hunter of justice

California Supreme Court okays standing for Prop 8 defenders

In an unanimous opinion, the California Supreme Court ruled that Prop 8 defenders should have standing to defend the law in court when both the Governor and the Attorney General have declined to do so. The court held that in a situation in which the officials were not defending a voter-passed law,

It would clearly constitute an abuse of discretion for a court to deny the official proponents of an initiative the opportunity to participate as formal parties in the proceeding, either as interveners or as real parties in interest, in order to assert the people’s and hence the state’s interest in the validity of the measure and to appeal a judgment invalidating the measure.

Attorneys for the plaintiffs challenging Prop 8 declared a version of victory, despite their prior arguments against standing for the proponents, hoping that by not contesting the point further, they can nudge the Ninth Circuit to move immediately to a ruling on the merits.  The plaintiffs could have returned to the federal court and tried to convince it to reject the reasoning of the state court. But they apparently are trying to cut their losses with a new press message that this decision "frees up" the Ninth Circuit to address the merits.

This tactical calculation is correct. It is still up to the Ninth Circuit to consider the state supreme court's advisory opinion and then issue its own ruling on standing under federal law. But plaintiffs' lawyers have no hope of persuading the Ninth Circuit to ignore a unanimous decision written by the state court's Chief Justice.

UPDATE Nov. 18 - The parties have been ordered to submit briefs to the Ninth Circuit by December 2 on the correctness of the California Supreme Court decision.

And it's a good bet that this panel of Ninth Circuit judges will uphold the District Court decision ruling Prop 8 to be unconstitutional (although possibly on narrower grounds applicable only to California). Such a decision could come out within six months, perhaps even sooner, since oral argument has already been held.  The next stop then is either en banc review (by a panel of more than three Court of Appeals judges) or a petition for review by the  U.S. Supreme Court by whichever side loses.

On the equities of the standing issue, I think the California Supreme Court's decision is correct. It is a weird, perhaps unique, situation for both the Governor and Attorney General to decline to defend a voter-passed initiative, so my bet is that there will be no floodgates opening after this decision. (The most likely impact is that state officials will remain in such cases and appeal rulings of unconstitutionality, even if the officials believe a ruling to be correct, so that the cases can proceed to appellate courts.) 

Bottom line, I agree with the state court that voter-enacted laws should be defended in a litigation challenge. I think it's terrible policy to subject individual liberties to popular vote, but once it is done (and this happens in a lot of states besides California), the process of full judicial review should ensue.

Decision on standing in Perry case to be announced tomorrow

At 10 a.m. PST tomorrow, the California Supreme Court will rule on whether the Prop 8 proponents have standing to appeal the District Court decision in the Perry case that Prop 8 violates the federal Constitution.

The Ninth Circuit, where the issue is on appeal, unanimously asked the state supreme court to weigh in, based on the importance of whether the proponents would have standing under state law to the federal law analysis. The California Supreme Court then heard argument on that question on September 6.

What happens next? The Perry litigation saga will return to the Ninth Circuit and the federal court system. The Ninth Circuit will have to issue its own ruling on whether the Prop 8 proponents have standing. If the California court declares that there would be no standing in its system, I think the federal courts are unlikely to grant standing.

At oral argument before the California Supreme Court, however, the tone of the questions suggested the opposite result. If those signals prove correct - and often signals during oral argument are misleading - then the Ninth Circuit will consider the federal standing question in light of the fact that the proponents would be allowed to defend the law if the matter were in state court. A Ninth Circuit ruling in favor of the Prop 8 proponents becomes more likely in that event, although by no means certain.

After the California Supreme Court ruling, the Ninth Circuit panel of judges who heard argument may proceed pretty quickly to issuing a decision. Or they may ask the parties for additional briefing and argument in light of whatever the state court says. (There are no deadlines in the federal court system for when decisions must be issued.)

And when the Ninth Circuit decision comes down, if it finds that the Proponents do have standing, will it also address the constitutionality of Prop 8 at the same time, or will this next decision relate only to standing? When Perry was first argued before the Ninth Circuit, almost a year ago (December 2010), the scope of the argument included both standing and the merits.

