hunter of justice

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.

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...

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...

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 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. 

Congratulations Judge Nathan

Congratulations to Alison Nathan, an openly lesbian former Associate White House Counsel, whom right-wingers almost scared the Senate into failing to confirm. The bad guys failed, and the confirmation succeeded by a 48 to 44 vote. Ali will join the Southern District of New York, where she will sit alongside (figuratively) openly gay judges Deborah Batts and Paul Oetken. Nathan and Batts are the only two openly lesbian federal district court judges; Oetken is the one and only openly gay male federal district court judge.

The most heavily invoked reason for conservative opposition during the debate over Nathan was not her sexual orientation or even the code word fear of "judicial activism." Instead, bizarrely enough, Sen. Jeffrey Sessions spoke for 18 minutes mostly about her openness to considering law from outside the U.S. in her rulings.

Conservatives seized on a book chapter that Nathan wrote about international human rights issues:  “Arresting Juxtapositions: The Story of Roper v. Simmons” in Human Rights Advocacy Stories. Conservative legal commentator Ed Whelan condemned the chapter's endorsement of the “‘internalization’ of international human rights law arguments” into Supreme Court decisionmaking on constitutional issues. 

Nathan's response to questions from members of the Senate Judiciary Committee illustrates her wild, left fringe thinking: Nathan said that foreign law would have 

“no relevance to my interpretation of the U.S. Constitution.” [But she acknowledged that there is] “an important debate” on “what role the Supreme Court’s reference to foreign law is playing in the Court’s decisions….

If confirmed, I would follow binding Supreme Court precedent in this and all areas.

Prior to her White House work, Nathan clerked for Justice Stevens, worked at Wilmer Cutler, and taught for brief stints at Fordham and NYU Law Schools. Her fellow clerks from the 2001-2002 term, including individuals who had worked for all nine Justices, submitted a letter to the Senate Judiciary Committee endorsing her nomination.

Legal bill for defending DoMA triples

Bancroft PLLC, the law firm retained to represent House Republicans in defending the constitutionality of DoMA, has renegotiated its contract. Paul Clement and his then firm King & Spaulding initially agreed to do the job for fees of up to $500,000. (Clement left that firm last April after it pulled out of the case.) The new contract allows for reimbursement of up to $1.5 million. Apparently even the decision to concede DoMA challenges in Bankruptcy Courts isn't keeping the costs down enough to get by on half a mil. According to The Blade:

The U.S. House has tripled the cost cap for the legal expenses of hiring a private attorney to defend the Defense of Marriage Act in court to reach a potential total sum of $1.5 million.

According to recently approved contract modification dated Sept. 30, House General Counsel Kerry Kircher has agreed to pay Bancroft LLC private attorney Paul Clement a sum not to exceed $750,000 to defend DOMA, but this cap may be raised to $1.5 million under written notice.

“It is further understood and agreed that, effective October 1, 2011, the aforementioned $750,000.00 cap may be raised from time to time up to, but not exceeding, $1.5 million, upon written notice of the General Counsel to the Contractor specifying that the General Counsel is legally liable under this Agreement for a specific amount,” the contract modification states.

The contract modification is signed by Committee of House Administration Chair Dan Lungren (R-Calif.) as well as Kircher and Clement.

Bancroft itself is keeping a low profile regarding its DoMA defense work, which is not mentioned either in the "significant matters" portion of its webpage or as part of Clement's bio.

White House gets testy about obstruction from Senate, goes visual

From the White House web page:

What a difference 15 years makes: The decline of DoMA

A new report from Third Way, a DC think tank, documents the extraordinary shift in public opinion on legal recognition of same-sex couple relationships since the enactment of DoMA in 1996, when it passed the House by a vote of 342 to 67 and the Senate by a vote of 85 to 14. Today the question before Congress has shifted to whether to repeal it, or, more likely within the next few years, how to respond if federal courts declare it to be unconstitutional. For a kind of creepy pleasure, watch these appalling excerpts from the 1996 debates in Congress, compiled by Think Progress:

 

Williams Institute analyzes the impact of DoMA

The Williams Institute on Sexual Orientation Law and Policy at UCLA just published this excellent report analyzing the demographic, economic, legal and social effects of DoMA. The report was requested by staff of the Senate Committee on the Judiciary in anticipation of its hearing today on S. 598, a bill that would effectively repeal Section 3 of DoMA by providing recognition under federal law for marriages that were valid where they were entered into.

