Johnsen

Today was a day for celebrating the service of Justice John Paul Stevens.

Today was a day for considering the impact of Stevens’ work on American law.

Today was a day for contemplating who could enter the Court in the fall and take his vote, if not his place.

Today was not a day for questioning whether the President would have the wherewithal to make his constitutional vision a part of America.

And yet, with the end-of-the-day announcement that Dawn Johnsen, the president’s nominee to head the Department of Justice’s Office of Legal Counsel, was withdrawing her name from consideration because of Senate inaction, that question — among legal thinkers on the left and the right — has been pushed into our focus as this week draws to a close.

Do not misinterpret my concern. I have argued — and still believe — that a convincing case could be made that a recess appointment is inappropriate for the head of the Office of Legal Counsel, particularly when, as Johnsen noted in her statement today, a goal that she brought with her to the nomination was the depoliticization of the OLC.

My specific concern is not only that she has withdrawn, although that fact upsets me greatly. The very serious concern I am discussing here is an admittedly more political one — that the White House allowed this to happen today.

Dawn Johnsen’s principled stand against executive overreaching was what led presidential power critics like Glenn Greenwald to be thrilled with her nomination.

There is no such thing as take-out-the-trash day for legal-political blogger-critics. The OLC job is out of the way enough that John Yoo is still teaching and Jay Bybee was able to leave the executive and enter the judiciary without incident, despite the questionable — if not actionable — activities in which they engaged while working there. Among those people for whom this position matters, though, there was no real benefit to be gained by making this move today.

There are, however, two important and related but distinct disadvantages.

For the administration, on this day, to allow for the Johnsen news to disempower liberal legal thinkers and advocates is an incalculably short-sighted political misstep. It is right at this very moment when the administration needs these people most. To allow for Johnsen’s nomination to come to an end today can only be offset with the news of a Supreme Court nominee likely to gain as much praise on the legal left as did Johnsen. (The only sure bets there would be Pam Karlan or Goodwin Liu, in my view.)

What’s more, this has empowered the very people on the legal right who the administration has the least interest in seeing empowered today. There is nothing to be gained by having the opponents of Dawn Johnsen’s nomination coming down off the ego and power of victory right as they are gearing up to come at Obama’s nominee — regardless of who it is — with all their might.

As everyone at this point is well aware, I have significantly more trust in the Obama administration’s legal strategies and political tactics thus far than have many others. I have criticisms, but I also believe that much of their work has been done with a keen eye both to the legal and political realities of the system in which they find themselves.

This afternoon’s announcement about Dawn Johnsen, however, gives me pause just as the administration is asking liberals — and the nation — to trust Obama’s judgment the most, as he selects his second lifetime-tenured nominee for the high court.

I disagree.

Now, regardless of views on this court filing, the Obama administration could – and should – blunt the impact of the filing by announcing that it plans to insert DADT repeal language in the Defense Department budget request that it will be submitting to Congress in the coming weeks.

The administration likewise should stop, as Rep. Barney Frank told me last week, “ducking” on the issue of whether it remains committed to the repeal of DADT this year. Talking about a civil-rights issue on which the majority of people in the country agree with you is not a bad idea, either morally or politically.

Finally, the administration should take action immediately to fix the disaster that is its public relations with the LGBT community. Whether this is a problem caused by a few staffers or a larger problem of administration skittishness on LGBT issues, the lack of an open dialogue – whether on court filings or legislative action or otherwise – related to those issues has led to a leadership vacuum that LGBT people were expecting to be filled by this president.

Those supporting LGBT equality, however, do the cause no favor by overstating what has happened here or by overstating the options available to Obama in this situation.

The Justice Department’s defense of laws is not the same thing as the Obama administration’s policy preferences for future legislative enactments. The brief filed on Monday restates those preferences, noting that “the President of the United States has called for the repeal of DADT, the Secretary of Defense initiated a working group to study how to implement any such Congressional repeal, and Congress is now holding hearings to consider the policy question of whether to retain the current law.”

That policy preference notwithstanding, the law remains. And the role of the Justice Department is to defend the laws of the United States. The fact is that there are very few times when DOJ chooses not to defend laws. This is because, in our system of government, the decision of whether or not something becomes a law is made by congressional passage and presidential signature or veto. The decision of whether something that has been passed into law is constitutional is left to the courts.