The federal appellate court was pretty unhappy with both sides when it heard the first round of argument last winter, referring to "the inexplicable manner in which the parties have conducted this litigation." Eventually (there could be an en banc round as well) we will find out how that court will come down on this technical but far-reaching question.

Stay tuned.

Broward County requires contractors to offer DP benefits

From Equality Florida, which was instrumental in securing this legislation in Ft. Lauderdale:

[T]he Broward County Commission voted unanimously to approve Florida's first countywide Equal Benefits Ordinance (EBO), a measure that requires the county's vendors to provide domestic partners with benefits equal to those offered to spouses of married employees. In other words, if you want to do business with Broward County, you must treat domestic partners and married employees equally... 

Broward is the first county Florida to adopt an EBO. In 2005 Miami Beach became the first city in the state to pass an EBO, and the Miami Beach policy has been praised by the city commission and the staff, while reporting no negative fiscal impact.

The ordinance places Broward County's domestic partnership policies among the strongest in the country. In recent years EBOs have been adopted as a state law in California, and in the cities of San Diego, San Francisco, Los Angeles, Olympia, Minneapolis, and Portland. The ordinance was introduced by Mayor Sue Gunzburger and was co-sponsored by all members of the commission.

The EBO applies to companies who are in contracts of $100,000 or more with the county and who have 5 or more employees. If a company does not currently provide benefits to the spouses of their employees, then they are not required to provide benefits to the domestic partners of their employees. If companies are not able to provide benefits to domestic partners, they may provide the cash equivalent to the employee and still meet the requirements of the EBO...

Catholic Bishops ratchet up fight against gay rights, birth control, abortion

True to their word, the National Conference of Catholic Bishops has launched a new in-house advocacy group devoted to defending that faith's position on a trio of sexuality-related issues: gay rights, birth control and abortion. In a related move, several Catholic dioceses in Illinois announced that they would stop providing adoption services rather than serve same-sex couples on an equal basis.

From today's N Y Times:

The nation’s Roman Catholic bishops opened a new front in their fight against abortion and same-sex marriage on Monday, recasting their opposition as a struggle for “religious liberty” against a government and a culture that are infringing on the church’s rights.

The bishops have expressed increasing exasperation as more states have legalized same-sex marriage, and the Justice Department has refused to go to bat for the Defense of Marriage Act, legislation that established the definition of marriage as between a man and a woman.

“We see in our culture a drive to neuter religion,” Archbishop Timothy M. Dolan of New York, president of the bishops conference, said in a news conference Monday at the bishops’ annual meeting in Baltimore. He added that “well-financed, well-oiled sectors” were trying “to push religion back into the sacristy.”...

... The bishops issue guidelines for Catholic voters every election season, a document known as “Forming Consciences for Faithful Citizenship,” which is distributed in many parishes. But the bishops were informed at their meeting on Monday that a recent study commissioned by Fordham University in New York found that only 16 percent of Catholics had heard of the document, and only 3 percent had read it.

Nevertheless, the bishops remain a forceful political lobby, powerful enough to nearly derail the president’s health care overhaul two years ago over their concerns about financing for abortion. Last week, the White House, cognizant of the bishops’ increasing ire, invited Archbishop Dolan to a private meeting with President Obama, their second. Archbishop Dolan said they talked about the religious liberty issue, among others.

“I found the president of the United States to be very open to the sensitivities of the Catholic community,” Archbishop Dolan said in the news conference. “I left there feeling a bit more at peace about this issue than when I entered.”

Baltimore courts waive venue for Maryland's gay adoptive parents

This is surprising in a liberal jurisdiction like Maryland, but the Baltimore Sun reports that same-sex couples can be assured of a fair hearing if they seek to adopt children only by coming to Baltimore city courts:

...Baltimore has a recorded history of adoption by gay and lesbian couples that dates to 1996, when a written opinion on the matter was issued. In that case, Judge Kathleen O'Ferrall Friedman granted lesbian partners, who each had a child, parental rights over both children. She reasoned, in part, that adultery does not disqualify a person from adopting, so neither should a person's sexual orientation.

