Rep. Chaffetz (R-UT)

In Metro Weekly — “Utah Congressman Takes Aim at D.C.” — I take a look at U.S. Rep. Josh Chaffetz’s effort to stop the District’s efforts at marriage equality:

The ranking Republican member of the House Subcommittee on Federal Workforce, Postal Service, and the District of Columbia filed legislation on Tuesday, Jan. 26, disapproving of the District’s passage of the Religious Freedom and Civil Marriage Equality Amendment Act of 2009. According to the District’s own delegate in Congress, however, the bill will not be moving forward.

Rep. Jason Chaffetz (R-Utah), introduced the bill as the first formal step in the congressional process for overturning the marriage-equality bill passed by the District of Columbia in December 2009. In order to be overturned, Chaffetz’s bill would need to be passed by both the House and the Senate – where no such bill has been introduced – and signed by the president.

The passage of the marriage equality bill by D.C. City Council on December 15 and signing of the bill by Mayor Adrian Fenty later that week may have been, as longtime District LGBT equality advocate Bob Summersgill said, ”the easy step” in reaching D.C. marriage equality.

In the past week, the Religious Freedom and Civil Marriage Equality Amendment Act of 2009 was transmitted to Congress for review, a judge heard arguments on whether same-sex marriage can be subject to an initiative in the District and a referendum effort was filed by equality opponents. After all that, marriage equality is still moving forward – but there are several hurdles remaining in place before the D.C. Clerk of Courts signs the first marriage certificate.

[UPDATE: Be sure, also, to read my update about the D.C. Superior Court ruling upholding the Board of Elections earlier decision that same-sex marriage is not an appropriate subject for an initiative.]

Fifteen Democrats voted down the report.  They were Reps. Baird, Boren, Bright, Conyers, Davis (TN), Filner, Griffith, Jackson (IL), Kucinich, McIntyre, Michaud, Peterson, Shuler, Stark and Welch.  Forty-four Republicans voted for the report.  Reasons for voting up or down on this report were complicated, between support for or opposition to the defense budget and support for or opposition to the hate crimes provision.  [To compare, here is the roll call vote for the stand-alone Hate Crimes Prevention Act.  Members like Rep. Kucinich, among others, clearly support the hate crimes provision but do not support the Defense Department budget.  As such, the stand-alone vote is more telling of a member's support for the hate crimes provision.]

Notably, the American Civil Liberties Union, in a statement from ALCU Director of Public Education Paul Cates, did not oppose the conference report version of the hate crimes provision.  From Cates:

We aren’t terribly impressed with the new first amendment language because it doesn’t do anything more than say that the government can’t violate the First Amendment, which it can’t do anyway.  We are, however, very pleased that the death penalty has been taken out of the bill.  While we still have some reservations about speech, we don’t oppose the bill.

According to Human Rights Campaign Legislative Director Allison Herwitt, per Kerry Eleveld, the Senate is expected to take up and pass the report next week.

Judy Shepard, the mother of Matthew Shepard, with President Obama. (Image by Pete Souza/White House.)

On the 11th anniversary of the day Matthew Shepard was found, beaten and left for dead, the Conference Report for the Defense Department Appropriations Reauthorization was released on Wednesday afternoon containing the bill named in his honor. A PDF can be downloaded at this Web site.

On page 1471 of the PDF (1350 of the bill), the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act can be found. What this means is that the Reauthorization coming back to each chamber of Congress will include the hate crimes provision and, assuming the chambers’ passage of the bill, the Hate Crimes Prevention Act will be heading to President Barack Obama in short order for signing.

First of all, Stars and Stripes confirms that the F-22 funding, removed by the Senate, was not put back in the bill in Conference.  So, that eliminates that hurdle, which I earlier discussed here.

As to the actual Hate Crimes Prevention Act language, the death penalty language, added by Sen. Jeff Sessions, is gone (a move that very much pleases me personally).  On page 1483 (1361 of the bill), the penalties lay out a maximum of life imprisonment for the most severe types of hate-motivated crimes. They are when:

• death results from the offense.
• the offense includes kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.

The bill provides for no greater penalties.  The other two provisions added by Senator Sessions, however, do remain in the bill.  The first requires that the Attorney General “establish neutral and objective criteria for determining whether a crime was committed because of the actual or perceived status of any person.”  Groups supporting passage of the hate crimes bill opposed this amendment because they saw it as adding a redundant step to the process for implementing the law.  The second is the “Prohibition on attacks on United States servicemen on account of service,” which was opposed due to concerns about redundancy and vagueness.

