Gill v. Office of Personnel Management

So, what’s the difference?

Most importantly, there is the remedy being sought.  In Gill, Gay & Lesbian Advocates & Defenders are representing Executive Branch employees and their legally married same-sex spouses [as well as non-government employee citizens] in alleging that Section 3 of DOMA is unconstitutional and, thus, that the plaintiffs be treated as married under federal laws, including the Federal Employees Health Benefit Act (FEHBA).  In the alternative, GLAD argues that DOMA, even if constitutional, does not constrain the FEHBA from a more expansive definition that would allow for same-sex benefits to be offered.

The most notable distinction in Golinski is that the only remedy Lambda Legal is seeking is for OPM, effectively, to cease and desist from preventing Golinski from receiving the health benefits for her wife.  Golinski is aimed solely at enforcing Ninth Circuit Judge Alex Kozinski’s administrative order that Golinski be allowed to add her wife to her family health insurance plan.  The lawsuit does not allege that DOMA is unconstitutional.  In fact, it doesn’t even raise the issue of DOMA’s constitutionality.

In addition to the issue of remedy, the factual circumstances underlying the cases are distinct and could lead to some rather distinct arguments being made in each case.  In Golinski, a Judicial Branch administrative body — here, the Ninth Circuit, under its Employment Dispute Resolution Plan — already conducted an administrative hearing and made a determination that DOMA and the FEHBA do not preclude the granting of same-sex health benefits.  OPM, an Executive Branch agency, then decided that its interpretation — that DOMA does preclude the FEHBA from being interpreted in a way that would allow for the benefits — prevented the Ninth Circuit administrative determination from going into effect.

In Gill, on the other hand, the Plaintiffs all are Executive Branch employees or spouses [or non-government employee citizens] and were at all times denied the equal treatment that they sought from various federal executive agencies.

The main distinctions, thus, are the limited remedy sought in Gill and the underlying factual issues in each case — with the prior successful administrative decision in Golinski and the lack of the inter-branch conflict in Gill.

So, in the end, though the cases similarly feature same-sex legally married couples seeking equal treatment by the federal government, the slightly different animating facts and the different remedies sought will result in different — at times substantially so — legal issues being discussed at points in the cases’ progress.

[UPDATE: I have updated the piece throughout to reflect, as GLAD's Carisa Cunningham pointed out in comments, that there are plaintiffs in Gill who do not work for the federal government at all.  This is true, but does not change any of the analysis -- other than adding the additional distinction that non-government employee citizens are involved as plaintiffs in Gill.]

Attorney Ted Olson prior to the start of the Proposition 8 trial. (Photo by Diana Walker via AFER.)

As we enter the second week of Perry v. Schwarzenegger, the trial challenging the constitutionality of California’s Proposition 8, I wanted to write briefly about two main areas that I’ve been thinking about over this weekend.

First, the brief mention in the opening arguments by Ted Olson about the Defense of Marriage Act.  Judge Vaughn Walker asked about whether this case would impact DOMA, and Olson replied that “circumstances around Proposition 8 passing in California make it unique.”  This point has been made previously in filings by the plaintiffs and is not surprising.  But, hearing it this past Monday reminded me that there could be some language — especially later on in appellate briefs — about why Proposition 8 is unconstitutional that would not apply to (or even harm) the case in some other jurisdictions.

When you file a case, though, your aim is to win your case.  And, reality is that there are factual distinctions between what has happened in California and what is going on and has gone on elsewhere.  The lawyers should use that to their advantage.  What’s more, when all is said and done, a ruling that invalidates Proposition 8 would — regardless of the specific grounds — have serious ramifications for DOMA, other states with marriage amendments, states with state “mini-DOMAs,” and so on.

But, they would be other cases.  Meaning, the timeline involved in this case is, quite possibly, only a California marriage equality timeline.  Even if ultimately successful before the U.S. Supreme Court, depending on the grounds of that decision, this case could resolve much across the country with one ruling or, and I think more likely, it could craft a narrow decision leaving everything up in the air as to the federal government and the other states.  (Ask Doug Berman about criminal sentencing law over the past decade, and he’ll tell you that the Supreme Court is perfectly comfortable doing the latter.)

So, while we focus on this case, which could very well be the landmark case that’s being discussed, it’s important to note that winning this case wouldn’t necessarily obliterate DOMA or strike down state marriage amendments elsewhere.  There will still likely be much that remains to be done even if Perry succeeds.