Two loving parents, regardless of their gender or sexual orientation, were "consistent with the children's best interest," wrote Friedman, who retired in 2002. Her decision became the legal cornerstone for adoption by Maryland's gay residents, and the interpretation of that precedent has expanded to allow gay couples... to jointly adopt children who are not biologically related to either partner...

Since the late 1990s, at least one judge in Anne Arundel, Baltimore, Frederick, Howard, Montgomery, Prince George's and Calvert counties has granted adoptions to same-sex couples, according to [Mark] Scurti, who also teaches a course on sexual orientation and the law at the University of Maryland School of Law.

The list could be longer, he said, but researching adoption files is "almost next to impossible" because they are sealed. Often the only people who know the gender of the petitioners are judges and attorneys involved in the case.

But Baltimore has remained a more reliably gay-friendly venue. In other jurisdictions, even if one judge in a county has approved an adoption for a same-sex couple, the next couple might appear in front of a different judge who has the opposite opinion.

That happened in June 2000, when Montgomery County Circuit Judge Vincent E. Ferretti wrote an opinion denying a lesbian parental rights over her partner's natural child. It was his last written decision, he said in an interview, and after he filed the 18-page opinion he retired. Ferretti now lives in North Carolina...

...After he left the bench, the couple amended their petition and refiled it in Montgomery County. The amended case was assigned to Judge Paul A. McGuckian, who agreed with Ferretti: Maryland's law is silent on whether two unmarried people, regardless of sexual orientation, can adopt and, in this area of jurisprudence, law created from the bench cannot be a substitute for a statute.

In order to stop the couple filing an appeal — and possibly establishing a legal precedent that could prevent adoptions by same-sex couples — Baltimore City Circuit Judge Joseph H.H. Kaplan reached out to the couple.

Come to Baltimore, he told the couple, and we will grant your adoption. Kaplan, the chief judge for Baltimore's Circuit Court at that time, had instituted a unique procedure — called waiver of venue — that made nonresidents eligible to file adoption cases in the city.

Openly gay nominee for Court of Appeals blocked by secret Senate hold

One aspect of American government that is truly medieval is the continuing practice of the Senate that allows any one member to block a Presidential nominee and to do so secretly.  That's what happened to Ed DuMont, leading him last week to withdraw his name from consideration for becoming the first openly gay appellate judge in the federal court system, noting that "one or more" Republicans opposed his confirmation. 

More details from Keen News Service:

The White House sent out notice Thursday night that it was withdrawing the nomination of openly gay attorney Edward DuMont to serve on the U.S. Circuit Court of Appeals for the Federal Circuit. Republicans on the Senate Judiciary Committee blocked DuMont’s nomination from the start, when President Obama nominated him in April 2010.

In DuMont’s place, President Obama has nominated an attorney with strong Republican ties. In a separate announcement Thursday evening, the White House announced that President Obama is nominating attorney Richard Taranto, a former law clerk for failed Supreme Court nominee and right-wing conservative Robert Bork, as well as Supreme Court Justice Sandra Day O’Connor. Taranto also served three years as an Assistant to the Solicitor General in the Office of the Solicitor General of the United States Department of Justice...

DuMont was the first openly gay person to be nominated to a federal appeals court. In his responses to the Senate Judiciary Committee questionnaire, DuMont ...was very forthcoming about his involvement in and support for gay legal groups. He indicated that he is a member of the Gay, Lesbian, Bisexual and Transgender Attorneys of Washington (GAYLAW) and a former member of the National LGBT Bar Association. He worked for the Department of Justice under President Clinton and was a member of DOJ Pride, the GLBT employee organization, serving as its vice president between 1994 and 1996. He is also a member of Yale GALA.

DuMont’s responses to the Committee’s questionnaire also indicated that he signed onto a letter of support for one of President George W. Bush’s controversial conservative appeals court nominee, Miguel Estrada, and clerked for an appointee of President Reagan, 7th Circuit Court Judge Richard Posner.

DuMont earned the highest rating from the American Bar Association—unanimously well qualified...