As to the First Amendment concerns raised by the ACLU — and discussed here — about the Senate version because it simply stated that the bill does not impact First Amendment protections, it appears that the Conference Committee tried to find a compromise.  In Sec. 4710 of the Conference Report (at page 1366 of the bill), the “Rule of Construction” lays out a meld of both the House and Senate language.  It includes a portion about admission of evidence that is closer to the House version than the Senate version:

Nothing in this division shall be construed to allow a court, in any criminal trial for an offense described under this division or an amendment made by this division, in the absence of a stipulation by the parties, to admit evidence of speech, beliefs, association, group membership, or expressive conduct unless that evidence is relevant and admissible under the Federal Rules of Evidence. Nothing in this division is intended to affect the existing rules of evidence.

It goes on to state:

Nothing in this division, or an amendment made by this division, shall be construed or applied in a manner that infringes any rights under the first amendment to the Constitution of the United States. Nor shall anything in this division, or an amendment made by this division, be construed or applied in a manner that substantially burdens a person’s exercise of religion (regardless of whether compelled by, or central to, a system of religious belief), speech, expression, or association, unless the Government demonstrates that application of the burden to the person is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest, if such exercise of religion, speech, expression, or association was not intended to: (A) plan or prepare for an act of physical violence; or (B) incite an imminent act of physical violence against another.

Then, in case the point was not yet made clear, three more provisions, present in the Senate version, reinforce this point:

FREE EXPRESSION.—Nothing in this division shall be construed to allow prosecution based solely upon an individual’s expression of racial, religious, political, or other beliefs or solely upon an individual’s membership in a group advocating or espousing such beliefs.

FIRST AMENDMENT.—Nothing in this division, or an amendment made by this division, shall be construed to diminish any rights under the first amendment to the Constitution of the United States.

CONSTITUTIONAL PROTECTIONS.—Nothing in this division shall be construed to prohibit any constitutionally protected speech, expressive conduct or activities (regardless of whether compelled by, or central to, a system of religious belief), including the exercise of religion protected by the first amendment to the Constitution of the United States and peaceful picketing or demonstration. The Constitution of the United States does not protect speech, conduct or activities consisting of planning for, conspiring to commit, or committing an act of violence.

This appears to me to take a controversial issue — the perceived potential impact of hate crimes penalty enhancement provisions on protected speech and other expressive activity — and provide as much reassurance in as many ways as proposed to strongly reinforce that the aim of the legislation is not to impact that protected activity.  Whether it will be enough to meet with the desires of the ACLU remains to be seen.

[FOLLOW-UP: Comment from the ACLU, as well as the House vote, can be found here.]

Rep. Murphy (D-PA)

Rep. Patrick Murphy (D- PA, 8th Dist, House site) is leading a special order speeches hour on the House floor to discuss the repeal of Don’t Ask, Don’t Tell.  He says there are three main reasons that we need the repeal:

1. It is “vital” to national security that we repeal Don’t Ask, Don’t Tell.
2. It is “doing right by our taxpayers.”  $1.3 billion has been spent to throw these people out of the military.
3. DADT goes against “the very fabric of what makes our country the greatest country on Earth”: the fact that we are all created equal.

There are 176 co-sponsors.

One of these people is the highest-ranking military servicemembers in Congress, according to Murphy, Rep. Tim Walz (D-MN, 1st Dist.).

Walz is a teacher speaking in support of ending the “archaic and outdated” policy.  He told Rep. Murphy, “I’ll be with you every step of the way.”

Rep. Lois Capps (D-CA, 23rd Dist.) is a long-time LGBT equality advocate.  DADT is discriminatory, and it is “way past time” to end it.  The Palm Center is located in Capps’ district, and she’s now discussing Nathaniel Frank and his book, which I’ve discussed previously, Unfriendly Fire.

Capps says that she hopes for Congress to pass the Military Readiness Enhancement Act and send it to the President’s desk soon.

Rep. Jared Polis (D-CO, 2nd Dist.), who I earlier talked to about LGBT issues, is up.  Polis is talking about “The Efficacy of ‘Don’t Ask, Don’t Tell’” by Col. Prakash, a report that was discussed recently in The New York Times.

Rep. Lynn Woolsey (D-CA, 6th Dist.) is up.  DADT was passed during her freshman term in Congress, and she is ready for it to be repealed.

