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49 posts categorized "DoMA"

June 02, 2012

DoMA heads to Supreme Court...minus Kagan

The unanimity of the First Circuit's ruling that DoMA is unconstitutional virtually insures that a cert petition to the Supreme Court Elena_kaganwill be filed in the next 90 days, followed by an order granting certiorari in early October, followed by oral argument next winter, followed by a decision by June 2013. There's just one big problem looming for lgbt rights advocates: Justice Kagan will almost certainly recuse herself.

The Court of Appeals decision in Commonwealth of Mass. v U.S. Dep't of Health and Human Services [2012 WL 1948017] broke no new ground in its Equal Protection analysis. Indeed, it arguably ceded ground by specifically holding that DoMA would be valid under a traditional rational basis test. The court found it unconstitutional because "closer than usual scrutiny" was required, which in turn was triggered because the penalized group was  "historically disadanvated or unpopular and the statutory justification seemed thin, unsupported or impermissible." (More detailed analysis of the opinion itself coming in a later post.)

Whatever the First Circuit's reasoning - and you can be sure the Supreme Court will feel no need to conform its analysis to the approach of any lower court - the most important aspect of this decision is that it sets up Supreme Court review without further delay. There are only six judges on the First Circuit; a unanimous decision by three of them means that there is no chance that a majority would vote to accept a petition for rehearing en banc. 

So it's on to the Supremes. And I am quite happy that this case (originally called "Gill", but now consolidated with the state's challenge to DoMA, so Massachusetts has become the lead plaintiff) will get there before Perry v. Brown, which might lead to a ruling on the constitutionality of all state laws banning same-sex marriage. I do not see this Court, with these nine Justices, issuing such a decision.

This particular lawsuit challenging DoMA does have one major drawback as a Supreme Court vehicle, though. When Justice Kagan was Solicitor General, she was almost certainly involved in Justice Department decision-making about whether and how it should defend DoMA, a federal law. Assuming that she was, she will have to recuse herself from any participation in Massachusetts v. HHS when it reaches the Supreme Court (as I noted almost two years ago and as she did in a DADT case).

Her recusal will mean that the best case scenario is probably a 4-4 tie in the Supreme Court, which would leave the First Circuit decision in place. For that tie to happen, though, Justice Kennedy has to join the three progressives on the Court (Ginsburg, Breyer, Sotomayer) in finding DoMA unconstitutional. If he does, DoMA's fate is sealed, since I would be willing to bet something precious that Justice Kagan will vote to strike down DoMA in a subsequent case from which she is not recused. If on the other hand Justice Kennedy votes to uphold DoMA, the game is over.

March 13, 2012

Is Golinski a watershed decision?

An essay by Professor Julie Nice, University of San Francisco Law School, published in Jurist

[Those who have been watching the Prop 8 litigation and the progress of marriage equality legislation in several states] might have missed the importance of Golinski v. US Office of Personnel Management, a sleeper case decided recently by the US District Court for the Northern District of California in the stalwart effort by Ninth Circuit staff attorney Karen Golinski to add her lawful same-sex spouse to her federal health insurance benefits.

Karen Golinski and her wife, Amy Cunninghis, have been in a relationship for over 20 years. They registered as domestic partners with San Francisco in 1995 and with the state of California in 2003. They became legally married during the window in 2008 when the state allowed same-sex marriage. Then Golinski sought to add her wife to her existing federal health insurance coverage. The federal government refused to recognize her lawful California marriage. So Golinski filed an administrative employment complaint, which was heard by Ninth Circuit Chief Judge Alex Kozinski as arbiter.

Kozinski ordered the federal Office of Personnel Management (OPM) to add Golinski's wife to the health insurance plan. Despite this, OPM repeatedly refused to comply with his administrative orders, invoking the federal prohibition against recognizing same-sex marriage enshrined in Section 3 of the Defense of Marriage Act (DOMA). So Golinski was forced to file a federal lawsuit challenging the constitutionality of DOMA. In another twist along the way, President Barack Obama directed the Department of Justice to cease its defense of DOMA. As a result, the defense of DOMA was authorized by a congressional committee, which intervened as the Bipartisan Legal Advisory Group of the US House of Representatives (BLAG).

