hunter of justice

Obama directs agencies to contest anti-gay governmental policies around the world

President Obama issued a memorandum on Tuesday "directing all agencies engaged abroad to ensure that U.S. diplomacy and foreign assistance promote and protect the human rights of LGBT persons." Specific steps included fighting criminalization and discrimination, aiding victims of persecution seeking asylum, and "swift and meaningful" responses to human rights abuses of lgbt persons.

The memorandum was announced simultaneously with a pretty amazing speech in Geneva by Secretary Clinton. (See companion post above.)  Indeed, as has happened before, the White House memorandum in effect applied to the rest of the Executive Branch the pro-lgbt policies that the State Department has already adopted.  From the NY Times:

The administration’s announcement formalizes several steps that Mrs. Clinton has already ordered. She has asked American diplomats to raise the issue wherever harassment or abuse arises and required a record of them in the State Department’s annual report on human rights. On Tuesday, she also announced a $3 million program to finance gay-rights organizations to combat discrimination, violence and other abuses.

A senior administration official said that the money could be used, for example, to finance a lawyers’ group that is defending gays or to pay for the training of journalists who cover the persecution of gays. It could also provide relocation aid to refugees fleeing violence or persecution.

“I am deeply concerned by the violence and discrimination targeting L.G.B.T. persons around the world,” Mr. Obama said in the memorandum, referring to lesbian, gay, bisexual and transgender people,  “whether it is passing laws that criminalize L.G.B.T. status, beating citizens simply for joining peaceful L.G.B.T. pride celebrations, or killing men, women and children for their perceived sexual orientation.”

He said in the memorandum that the State Department would lead other federal agencies [in these efforts]. The administration’s directive, months in the planning, came after a series of legal steps taken against gay men and lesbians in countries like Uganda, where the Parliament reopened debate on legislation that would outlaw homosexuality and possibly make it punishable by death...

USAID Broadens Anti-Discrimination Language for Contractors

USAID has announced a new policy of including language in its contracts that "strongly encourages all its contractors (at all tiers) to develop and enforce comprehensive nondiscrimination policies for their workplaces" that include the same prohibitions that USAID applies to itself.  These prohibited bases include sexual orientation and "sex (including pregnancy and gender identity)."

The new policy acknowledges that the contract language cannot be mandatory. Contractors are barred by existing law and regulation from discriminating based on certain characteristics, but not explicitly sexual orientation or gender identity. Businesses could argue that additional requirements, if mandatory, would contradict current law. 

What is required in order for USAID (and the rest of the federal goverment) to do more is an Executive Order adopting new rules for all federal contractors. Mr. President...

Conference of Catholic Bishops launches new organization to fight equality, preserve special treatment for religious entities

The U.S. Conference of Catholic Bishops has created a new DC-based lobbying group to fight what it calls an "unprecedented assault" on the right "to proclaim the truth of religious freedom." Archbishop Timothy Dolan of New York, president of the USCCB, announced the new campaign in a letter identifying the perceived threats to religious liberty that justified "a new moment in the history of our Conference."

Most of the declared threats were policies dealing with either lgbt rights or access to abortion and contraception. In addition to the new New York marriage equality law, the letter cites the Justice Department's decision to stop defending the constitutionality of DoMA. Even worse, the letter says,

the Department started filing briefs actively attacking DOMA’s constitutionality, claiming that supporters of the law could only have been motivated by bias and prejudice.  If the label of "bigot" sticks to us—especially in court—because of our teaching on marriage, we’ll have church-state conflicts for years to come as a result.

The Dolan letter also criticizes the HHS announcement that health insurance policies offered through new health reform systems would be required to cover birth control, federal rules that could require a Catholic charitable organization to provide abortion and contraception services to trafficking victims and condom distribution in HIV-prevention programs abroad, as well as the Justice Department argument in EEOC v. Hosanna-Tabor that churches should be required to follow anti-discrimination in employment laws.

"We're not hiring your K Street lobbyists," Archbishop Dolan told Roll Call. "We'll hire a constitutional lawyer who can really look carefully at these issues, and hire a policy advocacy person who can advocate the church's position."  

The lgbt blogosphere is full of news about right-wing religious nuts, some of them currently seeking the Republican nomination for President, spouting various now out-of-touch slogans about gay people being sick or evil.  It's easy to laugh and dismiss them. The USCCB's action, however, should not be dismissed or ridiculed. These people may be wrong, but - especially in Congress - they are credible, widely respected, and powerful. Not to mention financially capable of mounting a more sophisticated effort than the Family Research Councils of the world can dream of.

This creation of a permanent satellite advocacy organization, a commitment that marks another more reactionary step by the USCCB, an organization that has led advocacy efforts for poor people even as it has fought against reproductive rights for women and equality for lgbt people. Until last year, for example, the Conference was neutral on ENDA. It is now officially in opposition, and terminated its membership in the Leadership Conference on Civil Rights over these issues.

