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14 posts from December 11, 2011 - December 17, 2011

December 17, 2011

Chief of DoJ division argues the unconstitutionality of DoMA in Golinski case

Offering symbolic as well as substantive support, Assistant Attorney General Tony West, the head of the Civil Division at the Justice Department, appeared in court in San Francisco yesterday to present the Department's arguments as to why DoMA is unconstitutional, made to an apparently sympathetic judge. Here is Chris Geidner's report:

According to the Department of Justice, this is only the second time that West has appeared in court as assistant attorney general to argue a case. The other time, DOJ spokeswoman Nana Efua Embil told Metro Weekly, "was for a national security case." Prior to joining the Obama administration in 2009, West had been a partner at Morrison & Foerster in the firm's San Francisco office. Earlier in his time at DOJ, West was criticized for having signed his name to an administration brief filed in June 2009 that defended DOMA by arguing, among other points, that "DOMA does not discriminate against homosexuals in the provision of federal benefits."...

[Tara] Borelli [of Lambda Legal, counsel for Karen Golinski] referenced the historic nature of the hearing, pointing out, "This is the first time that the lawyers BLAG has hired [to defend DOMA] have appeared in court. This is the first time DOJ has appeared ... to argue" its position that heightened scrutiny should apply to sexual orientation classifications and that, under that standard, DOMA should be found unconstitutional.

December 16, 2011

Justice Margaret Marshall to teach at Harvard Law, which misspells names of important cases

Margaret Marshall, retired Chief Justice of the Supreme Judicial Court of Massachusetts, will become a lecturer and research fellow at Harvard Law School. Justice Marshall is the author of that court's opinion in Goodridge v. Department of Public Health.  That's Goodridge. From the school's press release:

During her 14 years on the Court before stepping down in December 2010, she wrote more than 200 opinions, including the landmark opinion in Goodrich v. Department of Public Health in 2003, legalizing same-sex marriage in Massachusetts. 

Couldn't resist.

Sure am glad I'm not defending DoMA today

At 9 a.m. PST on Friday, U.S. District Judge Jeffrey White will hear oral arguments on the constitutionality of DoMA after having asked that the lawyers spend their 45 minutes of alloted time addressing two pages of specific questions rather than rehashing what is in their briefs. From what's on that list, it looks like Judge White is going to give the DoMA defenders a rocky ride, with lots of reminders of the irrationality of their contentions.

At issue is defendant's motion to dismiss and plaintiff's motion for summary judgment in the case brought by federal employee Karen Golinski, seeking to add her spouse to the federal employee health insurance plan. In line with the Justice Department's policy of enforcing DoMA but not defending its constitutionality, the DoMA rationale will be argued by lawyers hired by Congressional Republicans. 

Examples of the judge's questions:

  • Why should the court not subject DOMA to heightened scrutiny for impacting marriage, as a basic fundamental freedom and an exercise of personal decision-making, protected by the right of privacy?
  • What is the authority for the proposition that only the right to opposite-sex marriage is fundamental as opposed to the right to marriage generally?
  • How does BLAG [the entity defending DoMA] distinguish the line of authority treating classifications based on religious affiliation as a suspect class from classifications based on sexual orientation?

The list goes on from there. Judge White even presses BLAG (which stands for Bipartisan Legal Advisory Group, a statutory entity that is composed of three members from the majority party in the House and two from the minority party) on whether it is legitimately constituted. One query to be answered: "Does BLAG have the support - and funding for the increasing cost of defending DOMA - from a majority of Congress or just from the House of Representatives?"

Should be fun for the plaintiffs.

December 15, 2011

First official UN report condemns anti-lgbt violence, discrimination

In a report released today, the UN's High Commissioner AuniversalemblemforHRfor Human Rights called on all nations to decriminalize laws against homosexual conduct and to condemn discrimination and violence against lgbt persons. Commissioner Navi Pillay's report, released to the Human Rights Council in Geneva, "highlights critical human rights concerns that States have an obligation to address."

The report is the result of a resolution narrowly passed by the Human Rights Council last June. The Council is expected to take up the substance of the recommendations next year.

