and the state agency responsible for adoptions announced that it had no desire to appeal the ruling.

With McCollum's decision, the last of Anita Bryant's hateful legacy has been erased. Ding dong, the witch is (finally) dead.

Huge congratulations to ACLU lawyer Leslie Cooper.

October 21, 2010

Do Appeal / Don't Lie: The question of whether Justice should appeal decisions to strike down DADT and DoMA

Walter Dellinger has an op-ed in the NY Times today spelling out a principled way for the Justice Department to respond to the decision in the Log Cabin Republicans case:

  • The Justice Department should appeal Judge Phillips' ruling (and Judge Tauro's opinion reaching the same conclusion as to DoMA); but
  • The Department should not attempt to justify DADT as beneficial to national security (and thus as advancing an important government interest). 

There are many reasons why. As Walter points out, a non-appeal would not eliminate the law, and eliminating the law is after all the goal, not this or that tactical move toward the goal. The decision of one District Court judge is not binding on anyone, not even other federal judges; a different federal judge could reach the opposite conclusion tomorrow and the second opinion would have just as much weight as the Log Cabin Republicans decision. Unless the law is repealed or struck down by the Supreme Court, either a different President or a new Congress could also direct that it be reinstated.

Moreover, the decision by a President not to appeal a trial court ruling would set a horrible precedent for the Executive Branch, and perhaps produce major backlash in support of DADT just as the possibility of Congressional repeal looms. Presidential non-appeals happen only in the most extraordinary circumstances, which is the way it should be. Even the cases often cited by those who are arguing that this or that case should not be appealed can be misleading.  In Metro Broadcasting v. FCC, 497 US 547 (1990), for example, it is true that then Solicitor General John Roberts filed a brief arguing that the law being challenged was unconstitutional, but that was an amicus brief - the FCC acting independently defended the law. In general, in cases in which the administration declined to defend a law, that decision was made after the federal courts had jurisdiction of the question [eg, INS v Chadha, 462 US 919 (1983)]. 

The smart thing for lgbt advocates to do on this issue is to move on to a better strategy, by focusing on what the government can and should do.  These are the three strategies to concentrate on:

  1. Justice Department briefs should go beyond stating that the administration believes that the law is wrong and explain why it's wrong, rather that re-arguing anti-gay precedents. As long as the case is before an appellate court, it's fair game for the government to present arguments against a law; there will be plenty of voices before the court in absolute defense of the statute, and the Court of Appeals will reach its own conclusions.
  2. The Administration should actually lead on repeal of DADT and DoMA, by pressing Congress to treat them as priorities, rather than trying to jump in front of the parade after members of Congress have taken the lead.
  3. If there is no Congressional repeal in the lame duck session, the President should consider how to exercise his commander in chief powers so that national security is best served, as determined not only by him but by the Joint Chiefs of Staff. That could involve a stop-loss order or other partial mechanisms. Such an action would not eliminate DADT, but it would be a more legitimate process for mitigating its effects than trying to remove the question from the judiciary by a non-appeal of a trial court decision.

October 18, 2010

Mainlining money into elections

The following two charts from the Sunlight Foundation compare this election cycle to the midterms four years ago to illustrate how dominant "independent" campaign groups (which accept unlimited donations) have become. A detailed breakdown shows that they are overwhelmingly Republican.

Pie-chart-2006-spending
Pie-chart-2010-spending

October 17, 2010

Will DC be the next California?

Same-sex marriage became legal in DC in March over protests led by Bishop Harry Jackson, a local minister, who has crusaded first to block the law and now to have it repealed by means of a voter referendum. The DC Board of Elections denied a petition to put the question on the ballot on the ground that, if adopted, the repeal would violate the local anti-discrimination law, a category of proposed laws that the D.C. Charter (analogous to a state constitution) prohibits from being adopted by referenda. 

Jackson's organization - Stand for Marriage DC - tried to get the case before the U.S. Supreme Court on an emergency petition early this year, but the Court declined to hear the case. Writing separately, however, Chief Justice Roberts stated that the petitioners' "argument has some force," but that the proper procedure would be for them to first litigate in the DC court system. Bishop Jackson's group, he wrote, would "have the right to challenge any adverse decision through a petition for certiorari in this Court at the appropriate time." 130 S.Ct. 1279, 1280 (2010). That is what is known as a hint.

Accordingly,the group sought review in the D. C. Court of Appeals (equivalent to a state supreme court), which last summer upheld the decision of the Board of Elections. 999 A.2d 89 (2010).