The weeks ahead: November 14 through 27, 2011

Monday, November 14 - A memorial service for Paula Ettelbrick, a longtime and much loved leader in the LGBT community who died of cancer on October 7, will be held at the Fourth Unitarian Universalist Society at 160 Central Park West at 76th Street, beginning at 6:30 pm.

Also November 14 - Washington DC - A reception honoring Frank Mugisha and other leaders in the fight to protect lgbt human rights in Uganda, co-sponsored by the Council for Global Equality and the Open Society Foundations, 1730 Pennsylvania Ave., 6 to 8 pm. Mugisha is the 2011 recipient of the Robert F. Kennedy Human Rights Award.

Wednesday, November 16 - Hearing on motion for preliminary injunction in Arizona Coalition Against Domestic Violence v. Greene, pending in U.S. District Court in Phoenix before Judge Roslyn Silver. In this case, the ACLU is challenging a requirement that organizations must certify that they do not perform, promote, or provide referrals for abortion in order to be eligible for the charitable tax credit. The law is scheduled to take effect on January 1, 2012. 

 

Same-sex marriage in Oregon: Not there yet

Basic Rights Oregon ran two state-wide TV ad campaigns, conducted an online survey, did door-to-door canvassing, and concluded that there isn't enough popular support for legalizing gay marriage to justify the risk of putting the question on the 2012 ballot. Sounds to me like a smart process produced a smart decision. Advocates in other states who are considering affirmatively  move putting marriage rights up for a popular vote are, I hope, engaging in the same kind of analysis. Better to wait and win.

From The Oregonian:

Oregonians now appear about evenly divided on a proposed ballot initiative to legalize gay marriage and to overturn the constitutional ban against same-sex marriage approved by voters in 2004, [Executive Director Jeana] Frazzini said. 

The weak economy and high rates of unemployment and home foreclosures also create a tough climate for a political campaign over a social issue, she said. 

Basic Rights members favor waiting at least until the next opportunity for an initiative ballot in 2014 before plunging into a politically difficult campaign that would cost $5 million to $10 million, she said. 

National polls last spring showed support for same-sex marriage, which has climbed for the last seven years, hit the majority milestone. An ABC News/Washington Post poll in March and a Gallup Poll in May showed 53 percent of Americans in support. A Public Policy Polling survey of Oregon voters in June, however, found that 48 percent of voters support same-sex marriage. Basic Rights members want to see more support before they go to the ballot. 

Social science research on lgbt parenting past, present and future

On Thursday night, the Williams Institute is sponsoring a discussion of lgbt parenting research featuring an international panel of renowned scholars. The event, which is free and open to the public, will be held at 1608 Rhode Island Ave, NW, Washington, DC from 6 to 7 pm. Speakers include:

Nanette Gartrell (photo) and Henny Bos - Gartrell, a psychiatrist affililated with UC-San Francisco, is the lead investigator of the National Longitudinal Lesbian Family Study of 78 teenagers with lesbian mothers. The NLLFS is a remarkable and unique longitudinal study in which the families have participated since the children's birth.  Henny Bos, Assistant Professor of Childhood Education and Family Support at the University of Amsterdam, has become a co-investigator on the NLLFS. Together they just published Custody Arrangements and Adolescent Psychological Well-Being, which points to the importance to children of joint custody arrangements when parents separate

Abbie E. Goldberg is an Associate Professor of Clinical Psychology at Clark University in Worcester Massachusetts, and Senior Research Fellow at the Evan B. Donaldson Adoption Institute. She is the author of Lesbian and Gay Parents and Their Children: Research on The Family Life Cycle and Gay Dads: Transitions to Adoptive Fatherhood, will be published by NYU Press in Spring of 2012.

Susan Golombok is Director of the Centre for Family Research at the University of Cambridge. Her research examines the impact on children of being raised in new family forms, including lesbian mother and gay father families. She is the author of Parenting: What Really Counts? and co-author of Bottling it Up, Gender Development, and Growing up in a Lesbian Family. 

Democrat wins open seat in Iowa State Senate, shielding gay marriage

Democrat Liz Mathis emerged as the winner of a race to fill a vacant seat in the Iowa State Senate, thus preserving Democratic control of that chamber and with it, the ability to block efforts to repeal state constitutional protection for same-sex marriage. An early report in the Des Moines Register estimated her share of the vote at 56%. 