Divorce and CP dissolutions increase in Britain with rockier economy

A total of 42,778 same-sex couples in England have entered civil partnerships; only 1,007 of those have sought dissolutions. Of late, however, there has been an upward trend for termination of both same-sex and different-sex couple relationships. From SoSoGay:

A new report released by the [British] Office of National Statistics this week has shown that divorce figures in 2010 have risen. It is thought that the current economic climate is putting financial pressure on couples, leading to breakdowns in relationships and a rising number of couples getting divorced. The divorce statistics for married couples have been reflected in those of same sex Civil Partnerships; there has also been a rise in the number of dissolutions... 

[Civil partnerships became available for same-sex couples in late 2005.] [F]emale partnerships [are] more likely to end than male ones despite the fact that up until 2010, more men formed civil partnerships than women. Thomas Duggins is Solicitor in the family team at Charles Russell LLP. ‘Up to the end of 2010, 62% of dissolutions have been to female couples, despite the fact that only 44% of formations were to female couples,’ he told So So Gay. ‘The evidence suggests therefore, that female civil partners are more likely to dissolve their partnerships.’ This trend has also been seen in other countries where same sex unions are possible. 

Duggins attributes this variation to the age difference between male and female partnerships. ‘Statistically, male civil partners are on average older than females when they form a civil partnership, and this may explain the difference in dissolution rates. It could be that entering the civil partnership when older means that it is less likely to fail, because the parties have known each other for longer. Certainly, the statistics show that the mean age at dissolution is similar or lower than the mean age at formation, which suggests that younger couples are more likely than older couples to dissolve their partnerships.’ Which may indeed mean that age is a more important factor than gender, in the stability of civil partnerships.

Cuyahoga County settles anti-discrimination case

Two months ago, I described a federal court decision in Cleveland that allowed a county employee to pursue her claim that the discrimination against her based on sexual orientation was prohibited by the Equal Protection Clause. The agency for which Shari Hutchinson worked had an anti-discrimination policy in place, and I wrote about her case to note how little protection is provided by policies that do not have enforcement mechanisms. Hutchinson v. Cuyahoga County Board of County Commissioners (2011 WL 4452394).

Now the case has been resolved in the way most such claims are concluded after a motion to dismiss is denied: the parties have settled.  According to Freedom to Work, Hutchinson obtained a $100,000 settlement from the defendant. Because the employer was a public sector agency and therefore an arm of the state, the Constitution applied to its actions.

Ohio is one of those large and important states - Pennsylvania and Michigan are others - that has no anti-discrimination law protecting lgbt workers. If Hutchinson had worked in the private sector in Ohio, she would not have had any legal basis to challenge the discrimination. This may have been a rather small scale lawsuit (except for Hutchinson), but that gap in the law is an outrage. 

December 14, 2011

Republicans use pro-lgbt statement to block confirmation of ambassador

From the Washington Blade:

Senate Republicans successfully filibustered on Monday the confirmation of an ambassadorial nominee, citing a pro-LGBT editorial she wrote as one reason to vote against her. The cloture vote to advance the nomination of Mari Carmen Aponte for the position of U.S. ambassador to El Salvador failed by 49-37 on a mostly party-line basis.

Aponte has already been serving as U.S. ambassador to El Salvador through recess appointment. But to remain in effect, the nomination must be approved by Jan. 3.

Sen. Jim DeMint (R-S.C.), a Tea Party favorite, said on the Senate floor that an editorial in favor of LGBT rights that Aponte wrote was a reason to withhold support for her. “In her recess-appointed capacity as ambassador to El Salvador, Ms. Aponte has inflamed tensions in the very country where she should be improving diplomatic relations,” DeMint said. “Her decision to publish an opinion piece hostile to the culture of El Salvadorans presents even more doubts about her fitness for the job. This op-ed upset a large number of community and pro-life groups in El Salvador who were insulted by Ms. Aponte’s rhetoric.”

The op-ed, titled “For the Elimination of Prejudices Wherever They Exist,” was published on June 28 in La Prensa Grafica, a Spanish-language newspaper in El Salvador. The piece followed a call from the State Department to Foreign Services officers urging them to recognize June as the month of Pride overseas.