Rep. Mike Quigley (D-IL, 5th Dist.) is talking about Lee Reinhardt and Sandy Tsao, two individuals who were gay or lesbian and served in the U.S. military.  Sandy, Quigley said, wrote that “one of the seven Army values is integrity.”  Because she was a lesbian, however, she was discharged from the military.

Rep. Murphy talks about a servicemember who considered committing suicide because of how closeted servicemembers are shut off from their families due to Don’t Ask, Don’t Tell.  The soldier wrote of “the isolation that was imposed on me as a result of” DADT.  DADT, he wrote, “shackles the hands of leaders like me” who want to help their fellow soldiers.

Rep. Chellie Pingree (D-ME, 1st Dist.) is a freshman in Congress, and she says that “nothing seems fair and reasonable about this policy.”  She rocked the House.

Rep. Michael Arcuri (D-NY, 24th Dist.) says DADT “is a blemish on our country.”  He thanks Rep. Murphy for his leadership on DADT, as have many others.

Murphy introduces “one of the true champions of equality in this Congress,” Rep. Tammy Baldwin (D-WI, 2nd Dist.).

Baldwin notes that DADT deprives the military of the service of those discharged.  “This is just indefensible.”  She goes on to discuss the case of Lt. Col. Victor Fehrenbach.

Interesting . . . Lt. Dan Choi was at West Point while Murphy was teaching Constitutional Law there.

Murphy raises former Chairman of the Joint Chiefs John Shalikashvili’s op-ed about his “Second Thoughts” about Don’t Ask, Don’t Tell.

Polis raises the fact that both former Rep. Bab Barr and former President Bill Clinton now support repeal of DADT.

* * * * *

Rep. Gohmert (R-TX)

Rep. Louie Gohmert (R-TX, 1st Dist.) is responding to the DADT hour.  He talked about how an enlisted soldier was telling him he was considering not re-enlisting because of the “social experimentation” of the military with Congress considering the repeal of DADT.

Gohmert goes on to talk about the whole “attaching hate crimes to the Defense Appropriations re-authorization” bit.

Some day, some court, he said, and “I hope this doesn’t offend,” is going to say, “If you’re oriented toward animals, then that’s not something that can be held against you. . . . toward corpses, toward children . . . .”

“Whatever you’re oriented to sexually,” you can’t have that used against you.

Gender identity, also is protected, he said, and “who knows what that some day will be interpreted to mean.”

The most recent number that we have for hate crime statistics is 2007 because, Gohmert said, “the number of hate crimes are being reduced over the last 20, 10 years.”

After a diatribe with which I did not have the patience to transcribe, he concludes the portion by saying that the hate crimes prevention bill will “limit religious moral teaching.”

He’s now reading from Romans.

It should also not be lost, that when we talk about protected classes, “every country that has adopted laws like this it has had an extremely chilling effect.”  It leads to economic instability, which led to “that little guy with a mustache.”  And, with Hitler, we have reached it all.

He’s now in a history of the Judeo-Christian background of our nation.  “Between a third and a half [of the Declaration of Independence or Articles of Confederation signers, I didn't catch which] were ordained Christian ministers.”  We’re on to Lincoln now.  We’re on to the civil rights movement and Rev. Martin Luther King, Jr.

Now, we’re back to the hate crimes bill.

Gohmert: “This is going to have a detrimental effect on the freedom to discuss” religious morality.  It will prevent preachers from “discussing” Romans.

“The majority wouldn’t let us amend . . . to restrict pedophilia, wouldn’t let us restrict necrophilia . . . they left it wide open” to define sexual orientation in any way.

“There was a reason Jeremiah cried when he fell for his country.”

“Mr. Speaker, I move we adjourn before we do any further damage.”

The first part of the show features an interview with Californians Against Hate’s Fred Karger, who was subpoenaed this week in retaliation for his activism against National Organization for Marriage. The whole show is worth listening to, but the ENDA roundtable can be found in Part 2.

It was a great opportunity, and I was thrilled to be able to participate.  Thank to Alex Blaze for the invitation!

In this week’s “View From Washington” column — titled “Off Message” — Kerry talks about three people who this week said some things that some other people would have preferred they had not said: Former President Carter’s comments about the role racism plays in opposition to President Obama, Speaker Pelosi’s comments about the violence that followed the anti-gay campaigns of the ’70s, and Chairman Frank’s comments about the political mistake of Rep. Nadler’s DOMA repeal bill being introduced now with its “certainty provision.”