With public opinion running in the opposite direction on their doctrines related to sexuality, religious conservatives are seeking to reframe the debate about lgbt equality - whether in the workplace or in marriage - in less invidious, more intellectually respectable terms. They want the public to see these disputes as being about lofty concepts of religious freedom rather than about using the power of the state to enforce their claims of moral superiority.  If only.

[Correction: This new entity is not the first permanent satellite advocacy group created by the USCCB; the Committee for a Human Life Amendment was created earlier.]

White House gets testy about obstruction from Senate, goes visual

From the White House web page:

New Medicaid policy is more important than it may seem

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

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

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

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

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

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

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

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

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

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.

Obama issues new rules for faith-based programs funded with federal dollars, continues exemption for discrimination

Virtually unnoticed by the press, President Obama issued an Executive Order in November establishing criteria for federal agency funding of social services provided by religious organizations. Executive Order 13559 modified Executive Order 13279, the much criticized 2002 order issued by President Bush. The new order made no changes to policies established by President Bush on the issue of religious bias in hiring by faith-based charities that receive federal funds. 

Under both the Bush and Obama orders, religious organizations receiving public funds are allowed to discriminate on the basis of religion in their employment policies. Also under both orders, funding recipients are prohibited from discriminating against beneficiaries on the basis of religious affiliation or belief or the refusal to hold a belief or to attend services.

Under Title VII, religious organizations have long had the same kind of exemption allowing them to discriminate based on religion in their hiring and firing decisions. However, the Bush and now the Obama executive orders have extended that exemption to include organizations that are supported with government funds. 

The Obama order did add provisions requiring federal agencies to provide alternatives for people who do not want to receive social services from religious groups and to list recipient organizations on agency web sites.

Catching up from the holidays

So, what's new from the last two weeks?

First (I'll admit some bias here), the Senate confirmed Chai Feldblum as an EEOC Commissioner. How absurd did the debate get over Chai's nomination?  You can choose whether to laugh or cry about this February exchange during a press briefing by White House Press Chief Robert Gibbs:

Q    Robert, just two -- just two questions. There have been news reports that the President's nominee for EEOC commissioner, Chai Feldblum, and the ACLU support the acceptance of polygamy.  Does the President believe our armed forces should begin recruiting polygamists?

Q    Say yes.  (Laughter.)

MR. GIBBS:  I'm happy to look at the information in the news reports you cite, but I don't have anything on that.

Second place goes to Ireland. On December 23, Irish Justice Minister Dermot Ahern signed the Civil Partnership and Certain Rights and Obligations of Cohabitants Act of 2010, legislation recognizing gay couples and allowing civil unions in the Irish Republic. The law, which secures a range of rights over shared homes, maintenance payments and pensions, goes into effect today. Because Irish law requires all couples to give three months’ notice to their local registrar, the first ceremony is expected to be in early April.  

Coming in third: VP Joe Biden, who provided quite a teaser during an interview with ABC: 

The vice president agreed with Obama’s comments that his position on gay marriage is “evolving.”  Biden said there is an “inevitability for a national consensus on gay marriage.”

“I think the country's evolving.  And I think you're going to see, you know, the next effort is probably going to be to deal with so called DOMA [Defense of Marriage Act],” he said.

This response seems like the classic trial balloon, and my bet is that the Obama/Biden mantra of <gay marriage is inevitable, let's all evolve> will become the new Democratic Party line on gay marriage.

My question:  if DoMA is the administration's "next effort," what happened to ENDA?

Obama: DADT is wrong but won't answer whether he believes it is unconstitutional

From Joe Sudbay's transcript of his exchange with the President during Obama's session with five bloggers:

And one of the things I’d like to ask you -- and I think it’s a simple yes or no question too -- is do you think that “don’t ask, don’t tell” is unconstitutional?

THE PRESIDENT: It’s not a simple yes or no question, because I’m not sitting on the Supreme Court. And I’ve got to be careful, as President of the United States, to make sure that when I’m making pronouncements about laws that Congress passed I don’t do so just off the top of my head.

I think that -- but here’s what I can say. I think “don’t ask, don’t tell” is wrong. I think it doesn’t serve our national security, which is why I want it overturned. I think that the best way to overturn it is for Congress to act. In theory, we should be able to get 60 votes out of the Senate. The House has already passed it. And I’ve gotten the Secretary of Defense and the Chairman of the Joint Chiefs of Staff to say that they think this policy needs to be overturned -- something that’s unprecedented.

And so my hope and expectation is, is that we get this law passed. It is not just harmful to the brave men and women who are serving, and in some cases have been discharged unjustly, but it doesn’t serve our interests -- and I speak as Commander-in-Chief on that issue.