Second, the trial itself. I’ve never really been of the viewpoint that the trial itself is all that necessary.  I really think that most of what is going on at trial is distinctions that come down to a matter of degree — but not of type.  Witnesses are talking about “how much” and “how good” — not “whether or not.”  I’m yet to see anything legally significant that couldn’t have been appended to a motion for summary judgment.

Now, the point of the trial is bigger than that, and I understand why the Olson/Boies team wants a trial: It gives them a many-week megaphone.  And, yes, it allows more to be in the record than otherwise would.  It’s great and all (especially were more people able to be seeing it); I just don’t think much of the witness testimony is indicative of or particularly essential to the long-term success of the issue.

[UPDATE: This point was illustrated on Tuesday afternoon succinctly by NCLR: "This is torturously slow. Cooper taking forever to make largely irrelevant points that do not alter the validity of basic conclusions."]

Sanders

Finally, here’s what Tuesday should look like, according to the folks at the American Foundation for Equal Rights:

• Jerry Sanders, the current Republican Mayor and former Police Chief of the City of San Diego who is the father of a lesbian daughter. He will testify about his decision, as Mayor, to support the City of San Diego’s participation in an amicus brief advocating against the exclusion of same-sex couples from marriage and why he concluded supporting marriage equality was and is in the best interest of the local government and community.  City Attorney Dennis Herrera will conduct the direct examination of Mayor Sanders.
• M.V. Lee Badgett, Ph.D., a professor of economics at the University of Massachusetts, Amherst, who will testify about the private harms caused by Prop. 8 and the impact of same-sex marriage on the marriages of different-sex couples
• Ryan Kendall, a gay man who will testify about the “conversation therapy” he underwent in his youth and how he has been affected by discrimination.

Law Dork coverage of the trial:

• Supreme Court – Broadcast Stay
• Day One
• Day Two
• Day Three
• Supreme Court – Broadcast Ruling
• Day Four
• Day Five

All Perry coverage at Law Dork can be found here, and my Twitter list of folks tweeting live from the trial can be found here.

Perry Plaintiffs (from left to right) Sany Stier, Kris Perry, Jeff Zarrillo and Paul Katami stand, as Chad Griffin, seated, looks on. (Image from Diana Walker via AFER.)

If you have thoughts about the Perry v Schwarzenegger lawsuit challenging Prop 8, the trial begins on Monday and I’d like to use Law Dork as a place where Perry thoughts are shared.  I’ll be posting, but I’d like to hear people’s thoughts on the legal issues being considered at trial, on the long-term legal implications of the case, on the social and political ramifications of the case and of the personal impact of the case.

So, whether you’re a lawyer, law student, political scientist, philosopher, poet or otherwise, send your thoughts — and whether you want your name used — to me.

I’ll be posting stuff as I get it and am able to post.

Also, if there is any lawyer or law student (or anyone else) who plans to attend the trial or watch it at one of the streaming courtroom locations and is interested in providing updates, please let me know.  I’d be very interested in posting your coverage at Law Dork.

My complete coverage of the case is collected here.

Ted Olson (left) and David Boies adress reporters, as two of the lawsuit's plaintiffs look on.

It’s the weekend before trial, and everything is heating up.

As The New Yorker unveils its lengthy piece on the Proposition 8 federal challenge, Perry v. Schwarzenegger, and the Prop 8 proponents seek to keep the public eye off the court proceedings by appealing Judge Vaughn Walker’s ruling on cameras all the way to the U.S. Supreme Court, the American Foundation for Equal Rights, AFER, announced the formation of its advisory board this evening.

AFER, formed entirely for the purpose of bringing the Perry challenge has gained a reputation — mainly through the musings of its board president, Chad Griffin — as being as out-front and aggressive a group as sensibly possible.  In The New Yorker piece, Griffin says, “Our movement has been satisfied with small steps, but we can no longer be afraid of big steps.”

But then, on the eve of litigation being run by lawyers outside the LGBT equality movement and with a board of directors with little connection to that movement before 2008, the group announced its advisory board, which, it announced in a news release, “comprises a diverse and prominent roster of civil rights leaders.”

The advisory board members are a mostly impressive list that includes some of the big supporters of the grassroots-pushed National Equality March, Cleve Jones and David Mixner, and some of the key D.C. establishment civil rights supporters, Julian Bond and Hilary Rosen.