Pre-election polls had predicted this result.  From Public Policy Polling:

The special election that will determine control of the Iowa State Senate on Tuesday is close, but it looks like Democrats will probably hold serve. Democrat Liz Mathis leads Republican Cindy Golding 52-46 in our poll taken over the weekend.

The numbers suggest that Mathis is just a stronger candidate than Golding. Voters in the district are split right down the middle, 44/44, on whether they'd rather Democrats or Republicans had control of the State Senate.  But Mathis is outrunning those numbers when it comes to how people are planning to vote on Tuesday. The big key for her is that she's taking 16% of the GOP vote from Golding, while losing only 9% of the Democratic vote.  That helps her make up for a 50-45 deficit with independents.

This election has been framed to some extent as a battle over gay marriage, but our poll suggests voters aren't seeing it that way. They're planning to vote for Mathis even as 46% of them say gay marriage should be illegal, compared to just 42% who think it should be legal. Although voters in the district may oppose gay marriage, only 11% say that issue is the most important factor guiding their vote compared to 86% who say it's something else.  It's also worth noting that 66% of voters do support either gay marriage or civil unions with only 30% opposed to all legal recognition for same sex couples.

If this election's not hinging on gay marriage, then what is making the difference here? Voters may be sending a message to Governor Terry Branstad. His approval rating in the district is only 39% with 42% disapproving of him. This special election is seen in some quarters as the product of a power grab by Branstad and if Mathis wins it could be indicative of an electorate that doesn't want to enhance his power.

 

Support for DoMA shrinks ever smaller

A fascinating aspect of the politics of lgbt rights circa 2011 is how this one issue reflects and drives broader trends and cleavages in American politics. For example, it is perhaps the strongest single force behind the growing split between economic and social conservatives. There is a slow but steady evisceration of support for anti-gay laws based not so much on rights claims as on economic irrationality arguments, the realization that such laws cost businesses actual money.

This dynamic is operating now in the line-up of who's supporting whom in Gill v. OPM, the GLAD challenge to DoMA pending in the First Circuit. To recap: the Department of Justice announced last spring that it would no longer argue that DoMA is constitutional, thus bouncing the ball to Congress, which is essentially always granted standing to defend a federal law if DoJ declines to do so. The Republican House jumped at the chance; the Dem-controlled Senate, no way.

Last week, when briefs were due from amicus groups supporting the plaintiffs' challenge to DoMA, ten were filed. Most were from the usual suspects of gay-supportive organizations: medical and legal professional groups, labor unions, academics, progressive religious groups, and even the majority of Democratic members of the House of Representatives. But there was a surprising new player in the game. 

For the first second time of which I am aware, a group of mostly corporate employers and business groups has weighed in on a gay rights issue, on the pro-gay side. (Thanks to the reader who pointed me to an amicus brief filed in Strauss v. Horton by the San Francisco Chamber of Commerce and three local employers.)

In Gill, an amicus brief signed by 70 large employers makes the business case for eliminating DoMA, which is that it costs money and morale to develop systems that comply with state law in those jurisdictions that recognize same-sex marriage while denying such recognition for all federal law purposes:

[A]mici are employers [who] share a desire to attract, retain and secure a talented workforce...This dual regime [of conflicting state and federal law] uniquely burdens amici. It puts us, as employers and enterprises, to unnecessary cost and administrative complexity, and regardless of our business or professional judgment forces us to discriminate against a class of our lawfully-married employees, upon whose welfare and morale our own success in part depends.

The business brief takes no position on which standard of review that the Court of Appeals should apply to sexual orientation classifications, which is the biggest doctrinal question at issue in the case. Rather it takes the classic friend of the court approach: "to advise the Court concerning the impact on the employer of these conflicting legal regimes," with a one-sentence conclusion that the lower court's finding of the unconstitutionality of DoMA should be affirmed.

This brief inaugurates a new subgenre in the litigation of lgbt rights claims. Depending on your political sensibility, it demonstates either the narrowing of gay politics (into purely utilitarian arguments about how to make the status quo work more efficiently) or a broadening of pro-gay forces (by a strategic alliance). Probably both. In any event, I think it's a safe bet that it will serve as the model for more such briefs in the future. 