Supporters of equality should want this system of laws. Changes in the executive should not result in changes as to which laws are going to be enforced. As has been seen recently in Virginia, changes in the executive branch can result in the new executive wanting to roll back equality protections. If the Employment Non-Discrimination Act becomes law during Obama’s presidency, would LGBT groups want a system in which the next president – pressured by religious extremists – refused to enforce the law and, in fact, opposed its constitutionality in court?

* * *

There’s a reason why, generally speaking, we expect the Justice Department to defend challenges to laws, and it makes sense that the exceptions to that are few and far between. Marty Lederman, a Harvard Law School graduate who worked in the Office of Legal Counsel in the Clinton White House and is back there now, has described (in terms of the Justice Department under the first President Bush) those three rare situations when the Department has chosen not to defend the law.

My review of these exceptions – detailed here — leads me to the conclusion that neither DOMA nor DADT fit any of these exceptions to the Department of Justice’s usual obligation to defend existing laws, both having been in effect for more than a decade and challenged in court previously.

Regardless of whether you agree after reading my views, however, the important point to be gathered from all this is not even that the Justice Department must defend both “Don’t Ask, Don’t Tell” and the Defense of Marriage Act in court, but that the arguments to be made for the DOJ choosing not to do so are complex, debatable and certainly no slam dunk.

Once the Justice Department made the determination that it would be defending the “Don’t Ask, Don’t Tell” policy in court, the overwhelming majority of the brief filed on Monday is completely unsurprising. The brief – which I discuss in more detail here – extensively recited the existing law in the Ninth Circuit Court of Appeals, where the case was brought; it quoted from the law itself; and it examined statements made to and conclusions reached by Congress in its consideration of the policy in 1993. That, for the most part, was the entirety of the brief.

That, though, brings me to my final point, which is that – despite all the legal garble that has preceded this – there are lawyers on the other side of the case who are arguing everything that advocates of repeal wish to see argued. That is the basis of our adversarial system of law: Both sides of an argument will be presented to a judge, who will then make his or her judgment on the law.

Additionally, if others believe that the lawyers for LCR are missing something or are doing an insufficient job, they can file an amicus curiae – “friend of the court” – brief urging the court to take into account their viewpoint before issuing that judgment.

Even then, of course, that decision can be appealed.

* * *

We are burdened, right now, with two laws – the Defense of Marriage Act and the “Don’t Ask, Don’t Tell” policy – that should be either repealed by Congress or overturned by the courts. On that point, most LGBT equality advocates agree.

Where the agreement has been lost – first with the DOMA brief this past year and now with the DADT brief filed on Monday – is on the proper role of the Justice Department in that process. I joined most people in criticizing some of the language and arguments raised by the Justice Department in its DOMA filing. Where I parted with many was on whether the Justice Department was right to defend the law at all.

This is a nuanced debate about the proper role of the Justice Department, and my opinions represent the best and most honest legal analysis I can give. It is an attempt to remain consistent in my view of the proper role of the Justice Department – regardless of whether subject to a Republican or Democratic administration and regardless of whether liberal or conservative views are in vogue.

That, also, I think, is the best path to take as LGBT equality advocates, this administration and our country move forward.

Johnsen

[My earlier post regarding the EEOC and NLRB appointments, and Obama's use of recess appointments more generally, can be found here.]

Finally, a brief thought on the “where’s Dawn Johnsen” question.

No one knows today. Certainly many will have views and insights into the reasons why President Obama’s nominee for the DOJ’s Office of Legal Counsel was not among the 15 appointments.

I’d like to add one to the mix.

Johnsen, an eminent and brilliant legal scholar whose appointment I strongly support, is a DOJ nominee, and it’s quite possible that Attorney General Eric Holder — or Obama himself — does not want Johnsen — or any DOJ nominee — to be a part of recess appointments that can and will (rightly or wrongly) be characterized as political. Obama’s statement itself admits the underlying political dispute here, noting that the reasons for the appointments include, as he said in the statement, “I simply cannot allow partisan politics to stand in the way of the basic functioning of government.”

In a Justice Department where the Attorney General has asserted that the renewed independence and decreased politicization of the Department are among his key goals for it, it seems to be more than reasonably possible that Obama or Holder (or even Johnsen) might prefer that Johnsen’s nomination not be added into the political mix of Obama’s first recess appointments.