The legal effects of DoMA include:

·        Family Medical Leave Act (FMLA) Benefits.  Nearly 430,000 same-sex partners remain barred from taking leave to care for a same-sex spouse under the FMLA, regardless of whether they marry.

·        Benefits for Spouses of Federal Employees.  The same-sex partners of more than 30,000 federal employees are ineligible for the benefits available to different-sex married spouses.

·        Veteran Partner Benefits.  Same-sex partners of nearly 68,000 veterans are barred from a variety of benefits including pensions, educational assistance, and vocational training available to different-sex spouses.

·        Taxation of Employee Health Benefits for a Same-Sex Spouse.  When private employers offer health insurance to same-sex spouses and domestic partners, because of DOMA, federal law taxes these benefits. Approximately 41,000 employees with a same-sex spouse or domestic partner pay, on average, over $1,000 more in taxes per year than an employee receiving the same health benefits for a different-sex spouse.

·        Spousal Impoverishment Protections for Medicaid Long Term Care (LTC).  Medicaid LTC beneficiaries may have to use some of their spouse’s income and assets to pay for LTC. Federal law require states to allow different-sex spouses to retain income and assets to protect them from destitution. However, about 1,700-3,000 individuals whose same-sex partners receive Medicaid-financed LTC are not protected by these spousal impoverishment provisions.

·        Estate Tax.  Over the next two years, members of same-sex couples who will pay the federal estate tax, will pay, on average, more than $4 million more than a survivor of a different-sex spouse because they do not qualify for the federal estate tax spousal exemption.

·        Social Security Survivor Benefits.  Unlike different-sex spouses, same-sex spouses cannot continue receiving their partner’s social security payments after their partner’s death. This results in a loss, on average, of more than $5,700 for a same-sex partner that receives lower social security payments than the deceased spouse.  

·        Immigration for Bi-National Couples.  Nearly 26,000 same-sex couples in the United States are bi-national couples who could be forced to separate because they cannot participate in green-card and accelerated citizenship mechanisms offered to non-citizen spouses of American citizens.  

[Disclaimer: I'm listed as one of the authors, but it's a generous credit. The document is a compilation of the work of many people.]

You can watch the full hearing here.

Congratulations to Judge Oetken

Paul Oetken will become a member of the same court - the Southern District of New York - where Judge Deborah Batts, the first openly lesbian federal judge, sits.  Judge Batts was appointed by President Clinton in 1994; at that time, her sexual orientation was not known to the public. President Clinton also appointed openly lesbian Judge Emily Hewitt to the U.S. Court of Claims in 1998. Since those appointments, there has been no other openly gay person confirmed for a federal judgeship until now. From Politico:

The Senate on Monday voted 80-13 to confirm Paul Oetken, making him the first openly gay male federal judge.

Oetken, a former Justice Department attorney and White House associate counsel during the Clinton administration, will serve on the Federal District Court for the Southern District of New York.

Twenty-seven Republicans, including conservative Sens. Jeff Sessions (R-Ala.), John Cornyn (R-Texas and Tom Coburn (R- Okla.), joined all Democrats in voting aye. All 13 no votes were cast by Republicans: Roy Blunt (Mo.), John Boozman (Ark.), Thad Cochran (Miss.), Mike Crapo (Idaho), Jim DeMint (S.C.), Orrin Hatch (Utah), Kay Bailey Hutchison (Texas), Mike Lee (Utah), Mitch McConnell (Ky.), Jerry Moran (Kansas), Jim Risch (Idaho), Pat Roberts (Kansas) and Roger Wicker (Miss.).