Now Judge Jeffrey White has ruled that the federal refusal to recognize Golinski's lawful marriage and thereby prevent health insurance coverage to her wife violated her Fifth Amendment right to equal protection under the law. 

What is stunning about the Golinski decision is what it reveals about how far gay rights have come. In this rather run-of-the-mill employment benefits dispute, a federal district court's methodical application of judicial reasoning from recent gay rights victories has resulted in a sweeping ruling in Golinski's favor.

From the outset of the Golinski decision, it was clear that the Supreme Court's gay rights trilogy has transformed the constitutional calculus. Recall that gays prevailed against voters' amendment of Colorado's Constitution to prohibit them from receiving anti-discrimination protection in Romer v. Evans, against the criminalization of same-sex sodomy in Lawrence v. Texas, and against the claim that religious liberty trumped a public law school's anti-discrimination policy in Christian Legal Society v. Martinez.

The district court in Golinski emphasized that these recent Supreme Court decisions governed its decision, rather than a prior anti-gay federal court of appeals decision whose "foundations" and "premises" have "sustained serious erosion." In other words, out with justifying discrimination against gays and lesbians based on criminalization, moral condemnation, and/or behavioral understandings of sexual orientation. It's a new day, with traditional assumptions about gays now subjected to judicial review as to whether they cohere with societal reality.

So what is a post-trilogy district court to do? First the court conducted a routine suspect-class analysis. Relying on research findings by several of the same prominent scholars who testified during the federal Proposition 8 trial, the district court ruled that the class of gays and lesbians has suffered a history of discrimination, that the class remains relatively politically powerless against majority prejudices, that the trait defining the class is irrelevant to an individual's ability to contribute to society, and that the trait is a "defining or immutable" characteristic. So the court applied heightened scrutiny, in this case the intermediate standard of requiring the government to demonstrate that its classification is "substantially related to an important governmental objective." Next the court examined the proffered justifications for DOMA, some of them surprising.

While anti-gay rights forces frequently base their moral condemnation on the presumption that gays are sexually promiscuous, it is strangely the promiscuity of heterosexuals that has emerged as the primary justification for banning same-sex marriage. Indeed, BLAG led its defense of DOMA with this "responsible-procreation" justification. Here is the basic argument: same-sex couples already procreate responsibly by making enormous investments in assisted reproductive technology or adoption to raise children, and marriage should be reserved for encouraging opposite-sex couples to procreate more responsibly because only they have the joint ability to conceive irresponsibly.

The district court in Golinski wholly rejected this defense, however. The court found no credible evidence to dispute the consensus that same-sex couples are equally capable as parents. The court also found that DOMA's denial of federal recognition of lawful same-sex marriages "does nothing to encourage or discourage opposite-sex couples from having children within marriage"; "does nothing to support opposite-sex parenting"; "does not alter parental rights under state law"; and "only serves to undermine providing a stable environment for children of same-sex couples" in violation of equal protection.

Rejecting BLAG's other arguments, the district court found that neither tradition alone nor moral disapproval justify a discriminatory classification. It found no evidence showing federal recognition of lawful same-sex marriages would affect the government fisc. The court also chastised BLAG for contending that DOMA would maintain caution and the status quo. Instead, the court noted that DOMA represented a "stark departure" from the federal tradition of deferring to state law on marriage and that Congress may not "bury its head in the sand and wait for controversy to pass" while constitutional injuries occur. The court also found that DOMA undermined administrative consistency. Finally, the court noted, "having tried on its own," it was unable to "conceive of any additional interests that DOMA might further."

Following the emerging trend of inoculating its decision from an appellate court that might disagree with applying heightened scrutiny, the district court also ruled, in the alternative, that none of the justifications would survive even rational basis review. Noting that rational basis review is "not 'toothless,'" the court searched for a rationale with some "footing in the realities of the subject," but found no such rational relation to a legitimate government interest here.

Twice this district court commented on DOMA's legislative history, which is replete with animus toward gays and lesbians. Members of Congress referred to gays as "immoral," "depraved," "unnatural" and as "homosexual extremists" seeking "to force their agenda upon the vast majority of Americans who reject the homosexual lifestyle," among other choice descriptions. This court concluded that something short of animus may have motivated DOMA. Quoting Justice Kennedy's concurrence in a disability discrimination case over a decade ago, the district court reasoned that prejudice might result not only from malice and animus but also from insensitivity or an instinct to guard against those who are different. Whether motivated by animus or prejudice, the court ruled DOMA discriminates against gays and lesbians in violation of equal protection. 

