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15 posts from June 2011

June 30, 2011

Appeal of decision invalidating DoMA in bankruptcy case goes forward

The Justice Department has appealed the decision by the Bankruptcy Court in Los Angeles in In re Balas and Morales, which held that Section 3 of DoMA was unconstitutional. The issue arose when a joint petition for bankruptcy was filed by a married gay couple, forcing the court to rule on whether the marriage was cognizable.

In its filing, the Department noted that, although the Attorney General has opined that this provision of the law is indeed unconstitutional, the law will continue to be enforced until it is repealed or found unconstitutional by an appellate court. However, according to a Department spokesman, the appeal in effect will serve only to allow the attorneys hired by Speaker Boehner to defend DoMA to intervene so that they can make the substantive arguments that it is constitutional.

No surprises here - this is exactly the procedure that DoJ announced it would follow, i.e. appealing decisions striking down DoMA that it agrees with, so that the appellate court would have jurisdiction over the case, thereby insuring that Congress would have the opportunity to defend the law. The logic appears twisted, but then, what isn't twisted about DoMA?

June 29, 2011

On a purely personal note...

Mason day 1 Welcome to the world, Mason James Hunter.  Mason arrived on this planet at 7:09 am today, an event that made his grand aunt, among others, very happy.

HHS takes lead in laying foundation for data-driven policies on lgbt health issues

From Metro Weekly:

Today, the Department of Health and Human Services announced a plan to include sexual orientation and gender identity in health data collection, a result of discretion granted to the secretary of HHS in a provision of the Affordable Care Act addressing data collection regarding health disparities. 

Specifically, today's plan requires "HHS [to] integrate questions on sexual orientation into national data collection efforts by 2013 and begin a process to collect information on gender identity." 

The release notes that the plan includes the testing of questions on sexual orientation to potentially be incorporated into the National Health Interview Survey.  According to today's information, HHS also intends to convene "a series of research roundtables with national experts to determine the best way to help the department collect data specific to gender identity."

Under section 4302 of the Affordable Care Act, data collection efforts to understand health disparities relating to race, ethnicity, sex, primary language and disability status are required. The secretary, however, has authority to require additional standards.

The moves, advocates say, are a first step in determining standards for inclusion of sexual orientation and gender identity questions in all HHS surveys, which include agencies like the Centers for Disease Control and nationwide surveys like the Youth Risk Behavior Survey. 

In a release announcing the move, Sebelius said, "Health disparities have persistent and costly affects for minority communities, and the whole country. Today we are taking critical steps toward ensuring the collection of useful national data on minority groups, including for the first time, LGBT populations. The data we will eventually collect in these efforts will serve as powerful tools and help us in our fight to end health disparities."

Explaining the significance of the move, Center for American Progress senior vice president for external affairs Winnie Stachelberg said, "It's foundational. One of the things that we always try to do here at a think tank is quantify the problem and understand the problem – and base your solutions on facts. 

"You can't do that unless you have the data about the gay and transgender community. And finally we'll be able to collect that data so that we can develop solutions that actually address the problems – not the notional problems, but the actual ones that are data driven."

Williams Institute scholar Dr. Gary Gates responded to the news in a statement, saying, "As was clearly stated in the findings from the recent Institutes of Medicine report on LGBT health disparities, the need for more data is acute. I urge HHS to move as quickly as possible to include sexual orientation and gender identity questions on the NHIS." ...

Marriage litigation begins in Brazil

A state trial court judge in Sao Paulo has ruled that two men who have entered into the equivalent of a civil union have a  legal right to marry. (See excerpts from Washington Post story below.)  The judge relied on a Brazilian Supreme Court decision in May holding that same-sex couples were entitled to the same treatment under law as what Brazil terms "stable unions," the closest analog to which is probably common law marriage. The Brazilian Supreme Court rejected a claim that gay couples have a right to marry, but Sao Paulo state Judge Fernando Henrique Pinto ruled that the two men could convert their stable union into a marriage, which is an option open to straight couples.

My source in SP tells me that the decision will almost certainly be overturned by the intermediate appellate court, but the plaintiffs have said that they will take the case to the Brazilian Supreme Court.