According to the Associated Press, Aponte wrote, ”No one should be subjected to aggression because of who he is or who he loves. Homophobia and brutal hostility are often based on lack of understanding about what it truly means to be gay or transgender. To avoid negative perceptions, we must work together with education and support for those facing those who promote hatred.”

DeMint never specifically described the piece on the floor Monday as a pro-LGBT editorial. However, DeMint criticized Aponte’s remarks in a November article in the publication Human Events as “lecturing” El Salvador “on the need to accept and support the gay lifestyle.” According to DeMint, a coalition of more than three dozen groups in El Salvador wrote to the Senate asking members to oppose Aponte’s confirmation following publication of the op-ed.

Sen. Bob Menendez (D-N.J.) defended Aponte on the Senate floor as “a qualified, talented Latina” and said Republican attacks on her op-ed were unwarranted because it was consistent with her country’s policy. “The true irony of this trumped-up allegation is that the editorial, which Republicans assert stirred controversy and was rebuked throughout Latin America, mirrored a May 2010 decree by Salvadoran President Funes prohibiting discrimination by the Government of El Salvador based on sexual orientation,” Menendez said.

Sens. Susan Collins (R-Maine) and Scott Brown (R-Mass.) were the only the Republicans who joined Democrats in support of Aponte. Sen. Ben Nelson (D-Neb.) sided with Republicans in voting “no.” Senate Majority Leader Harry Reid (D-Nev.) also cast a “no” vote, but doing so allows him to bring up the nomination again...

Judge invites challenge to HHS decision that blocked access to emergency contraception

The Center for Reproductive Rights announced Tuesday that it will reopen a lawsuit filed in 2005 in order to challenge unnecessary age restrictions on emergency contraceptives imposed last week by the Obama administration. The lawsuit - Tummino v. von Hamburg -  was originally filed against the FDA. At a hearing on Tuesday, U.S. District Judge Edward Korman invited the Center to refile and expand the case in order to contest the action by U.S. Department of Health and Human Services (HHS) Secretary Kathleen Sebelius overruling the FDA’s recent approval of "Plan B" contraceptives. 

According to AP:

...[Judge] Korman was highly critical of the government's handling of the issue when he ordered the FDA two years ago to let 17-year-olds obtain the medication. At the time, he accused the government of letting "political considerations, delays and implausible justifications for decision-making" cloud the approval process. On Tuesday, he said "it seems to me like we're going through a re-run."

In deciding to limit the over-the-counter availability of the drug, Sebelius said she had concluded that the data submitted for the pill did not establish that prescription dispensing requirements should be eliminated for all ages. She said the studies submitted to the government did not include data on all ages...

Korman repeatedly questioned the lawyer for the government on whether the study data included information on girls older than the youngest girls of reproductive age but younger than the 17-year-olds currently able to get the pill, and whether they would be able to understand the pill instructions and use it properly. Assistant U.S. Attorney Scott Landau said he couldn't answer that question, both because it was proprietary information and because the issue hadn't actually been raised for the court to rule on.

In his 2009 decision ordering the FDA to reconsider the position it had taken in 2003 that access must be available by prescription only to girls 17 and older, Judge Korman found that the agency under the Bush Administration had "acted in bad faith and in response to political pressure," "departed in significant ways from the agency's normal procedures," and engaged in "repeated and unreasonable delays." In addition, the court found that the FDA's justification for denying over-the-counter access to 17 year olds "lacks all credibility," and was based on "fanciful and wholly unsubstantiated ‘enforcement' concerns."  

Northern Ireland court hears arguments against discriminatory adoption law

The Northern Ireland Human Rights Commission is arguing this week before the High Court in Belfast that the law barring adoptions by same-sex and other unmarried couples should be invalidated. From BBC:

The NI Human Rights Commission... claims the current arrangements [for adoptions] discriminate against unmarried and civil partnership couples and breach human rights. Opening the application for judicial review, Monye Anyadike-Danes QC said: "Northern Ireland is the only part of the United Kingdom which provides a gateway for adoption through which only couples who are married may pass." The challenge has been backed by an unidentified lesbian woman and her partner who want to adopt a child together.