Oetken’s nomination cleared the Senate Judiciary Committee in April with no opposition, but it had been stalled on the Senate calendar for three months. More than 20 of President Barack Obama’s judicial nominees are pending before the Senate, including 17 who received unanimous approval in committee.

The nadir of lawmaking: the enactment of DoMA

Kudos to Chris Geidner at MetroWeekly for producing this first draft of history:

''Given your stated and longstanding opposition to gay marriage, we believe there would not be a substantive basis for you not to sign the proposed legislation if it were to be adopted by Congress,'' White House counsel Jack Quinn, senior advisor to the president George Stephanopoulos, and White House gay and lesbian liaison Marsha Scott wrote to President Bill Clinton on May 10, 1996 — three days after Rep. Bob Barr (R-Ga.) introduced the Defense of Marriage Act in Congress. ''It is therefore our recommendation that you should sign this legislation if it is enacted,'' the trio continued.

It would be two weeks until Clinton made his first remarks on the bill, but the interceding two weeks — if there ever was a question — sealed the fate of the bill and showed the extent to which Democrats were completely unprepared to address the issue at all, let alone present any sort of unified approach in opposition.

From a Department of Justice letter stating that there were no constitutional problems with the bill, to disputes in the House about how to oppose the bill, to a muddled White House message that resulted in conflicted and confused statements all around, the disorganized Democratic strategy allowed the Republicans to create a vigorously anti-gay record for the bill and move it successfully through the House in less than 10 weeks.

The May 10 letter was one of several about same-sex marriage directed to Clinton, Vice President Al Gore and senior White House staff that were provided to Metro Weekly as part of its review of the circumstances surrounding the consideration and passage of the 1996 law. The letters, unsurprisingly from the established history of DOMA, show a staff that appeared to dislike the bill but was attempting to find the least harmful way of addressing the legislation in light of Clinton's opposition to same-sex unions.

At the other end of Pennsylvania Avenue, however, the House was in its second year of being run by the ''Contract with America'' Republicans and House Speaker Newt Gingrich (R-Ga.). Bills like DOMA moved fast. A week after Barr introduced the bill, Rep. Charles Canady (R-Fla.) — the chairman of the Judiciary Committee's subcommittee on the Constitution — held hearings into the bill.

Robert Raben, who served as the minority counsel for the Democrats on the subcommittee, explained the nature of the House, and particularly the Constitution subcommittee, at the time.

''[W]hen [the Republicans] took control of the legislature in January of 1995, there was a fantastic pent-up energy and demand for just a mind-boggling amount of social legislation, economic too. And a huge percentage of it … happened to go through the judiciary committees,'' he says. ''So, for those of us who were literally doing the work, it wasn't like the ban on gays in the military, which was volcanic — out of place to everything else going on that year, in terms of attention, voter turnout, angst.

''This was, 'It's Tuesday, so we're banning affirmative action.'

Although Raben says DOMA was ''particularly excruciating'' for him and the only openly gay House Democrats at the time – Rep. Barney Frank (D-Mass.) and Rep. Gerry Studds (D-Mass.) – the social conservative agenda was uniformly painful.

The wedge turns: Republicans now gun shy on gay marriage

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

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

Consider the statement issued by Speaker Boehner:

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

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

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

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

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

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

2010: From trans liberation (?) to geezers on the left and into 2011...

As a way to close out 2010, here's the official pronouncement from the NY Times that this was a technicolor transversal year:

It's certainly a statement on our times that, in the same month, James Franco graces the covers of GQ and Candy. In GQ, he appears in a moody head shot. In Candy, a style magazine dedicated to what it calls the “transversal” — that is, transsexuality, transvestism, cross-dressing, androgyny and any combination thereof — Mr. Franco, shot by Terry Richardson, vamps in trowel-applied makeup, heavy jewelry and a woman’s dominatrix-style power suit.