Jose Luiz Bednarski, a lawyer for the Sao Paulo state attorney general, said in an opinion presented to Pinto that the marriage was legal. “The federal constitution establishes as a fundamental objective of the Federal Republic of Brazil to promote the good of everyone without bias of gender or any other form of discrimination,” Bednarski wrote. “This certainly includes the choice or sexual orientation of a person.”...

While the court released only the initials of the couple that was married, the Globo television network’s G1 website identified the men as Sergio Kauffman Sousa and Luiz Andre Moresi. They asked a state court in the city of Jacarei, 53 miles (85 kilometers) northeast of Sao Paulo, to approve their marriage....

In Latin America, gay marriage is legal only in Argentina and Mexico City. Same-sex civil unions granting some rights to homosexual couples are legal in Uruguay and in some states of Mexico outside the capital. Colombia’s Constitutional Court has granted same-sex couples inheritance rights and allowed them to add their partners to health insurance plans.

June 26, 2011

Courageous scholar becomes tenured professor at Michigan

Gayle Rubin, a brilliant feminist scholar who wrote pathbreaking analyses of the cultural role of sexuality and the ways that sexuality both relates to and stands independent of gender, has become a tenured professor at the University of Michigan. Gayle's radical sex politics have made her a frequent target of conservatives and some anti-porn feminists. Her appointment is jointly with the Anthropology Department and Women's Studies.


June 25, 2011

Rich libertarian Republicans + Gays in the family = Marriage equality in New York

To be published in tomorrow's N Y Times, and already up on its web page, there is a fascinating tale of the political dynamics that gelled to get the equal marriage bill through the Republican state senate in New York. The highlights: wealthy Republican donors who support gay marriage lobbied fence-sitting members and promised enough campaign donations to insulate them from challenges by social conservatives; members who had voted against gay marriage two years ago were pressured from within their own families to change their votes; and Governor Cuomo's stellar performance must mean that he aced the course in political leadership that he has presumably gotten since birth.

It all came together to create what I think is the only genuine first from New York's experience, but it's a big one: the first state legislative chamber with a Republican majority to approve same-sex marriage.

My view: The split in the Republican Party between economic and social conservatives is going to be the big political story of 2012.  You read it here first.

Full N Y Times story after the jump -->

Continue reading "Rich libertarian Republicans + Gays in the family = Marriage equality in New York" »

June 24, 2011

Text of religious exemption in New York marriage law

The key language in the New York state marriage equality bill governing religious exemptions is as follows:

…[A] religious entity  … shall not be required to provide services, accommodations, advantages, facilities, goods or privileges for the solemnization or celebration of a marriage.  Any such refusal to provide services, accommodations, advantages, facilities, goods or privileges shall not create any civil claim or cause of action or result in any state or local government action to penalize, withhold benefits or discriminate against any such religious corporation, benevolent order or not-for-profit corporation.

Full text of the amendment is here. The language is similar to religious exemptions included in the marriage laws of Vermont and New Hampshire. Whatever the week-long fights and deals were about, it couldn't have been this language.

UPDATED - Some of the backstory on the language, from Gay City News:

The bill the Assembly passed in 2007 merely made clear that a member of the clergy was under no obligation to officiate at any marriage to which they objected. The wording contained in the governor’s bill on June 14, drawing on language already in state human rights law, also spelled out that religious bodies and benevolent associations can deny same-sex wedding celebrations access to facilities they operate without running afoul of public accommodations nondiscrimination requirements.

The language finally agreed to by the Senate and the Assembly went a couple of steps further. First, it added non-profit organizations run by religious organizations from the public accommodations requirements regarding marriage ceremonies and celebrations. It also immunized such organizations –– and now their employees as well –– and clergy not only from civil claims but also from adverse actions by state and local governments. For example, the non-profit day care center run by a church that refuses to marry same-sex couples cannot be barred from competing for public funding for which it would otherwise be eligible.

The new language also made clear that no other laws, including those enacted by local or municipal governments, could supercede the protections afforded religious groups in the marriage equality statute.

And it made the new law’s provisions non-severable –– that is, if one portion of the law is declared unconstitutional, it is thrown out entirely. Saland explained that provision was critical for him, and it clearly provides insurance for those who might worry that the religious protections built into the law could later be challenged in court.