The week ahead: November 7, 2011

Tuesday November 8 - Los Angeles - UCLA Professor Mignon Moore, a member of the Williams Institute Faculty Advisory Committee, will discuss her new book, Invisible Families: Gay Identities, Relationships and Motherhood Among Black Women, at UCLA Law School Room 1357, 12:15 to 1:30 pm. 

Also November 8 - Election day, though not many races are happening in this off year. One to watch is in Iowa, where a take-over by Repubicans of a state senate seat now held by Dems could flip the chamber from Democratic to Republican control, which could allow a bill to proceed (and probably get signed by the Republican governor) that would put an initiative to amend the state's constitution to eliminate same-sex marriage on the 2012 ballot.

Thursday, November 10 - The Senate Judiciary Committee will begin debate and mark-up on S. 598, the bill that would repeal Section 3 of DoMA and substitute the following language: 

For the purposes of any Federal law in which marital status is a factor, an individual shall be considered married if that individual's marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State.

Also November 10 - Washington, DC - The Williams Institute is hosting a panel discussion of Innovative Research on LGBT Couples and Families from 6 to 7:30 pm at 1608 Rhode Island Ave., NW. 

LGBTI unit added to Inter-American Human Rights Commission

The Inter-American Commission on Human Rights announced another important development in the exciting emergence of lgbt rights issues in Latin America:

During its 143rd regular session, the Inter-American Commission on Human Rights (IACHR) decided to create a Unit on the Rights of Lesbian, Gay, Bisexual, Trans, and Intersex (LGBTI) Persons, in order to strengthen its capacity to protect their rights.    In recent years the IACHR has closely followed the situation of the rights of LGBTI persons, primarily through precautionary measures, hearings, country visits, and promotional activities. The Commission has sought to protect and promote their rights and has witnessed the serious human rights violations that many of these individuals face in their daily lives.   

The Commission has confirmed that LGBTI persons face serious discrimination, both in fact and in law, in the countries of the region. Among other violations, the IACHR has received information about murders, rapes, and threats to which LGBTI persons are victims. In addition, LGBTI persons face significant barriers in their access to health, employment, justice, and political participation...   

Next year the Commission will evaluate the Unit's work and whether sufficient resources exist to make its efforts sustainable, along with the overall functioning of its Strategic Plan, and will decide on whether to create an Office of the Rapporteur on the Rights of LGBTI Persons...

More criticism of Cameron: Don't cut aid, switch it

British Prime Minister Cameron's warning to Commonwealth nations that foreign aid from the UK would be cut unless anti-gay laws changed may have been well intentioned, but its hamhandedness has generated repudiation by both conservative governments and human rights activists. Progressive African human rights organizations - including lgbt and AIDS service groups - and individual leaders have signed a petition stating in part:

Donor sanctions are by their nature coercive and reinforce the disproportionate power dynamics between donor countries and recipients. They are often based on assumptions about the nature of African sexualities and the needs of African LGBTI people. They disregard the agency of African civil society movements and political leadership. They also tend to exacerbate the environment of intolerance in which political leadership scapegoat LGBTI people [as the cause of] donor sanctions...

The document calls on the UK to redirect aid money to progressive grassroots organizations in Africa, making the obvious point that diminished aid to the poor will hurt poor lgbt people in the affected nation along with everyone else. Meanwhile, conservative officials who oppose liberalizing the criminal law had a field day reacting to Cameron, invoking national culture, sovereignty and dignity as defenses against efforts by the West to "impose" homosexuality on African nations.

The backlash, for example by political officials and the press in Ghana, will end up helping to scapegoat the human rights groups that badly need to be strengthened. As Cameron has acknowledged, his threat will produce no change in the near future. It's much more likely that these groups could.

When public employees seek religious exemption from job duties

The ever astute Linda Greenhouse has provided an excellent quick history for contextualizing legal conflicts between civil rights and claims for religious exemptions:

The refusal by an upstate New York town clerk to sign marriage licenses for same-sex couples... can be seen simply as a discordant footnote to the march of marriage equality in New York State. But seen in a broader context, it is also more than that...