In a clear indication of its importance, the executive's chief legal adviser, Attorney General John Larkin QC, represented the respondent, the Department of Health...If the Human Rights Commission succeeds it would remove the adoption ban completely.

It is seeking to ensure everyone, irrespective of sexual orientation or marital status, has the opportunity to provide a loving and secure home, the court was told. Ms Anyadike-Danes told Mr Justice Treacy her client wanted to ensure "the pool of potentially suitable parents is as deep as possible". She stressed that the case was focused on the eligibility stage of the adoption process, rather than the later assessment stage.

"That is the right time to look at circumstances," the barrister said. "Not to exclude people with a blanket barrier without even knowing whether they have the qualities to offer a child a nurturing and loving and permanent home."

She argued that there was no justification for the alleged discrimination. "The current state of the law, we say, is not something that has been established to be in the best interest of the child," she said. "We consider the status quo, as it impacts on all unmarried couples, to be discriminatory."

The hearing... is expected to last for three days...

UPDATE 12/14/11 - The hearing has been adjourned until March to allow the parties to consider the impact of new evidence regarding the legislative intent behind the ban.

December 13, 2011

Barney, still Frank

Following is a quintessentially irreverent and irascible swan song from our main man Barney (I have excerpted quite a bit; full text is here):

Washington Blade: To what degree have you seen support for LGBT equality increase in the U.S. Congress since you took office as a congressman in 1981?

Rep. Barney Frank: Oh, enormously. When I first got here, the first vote we had was in 1981 when the House – as it was able to do then by a one-house vote – overturned the D.C. Council’s repeal of the [city’s] sodomy law. It was a heavy vote against us. And we’ve just made very great progress since then. It’s to the point where now — and it’s unfortunate that it’s gotten very partisan. The country has gotten much better in its view on LGBT rights. The Democrats have gotten better — equal to or ahead of the country. But the Republicans have gotten much worse. So it’s now one of the major partisan issues... 

Blade: When you came out in Congress did you sense you were being held back from advancing because of a so-called glass ceiling due to your sexual orientation?

Frank: I think there was one at first. I think, now, yes and no. Certainly it didn’t interfere with my being the chair of a very powerful committee and being, frankly, because of the circumstances, one of the major leaders. In fact I said that on the floor. I remember saying when we were talking about the hate crimes bill, ‘I’m a big shot now but I used to be 15 and I remember what it was like.’ … If I were running for a leadership position it might be a problem in the House. Some of the Democrats come from the few areas left where they’re afraid. But now we have almost all the Democrats on board. We have a handful that aren’t. So no... 

Blade: Some of the more outspoken trans activists... say they are outraged because [the new Massachusetts law prohibiting gender identity discrimination] includes employment, housing and other protections but not public accommodations protections.

Frank: ... I would say ridiculous trans activists who are outraged, who would prefer there be no rights for employment than this - - [t]hat is an example of their political stupidity. They may be very bright about other things. I don’t see how anybody can see that as a rational argument right now, nor, by the way, do I think it represents five percent of our community. I don’t even think it represents a majority of the transgender people. How can it possibly be – and by the way, these people don’t know history, because I will tell you that Martin Luther King and the other civil rights leaders would not for a second have hesitated to accept that deal... 

Blade: Some, like Hillary Clinton when she ran for president in 2008, said her husband signed DOMA because it would act as a safeguard against passing a federal constitutional amendment to ban gay marriage.

Frank: That’s nonsense. Her husband signed it because he was afraid politically about what would happen if he didn’t sign it. It has nothing to do with a constitutional amendment. He signed it because it was politically necessary to sign it. And I understood that. The Republicans threw it on his lap three months before the election. [Liberal, gay-supportive Senator] Paul Wellstone [D-Minn.] voted for it. He was up for re-election that year and he was afraid of it...

Blade: Do you have any predictions of what the Supreme Court might do if the Proposition 8 case gets there?

Frank: I think that’s not a good case. I think the better case is Mary Bonauto’s case [the attorney with the LGBT litigation group in Boston, Gay & Lesbian Advocates & Defenders, which is challenging the Defense of Marriage Act, or DOMA, in court on behalf of a same-sex couple.]