Marriage and its discontents

The NY Times has a charming habit of not realizing that an issue or point of view actually exists until it applies to New York. With the state hopefully on the cusp of equalizing marriage law, word has apparently now reached the Times opinion managers that the many couples in other states who have not married, when they could have, might have some reasons for that decision other than the inability to agree on a silverware pattern. Katherine Franke's flagrantly off-message op-ed in this morning's paper states the case well, and suggests what some of the post-marriage lgbt relationship law problems might look like. I sure hope that by tomorrow morning, New York will have made it to this set of issues:

Will the New York State Legislature ultimately put itself on the right side of history by allowing same-sex couples to marry? Many of us in the lesbian, gay, bisexual and transgender community, amazed at how quickly public opinion has evolved on this issue, are eager for this historic civil rights victory. My hope comes with some worry, however.

While many in our community have worked hard to secure the right of same-sex couples to marry, others of us have been working equally hard to develop alternatives to marriage. For us, domestic partnerships and civil unions aren’t a consolation prize made available to lesbian and gay couples because we are barred from legally marrying. Rather, they have offered us an opportunity to order our lives in ways that have given us greater freedom than can be found in the one-size-fits-all rules of marriage.

It’s not that we’re antimarriage; rather, we think marriage ought to be one choice in a menu of options by which relationships can be recognized and gain security. Like New York City’s mayor, Michael R. Bloomberg, who has been in a relationship for over 10 years without marrying, one can be an ardent supporter of marriage rights for same-sex couples while also recognizing that serious, committed relationships can be formed outside of marriage.

Here’s why I’m worried: Winning the right to marry is one thing; being forced to marry is quite another. How’s that? If the rollout of marriage equality in other states, like Massachusetts, is any guide, lesbian and gay people who have obtained health and other benefits for their domestic partners will be required by both public and private employers to marry their partners in order to keep those rights. In other words, “winning” the right to marry may mean “losing” the rights we have now as domestic partners, as we’ll be folded into the all-or-nothing world of marriage.

Of course, this means we’ll be treated just as straight people are now. But this moment provides an opportunity to reconsider whether we ought to force people to marry — whether they be gay or straight — to have their committed relationships recognized and valued.

At Columbia University, where I work, the benefits office tells heterosexual employees that they must marry to get their partners on the health plan. A male graduate student I know, informed that he’d have to marry his longtime girlfriend for her to get benefits, was told, “Too bad your girlfriend isn’t a man — it would be so much easier!”

They ended up marrying, though they were politically and personally uninterested in doing so. I, by contrast, only had to fill out a form saying that my partner and I lived in the same household, to add her to my policy. An institution like Columbia (which is secular, I might add) should not be in the marriage-promotion business for either straight or gay employees, particularly when domestic partnerships can do the gate-keeping job just as effectively as marriage does.

In fact, New York City has a domestic partnership law that allows both same-sex and different-sex couples to register as domestic partners, and many private and public employers treat employees who are in such partnerships as entitled to the same rights as married employees. But they have done this to rectify the injustice created by same-sex couples’ inability to legally marry. Once the marriage ban in New York State is lifted, domestic-partner couples, both gay and straight, will risk losing access to health care and other benefits if their employers treat marriage as the only ticket for entitlement to these benefits, which are increasingly expensive.

Our phone has been ringing off the hook with calls from well-meaning relatives and friends who want to “save the date” for our wedding once it’s legal. It’s been hard to break it to them that we don’t plan on marrying, though we are glad that many of our friends can and will.

What’s difficult to explain is that for some lesbians and gay men, having our relationships sanctioned and regulated by the state is hardly something to celebrate. It was only a few years ago that we were criminals in the eyes of the law simply because of whom we loved. As strangers to marriage for so long, we’ve created loving and committed forms of family, care and attachment that far exceed, and often improve on, the narrow legal definition of marriage. Many of us are not ready to abandon those nonmarital ways of loving once we can legally marry.

Of course, lots of same-sex couples will want to marry as soon as they are allowed to, and we will congratulate them when they do even if we ourselves choose not to. But we shouldn’t be forced to marry to keep the benefits we now have, to earn and keep the respect of our friends and family, and to be seen as good citizens.