Jones, in addition to having worked with Harvey Milk, founded the NAMES Project AIDS Memorial Quilt effort.  Mixner is a known California entity,  but became a major Clinton fund-raiser in the ’90s and has become a consistent voice for change in Washington since.  Bond is the longtime face — and voice — of the NAACP and a strong voice for LGBT equality within and outside of the group.  Rosen has been a board member and a leading force of the Human Rights Campaign for nearly two decades, having even served as the interim director for a short while in 2004.

Among the other advisory board members are Lt. Dan Choi, who has become the face of the Don’t Ask, Don’t Tell repeal effort over the past year; Stuart Milk, the openly gay nephew of Harvey Milk; Judy Shepard, the mother of Matthew Shepard; and Dolores Huerta, a member of the board of directors of Equality California and a longtime, much-honored activist for the rights of farm workers who co-founded the United Farm Workers of America with Cesar Chavez.

Plus, Margaret Hoover, who worked on the Bush-Cheney re-election campaign in 2004, worked as the deputy press secretary for Mario Diaz-Balart and is quoted in the AFER release as using the Cheney “freedom means freedom for everyone” line.  Huh?  That’s the best Republican Ted Olson could bring on board?  No one with, um, any civil rights record?

Hoover aside, it’s good to see AFER bringing together this group right now, on the eve of trial.  This group shows more solidarity, in my view, from all areas of the LGBT equality movement than I’ve seen in most any other organization.  It it, I think, a good sign that both grassroots and establishment leadership are coming together to show their full and unambiguous support for the Perry effort.

The full release is below the jump.

* * * * *

LOS ANGELES – The American Foundation for Equal Rights today announced its advisory board, which comprises a diverse and prominent roster of civil rights leaders:

•    Julian Bond
•    Lt. Dan Choi
•    Margaret Hoover
•    Dolores Huerta
•    Cleve Jones
•    Stuart Milk
•    David Mixner
•    Hillary Rosen
•    Judy Shepard

“The diversity and prominence of this advisory board underscores that Proposition 8 is an affront to every American who believes in the equal protection under the law guaranteed by the U.S. Constitution,” said Board President Chad Griffin. “These civil rights leaders have profoundly affected the lives of millions of Americans, and we are proud to be working with them to help millions more.”

The American Foundation for Equal Rights launched its groundbreaking federal court challenge to Prop. 8 in May, and brought together attorneys Theodore Olson and David Boies to argue the case, Perry v. Schwarzenegger. Olson and Boies notably represented George W. Bush and Vice President Al Gore respectively in the 2000 Supreme Court case that decided the presidency.

Advisory Board Background

•    Julian Bond is Chairman of the NAACP Board of Directors. He co-founded and was the first president of the Southern Poverty Law Center and was a founder of the Student Nonviolent Coordinating Committee (SNCC). He served more than 20 years in the Georgia legislature after a 1966 U.S. Supreme Court ruling held that the Georgia House of Representatives unconstitutionally denied him the seat he had won.

“The humanity of all Americans is diminished when any group is denied rights granted to others,” Bond said. “This is not a special interest case, but one that should be of great importance to everyone who believes in the principles of equality on which this nation was founded.”

•    Lt. Dan Choi is an Army Officer and Iraq War combat veteran who graduated from the U.S. Military Academy at West Point with degrees in Arabic and environmental engineering. Choi is a leading advocate against the military’s “Don’t Ask, Don’t Tell” policy.

“Soldiers, elected officials and civil servants alike swear an oath to uphold the Constitution.      That oath should guide our leaders to reject discrimination of all kinds,” Choi said. “It is absolutely immoral that gay and lesbian soldiers can protect our country in wars overseas but return to America as second class citizens with inferior protections and recognition of their relationships and families.”

•    Margaret Hoover is a commentator on issues ranging from American politics to pop-culture.  She is a Fox News Contributor, has guest co-hosted The View on ABC, and appeared on NBC’s The Today Show, CNN’s Larry King Live, CBS’s The Early Show and PBS. Ms. Hoover served in George W. Bush’s White House, is a veteran of two Republican Presidential efforts and worked on Capitol Hill.  She is an advocate for reforming the Republican Party through renewed emphasis on the conservative principles of individual freedom, fiscal responsibility and strong national security.

“The right to marry is an individual freedom that should not be a left v. right, Democrat v. Republican issue,” Hoover said.  “Freedom means freedom for everyone.”

•    Dolores Huerta, President of the Dolores Huerta Foundation, co-founded the United Farm Workers of America with Cesar Chavez, and is a recipient of US Presidential Human Rights Award. She has led national efforts to stop the exploitation of farm workers and extend government protections and equal rights. She is a former Regent of the University of California.