Now they are back at the Supremes. The Alliance Defense Fund has filed a new cert petition, hoping that Chief Justice Roberts and at least three other Justices will vote to hear the case. (A minimum of four votes is required for the Court to grant cert.)

The case contains obscure questions of federal law that pertain only to DC because of DC's status as a unique quasi-colony in the federal system. If any other issue were involved, I think that the Court would be very likely to deny cert, finding that the legal questions presented did not merit highest court review, in part because of their very limited ramifications.  On gay marriage, though, with four extremely conservative Justices including one who signaled that he was sympathetic, I think all bets are off.

If the Supreme Court does reverse the DC courts, their decision would not involve the constitutionality of gay marriage one way or another. However, a vote on whether to repeal the equal marriage law would be scheduled in DC. The result would amount to an East Coast rerun of Prop 8, with issues of religion and race foregrounded.

In other words, the legal stakes are small, but the political stakes are enormous. This is a case to watch.

October 15, 2010

New Administration policy: Don't Ask, Don't Tell, Don't Lead

What a day this has been..

The Justice Department sought a stay of Judge Phillips' injunction against enforcement of Don't Ask Don't Tell, after a somewhat puzzling two days of delay, during which the status of the policy seemed strangely in limbo. The Defense Department first said that local commanders are in charge, but then sent an email communique telling them not to proceed with any discharges.  This was a good move, since a general in Afghanistan told the press that no one there had heard about the injunction, implying that they weren't too worried about disobeying it. This is not what lawyers want their client to say. Meanwhile, White House Press Secretary Robert Gibbs revealed that the President was "very involved" in the discussions about what the next litigation moves should be.

Run that by me again...

Does this muddle mean that the Administration was actually seriously considering the possibility of not seeking a stay of the injunction? That's hard to believe, but the Associated Press says it's true. Is that why they made such a hash of the situation, alienating pretty much everyone on any side of the issue? If POTUS was personally engaged with this, why was it so bungled? Or was the Oval Office engagement the reason why this deer-in-the-headlights moment happened?

And just to polish off the messaging debacle, the Senate leadership said today that they aren't so sure that there will be a vote on DADT repeal in the lame duck session after all. The promise of this vote has been the Administration's primary offering of a strategy that would enable the President to make good on his promise that DADT will end "on my watch."

Do we laugh or cry?

October 14, 2010

The most important amicus briefs supporting Prop 8

I wouldn't be surprised if the appeal in Perry v. Schwarzenegger breaks a record for the number of amicus briefs filed in a Court of Appeals.  Those in support of Prop 8 are in, and there will be a gajillion more in support of the plaintiffs when that side's turn comes next month. It is doubtful that any of the judges will read more than a handful of them, and I would bet that not even their clerks will be tasked with seriously reading all of them. Most are beyond predictable.

I decided to pick from those filed so far the ones that I thought would most likely command attention and be read. I found three, each with a clear theme for its arguments: federalism, social science and moral philosophy, respectively.

The federalism amicus is the brief filed by the Attorneys General of 13 states. There is nothing remarkable about its content; I think its true message to the Ninth Circuit is - -  Back off, 45 states have laws banning same-sex marriage and 13 of us care enough about the issue to sign on to this brief. If the court upholds Judge Walker's decision, this brief will serve as a caution that the ruling should be limited to California.

I have no doubt that plaintiffs' lawyers are lining up an AGs brief for that side as well, but since they can't win by playing the numbers game, I would bet that theirs will be a the-sky-hasn't-fallen brief by the jurisdictions that have enacted equal marriage laws. Since the Prop 8 proponents have made a big deal out of arguing that all kinds of unknowable crazy things might follow if gay couples can marry, I have a hunch that the Commonwealth of Massachusetts may file an amicus saying that its experience for the last 7 years has been, well, kinda boring.

The social science brief is from the American College of Pediatricians. This legitimate sounding group is actually a breakaway organization formed by a small number of conservative pediatricians when the American Academy of Pediatrics endorsed second-parent adoptions. In its own words,

Of particular importance to the founders were (as it is today) the sanctity of human life from conception to natural death and the importance of the fundamental mother-father family (female-male) unit in the rearing of children. 

The ACP brief does not own up to this ideological provenance, however, and instead asserts that the "collective membership of the College has observed firsthand the effect of varied and changing family structures on the wellbeing of pediatric patients, and it is also familiar with the significant academic analysis and sociological data that augment understanding of these issues." Total intellectual dishonesty. The remainder of the brief presents studies that support, or appear to support, the proposition that mother-father households are best for children.