This seems to me to be even more reasonable for the OLC head, considering the recent publication of the DOJ’s Office of Professional Responsibility report on the activities of former officials in the Office of Legal Counsel. The relationship between the White House and the DOJ OLC during the months and years after 9/11 were not always of benefit to our nation, and itself serves as the strongest argument for why the President might not want to take overly political actions regarding his nominee to head up OLC.

In the end, we do not know the reason why Johnsen’s name was not among those appointed today.

It might, however, not be the worst thing that she was not.

[UPDATE: Firedoglake's emptywheel asked the White House why Johnsen was not included today, and got this non-specific response:

Of the 77 people on the calendar, we are only recess appointing 15 and there are a number of qualified individuals the President has nominated that do not fall in this group.  If the Republicans do not end their campaign of obstruction, the President reserves the option of exerting his authority to recess appoint qualified individuals in the future, but our hope is that we can move beyond the partisan politics that have held up the process for the last fifteen months for the good of the American people.

Of this, Glenn Greenwald asked me, "If they were motivated (as always) by such noble considerations, why wouldn't they just say so when asked?"

I responded that, assuming my thoughts to be on target, doing so could push the nomination into an unworkable political back-and-forth that wouldn't move it forward. I did, however, note that I remain open to another explanation. And expect, at the least, an alternative argument to come from Greenwald.]

The DOJ’s Motion to Dismiss (pdf) is measured in its defense of the Defense of Marriage Act, which doubtless will leave some unsatisfied, but it is far closer to the type of brief I’d expect the DOJ to file these days than the Smelt brief, which everyone agrees went too far.

Here is one small change that is the key to my understanding of the difference between an offensive brief and a measured, appropriate brief.

Today:

DOMA reflects what Congress believed was an appropriate response to this ongoing debate in the States.

Smelt:

DOMA reflects a cautiously limited response to society’s still-evolving understanding of the institution of marriage.

That is the key.  The Justice Department is defending a congressional policy, which Congress determined was appropriate in 1996.  It notes that the Administration’s policy is to defend those laws where “reasonable arguments” can be made in their defense.  Gill, DOJ Motion to Dismiss, at 1.

On the substance of its defense of DOMA, DOJ plays a little too cute, parsing the marriage prohibitions as a state matter and DOMA as just a matter of federal benefits.  Id. at 14 (”DOMA deprives same-sex couples of certain federal benefits that are tied to marital status.  There is no fundamental right, however, to marriage-based federal benefits.”).

Later, DOJ expands this reasoning:

The asserted right on which plaintiffs’ claims rest in this case is not a right to marry. DOMA does not prohibit gay and lesbian couples from marrying, nor does it prohibit the States from acknowledging same-sex marriages.  Instead, plaintiffs’ claims rest on an asserted right to receive federal benefits on the basis of their mutual status.  There is, however, no fundamental right to marriage-based federal benefits.

Id. at 15.

DOJ then asserts that First Circuit precedent prohibits the District Court from considering this case under the strict scrutiny review urged, in part, by GLAD in its Complaint.  Strict scrutiny review is the most search review, in which the government needs to show a “compelling interest” for the law and show that the law is “narrowly tailored” to that interest.  DOJ argues:

The First Circuit has concluded, however, that sexual orientation does not constitute a suspect classification under the Fifth Amendment, and that holding is binding on this Court.  See Cook v. Gates, 528 F.3d 42, 62 (1st Cir. 2008) (rejecting challenge to “Don’t Ask, Don’t Tell” policy regarding members of armed services) . . . .

Id. at 16.  I’ll have more on that in a bit.

Then, in urging that DOMA be upheld under rational basis — the most deferential — review, DOJ goes into a new and interesting argument, essentially that DOMA prevents federal government benefits from being a mismatch differing by state based on the whims of those states.  I’ve not seen an argument like this before:

As the state legislative and constitutional activity in the years since DOMA was enacted demonstrates, same-sex marriage is a contentious social issue.  Given the evolving nature of this issue, Congress was constitutionally entitled to maintain the status quo pending further evolution in the states.  Otherwise, “marriage” and “spouse” for the purposes of federal law would depend on the outcome of this debate in each State, with the meanings of those terms under federal law potentially changing with any change in the status of the debate in a given State.  Federal rights would vary dramatically from State to State.  Congress could reasonably have concluded that there is a legitimate government interest in maintaining the status quo and preserving nationwide consistency in the distribution of marriage-based federal benefits.

Id. at 18.