June 22, 2011

Organization of American States condemns anti-gay and anti-trans discrimination

From Colombian attorney Germán Humberto Rincón Perfetti:

At the Forty-First General Assembly of the OAS in San Salvador on June seventh, all of the countries of the Americas and the Caribbean approved the resolution on “Human Rights, Sexual Orientation, and Gender Identity, which condemns discrimination, asking the countries to adopt measures that prevent, sancion, and erradicate it. They comdemned acts of violence and violations of human rights to intersex, transvestite, transexual, bisexual, lesbian, and gay people.

They invited the States to adopt a public policy against discrimination and to assure adequate protection to human rights defenders.

The Interamerican Commission of Human Rights and the Interamerican judicial Committee will prepare regional level studies, this being the greatest achievement in this fourth consecutive resolution.

[T]he head of the Vatican State lobbied against the resolution succeeding in getting Panama to leave a clarifying note on the heterosexual family and the subject of gender to only be understood as man and woman...  

This work was accompanied by a coalition of lesbian, gay, bisexual and trans organizations from more than 20 countries who have been working for more than five years being present and making an impact on the Interamerican System. 

[List of coalition organizations after the jump -->]

Continue reading "Organization of American States condemns anti-gay and anti-trans discrimination " »

Secretary Sebelius makes "fantastic" commitment to data on sex/o and GI

From the Blade:

Secretary of Health & Human Services Kathleen Sebelius committed on Tuesday to start the collection LGBT data as part of federal health surveys, although she said the questions that would be used to gather the information must first be market-tested before they’re made as part of any questionnaire. 

During a news conference at the White House, Sebelius said in response to a question from the Washington Blade that the Department of Health & Human Services “fully intend[s] to collect LGBT data” through federal surveys. 

“So it is definitely a commitment,” Sebelius said. “We will be adding data questions to the national health surveys. And right now we are looking at developing a slew of questions, market-testing them, coming back and making sure we have the right way to solicit the information that we need.” 

Sebelius said including LGBT questions on federal health surveys has been difficult because the federal government hasn’t engaged in such data collection before and hasn’t settled on the right way to ask such questions. The secretary asserted the Department of Health & Human Services is market-testing questions to make sure they’re worded in the right way to collect the necessary information.... 

Gary Gates, distinguished scholar at the Williams Institute at the University of California in Los Angeles, called the commitment from Sebelius “fantastic,” but said questions on sexual orientation and gender identity “need not start from scratch.”

“We know a great deal already about how to measure sexual orientation and some recent studies have also highlighted promising approaches to measuring gender identity,” Gates said. “HHS now has a real opportunity to develop an open and transparent process as they assess how to best utilize this body of research to inform how they achieve LGBT inclusion in their data collection. That process must be transparent and involve experts from both inside and outside of the government as well as experts from the LGBT community.”

June 20, 2011

As Liechtenstein goes...

On Sunday, voters in Liechtenstein overwhelmingly adopted a new law giving gay and lesbian couples the right to formally register their partnership. Official reports stated that 68.8 percent of voters endorsed the law, and 31.2 percent voted against it.

Roman Catholic groups, led by Vox Populi, had challenged legislation establishing partnerships, saying the system would weaken traditional family ties, and demanded a referendum. The population is heavily Catholic; approximately 78% in 2000.

Gay and lesbian couples will now be treated equally with heterosexual couples for purposes of inheritance, social security, immigration and taxation. However, they will still be barred from adopting children or accessing reproductive medical services.

Liechtenstein has a population of roughly 35,000 people.  

June 19, 2011

Socialists hope to make gay marriage an issue in next year's French election

Last Tuesday, the French Parliament defeated a bill to legalize same-sex marriage. The bill was put forward by the Socialist Party; President Sarkozy's UMP Party led the opposition, though a few UMP members supported it. Now the Socialists are considering whether to make the issue a major part of their campaign against Sarkozy's re-election.

From France 24:

The bill to legalise marriage for homosexual couples in France was introduced by Patrick Bloche, a Socialist member of parliament for Paris, after France’s constitutional court ruled in January that the existing ban on gay marriages was not unconstitutional. While the political left has unanimously rallied behind the bill, the debate in parliament has also helped highlight some divisions in President Nicolas Sarkozy’s ruling UMP party.