As I was describing this decision to some friends, one looked up and queried: "How many times do gays have to win before they win?" It's a good question. To be sure, the saga is far from over. But momentum seems to be building from a series of recent decisions by state and federal courts across the nation rejecting the primary "responsible procreation" justification as well as other defenses designed to deny both the designation and benefits of marriage to same-sex couples and their children. A new day really seems to have dawned when a federal district judge performs his regular job of enforcing equal protection by refusing to allow the government to rely on tired assumptions that "exceed the bounds of rational speculation" to justify discrimination based on sexual orientation.

February 22, 2012

Another federal judge finds DoMA unconstitutional

Judge Jeffrey White issued an opinion today in Golinski
Golinski v. OPM, ruling that DoMA is unconstitutional under the Equal Protection Clause. Golinski, a federal government employee, sought health insurance coverage for her spouse; the two were married in California during the period when same-sex marriages were legal there (after the California Supreme Court ruled that the gay exclusion was unconstitutional and before the voters amended the state constitution).

The outcome is not a surprise. Judge White's inclinations were clear from the questions for counsel that he circulated prior to the oral argument in December. 

The opinion declares both that sexual orientation classifications are subject to heightened scrutiny and that DoMA is unconstitutional even under a rational basis standard. Judge White clearly believes in hedging his bets.

From MetroWeekly:

...Golinski ... is represented by Lambda Legal Defense and Education Fund. Because President Obama and the Department of Justice have stopped defending Section 3 of DOMA in court challenges, the Bipartisan Legal Advisory Group -- led by House Republican leadership -- had opposed Golinski's request in court.

In part, U.S. District Court Judge Jeffrey S. White today found that Section 3 of DOMA violates the equal protection rights of Golinski, finding that heightened scrutiny applies -- as urged by the DOJ -- and noting that it might not even pass rational basis -- the lowest -- legal scrutiny:

The Court concludes that, based on the justifications proffered by Congress for its passage of DOMA, the statute fails to satisfy heightened scrutiny and is unconstitutional as applied to Ms. Golinski.

Although the Court finds that DOMA is subject to and fails to satisfy heightened scrutiny, it notes that numerous courts have found that the statute fails even rational basis review.

Later, he wrote:

The Court finds that neither Congress' claimed legislative justifications nor any of the proposed reasons proffered by BLAG constitute bases rationally related to any of the alleged governmental interests. Further, after concluding that neither the law nor the record can sustain any of the interests suggested, the Court, having tried on its own, cannot conceive of any additional interests that DOMA might further.


The Court has found that DOMA unconstitutionally discriminates against same-sex married couples. Even though animus is clearly present in its legislative history, the Court, having examined that history, the arguments made in its support, and the effects of the law, is persuaded that something short of animus may have motivated DOMA’s passage:

Prejudice, we are beginning to understand, rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.

Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 374-75 (2001) (Kennedy, J., concurring).

In conclusion, White finds and orders:

In this matter, the Court finds that DOMA, as applied to Ms. Golinski, violates her right to equal protection of the law under the Fifth Amendment to the United States Constitution by, without substantial justification or rational basis, refusing to recognize her lawful marriage to prevent provision of health insurance coverage to her spouse.

Accordingly, the Court issues a permanent injunction enjoining defendants, and those acting at their direction or on their behalf, from interfering with the enrollment of Ms. Golinski's wife in her family health benefits plan.

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

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 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.

November 07, 2011

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. 

November 06, 2011

The week ahead: November 7, 2011

Tuesday November 8 - Los Angeles - UCLA Professor Invisible-Families-Book-Cover-330x494 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. 