“People from all over the world come to America because of its promise of freedom and equal rights,” Huerta said. “This case will move our nation closer to making that ideal more of a reality.”

•    Cleve Jones founded the NAMES Project AIDS Memorial Quilt, which today honors more than 85,000 Americans, with affiliates of the Project active in more than 50 countries around the world. He was an aide to San Francisco Supervisor Harvey Milk and a consultant to two California Assembly speakers.

“The consequences of discrimination are profound,” Jones said. “This trial provides an  unprecedented forum to reveal the true harm of measures like Proposition 8 without the spin and misdirection that dominate political campaigns.”

•    David Mixner’s career spans the McGovern for president campaign to those of Gary Hart and Bill Clinton. After serving as campaign manager to Los Angeles Mayor Tom Bradley, he led the successful fight against California’s Proposition 6, also known as the Briggs Amendment, which would have banned gays and lesbians from being teachers.

“Americans should not have to win equal rights in a political contest,” Mixner said. “The U.S.     Constitution guarantees every American fundamental rights, and when those rights are violated,     our courts exist to protect us.”

•    Stuart Milk, the openly gay nephew of the late San Francisco Supervisor Harvey Milk, today continues to spread his uncle’s message of hope for an America that provides equality to all.  He has been a vocal advocate for LGBT equality around the world and for civil rights in the U.S., and recently accepted from President Obama the nation’s highest civilian honor, the Presidential Medal of Freedom, on behalf of Harvey Milk.

“The nation has come a long way in the three decades since my uncle Harvey Milk passionately worked to bring forth the hope and dream of equal rights right here in San Francisco, however the painful and diminishing message of inequality still remains.  We must work on several fronts and with multiple strategies in order to achieve the dream of equality that is unqualified for every American” Milk said.

•    Hillary Rosen is a Huffington Post editor-at-large and a CNN political contributor. A former Chairman and CEO of the Recording Industry Association of American (RIAA), she also is currently Managing Partner of the Brunswick Group in Washington. Rosen serves on the boards of the Human Rights Campaign Foundation, the Creative Coalition and the Center for American Progress Action Fund. She has served two U.S. Senators and has lobbied and advocated for civil rights for 25 years.

“As exemplified by our legal team, this case transcends politics.” Rosen said. “It doesn’t advance a Democratic agenda or affect a Republican one. Equal rights form the core of our nation’s character and is something that all American families need and deserve.”

•    Judy and Dennis Shepard founded the Matthew Shepard Foundation in memory of their 21-year old son, Matthew, who was murdered in an anti-gay hate crime in Wyoming in October 1998.  The Foundation seeks to “Replace Hate with Understanding, Compassion & Acceptance” through its varied educational, outreach and advocacy programs and by continuing to tell Matthew’s story.

“The AFER court case to overturn Prop. 8 will help move us toward ending dangerous discrimination that is rooted in ignorance and hatred,”  Shepard said.

Looking at both of their actions should help disentangle this debate, much of which has been over-inflated and devoid of careful analysis of what is actually going on with the dispute.

This is not an anti-LGBT move by the Administration.  It’s a separation of powers fight arising in the form of a rather intricate debate over statutory interpretation.

First, the statutory interpretation dispute.

Kozinski

Ninth Circuit Chief Judge Kozinski’s argument is that federal benefits, under current law, can be provided to the same-sex spouses of employees.  The Office of Personnel Management’s long-held view is that this is not permitted under the Federal Employee Health Benefits Act following the passage of the Defense of Marriage Act.  Even Professor Arthur Leonard, critical of OPM’s actions here, notes that Kozinski’s opinion only came about “by engaging in some creative interpretation of the statute governing federal employee benefits, finding that it was feasible to interpret it to allow benefits for the same-sex spouse of a court employee.”

In fact, this argument is being made by Gay & Lesbian Advocates & Defenders in its Gill challenge as an alternative argument to striking down Section 3 of DOMA, a point I discussed earlier.

OPM’s position is that the law needs to be changed in order to allow for this coverage.  It is for that reason that President Obama’s earlier action to provide benefits to same-sex couples did not include health care benefits and that Rep. Baldwin’s Domestic Partner Benefits and Obligations Act is being pushed forward in the House.