UMP member Claude Bodin denounced a bill that he said was meant to stir controversy before the 2012 presidential election. He called Bloche’s text a “response to communitarian demands” and added that homosexuality was a “private issue, which cannot become a standard like any other". But breaking with the majority of their party, a handful of UMP members spoke in favour of the law... 

Since 1999 France, like Britain and Germany, has legally recognised civil partnerships, known as the “pacs” to the French. Last year France saw 203,882 of these civil unions, but less than five percent of them involved homosexual couples.

Activists say the pacs does not afford gay and lesbian households the same rights as marriage. “The protection afforded under the pacs - in terms of the right to reside in a country or custody over children - is not the same as marriage,” explained Gilles Bon-Maury, president of the advocacy group HES (Homosexuality and Socialism)... Bon-Maury said he hoped [marriage] would become one of the key issues of the looming presidential campaign.

François Hollande, the frontrunner in forthcoming Socialist primaries, wrote on his blog that he supported opening marriage to homosexual couples... Supporting gay marriage has become a relatively safe bet for opposition candidates. According to surveys published by French pollsters TNS Sofres and BVA this year, between 58 and 59 percent of French people support allowing same-sex couples to marry.

Centrist Jean-Louis Borloo, a former UMP member who is now threatening to challenge President Sarkozy’s bid for re-election, has also come out in favour of homosexual marriages.

June 17, 2011

Historic vote set for today in the UN Human Rights Council - Updated

The UN’s Human Rights Council in Geneva is likely to vote today on a formal resolution expressing "grave concerns at acts of violence and discrimination, in all regions of the world," against gay, lesbian, bisexual and transgender individuals. The resolution also commissions a global inquiry, to be completed by year's end, to investigate discriminatory practices and acts of violence and to make recommendations for reform.  The Human Rights Council would consider the report in 2012.

UPDATE - The resolution passed by a vote of 23 to 19, with 3 abstentions.

According to the Council on Global Equality, "If it is adopted, this will be the first official UN resolution to focus exclusively on human rights, sexual orientation and gender identity, and it is the first time that gender identity has ever been included in such a formal UN text."

According to the AP, "American officials believe they've secured a slim majority of the council's 47 members in clear support of the gay rights resolution."

June 16, 2011

Another DoMA challenge (probably) heads for appeal

A little noticed decision on Monday adds to the crowd of challenges to Section 3 of DoMA, which bars the federal government from recognizing the validity of same-sex marriages. In In re Balas and Morales, 20 of the 24 judges who comprise the U.S. Bankruptcy Court for the Central District of California signed an opinion finding that Section 3 is unconstitutional.

Most Bankruptcy Court decisions are signed by a single judge, and there was no explanation of why so many signed this opinion.  It may be because the Central District, located in Los Angeles, has one of the largest dockets of bankruptcy cases in the nation, and the judges wanted to signal that they would not apply DoMA to married same-sex couples so that they would not have to keep considering the question in multiple cases. 

This case arose when Gene Balas and Carlos Morales, "like many struggling families during these difficult economic times," filed for bankruptcy. Because the two men were married, they filed a joint petition. The United States Trustee (an office within the Justice Department that is charged with identifying problematic legal issues not raised by either debtors or creditors) moved to dismiss the joint petition on the ground that DoMA barred any recognition of the marriage for federal law purposes.

Relying heavily on Attorney General Holder's letter declaring that DoJ would no longer defend the constitutionality of DoMA, the Bankruptcy Court judges found that DoMA, as applied to Balas and Morales, failed to satisfy either a rational basis or heightened scrutiny test of constitutionality, essentially for the same reasons articulated in the Holder letter and in the District Court's opinion in Gill v. Office of Personnel Management (the case brought by GLAD challenging Section 3). Balas is the first federal court decision on this question since the Holder letter was issued.

There is some question whether Balas will be appealed. The Administration's decision to drop its defense of DoMA led Speaker Boehner to retain former Solicitor General Paul Clement to defend DoMA on behalf of the House of Representatives. Clement was given two weeks to intervene in Balas, but he elected not to file any papers. So he may not pursue an appeal either. 