Do Appeal / Don't Lie: The question of whether Justice should appeal decisions to strike down DADT and DoMA

Walter Dellinger has an op-ed in the NY Times today spelling out a principled way for the Justice Department to respond to the decision in the Log Cabin Republicans case:

• The Justice Department should appeal Judge Phillips' ruling (and Judge Tauro's opinion reaching the same conclusion as to DoMA); but
• The Department should not attempt to justify DADT as beneficial to national security (and thus as advancing an important government interest). 

There are many reasons why. As Walter points out, a non-appeal would not eliminate the law, and eliminating the law is after all the goal, not this or that tactical move toward the goal. The decision of one District Court judge is not binding on anyone, not even other federal judges; a different federal judge could reach the opposite conclusion tomorrow and the second opinion would have just as much weight as the Log Cabin Republicans decision. Unless the law is repealed or struck down by the Supreme Court, either a different President or a new Congress could also direct that it be reinstated.

Moreover, the decision by a President not to appeal a trial court ruling would set a horrible precedent for the Executive Branch, and perhaps produce major backlash in support of DADT just as the possibility of Congressional repeal looms. Presidential non-appeals happen only in the most extraordinary circumstances, which is the way it should be. Even the cases often cited by those who are arguing that this or that case should not be appealed can be misleading.  In Metro Broadcasting v. FCC, 497 US 547 (1990), for example, it is true that then Solicitor General John Roberts filed a brief arguing that the law being challenged was unconstitutional, but that was an amicus brief - the FCC acting independently defended the law. In general, in cases in which the administration declined to defend a law, that decision was made after the federal courts had jurisdiction of the question [eg, INS v Chadha, 462 US 919 (1983)]. 

The smart thing for lgbt advocates to do on this issue is to move on to a better strategy, by focusing on what the government can and should do.  These are the three strategies to concentrate on:

1. Justice Department briefs should go beyond stating that the administration believes that the law is wrong and explain why it's wrong, rather that re-arguing anti-gay precedents. As long as the case is before an appellate court, it's fair game for the government to present arguments against a law; there will be plenty of voices before the court in absolute defense of the statute, and the Court of Appeals will reach its own conclusions.
2. The Administration should actually lead on repeal of DADT and DoMA, by pressing Congress to treat them as priorities, rather than trying to jump in front of the parade after members of Congress have taken the lead.
3. If there is no Congressional repeal in the lame duck session, the President should consider how to exercise his commander in chief powers so that national security is best served, as determined not only by him but by the Joint Chiefs of Staff. That could involve a stop-loss order or other partial mechanisms. Such an action would not eliminate DADT, but it would be a more legitimate process for mitigating its effects than trying to remove the question from the judiciary by a non-appeal of a trial court decision.

New Administration policy: Don't Ask, Don't Tell, Don't Lead

What a day this has been..

The Justice Department sought a stay of Judge Phillips' injunction against enforcement of Don't Ask Don't Tell, after a somewhat puzzling two days of delay, during which the status of the policy seemed strangely in limbo. The Defense Department first said that local commanders are in charge, but then sent an email communique telling them not to proceed with any discharges.  This was a good move, since a general in Afghanistan told the press that no one there had heard about the injunction, implying that they weren't too worried about disobeying it. This is not what lawyers want their client to say. Meanwhile, White House Press Secretary Robert Gibbs revealed that the President was "very involved" in the discussions about what the next litigation moves should be.

Run that by me again...

Does this muddle mean that the Administration was actually seriously considering the possibility of not seeking a stay of the injunction? That's hard to believe, but the Associated Press says it's true. Is that why they made such a hash of the situation, alienating pretty much everyone on any side of the issue? If POTUS was personally engaged with this, why was it so bungled? Or was the Oval Office engagement the reason why this deer-in-the-headlights moment happened?

And just to polish off the messaging debacle, the Senate leadership said today that they aren't so sure that there will be a vote on DADT repeal in the lame duck session after all. The promise of this vote has been the Administration's primary offering of a strategy that would enable the President to make good on his promise that DADT will end "on my watch."

Do we laugh or cry?

What next for DADT repeal?

How to salvage DADT repeal dominates lgbt issues in Washington, as what seems to me the longest midterm campaign season in history crawls toward resolution on election day. The next development will almost certainly be Judge Phillips' decision on the scope of the injunction she issues in the Log Cabin Republicans case.  My bet is that it will go beyond relief solely for LCR members, but that, no matter what she does, and regardless of a letter from members of Congress urging the administration to let the injunction take effect, Justice will appeal the decision.

The White House is still saying that repeal will be done in the lame duck session, not to worry. Widespread reaction: worry. Lead strategy of the moment seems to be for POTUS to issue an executive order stopping DADT discharges if legislation adopting the policy is not repealed.  Will he or won't he?  Does only Nancy Pelosi know for sure?  According to the Blade:

U.S. House Speaker Nancy Pelosi (D-Calif.) on Wednesday reiterated her prediction that “Don’t Ask, Don’t Tell” would be a memory by the year’s end — despite the failure of the Senate last week to move forward with repeal legislation — as she maintained the president has the ability to stop troop discharges without a change in law.