Blade: Everybody’s talking about the presidential election. Are the Republican presidential candidates as horrible as a lot of gay activists are saying they are on LGBT issues?

Frank: Yes – they are. Romney is a total faker, having said he was going to be more pro-gay rights than Ted Kennedy and he’s moved against us on everything, not just on marriage. And Gingrich was the leader of homophobic stuff when he was here. Gingrich was the man who put the Defense of Marriage Act on the agenda in 1996 when he was the Speaker... [I]n general the Republicans have become a 90 plus percent anti-gay party...  I’m not at all confident that a Republican president won’t reinstate ‘Don’t Ask, Don’t Tell.’

Blade: Is there a chance that the Congress would block that, even if there’s a Republican-controlled House?

Frank: Well Congress couldn’t reinstate it because they would never get it through the Senate and the president would veto it. But if the Republicans win the presidency they don’t need the Congress. The president could reinstate it by executive order.

Blade: Is it completely settled now that every gay civil rights bill will include gender identity and expression protections or it won’t be introduced, whether it would be ENDA or another bill?

Frank: I think it’s unlikely that it wouldn’t but that doesn’t necessarily mean it will pass. I think you’ll see transgender protections included. We’ve made progress on transgender. But my view is the same in that we still have the problem with the situation where people get naked together. But short of that, I think the next time we have a Democratic House, Senate and president...  we’ll be able to pass a transgender-inclusive ENDA. But like the Massachusetts law, probably not allowing full and unrestricted access to locker and shower rooms...

Continue reading "Barney, still Frank" »

The abortion wars 2011: Opposing sides trade trenches

From Salon:

This was the year politicians and women’s groups started using “war on women” to refer to the Republican obsession with regulating uteruses. So if it’s a war, who’s winning?

The answer, frustratingly, is no one. This year saw the cementing of a consensus that neither side particularly likes: Abortion is still legal, but Republicans are doing an ever-better and more innovative job of making it as odious, expensive and shaming as possible to obtain. Although every side needs a sense of urgency to rally the troops, the good-ish news is that the federal court system helped hold back the tide on the worst laws. And for better or worse, anti-choicers got more honest than they’ve ever been about their hostility to birth control, which is used and supported by the vast majority of Americans.

Broadly speaking, the first half of the year saw Republicans in statehouses passing ever more outrageous laws — 80 in all this year, more than double the previous record — followed by a series of judges rolling their eyes and sending them home mostly empty-handed, for now at least...

“Judges know the score,” says Linda Greenhouse, who since retiring from the New York Times has co-edited a book and several legal articles focusing on reproductive rights. “They know that there’s a movement out there that’s going to push and push and push, which the political system in some of these states seem powerless to stop. These enactments have certainly gone beyond anything the Supreme Court has permitted.”

What the Supreme Court has permitted is not, in fact, what’s laid down in Roe. Instead, women are living under the “undue burden” standard of Planned Parenthood v. Casey, which turns 20 next year.  To put it bluntly, you’re allowed to burden a woman seeking an abortion, but only so much. Nancy Northrup, president of the Center for Reproductive Rights, says of Casey, “I think 20 years have shown that  is unworkable. What does it mean that you have a fundamental right to access abortion services but the government can make it really hard to do so?”

But given the court’s current composition, that’s the best pro-choicers have implicitly decided they can hope for... 

And if anti-choicers are paying attention, they aren’t going to push outright bans anyway, especially not after 58 percent of the electorate in deep-red Mississippi rejected a Personhood amendment that had the support of the state’s political establishment. Personhood, with its no-exceptions abortion ban and at least the intent to ban popular forms of birth control and reproductive technology, proved to be the suicide death cult of the movement, validating the incremental anti-choice strategy of just chipping away at access...  

In all of this, pro-choicers are still putting out fires. According to Guttmacher, that’s never been more true: “Legislators are proposing little in the way of proactive initiatives aimed at expanding access to reproductive health-related services; this stands in sharp contrast to recent years,” adding, “For the moment, at least, supporters of reproductive health and rights are almost uniformly playing defense at the state level.” (There was one major victory nationally, when copay-free contraception was adopted as part of the Affordable Care Act provisions, which also happened to be another moment where “pro-lifers” in office showed their disgust for birth control.)