Will this brief be effective?  A good amicus on the plaintiffs' side can both call out ACP for its bias and refute their arguments by presenting the results of other and more relevant studies, as well as pointing to the flaws in some of what ACP calls social science.  Nonetheless, the ACP brief is the kind of amicus that gives a judge who wants to reverse the District Court enough noise to support a rational basis argument.

Lastly, Robert George, a professor of jurisprudence at Princeton and the intellectual guru of anti-gay marriage supporters, has filed a brief arguing that the Walker opinion incorrectly characterized Prop 8 as reflecting sectarian religious views. Instead, George asserts,

[T]he law regarding marriage - a social institution, recognized and regulated for public purposes - involves the kinds of value judgments about the common good that can be found throughout our law... and that can be ascertained without appeal to religious authority...

One might even think that...same-sex relationships are morally valuable and good but different - incapable as such of realizing the specific purposes or ends of the institution of marriage. This would be a value judgment - a conclusion about the structure of a public good - but it would state nothing about the morality of sexual conduct between same-sex partners.

The George brief is well-written, but ultimately simply restates the natural law argument that same-sex partnerships could never constitute marriage. Its job is to persuade the Court of Appeals that reliance on natural law is not the same thing as the forced adoption of religious belief through the power of the state. Again, it may give a hook to conservative judges, but I doubt it will change any minds.

October 13, 2010

Florida AG will decide whether decision allowing gay adoption is appealed

Florida's Department of Children and Families has decided not to appeal the ruling last month by a state appellate court that the statutory ban on gay adoption is unconstitutional. However, Florida Attorney General Bill McCollum has the authority to appeal the decision on his own, even though DCF disagrees. 

McCollum has until October 21 to make his decision.

In an August interview during his unsuccessful campaign for the Republican nomination for governor this year, the AG told Florida Baptist Witness that he opposed allowing gay people either to adopt or to serve as foster parents.  He explained:

I really do not think that we should have homosexuals guiding our children. I think that it’s a lifestyle that I don’t agree with. I realize a lot of people do. It’s my personal faith, religious faith, that I don’t believe that the people who do this should be raising our children. It’s not a natural thing. You need a mother and a father. You need a man and a woman. That’s what God intended.

Meanwhile, under Florida law, the decision of the intermediate appellate court is binding throughout the state, and would remain so until or unless another appellate court reached a contrary conclusion. 

 

October 12, 2010

Williams Institute study documents the complexity of sexual identity in first report from major new data source

The Williams Institute has published a study based on data obtained when the General Social Survey (GSS) - the gold standard for private survey data in the U.S. - included questions about sexual identity. The GSS data show that twice as many Americans have had adult same-sex sexual experiences as the number who identify as LGB: only 3% of adults identify as lesbian, gay, or bisexual (LGB), but an additional 6% have had same-sex sexual partners since age 18.

Or, as stated in the executive summary, "more than two thirds of sexual minorities self identify as heterosexual."

What is most significant about this study is that respondents were asked about self-identity in addition to behaviors. Prior GSS surveys had asked only about behaviors. According to study author Gary Gates,“These provocative findings demonstrate the challenge in understanding the complex relationship between sexual orientation identity and behavior."

The report is the first in a series that Gates will publish on results from the 2008 GSS. In addition to including the first questions about sexual orientation, the 2008  survey added a new module of questions  (with  the  financial  support  of  the  Williams  Institute)  directed  at  sexual  minorities  that  ask  about  the  experience  of  coming  out,  relationship  status  and family structure, workplace and housing discrimination, and health insurance coverage. The GSS is large enough to be statistically  representative  of  the  US  population.     

Other findings included in this first report:

  • Although 90% of LGB people are out about their identity to other people, only 25% report being out to all of their coworkers in the workplace.
  • 1.7% of adults self-identified as gay or lesbian and 1.1% self-identified as bisexual
  •  More than 3 in 4 lesbian, gay, or bisexual (LGB) adults say that they were first attracted to someone of the same-sex before they were 18 years old.
  •  Women are more likely than men to be LGB (4.6% vs. 2.9%). They are twice as likely to be bisexual than men (1.9% v. 0.7%, respectively).
  •  Younger people are more likely to be LGB. 7.2% of those aged 18-30 are LGB compared with 3.8% of those aged 30-54 and 1.4% of those aged 55 and older.
  • Older people are much more likely to be in the closet . Adults over the age of 55 are 83 times more likely than those under 30 to have never come out to another person.
  •  Bisexuals are more likely to be a racial/ethnic minority than heterosexuals, gay men, or lesbians.