Interestingly, fellow Ninth Circuit Judge Stephen Reinhardt, hearing a similar complaint, reached the same conclusion as OPM.  He wrote in February:

I must reluctantly disagree with the view that the FEHBA is ambiguous.  I believe instead that the only reasonable reading of that statute is that it does not permit coverage of persons falling outside its definition of family member.

He went on to find, though, that equal benefits should be afforded to the employee in question because DOMA places unconstitutional limitations on the provision of those benefits.

In other words, the judge traditionally thought of as a “liberal” concurs with OPM’s view that the benefit law does not allow for equal benefits to be granted unless the law is changed or DOMA is struck down as unconstitutional.  The judge traditionally thought of as a “conservative” has found an interpretation that would allow him to grant the benefits without striking down DOMA.

Reinhardt

For some, however, this turns Kozinski into a hero and allows for another attack against the Obama Administration.  In doing so, no analysis is complete without noting that liberal legend Stephen Reinhardt has taken the same position as OPM that Kozinski’s interpretation is wrong.

Also, this is not a traditional case, as it is resulting from the employment dispute resolution plan in place in the Ninth Circuit, and Kozinski’s order is issued as the head of the court.  Judge Kozinski is is the Chief Judge of the Ninth Circuit and, as such, is responsible for hearing appeals about employee benefit disputes, such as this one, brought by Karen Golinski. Judge Reinhardt came to hear his dispute because he had been serving as the chair of the Ninth Circuit’s Standing Committee on Federal Public Defenders.  The person, Brad Levenson, seeking benefits for his husband works for the Federal Public Defender within the Ninth Circuit.

And this is where the separation-of-powers question arises.  This dispute really is the inter-branch version of the Secretary of an Executive Department telling OPM to grant benefits to an employee and OPM responding that such benefits are not permitted under federal policy.  In an intra-branch dispute, the matter would be over.

Kozinski is acting on behalf of a separate, coordinate branch of government, though, and is of the view that OPM cannot determine the rules for judicial branch employees.  From Leonard:

Kozinski asserted that OPM “may not disregard a coordinate branch’s construction of the laws applying to its employees.  No less than the other branches of government, the Judiciary is dependent on people to carry out its mission.  Barring us from determining, within reasonable bounds, the rights and duties of our personnel under the laws providing for their employment would make us a ‘handmaiden of the Executive.’  The power both to interpret and execute a law is the power to control those governed by it.”  He drove home this point by citing to The Federalist Papers.

Ninth Circuit Judges Reinhardt (left) and Kozinski.

Reinhardt, seeking to avoid the inter-branch dispute, responded differently.  Reinhardt issued “an order that [the employee] be compensated for the expense of providing comparable insurance for his partner.”

In other words, as to the two issues: (1) Kozinski found a statutory interpretation that avoided the constitutional question about DOMA but (2) Reinhardt found a remedy that avoided the constitutional inter-branch dispute.

So, it is entirely possible here to think that Kozinski’s view of the FEHBA statutory interpretation is correct and that the judicial branch is correct in the inter-branch dispute.  Both of those positions are reasonable, if in dispute.

But to turn Kozinski’s dispute with OPM into some anti-LGBT action by the Administration stretches the bounds of reality.

And, also important to note is that Reinhardt actually resolved the dispute.  Levenson is being compensated.  Kozinski’s actions have left Golinski’s dispute unresolved.

Sen. Arlen Specter (D-PA) (Image from the AP.)

Today, Sen. Arlen Specter caused a bit of a kerfluffle with his announcement at The Huffington Post that he had changed his mind on the Defense of Marriage Act.  He wrote:

The time has come to repeal the 1996 Defense of Marriage Act (DOMA). Enacted 13 years ago when the idea of same sex marriage was struggling for acceptance, the Act is a relic of a more tradition-bound time and culture.

He went on to express support for all other legislative priorities of the LGBT community, including the hate crimes measure President Obama is to sign into law on Wednesday, the Employment Non-Discrimination Act and the repeal of Don’t Ask, Don’t Tell.

Chris Bowers, writing at OpenLeft, criticized this move:

Arlen Specter is engaging in some of the more absurdly bald-faced flips that I have ever seen a candidate engage.  He does not care about policy or ideological consistency–only about getting elected.

This all might be tolerable if Specter was simply saying that he was representing the majority wishes of his constituents.  However, he keeps claiming that these about-faces are based on principle. Again, if Specter were to admit that his highest principle is getting elected, I would agree with him.