If Clement does appeal,the case will not go to the Ninth Circuit, at least immediately, but instead to the Bankruptcy Appellate Panel for the Ninth Circuit. The plaintiffs' lawyer, however, has said that he would then seek to move the case to the Ninth Circuit.

Balas is the most recent ruling in a string of cases filed in federal courts in California that seek benefits for public employees who are married to their same-sex partners and whose benefits were denied based on DoMA: Dragovich v. Department of Treasury, In re Golinski, and In re Levenson. There are also two cases pending in the trial courts in the Second Circuit: Pedersen v. OPM and Windsor v. OPM. In none of those cases, however, has the trial judge rendered a final judgment on the merits of the constitutionality issue.  But because Balas will not go directly to the Ninth Circuit, even though its ruling does reach the merits, one of the other California cases may jump ahead of it in the Ninth Circuit pipeline.

The Gill case, already before the First Circuit, is the farthest along of all the DoMA challenges, but briefing is suspended pending a ruling on the motion to intervene filed by the House of Representatives through its Legal Advisory Group.  

There is no way to predict when any appellate court will render a decision, but I would bet that at least one gets handed down next year, when the 2012 campaigns will be intense. If the decision strikes down Section 3, we will get an acid test of whether Republican gay-baiting still works as a political attack and whether or to what extent gay marriage has lost its wedge issue value to the right wing. For most of the country, like for Balas and Morales, the spectre of financial ruin may be a much more pressing issue.

June 14, 2011

New Medicaid policy is more important than it may seem

The Obama administration issued guidance last Friday delineating how same-sex couples can be financially protected if one becomes Medicaid eligible in the process of securing long-term care for a serious disability (often age-related). As the letter explains, married heterosexual couples have a variety of legal mechanisms that allow the non-disabled spouse to retain some basic assets such as their home. Because of DoMA, same-sex marriages cannot be recognized. Thus no same-sex couples have had access to the same options for preventing spousal impoverishment. 

The new guidance letter on Medicaid rules for same-sex couples suggests a variety of ways that the same kinds of protections can apply to same-sex couples, whether married or not.  This may sound like a mush of bureaucratic legalese, but it is much more than that. Aside from the smart lawyering involved in producing this analysis (kudos to the HHS legal staff), this development has both short and long term importance.

In the here and now, more and more same-sex couples are entering the final third of life, along with every other baby booomer in the U.S.  Medicaid, originally set up as a health insurance system for the poor, including the "medically indigent," now pays more than half the total costs of long-term care in the U.S. Given the crushing expense of nursing homes even for middle-class Americans, Medicaid has been necessary for millions of elders to receive decent care.  For senior same-sex couples, the new Administration position is a huge and immediate change.

But there is another, potential long-term effect of the new guidance as well. It's less obvious but, with a little investment of energy, one that could help end routinely anti-gay policies in social services agencies.  Here's why -

Medicaid is a joint federal-state program, both in funding and administration. Its day-to-day operations are carried out by state agencies - you don't go to the local federal building to apply for Medicaid, you go to the state human services field office.  Among other things, state government agencies determine eligibility. This is why the Administration's policy was announced in the form of a guidance letter to state officials: it provided every state agency with the green light to make eligibility determinations that de facto treat same-sex couples as straight married couples are treated.

In some states, officials wanted to accord these benefits to gay couples, but may have been worried that to do so would expose them to charges that they were violating DoMA. In Massachusetts, for example, HHS may now assert that the new policy moots the state's claim that DoMA forces it to violate its own state law allowing same-sex couples to marry. There will be other states - probably all those that already allow either marriage or a civil union status - that will welcome the new HHS policy as well.

The most important political change could occur in states with the worst anti-gay policies. There the new policy creates a strong basis for demanding equal treatment for same-sex couples.  In other words, those officials cannot hide behind the DoMA argument any longer. 

As the HHS letter states, the federal agency cannot require state agencies to take these steps: the Medicaid statute itself does not provide authority for a mandate. But the letter does explicitly declare that states have the discretion to do so, and it encourages states to exercise that discretion.

With this guidance from the federal level, state advocates can much more powerfully demand the implementation of such policies. State officials may refuse, but their legal justification for a refusal has just gotten immensely weaker.