As it stated in its Smelt Reply Brief, DOJ notes that “the government does not rely on certain purported interests set forth in the
legislative history of DOMA, including the purported interests in ‘responsible procreation and
child-rearing.’”  Id. at 19.

Regarding, the argument that “plaintiffs assert that OPM has authority to extend FEHB benefits to same-sex spouses,” DOJ argues that that is simply not true. Id. at 20-21.  This is a succinct statutory interpretation argument that those interested can read in the brief.

DOJ finally raises standing challenges to some of the plaintiffs.  As to Plaintiff Dean Hara, the widow of former U.S. Rep. Gerry Studds, DOJ simply argues that the initial part of his claim must go to the U.S. Court of Appeals for the Federal Circuit because of exclusive jurisdiction given to the Federal Circuit over “determin[ing] whether the survivor of a federal employee qualifies as a federal annuitant.”  Id. at 23-25.

As to Plaintiff Nancy Gill and her spouse, Plaintiff Marcelle Letourneau, DOJ argues that they have no standing regarding the Federal Flexible Spending Account Program administered by OPM because the U.S. Postal Service, for which Gill works, does not participate in the program.  Id. at 25-26.  This seems, though, that it should be able to be amended so as to refer specifically to the U.S.P.S. flexible spending program.

That’s a review of the brief; I hope to have a corresponding analysis piece up over the weekend.

GLAD’s statement regarding the DOJ filing can be found blow the jump.

* * * * *

GLAD’s Statement on DOJ Motion to Dismiss Gill DOMA Lawsuit

The Department of Justice has filed a motion to dismiss today in Gill v. Office of Personnel Development, GLAD’s lawsuit challenging Section 3 of the Defense of Marriage Act.

Mary L. Bonauto, GLAD’s Civil Rights Project Director and co-lead counsel in Gill, said “Nothing in the government’s brief addresses the fact that DOMA is the sole exception in a long history of the federal government deferring to the states’ determination that people are married. Obviously we disagree with any argument that DOMA is constitutional.  Married same-sex couples are being treated differently from other married couples.  To us, that’s a clear-cut violation of the promise of equal protection.”

Gary Buseck, GLAD’s Legal Director said, “We’re seeking justice for the widows and widowers who are denied death benefits, for people who can’t get on their spouse’s health plan, for parents who can’t file taxes jointly and pay thousands extra each year that they could put away for their children’s education or family emergencies.”

“There is nothing in the brief that we are unprepared to deal with,” added Bonauto. “We’re pleased that the issues have now been joined and the case is moving toward resolution, because every day, an increasing number of families – not just our plaintiffs – are being harmed by DOMA.  We’re confident in the justice of our cause and the strength of our case.”

GLAD filed its challenge to DOMA Section 3 in U.S. District Court on March 3, 2009, and filed an amended complaint in July on behalf of 8 Massachusetts married couples and 3 widowers who have been harmed by the law. In July, GLAD scored its first victory in the case when the State Department changed its passport name change policy and plaintiff Keith Toney was for the first time able to get a passport in his correct, married name.

Gill has been described as “a carefully planned case quietly underway in Massachusetts federal court [that] could be the gay marriage test with the greatest national impact” by the National Law Journal. More information on the case is available at www.glad.org/doma.  The DOJ brief can be read at http://tinyurl.com/gill-doj-mtd .

Gay & Lesbian Advocates & Defenders is New England’s leading legal organization devoted to ending discrimination based on sexual orientation, HIV status, and gender identity and expression.

# # #

[Attorney General Eric Holder] described his Civil Rights Division efforts as more restoration than change. The recent moves, he argued, are a return to its basic approach under presidents of both parties — despite some policy shifts between Republican and Democratic administrations — before the “sea change” and “aberration” of the Bush years.

“Of course there are going to be critics,” Mr. Holder said. But, he argued, “any objective observer” would see the recent approach as consistent with “the historical mission of the division, not straying into some kind of liberal orthodoxy. It really is just a function of enforcing the statutes.”

A.G. Holder

The inverted pyramid, for non-journalist folks, is one of the most basic rules of journalism, that a story is written with the most important information at the top.  The rule is helpful both due to the waning attention of readers and due to the very pragmatic reality that cuts come from the bottom if a last-minute change results in a story needing to take up less space.

Unfortunately, Holder’s direct, concise explanation was right at the bottom of the article, following the absurd notion of Hans von Spakovsky “accus[ing] the Obama team of ‘nakedly political’ maneuvers.”