There’s been plenty of posturing in response to all three of these statements, but all three knew what they were saying when they said it.  None were “off message.”  They might have been off of someone’s preferred message, but they were not off of their message.  These were comments from three exceptionally prominent politicians who have long lived in the public eye.  If they say something, there’s a reason.

Rather than writing a penetrating column into the ways in which various forces in Washington silence or diminish important discussions, Eleveld does so herself.  She brushes them off as having been, in Carter’s case, countered sufficiently by Democrats who “summarily dismissed” his comments.  Kerry, somewhat surprisingly, diminishes Pelosi’s comments as having been little more than an emotional outburst that “welled up pure from within.”  Nonetheless, though, she at least acknowledges that their comments “nam[ed] a sickening feeling that has been lingering in the gut of a good many Americans.”

So, the comments were ignored and eviscerated by Washington and Kerry furthers those dismissals (even the sexist, “Pelosi was emotional” one) — all the while admitting that they did some good.

Chairman Frank

As for Frank, though, Kerry directs near disdain for his actions.  She writes that he “tilted the toxicity meter” against Rep. Nadler’s DOMA repeal bill by his comments that now is not the right time to be introducing a DOMA repeal and that the “certainty provision” makes the specific bill particularly problematic.  Yes, of course he did.  That would be his aim — his message, to follow Kerry’s title — if he thinks that now is a bad time for what he views as a bad bill.

Despite Kerry’s acknowledgment that no one wants to prioritize the DOMA repeal now and also her implication that no one thinks the repeal is possibly going to happen in this Congress, she refuses to take Frank at his word and actually examine his concerns.

Instead she summarily concludes that she’s “not sure to what good end” Frank’s statements would lead and asks “why hamstring a bill that’s just getting out of the gate”?

Well, since The Advocate’s voice in D.C. didn’t look into the possible answers to her own question, here are just a few of the many reasons why Nadler’s bill is potentially problematic, particularly now:

1. Do we really believe that having a DOMA repeal debate front and center is the smartest strategic move as the “slippery slope” arguments about ENDA are being advanced by opponents of ENDA?
2. Do we really believe that the best use of LGBT groups and advocates’ resources is spending their time and money encouraging members of Congress to sign on to a bill that has no chance of passage in this Congress?
3. Do we have any actual strategic reason to push members of Congress — let alone targeted Democrats — to support a DOMA repeal right now?
4. Has anyone responded, with analysis, as to how Frank — and I — are wrong about how problematic the “certainty provision” is?
5. Has anyone considered the impact of the “certainty provision” on pending marriage cases?
6. Has anyone considered the impact of the “certainty provision” on existing state same-sex marriage restrictions — be they statutory or constitutional?

Rather than maligning the longest-serving LGBT member of Congress — often described as one of the smartest members of that body — without any analysis, I believe that some calm, nuanced discussion of the substance of his argument would be a smarter route for our community.

[ALSO: Kerry Eleveld isn't alone.  Other smart folks taking a similar view to Kerry's view include David Link's "What's Barney Frank Afraid Of?" and John Culhane's "Barney Frank, Reconsidered" and less on-the-ledge, kindly responsive, "Barney Frank, Re-Reconsidered?"]

Chairman Frank (D-MA)

The Washington Blade’s Chris Johnson reports today that Chairman Barney Frank (D-MA) has not signed on as a co-sponsor of Rep. Jerrold Nadler’s bill to repeal the Defense of Marriage Act.  Frank’s reasoning, in large part, precisely tracks the concerns with the bill I discussed back in July.

People are going to be all over Frank for this and our usual suspects will be spreading stories about how Frank has “sold out” the LGBT community.

They’re wrong.

From Johnson’s report:

Frank said in an interview Friday with the Blade that he’s not a co-sponsor of the legislation because he has a “strategic difference” with people supporting the repeal legislation.

“It’s not anything that’s achievable in the near term,” he said. “I think getting [the Employment Non-Discrimination Act], a repeal of ‘Don’t Ask, Don’t Tell,’ and full domestic partner benefits for federal employees will take up all of what we can do and maybe more in this Congress.”

Frank also said that advocacy for the “certainty provision,” as described by Nadler, would create “political problems” in Congress.

