hunter of justice

The wedge turns: Republicans now gun shy on gay marriage

The NY Times this morning makes it official that the political tide for cheap anti-gay political attacks is ebbing, with an article (read it after the jump) on the astonishing degree of silence from the Republican establishment in reaction to the Attorney General's announcement that the Justice Department will no longer defend the constitutionality of DoMA.

The Times article concentrates on reactions, or the lack thereof, from likely Republican presidential nominees, but the let's-just-think-about-cutting-spending response from Republicans in Congress is much more important because Congress actually has some authority to respond to the Justice Department decision. Each chamber of Congress can determine independently whether it will seek to intervene in the pending lawsuits to defend DoMA as constitutional.

Consider the statement issued by Speaker Boehner:

While Americans want Washington to focus on creating jobs and cutting spending, the President will have to explain why he thinks now is the appropriate time to stir up a controversial issue that sharply divides the nation.

The statement gave no indication of whether the Speaker will ask the General Counsel of the House to actively defend the law. Since the Dems control the Senate, as a practical matter it would be only the House that can exercise an option to ask the courts to allow it as a body to intervene as a defendant. [Both chambers have their own independent counsel offices. The General Counsel of the House has authority under 2 U.S. Code 130f to "provide legal assistance and representation to the House..." I will write more about these possibilities in the DoMA litigation in coming days.] 

Individual members can seek to intervene, as Rep. Lamar Smith already has in the Gill case, arguing that the Justice Department was not defending DoMA strongly enough. But if only individual members of Congress seek to intervene, that will simply add to the marginalization of arguments in support of DoMA. The courts will be hard pressed to sustain a statute repudiated by the Executive Branch and effectively abandoned by Congress.

On the technical jurisdictional issues, it is unclear whether parties other than DoJ would have standing to appeal a ruling that the law is unconstitutional (shades of Perry). However, here, unlike in Perry, DoJ seems to be saying that it will seek review of decisions that the law is invalid in order to eliminate the possibility of a standing question such as has arisen in the Prop 8 case.

All of this indicates to me that the wedge has turned, and in a stunningly short period of time. Seven years ago, Republicans rolled through the states with constitutional amendments banning same-sex marriage (and it will be a while before those get dislodged). Gay marriage as an issue was no-lose for them and no-win for the Dems. Now it has become an "oh no, let's avoid" issue as much for Republicans as for Dems.

We saw the beginnings of this crack emerge with the brouhaha over the C-PAC conference just a few weeks ago. I wrote then that "we may look back on this in a few years and see it as watershed marking the beginning of the end of the coalition of economic and social conservatives in the Republican Party." Whatever else happens, this is going to be fun to watch.

Winter 2011 conferences on sexuality/gender issues

Feb. 7 - Harvard Law Dean Martha Minow will deliver the annual Ruth Bader Ginsburg Lecture: "Gender and the Law Stories: Learning from Longstanding Debates" - New York City Bar Association,  6 pm.

Feb. 24 - A discussion of Same-Sex Marriage: Past, Present and Future will be co-sponsored by the Williams Institute and the UCLA History Department. Professors Nancy Cott and Lee Badgett, plus Perry co-counsel David Boies, will speak at the UCLA Faculty Center from 4 to 6 pm.

March 9 - Harvard Civil Rights - Civil Liberties Law Review colloquium on Gay Rights and Lefts: Rights Critique and Distributive Analysis for Real Law Reform, a paper by Professor Libby Adler, with commentary by Professor Adrienne Davis and NCLR Legal Director Shannon Minter. Event will begin at 5 pm in Austin North.

March 18 - 19 -  Masking and Manipulating Vulnerability, sponsored by the Feminism and Legal Theory Project - Emory Law School. 

March 25 - 26 - The New "Illegitimacy": Revisiting Why Parentage Should Not Depend on Marriage - American University Law School, co-sponsored by the National Center for Lesbian Rights.

March 30 - Georgetown Journal of Gender and Law Symposium on Tax and Gender. Email gjgl2011symposium@gmail.com  for more details.

April 1 -2 - Lambda at Harvard Law will sponsor a conference on Queering Age: Exploring the Lived Experiences of LGBT Youth and Elders.

April 8 - 9 - The Williams Institute Annual Update will feature a series of panels on the interrelationship between social science research and policy - UCLA Law School.

May 12- 13 -The Equality and Justice – LGBTI Rights in the XXI Century  Conference - to be held in Florence - will close the Equal Jus Project, a 18-month project co-funded by the European Union. The project builds on a common European legal system for developing an informal and open network among all actors involved in promoting, guaranteeing and enforcing LGBT rights with the purpose of sharing knowledge and expertise. Convenors are the Italian project partners University of Udine and Avvocatura per i diritti LGBT - Rete Lenford.
The conference will approach the legal dimension of fundamental rights and anti-discrimination law in relation to sexual orientation and gender identity. The focus is on the European legal system (at the regional, national, EU and Council of Europe levels) and on relevant international and comparative law. For more information, including call for papers, visit: www.equalityandjustice.eu <http://www.equalityandjustice.eu> .

May 17 - The International Day Against Homophobia at the University of Nottingham. The conference is part of a series of events organised by Citizens in Diversity: A Four-Nation Study of Homophobia and Fundamental Rights, a research project funded by the European Commission.