Josh Marshall and all the folks at Talking Points Memo have been detailing the errs of von Spakovsky since May 2007.  As Paul Kiel once called him, he was the Bush DOJ’s “voter suppression svengali.”

One of Kiel’s more significant reports about von Spakovsky was described by Marshall as thus:

We’ve reporting for a while on Hans von Spakovsky, one of the key bamboozlers at the Bush civil rights division, who worked with Bradley Schlozman on getting the voting section to finally start cracking down on all the vote scams perpetrated by black people. Anyway, von Spakovsky is now up for confirmation for a position as an FEC commissioner, where he’s sure not to do any harm. But now it seems that in his confirmation testimony he may have fibbed about his role in purging people who believe in voting rights from the voting rights section.

That is who is describing the Obama DOJ’s moves as “nakedly political.”  Not that The New York Times mentioned that.  Also unmentioned was the surely insignificant fact that von Spakovsky was denied a spot on the Federal Elections Commission because, in part, of the fact that a certain Senator from Illinois blocked it.  Sen. Barack Obama.

Nope, no grudge there.

A.G. Eric Holder

The Washington Post is reporting that Attorney General Eric Holder plans to name a prosecutor to investigate certain elements of torture questions surrounding the CIA.  [This is a good thing, and Adam Serwer already is up with his take.

Spencer Ackerman calls Holder's statement "exactly civil libertarians hoped" for because it "did not rule out any course of investigative or prosecutorial action," while Greg Sargent writes unapprovingly that "only the conduct of low-level alleged torturers will be looked at here" and concludes:

Nothing here at all about examining the legal justification of such techniques, and no look at why Bush lawyers subsequently gave them a pass.

Hmmm.  So, yeah, the liberals don't agree on what this means.  Shocking.

The great news, however, is that The Washington Independent, has scanned "CIA Inspector General John Helgerson’s 2004 report into the CIA’s Bush-era interrogations operations" and made it available to me -- and you -- via Scribd.  So, it's half-redacted, but get at it below the jump.

Now, back to my original, if small and relatively insignificant, point.]

Carrie Johnson, however, pushes an angle in her report with no attribution — either on- or off-the-record — that is emblematic of a the type of statement that finds its way into a news story, then onto cable news, then into public discourse and does not help the public discourse in any way.  She writes:

It also could complicate the Justice Department’s relationship with the White House, where President Obama has repeatedly expressed a desire to move forward from the national security controversies of the Bush administration. In a briefing with reporters Monday, deputy White House press secretary Bill Burton said that the president had complete faith in Holder and that the decision whether to launch an investigation was the Attorney General’s sole prerogative.

“The White House supports the attorney general making the decisions on who gets prosecuted and investigated,” Burton said.

Yes, it also could lead to rainbows, unicorns and golden treasure.  But it shouldn’t show up in The Washington Post’s breaking news report without any attribution.

* * * * *

The 2004 CIA IG Report:

v1

Today, the Department of Justice has filed a response to a legal challenge to the Defense of Marriage Act, as it traditionally does when acts of Congress are challenged.  This brief makes clear, however, that my Administration believes that the Act is discriminatory and should be repealed by Congress.  I have long held that DOMA prevents LGBT couples from being granted equal rights and benefits.  While we work with Congress to repeal DOMA, my Administration will continue to examine and implement measures that will help extend rights and benefits to LGBT couples under existing law.

The reply brief itself begins with a similar statement:

With respect to the merits, this Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal.  Consistent with the rule of law, however, the Department of Justice has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality, even if the Department disagrees with a particular statute as a policy matter, as it does here.

Smelt, DOJ Reply, at 2.  It goes on, in the body of the argument:

Plaintiffs’ equal protection and due process claims raise several issues, all of which were addressed in the United States’ motion to dismiss.  As established in the government’s opening memorandum, federal courts have unanimously upheld the constitutionality of DOMA.

Smelt, DOJ Reply at 5.  The DOJ then provides a reference to those cases.

Later, it refutes — through citation to medical society policies and Lawrence v. Texas – an intervening party that is attempting to defend DOMA by asserting the law advances governmental interests in protecting the raising of children by “both of their biological parents.”  Specifically, DOJ concludes:

[T]he United States does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing and is therefore not relying upon any such interests to defend DOMA’s constitutionality.