So 2011 was a year when the consensus held: You can get an abortion, but depending on which state you live in, anti-choicers are still going to make you suffer as much as possible for it and make it as hard as possible to pay for with even private insurance. (And plenty of Democrats in Congress continue to tout the Hyde Amendment, which prevents federal funding for abortion in almost every case, as a form of ass-covering in the culture wars). That consensus combined with the state of the economy has meant terrible things for the most vulnerable women.

According to recent data, unintended pregnancies continue to drop among wealthier women, but in recent years they’ve skyrocketed among poorer ones, along with, unsurprisingly, the abortion rate, which is declining generally but rising among poor women since 2000. The courts may be the most visible battle, but those disparities make up the war.

December 12, 2011

Trial postponed in challenge to Belize sodomy law

Trial in the challenge to the sodomy law of Belize - scheduled to begin a week ago, on December 5 - has been postponed until late January. The reason reportedly was the filing of motions by both parties to strike expert witnesses expected to testify for the other side. The case was brought by the United Belize Advocacy Movement (Unibam) and its president, Caleb Orozco. Their attorney is Lisa Shoman of Belize City. Several international human rights organizations have presented arguments in support of plaintiffs. (Corrected 12/13/11)

Thoughts on gay and Muslim in Indonesia

The following column by Abdul Rohman (photo), Abdula lecturer in Communication Studies at Indonesian Islamic University and a Kerr Fellow in the Public Administration program at Florida State University, which appeared in the Jakarta Post, provides an example of the kind of discourse being triggered by the Clinton speech in Geneva: 

Insisting that same-sex relations are actually compatible with religious beliefs would almost certainly challenge mainstream perspectives. Within the context of Indonesia, as the country with the largest Islamic population, you cannot be a gay or lesbian, for example, and a good Muslim at the same time because most Islamic teaching bans same-sex practices. 

I do not attempt to justify homosexuality or promote gay culture but I call for a dialogue on religions and sexual preferences.

Sexual identity and religion are sensitive and contradictory issues in Indonesia. Only a few are willing to discuss them open-mindedly. Most are likely to say that having a different sexual preference is a perversion of religion and a betrayal of human nature or social norms. Luckily, we still have various media able to look at the issue through a different lens. 

We may recall a story about a transvestite who was jailed because she married a man whom she loved. Previously, the court had ordered her to become the “real man” she was naturally intended to be. Another example is a transgendered person whose access to healthcare was denied because their gender identity was not recognized administratively. 

Coming out as a homosexual in public can potentially rob you of your job, reputation, social life and lead to alienation from your family. It is as if letting people know that you have a different sexual preference from the majority is taboo and violates nature. Therefore, many gays opt to live in the closet and in some circumstances commit suicide. This shows how being sexually different from the mainstream culture makes individuals vulnerable. 

Being a Muslim and gay at the same time sounds incompatible. Without attempting to make subjective justification based on religious texts, however, both aspects can coexist if we look at the idea that serving God has nothing to do with sexual preference. In many verses of the Koran there is no explicit sentence saying that someone cannot serve God if he or she practices same-sex relationships. Also, there are competing ideas about whether the people of Lot were punished because of their homosexuality or their negligence in serving God. 

Within a more humanistic framework, celebrating beliefs and expressing sexual identity are part of our human rights and for that reason the government should recognize them as they are explicitly mentioned in international documents.  Nonetheless, for particular reasons the government has remained ignorant and let righteous vigilante groups exercise violence against sexual preference discourse. 

Continue reading "Thoughts on gay and Muslim in Indonesia" »

December 11, 2011

The holiday weeks ahead: December 12 - New Years 2012

December 16 - Oral argument before Judge White 20111127__ssjm1128gayrights~1_GALLERY
of the Northern District of California in Golinski v OPM, another challenge to the constitutionality of Section 3 of DoMA. Karen Golinski (photo/left), a staff attorney with the Ninth Circuit Court of Appeals, sought to add her partner Amy Cunninghis to her health insurance plan. As in the other DoMA cases, the Justice Department has switched sides to support Golinski's arguments, and lawyers for House Republicans are defending the constitutionality of DoMA.