A few years ago, a county official in Pennsylvania refused to issue a marriage license because the would-be groom, while providing proof of identity in the form of a Mexican passport, could not prove that he was in the United States legally. The couple sued (the would-be bride was an American citizen, as was their young child) and won a judgment from a federal district judge, A. Richard Caputo, who found that the “fundamental character of the right to marry” was not dependent on citizenship. ... 

What are we to make of public health workers who use the power of their state-issued licenses to impose their own version of morality on those they are licensed to serve? While nearly all states permit medical providers to refuse to perform abortions, no such consensus has emerged with respect to birth control. The issue comes up repeatedly, and the states are all over the lot. Five states require pharmacists or pharmacies to fill all valid prescriptions for contraception (California, Illinois, New Jersey, Washington and Wisconsin.) Six others allow pharmacists to refuse to dispense emergency contraception (Arizona, Arkansas, Georgia, Idaho, Mississippi and South Dakota.) Several other states exclude emergency contraception from their Medicaid plans or from required coverage for contraception in state-regulated insurance plans.

While contraception has been a back-burner issue compared with the much more visible debate over insurance coverage for abortion, that may soon end. A fierce debate, although largely still under the radar, surrounds the Obama administration’s proposal to require private insurance plans to cover “women’s preventive services” without requiring a co-payment.

According to the proposed rule, which was issued Aug. 1 and which adopts a recommendation by the Institution of Medicine, these services include “access to all Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling.” As the Department of Health and Human Services describes the purpose of the requirement: “Family planning services are an essential preventive service for women and critical to appropriately spacing and ensuring intended pregnancies, which results in improved maternal health and better birth outcomes.”

Neither the fact that the rule does not apply to abortion or “abortifacient drugs,” nor that 28 states already require employer-provided insurance plans to cover contraception, has kept opponents from describing the proposal as “attacking the consciences of our nation’s healthcare providers,” as a recent publication by the “Task Force on Conscience Protection” of the Witherspoon Institute put it.

The Witherspoon Institute [is] a conservative research organization that has assumed a leading role on the intellectual religious right from its base in Princeton, N.J...[T]he final paragraph of the Witherspoon task force’s four-page statement [condemns] “an irrational commitment to unrestrained sexual expression,” a “new federal orthodoxy concerning human sexuality.” In other words, [Witherspoon is] re-fighting not only the birth control wars but the sexual revolution itself. The social revolution that brought same-sex marriage to New York seems a brushfire by comparison.

Seventeen years ago, a Chicago police officer named Angelo Rodriguez sought an exemption from an assignment to guard an abortion clinic in his precinct. He argued that his Catholic faith prohibited him from any acts that might facilitate abortion, including protecting doctors and patients. His commander offered to accommodate him with a transfer to a district without any abortion clinics. Finding the offer inadequate and insisting on his right to an exemption, the police officer sued.

He lost in both federal district court and in the United States Court of Appeals for the Seventh Circuit. The appeals court held that the city had done all that was required under Title VII of the Civil Rights Act of 1964, which obliges employers to make “reasonable accommodation” to an employee’s religious needs. Judge Richard A. Posner wrote a separate concurring opinion to make a larger point. Beyond deciding whether a particular offer was an adequate accommodation, Judge Posner said, the court should make clear that police officers and firefighters simply have no right “to recuse themselves from having to protect persons of whose activities they disapprove for religious (or any other) reasons.” The real objection to such exemptions, he explained, was not to administrative inconvenience, “though that might be considerable in some instances.” Rather, “the objection is to the loss of public confidence in governmental protective services if the public knows that its protectors are at liberty to pick and choose whom to protect.”

Or, I would add — as I’d like to think Judge Posner might — whom to grant marriage licenses to or whom to fill birth-control prescriptions for. Ordinarily, I don’t think that Judge Posner can be topped in reasoning or rhetoric, but in this instance, I will give the last word to Gov. Andrew M. Cuomo, in his succinct response to the marriage-license refusal issue: “When you enforce the laws of the state, you don’t get to pick and choose.”