Smelt, DOJ Reply at 6-7.  This matters and is a great pro-LGBT equality argument never advanced previously by the federal government.

Those who assert that the Obama Administration did not even need to file a brief will be dissatisfied with the brief because it essentially incorporates the earlier arguments into this reply brief and continues to defend DOMA as a legal matter.  But, for those many people who believe that the government, in a situation such as this, does have a responsibility to defend the law, this brief makes clear the distinction between opposing a policy and defending a law.

From the brief itself to Obama’s statement and in light of the other changes being advanced by the Administration, I continue to believe that the original DOJ Smelt filing was made without the full appreciation (or knowledge) by higher-ups.  I do think that the uproar following its filing has changed the approach of the Administration, and, for that, the debate was worthwhile.  This filing and statement show a keen awareness of and sensitivity to that impact, while maintaining a clear principle to defend a law that repeatedly has been found to be constitutional.

[UPDATE: For those, reasonably, asking if this brief in any way "takes back" the earlier, problematic arguments made in the previous DOJ Smelt brief, it does not.  But, what it does do is put that brief in context of the Administration's opposition to the policy aims of DOMA.

In order to get a full picture of the Administration's changed approach on defending DOMA, we will need to wait until mid-September, when the Justice Department files its Motion to Dismiss in Gill v. Office of Personnel Management et al., the Massachusetts GLAD case.  I previously discussed the Amended Complaint filed in the case by GLAD earlier this month.  The government's response to the Complaint is due by Sept. 18.]

[FURTHER UPDATE: Check out my follow-up here regarding LGBT parents and a pending adoption case.  Thanks to Patrick at The Daily Dish, Rod at Rod 2.0, Dennis at AfterElton, Dale at The Volokh Conspiracy, Amanda at Think Progress and Joe at Joe.My.God. for the links.]

U.S. Rep. Jared Polis (D-CO)

Representative Tammy Baldwin was the first person, in 1998, to win election to Congress as openly lesbian, gay bisexual or transgender. It wasn’t until a decade later, when Jared Polis ran for Congress in Colorado’s Second District in 2008, that an openly gay man succeeded in winning a seat in Congress.

But, right from the start of an extended discussion on Saturday about LGBT issues, Polis noted: “We only have three openly gay members of Congress, [so] we rely on our straight allies and with them, we were able to pass the hate crimes bill in the House.”  He cited his reason for coming to Columbus — a fund-raiser for freshman Rep. Mary Jo Kilroy — as an example of one of those “critical” allies.

On the issues, Rep. Polis is, of course, very supportive of efforts at LGBT equality.  But Polis was both more open to blunt assessments and creative solutions than some politicians and more understanding of pragmatic considerations than many outside of the halls of Congress.  More than that, it was clear that Polis is of a new generation of LGBT politicians — unafraid of any closet and assuming that full equality — from immigration rights and equal benefits to employment nondiscrimination, military service and marriage equality — is the end result that is both just and expected.

Polis talked about the legislative agenda, with hopes for action this year on at least two pieces of legislation beyond the hate crimes bill.  He also said that he thought President Obama should have said, as President, that the Defense of Marriage Act is unconstitutional and should not have allowed his Justice Department to defend it in court.  He shared his view on what he called the “phase out” of Don’t Ask, Don’t Tell and spoke with great passion about the role he think he could play as an openly gay, Jewish member of the Board of Visitors of the Air Force Academy.

* * * * *

Polis characterized the hate crimes bill, passed earlier this year by the House and this passed week as an amendment to the Defense reauthorization bill, as “the first real accomplishment in terms of an equality agenda,” saying “the clock is ticking” on the time to go until the measure is sent to President Obama for his signature.  In addition to the hate crimes legislation, Polis talked about both ENDA and the Domestic Partner Benefits and Obligations Act as bills that he expected to have come for a vote in the House this year.

“This fall, we plan to take up, and I hope we have the votes to get out of the House, ENDA, an inclusive version of ENDA that would prevent employment discrimination based on sexual orientation or gender identity,” Polis said.  “The federal benefits bill is the other piece of legislation that we plan to move this fall . . . but I don’t necessarily expect that they would be combined in the House at least into one piece of legislation. . . . “The timeframe is similar,” though.

This runs counter to the earlier reporting in Roll Call on a meeting between Polis and Reps. Frank (D-MA) and Baldwin (D-WI) and Speaker Pelosi and her leadership team, where a person who attended said that “[l]eaders may try to package workplace discrimination and federal health benefits together into one bill.”