Asked by a reporter whether she’s spoken with Senate Majority Leader Harry Reid (D-Nev.) about the Senate taking another shot at “Don’t Ask, Don’t Tell,” Pelosi replied, “That will be gone by executive — that will happen with or without Congress.”

“I don’t think it has to depend on whether it passes the Senate,” she continued. “The process will work its way through and the president will make his pronouncement.”

My best guess: when Sec. Gates receives the formal report from the service chiefs on December 1, the Senate logjam will break, or, if it does not, POTUS will act, either by issuing a stop-loss order or by adding a new procedural hurdle for the discharge process that will effectively shut down DADT.

Slow POTUS + Slow Senate = No change in federal courts

If it seems like the federal judiciary is still stuck in the slow mo land of ultra-conservatism, there's a reason (data from the WSJ and Brookings):

Nominations submitted for appeals courts: 

22 by Obama

32 by Bush (at same point in time)

Nominations submitted for district courts: 

63 by Obama

83 by Bush

Confirmed by Senate for Courts of Appeals:

    9 for Obama, 12 for Bush

    (Vacancies when Obama took office: 13)

    (Vacancies when Bush took office: 27)

Confirmed by Senate for District Courts:

    27 for Obama, 51 for Bush

    (Vacancies when Obama took office: 41)

    (Vacancies when Bush took office: 54)

Total confirmations:

    36 for Obama, 63 for Bush

(At the same point in the Bush administration, the Senate was evenly divided between D's and R's, with VP Cheney holding the tie-breaking vote.)

Pentagon note to self: Do not tolerate "that's so gay" comments (at least about allies)

Politico's backgrounder about Gen. McChrystal's plummet from grace:

...McChrystal’s break-neck fall from grace began Monday evening when assistant White House press secretary Tommy Vietor was emailed an advance PDF copy of “The Runaway General,” which he quickly printed out for press secretary Robert Gibbs. An irate Gibbs tracked down the president in the basement of the executive residence to deliver the news that his maverick Afghanistan commander and his team had trashed the White House and U.S. allies in vulgar, vivid terms.

“[Obama] read the first few paragraphs and we decided to go to the Oval Office and get a bigger group together…The possibility [of sacking McChrystal] came up,” said a senior administration official of that first meeting, which included Chief of Staff Rahm Emanuel, senior adviser David Axelrod and Gibbs, among others.

The passage that really torqued the president, advisers say, was McChrystal’s reported contempt for U.S. allies in Afghanistan – especially the French – illustrated in the story by McChrystal’s reluctance to meet a senior official in Paris, a dinner appointment one McChrystal aide called “gay.” Obama, the administration official said, was astounded and alarmed by “the effect it would have on the allies” in Afghanistan, who have been asked to shed blood and “who will be asked to do more” if the U.S. is to begin pulling out by July 2011.

“This was not about the president being angry about the things that were said about himself,” added the aide, who says that Obama never even discussed McCrystal’s reported criticism of the president as detached and intimidated during his meetings with the brass.

Of course, this probably has nothing to do with the resentment/resistance games being played around the edges of DADT repeal. Or with the White House's anxiety about having "real" military men paint the civilians as soft and "intimidated." Because, after all, sexuality and gender issues are just symbolic politics - they don't influence anything that really matters. Right. Just ask the general about that.

Gay day in the White House

An LGBT Pride celebration at the White House is basically like any other ethnic holiday - a chance for everyone to lighten up a little, celebrate the achievements by and for the tribe, eat finger food, coo over the children, and not take any of it too seriously. At least that's what it seemed like to me yesterday. The President's speech wasn't great -- is it me, or does everything coming out of the White House post-BP spill seem a bit off kilter. But White House staff arranged for POTUS to be photographed with the children who were the special guests at the reception, several courtesy of GLSEN, and for them, surely, it was a thrill. Several were crying after the President's remarks concluded. It struck me that this event really always should be, like Christmas, mostly for children - the kids in gay families and lgbt youth.

 On the substance side, IMHO the State Department should get the gold star for demonstrating how important it is to have progressives running the Executive Branch. Not sure why this is the case - maybe because the Council for Global Equality is such a sterling advocacy group, maybe because of terrific staff work, or maybe because - as various folks have told me - Secretary Clinton just has a genuine personal comfort level with lgbt issues that other officials lack. Whatever the reason, State seems out there in front in the day in, day out effort to incorporate what Secretary Clinton called the obvious point that "human rights are gay rights, and gay rights are human rights" into a program of progressive governance. Watch her speech here.