October 27, 2011

Ace Supreme Court litigator defending DoMA, challenging health reform

Paul Clement, who has argued more Supreme Court cases in the last decade than any other lawyer, is likely to be visiting the Justices again later in this term to argue against health reform and perhaps next term to try to persuade them that DoMA is constitutional. Given his skill and relative youth (45), Clement is almost certain to be offered an appellate judgeship if a Republican is elected President. And one day he might even walk up those marble Supreme Court steps as a Justice - scary thought.  This profile is excerpted from today's NY Times:

As solicitor general for three years and deputy solicitor for four [under President George W. Bush], Mr. Clement appeared before the Supreme Court 49 times, defended the administration’s detention of terrorism suspects, fought off challenges to the McCain-Feingold campaign finance law and validated the prosecution of medical marijuana growers in a landmark commerce case...

At the moment, he is defending both Arizona’s tough new law against illegal immigration and Congress’s prohibition against federal recognition of same-sex marriages. And if, as expected, the Supreme Court soon announces that it will hear a challenge to last year’s health care law, it seems increasingly likely that it will be Mr. Clement who argues, in the thick of the 2012 campaign, that President Obama’s signature domestic achievement is unconstitutional...

...As a former clerk to Justice Antonin Scalia, Mr. Clement maintains a breezy but respectful rapport with the justices. It is assumed that his familiar name on a petition can improve the 1-in-100 chance that a case will be accepted for consideration... [He] has argued more Supreme Court cases since 2000 than any other lawyer...

Florida and the other plaintiff states [challenging the health reform law] have a contract with Mr. Clement, at discounted rates, that is capped at $250,000. In the same-sex marriage case, House Republicans recently tripled the cap on his fees to $1.5 million, paid from tax coffers. Without being precise, Mr. Clement confirmed speculation that he typically bills in the range of $1,000 an hour.

Other appellate specialists say Mr. Clement brings both exhaustive preparation and acute insight to his cases. The son of an accountant and a homemaker from Cedarburg, Wis., north of Milwaukee, he received his bachelor’s degree from Georgetown, a master’s in economics from Cambridge and a law degree from Harvard, where he helped edit the law review when Barack Obama was its president. Mr. Clement now lives in Alexandria, Va., with his wife and three sons...

Mr. Clement is admired by colleagues and adversaries for the straightforward clarity of his presentation. He famously argues without notes, leaving his hands free to jab and gesticulate, sometimes as if wringing an imaginary neck. “He just internalizes every single aspect of the case,” said Viet D. Dinh, Mr. Clement’s law partner. “He makes the argument not from memory but from total immersion.”...

Continue reading "Ace Supreme Court litigator defending DoMA, challenging health reform" »

October 23, 2011

The week ahead: October 24, 2011

Tuesday October 25 - "All Children Matter," an event at which LGBT, allied, and child welfare-focused organizations will release the first comprehensive report documenting the experiences of the 2 million children with LGBT parents and how they are hurt and could be helped by the legal system. Live webcast 10 am to 12 noon.

Thursday October 27 - The final set of briefs from the plaintiffs is due in Gill v. OPM, pending in the First Circuit. 

Also October 27 - Hearing on the motion for preliminary injunction in PFLAG v. Camdenton School District, in which the ACLU is challenging the use of filtering software that blocks all LGBT-support sites, pending before U.S. District Court for the Western District of Missouri.

Friday October 28 - Deadline for submissions to the LGBTQ Policy Journal of the Harvard Kennedy School.

October 16, 2011

The week ahead: October 17, 2011

 Thursday, October 20 -  Oral argument before the Seventh Circuit Court of Appeals in Planned Parenthood of Indiana v. Commissioner of the State Department of Health. The state is appealing a preliminary injunction issued against enforcement of a new law to defund Planned Parenthood that would end its ability to accept Medicaid (low income) patients.

Also October 20 - New York City - The Association of the Bar of the City of New York will present a CLE program on "Defense of Marriage Act Litigation: Strategy, Tactics and Theory" from 6 to 8 pm at the City Bar building on 44th Street.

Friday, October 21 - Oral argument before Judge White of the Northern District of California in Golinski v OPM. This is another one of those cases in which counsel for House Republicans is defending the constitutionality of DoMA, since the Justice Department has declined to do so. UPDATE - This hearing has been rescheduled for December 16.

Also October 21 - Los Angeles - Loyola Law School is hosting a day long conference on LGBT Identity and the Law; open to the public.

October 06, 2011

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.

July 23, 2011

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:


July 20, 2011

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.

July 14, 2011

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.

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