Polis became excited to respond when asked about comments by Rep. Chaffetz (R-UT) that Baldwin’s Domestic Partner Benefits and Obligations Act would grant “special rights” to lesbian and gay couples.

“A very simple solution to the problem that he identified . . . would be to allow gay marriage and that would end that problem right there,” Polis said. “I would call on Rep. Chaffetz to be an outspoken supporter of gay marriage so we don’t have to address this issue of disparity in treatment and straight couples not having access to same-sex partner benefits unless they’re married.  That’s the easiest solution.”

Then, in a bit of a sign that the 34-year-old Polis might be coming from a different generation of LGBT political leaders, he expounded on how the forces on the Right might actually be the ones to send marriage to its “demise.”  Polis said:

I think that the opponents of marriage equality need to realize that they themselves are the ones undermining the institution of marriage because if you go down that road that [Rep.] Jason Chaffetz wants to go down all the sudden the government’s going to say, “Maybe we’ll do opposite-sex domestic partner benefits.”  Sooner or later we’re going to wind up like Europe, where no one gets married and like, 40% of heterosexuals enter domestic partnership agreements. So, unless we can pass marriage equality in this country, and includes gays and lesbians in marriage, I think it will be a death knell of marriage in this country.  And it will be representatives like Jason Chaffetz to blame, who will be at the graveside of marriage celebrating its demise.

But, assuming that national marriage equality isn’t going to happen in this Congress, Polis concurred with a point I made in my post about Chaffetz’s comments.  Of the disparity that would result from Baldwin’s bill only allowing for same-sex domestic partner benefits, and in light of the fact that several states now recognize same-sex marriages, Polis said:

Yeah, I think it’s reasonable to say that gays and lesbians would have to be married in those states to benefit from that if it’s available to them and if it’s denied to opposite-sex partners who aren’t married, I think it would be reasonable to say that if you are allowed to get married in a state that has it, then you have to be married to get that particular set of benefits.

To hear, Rep. Polis’s comments about disparities between opposite-sex and same-sex couples under the Domestic Partner Benefits and Obligations Act, download Polis-Sunday.

* * * * *

Rep. Polis has spoken out against the brief defending the Defense of Marriage Act filed by the Justice Department in the Smelt case, asserting that Obama “could have chosen not to defend it.”  Asked about the historical precedent of the Justice Department defending laws except under certain, very rare circumstances that I and others have discussed at length, Polis responded:

There’s one actor in this case who makes the decision, and that would be the President of the United States, and the President of the United States — We all have the capacity to interpret the Constitution in our own way; sometimes we agree, sometimes we disagree with what different courts decide. The President, in his prerogative can decide how to direct the Attorney General to defend or not defend certain laws because he or she decides — feels they are not constitutional.

So, I would agree with you that the precedent is that usually laws are defended by the Attorney General, but there is absolutely no statutory requirement that the President has to defend a law that he or she feels is unconstitutional.

I don’t agree that this was an appropriate situation for the President to do so, but it was good to hear Polis’s reasoning:  He believes that President Obama — regardless of what any federal judges had previously ruled — should have told his Justice Department that he believes that law is unconstitutional and that the Attorney General was directed not to defend it.  It would have been an astounding move, representing an opinion that Obama has not previously expressed (that he believes DOMA is plainly unconstitutional), but it would have made not defending the law at least fit within the framework of cases the Justice Department has not defended in the past.

In the wake of the DOMA brief, though, the Administration has announced several efforts, including counting same-sex married couples in the Census and extending some benefits to federal employees with same-sex spouses.  Polis pointed out that “many of the efforts that were already under way before this hub-bub came out were nearing fruition at that point, so there have been several very positive steps, which I think would have happened independent of this whole blow-up.”   Regardless, though, he said, “certainly it showed our community is concerned with DOMA, specifically.”

* * * * *

Regarding the military and Don’t Ask, Don’t Tell, Polis said he supports efforts at a moratorium on enforcement of the law until a repeal is finalized, such as that floated this past week by Sen. Kirsten Gillibrand and supported by Majority Leader Harry Reid.  Polis said, “I’d like to see us, in the very, very short-term, stop enforcing it so that we can re-examine and maybe end it, you know, a year later.”