“The provision that says you can take your benefits as you travel, I think, will stir up unnecessary opposition with regard to the question of are you trying to export it to other states,” he said. “If we had a chance to pass that, it would be a different story, but I don’t think it’s a good idea to rekindle that debate when there’s no chance of passage in the near term.”

The certainty provision is, as I wrote in July, “not something I’ve ever heard discussed and not a concept that appears to have been explored anywhere else in Google’s mind, and I think it’s a quite problematic concept, at least politically.”

Here’s my concern, as expressed back in July:

[A] state where same-sex marriages are prohibited by statute or the state’s constitution would, with the bill’s passage, be in the position of having residents that it considers to be unmarried living in the state recognized as married by the federal government.  Although not as extreme as compelling the state itself to recognize the same-sex marriage, this seems to me to still cause significant opposition from not only marriage equality opponents but also some who are more agnostic on the issue but want to see the issue “left to the states” to come to their own decision.

It also would cause practical difficulties for the states where same-sex marriage is not allowed.  In Ohio, for example, there is an amendment prohibiting same-sex marriage in the state.  Under the Nadler proposal, if passed, there likely would be at least some same-sex couples who are Ohio residents filing joint federal income taxes.  Ohio state taxes ordinarily reference federal filings, but the state obviously would have to make some changes in its procedures to address this new situation.

Although not as problematic for passage as compelling state recognition, Nadler’s proposed “certainty provision” appears likely to create a lot more uncertainty and complications for the bill’s prospects for passage than a simple DOMA repeal bill would cause.

Once it became clear to Frank that Nadler was unwilling to bend on this point, Frank had to do what he thought was best for the legislation.

Anticipating the vitriol Frank’s going to receive for this, I’ll jump out in front of the bus.  Frank is just smarter, and more strategic than them.  That’s all it is, and everything else is just a smokescreen.

The “certainty provision” is a poison pill that turns a nearly-impossible-to-pass bill into a pipe dream.  Frank is right to take the stand he’s taken today.

Rob Miller

Last night, at a little past 12:15 a.m., I wrote about “one important way in which the power of communication has changed hands from the few in Washington to the multitudes across the country.”

This was based on the $50,500 that Rob Miller had raised, completely as a result of being the named opponent of U.S. Rep. Joe Wilson, whose outburst to the entire chamber of Congress of “You lie!” directed at President Obama was one of the most disgusting things I’ve seen in about 15 years of active engagement with politics.

It was a complete debasement of the political process and also of basic human propriety.

The Internet noticed.

I concluded last night’s post — after acknowledging Rep. Wilson’s apology — by writing:

By both public shaming and by campaign dollars, Representative Joe Wilson — and hopefully all politicians of all stripes — realized tonight that people can spread messages nearly as quick as you can say them. People who abhor the things you say can respond to — and counteract — your message just as quickly

I based that, of course, off of Wilson’s written apology and news of his phone call to the President, which was taken by Chief of Staff Rahm Emanuel.

Then, today happened.

Twenty-four hours later, two things are clear: Wilson’s learned nothing and I had dramatically underestimated how many people agreed with me about how destructive Wilson’s outburst was.

Rob Miller — a person very, very few of us had even heard of 28 hours ago running for a seat very few of us had ever thought about — had raised more than $675,000 from 18,494 people on ActBlue alone for his race.

It has been reported that he spent $700,000 on his entire congressional race against Wilson in 2008.  Counting all his fund-raising — including by methods outside of ActBlue — Miller raised as much in 27 hours as he raised in his entire run last time.

Astounding.

And yet, it’s not done yet.

Far from remaining quiet and apologetic, Rep. Wilson, realizing no doubt as Miller’s money expanded exponentially throughout the day that his congressional future hangs in the balance, decided to justify his behavior — and ask folks for money.  He explained that his outburst happened because of emotional conversations he had with constituents — as passionate as he is on this issue — during the recess.  He told them: “I will not be muzzled.  I will speak up and speak loudly against this risky plan.”

His crescendo climaxes with a Rovian miracle.  He twists the very understandable, common-sense opposition to his Joint Session of Congress Temper Tantrum into: “They want to silence anyone who speaks out against it.”

No, this did not happen to any of the many — even extreme — opponents of Obama’s goals for health care reform.  Just you.  Just the guy who showed no sense of propriety or common decency toward the President or Congress — despite being an elected member (for now) of the latter.

Decide for yourself below the jump whether Wilson’s “apology” of last night was genuine, and then decide if you want to visit Rob Miller’s ActBlue page one more time.