Candy, it turns out, is but one of the more visible bits of evidence that 2010 will be remembered as the year of the transsexual. Yes, Mr. Franco is just dressing up and doesn’t feel he was born the wrong sex. But it is a grand gesture of solidarity with gender nonconformists and certainly hasn’t affected attendance at “127 Hours.”

Other celebrities have flirted with “the other side,” cross-dressing for fashion publications. On the cover of the current Industrie, Marc Jacobs is decked out in one of his signature women’s designs (albeit with a beard). Japanese Vogue Hommes revealed its new male model, Jo Calderone, who was, in actuality, Lady Gaga.

Not since the glam era of the 1970s has gender-bending so saturated the news media. ...The only thing that would have raised more awareness of trans people would have been a link with the president — even better, a link that rhymed. That’s when the “tranny nanny,” Barack Obama’s transvestite nanny from his boyhood in Jakarta, Indonesia, was discovered and made headlines...

[The third photo is of model Lea T, in feathers, who told the Times,] “I hope we have a big revolution, and people change their minds about us — that it is just the beginning.” 

If only.

And then there's this photo of a group that looks (especially by comparison to the first photo) like the new leadership team for Geezers Anonymous, or maybe for a group representing everyone ever voted off the island.

Not so funny, though, when you consider that no political entity in the country produced more significant legal change this year (or this decade) than the House of Representatives 2010, which led every successful progressive initiative - from health reform to new regulation of the financial markets to literally hundreds of bills that were blocked in the Senate to, at the end, kickstarting the final push to repeal DADT. No, none of those is perfect, but compared to anything we've seen come out of either chamber of Congress in 30 years, it's a pretty darn impressive list of accomplishments.

So, unlikely as hell, this crew really can claim to be fierce advocates. Yes, Virginia, liberals can be fierce. Too bad they're about to return to the political equivalent of the North Pole.

Dreams deferred

Even at its best, it seems, American politics mixes the bitter with the sweet.

Yesterday's vote setting up the final glide path for repeal of DADT was certainly sweet. It vindicated the blood, sweat and tears of thousands of gay Americans who have served the nation honorably only to be disserved, dishonorably by the nation. It will lead to the end of a policy that was never justified or justifiable, the monstrous product of a rookie President who botched his own efforts to do the right thing, a vicious conservative opposition, blindly intransigent military leadership, and a horribly wrong man in a key position, Senator Sam Nunn. 

It took 17 years of hard work by an almost countless number of people to right the wrong of DADT. And of course the ban on military service by openly gay Americans long pre-dates DADT, as do the efforts to end the ban. The list of men and women who had the courage to insist on the dignity of honest service goes way back: Leonard Matlovich, Vernon Berg, Perry Watkins, Miriam Ben-Shalom. The litigation challenge brought by the ACLU on behalf of Matlovich was filed in 1975.

It is impossible to count how many lives were ruined by the various iterations of this policy. For so many of the young men and women who enlist, the military seems to offer a ticket out - of poverty or near poverty, of a future with nothing but dead end jobs, or just of a numbing daily existence. Military service looks like a fresh start, maybe ultimately the chance to go to college. The old policies closed that door for gay kids or forced them to live in terror that they would be found out and forced out. It is sweet to see that era end.

But it is also deeply ironic that the vote to end it came in tandem with the failure to enact the DREAM Act. For thousands of young people, the DREAM Act would have offered a fresh start and the chance to get a better education or to serve in the military without fear. Although the anti-immigrant phobia that led to this defeat is not specifically about gay people, it is profoundly a gay issue in all but name. For starters, it's the same dream. It is also anyone's guess how many gay and lesbian immigrant youth will continue to be hurt by current immigration policy - maybe as many as the number of gay Americans who enlist? More centrally, the DREAM Act is about ending a fundamental injustice that stratifies human beings based on an irrelevant characteristic.

Let's hope it doesn't take 17 years to rectify yesterday's bitterness.