Even in the absence of such a step, though, Polis said, “I’m confident that we’re building a political consensus to terminate that policy and make sure that we have a military that can recruit from the very best across our country, regardless of their sexual orientation.

On a related note, Speaker Pelosi named Polis this past week to the Board of Visitors of the Air Force Academy, which is located near Colorado Springs.  Polis shared that the first meeting of the board that he will be attending actually occurs next weekend.  Polis clearly is thrilled with the opportunity, both to put his educational knowledge to work but also to serve as a “voice of difference” in an institution — the military — that has had more than its share of problems with difference.  Polis said:

I think I can be of particular value to that institution as we phase out the Don’t Ask, Don’t Tell policy. . . . There will be issues that we need to deal with to make sure that LGBT cadets feel comfortable at the Air Force Academy and other educational institutions run by the military.  They’re, of course, currently closeted, which is a very difficult situation for them socially with their friends, because many of them had been out before, and sort-of live in a constant state of fear.

Also, though, Polis said he wants to ensure that the military is open — not only to LGBT cadets but atheist and religious cadets that don’t necessarily fit what he called the “culture” of the Air Force Academy.  He said:

There’s also a number of issues with religious discrimination at the Air Force Academy.  I happen to be Jewish myself, and I look forward to meeting with other cadets who are Jewish, who are atheist, or who are Catholic, who have felt at the short end of that stick as well. There have been many stories of a sort of evangelical bias in the school and culture of that institution.

All of these efforts, he noted were part of an effort to “make sure that our Air Force can recruit and retain the very best officers in the future.”

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PREVIOUSLY:

NEW TO CONGRESS, BUT NOT TO POLITICS: Law Dork talks To Rep. Jared Polis about who he is and what he’s doing in Congress.

COMING MONDAY:

MAKING A SPLASH, DISAGREEMENT WITHIN THE PARTY:  Law Dork asks Representative Polis about his efforts this week to oppose a tax in the House health care reform bill and the view of some liberals, specifically Markos Moulitsas of Daily Kos, that Polis “is shaping up to be a serious pain in the ass.“

This was a smart decision on the part of the Justice Department.

And before anyone asks how that doesn’t contradict my writing on the Justice Department’s obligations to defend the Defense of Marriage Act, Georgetown’s Nan Hunter does the work so I don’t have to:

This is the case that I have been saying for months would be an outrage if Justice decided to appeal.  Unlike DoMA, it does not call into question the validity of any federal statute; from the defendant’s point of view, it finds that a particular employment decision was unlawful and implicitly directs the federal government not to discriminate based on gender identity. In a Republican Justice Department, however, an appeal would have been likely because the law is not settled on the question of whether gender identity discrimination violates Title VII (although the courts have been pretty steadily moving in that direction).

In other words, this is precisely the kind of case where DoJ traditionally has broad discretion not to appeal a decision that it has lost, where public policy concerns dictate otherwise.

Bookmark Prof. Hunter’s blog if you haven’t already!

U.S. Rep. Jared Polis

U.S. Rep. Jared Polis is now the second member of Congress to fall victim to John Aravosis’s campaign of misinformation.  Chairman Frank was the first.

Today, Polis told Chuck Todd on Hardball (at 5:40):

Well, what a number of us were disappointed with was the President’s decision to defend DOMA and the language he used in a brief a couple of weeks ago.  First of all, he could have chosen not to defend it.  There’s not a legal requirement to do that.  The Attorney General of California chose not to defend Proposition 8 to the state Supreme Court.  If he had chosen to defend it, he could have used legal arguments that were a less offensive to the community than some of the citations that were included.

I’m sorry to see a Congressman so clearly get his talking points, without question, directly from AmericaBlog.

Here are four posts to help out Polis and his staff: two from me (first and second), one from Prof. Nan Hunter and a final from Prof. Art Leonard.

Finally, Polis actually expanded from Aravosis’s misstatements also to state that California A.G. Brown somehow should serve as an obvious example for President Obama.  Brown decided not to defend a newly passed state constitutional initiative that he argued ran counter to previously existing state constitutional provisions — and got smacked down by the Supreme Court in its opinion for doing so (”The Attorney General’s argument is fundamentally flawed on a number of levels.”).  I don’t see how this unsuccessful state example is a pointer for what President Obama should be telling his Justice Department to do in its presumptive defense of a 13-year old law that all agree was validly enacted and has been repeatedly upheld in several federal court challenges.

And Chuck Todd, really?  Nothing?