I’m certain it’s a political move, but I think that’s missing the point.  When it comes to LGBT issue support, we need to support growth.  We need to embrace evolution.  (That doesn’t mean support his candidacy; there’s a clear difference there.)

In Ohio, there’s a Democratic candidate named Jennifer Garrison who is a state representative running to be Ohio’s Secretary of State.  Garrison originally won her seat, in part, by sending out a mailer criticizing the Republican incumbent for voting against the state’s DOMA bill. Yes, you read that right: The Democrat was the “anti-gay” candidate in the race, while the Republican was the “pro-gay” candidate.  When Rep. Garrison first announced her candidacy for Secretary of state, I wrote that I was unsure whether she’d even be able to emerge victorious from a primary.

Since then, Garrison supported and spoke out in favor of Ohio’s sexual orientation and gender identity non-discrimination bill, attracted the endorsements of a majority of the Democratic caucus in the state House and convinced her primary opponent to drop out of the race.  Having cleared the field, Garrison could have gone into general election mode, but she didn’t.  Garrison and her campaign have begun taking steps to introduce herself to the LGBT community and to discuss the hurtful past the community has had with her.  Though I am not yet a Garrison “fan,” by any stretch, I definitely view her now as far less of an anti-LGBT politician than as one who wasn’t educated on our issues, has moved on them and is capable of further movement.

The same is true across the nation, and we will miss the opportunity of our age if we can’t find a way to remain critical of our politicians without completely demeaning their progression on LGBT issues.

Here are two stark numbers that show why we need to be OK with “flip-floppers” on LGBT issues:

• Only 20 of the DOMA repeal co-sponsors (H.R. 3567) are straight and not from the West Coast, New England or BOS-NY-WASH area.
• More than 60 of the ENDA co-sponsors (H.R. 3017) are from that group.

As the White House readies its signing ceremony for the Defense Authorization Act and President Obama’s remarks on the Hate Crimes Prevention Act becoming law, it is very clear that our movement toward equality is both geography-based and issue-based.  The issues on the coasts are simply in a different place than the issues further inland.

Roughly one-third of the co-sponsors of ENDA are from the South or inland.  Only one-fifth of the co-sponsors of the Respect for Marriage Act come from those areas.

Simply put, “changing hearts and changing minds” will require a lot of “flip-flopping.”

But, as we advance equality, this is flip-flopping I can believe in.

Forget the repeal debate, though.  For me, what’s much more sad is the fact that 13 years ago, the Senate was one vote away from passing the Employment Non-Discrimination Act — and today it is still not the law of the land.

Why not?

To put this in perspective, Senator Max Baucus voted for ENDA back in 1996.  This is not a controversial measure among Democrats — and Republican Senators Collins and Snowe already are on board as co-sponsors, so I really hope that we see it passed into law by the year’s end.

Of note, only 14 of the 1996 “No” votes remain in the Senate.  They are Senators Bennett (R-UT), Bond (R-MO),  Byrd (D-WV), Cochran (R-MS), Grassley (R-IA), Gregg (R-NH), Hatch (R-UT), Hutchison (R-TX), Inhofe (R-OK), Kyl (R-AZ), Lugar (R-IN), McCain (R-AZ), McConnell (R-KY) and Shelby (R-AL).

None of the 14 are co-sponsors of the bill introduced in the Senate earlier this year, which I discussed here.

[Edited, per correction in comments, to remove then-Sen. David Pryor, whose son Mark now holds his seat.]

For the full 1996 roll call, see below the jump.

* * * * *

104th Congress, Roll Call Vote No. 281: Employment Non-Discrimination Act

YEAs —49
Akaka (D-HI)
Baucus (D-MT)
Biden (D-DE)
Bingaman (D-NM)
Boxer (D-CA)
Bradley (D-NJ)
Breaux (D-LA)
Bryan (D-NV)
Bumpers (D-AR)
Chafee (R-RI)
Cohen (R-ME)
Conrad (D-ND)
D’Amato (R-NY)
Daschle (D-SD)
Dodd (D-CT)
Dorgan (D-ND)
Feingold (D-WI)
Feinstein (D-CA)
Glenn (D-OH)
Graham (D-FL)
Harkin (D-IA)
Hatfield (R-OR)
Hollings (D-SC)
Inouye (D-HI)
Jeffords (R-VT)
Johnston (D-LA)
Kennedy (D-MA)
Kerrey (D-NE)
Kerry (D-MA)
Kohl (D-WI)
Lautenberg (D-NJ)
Leahy (D-VT)
Levin (D-MI)
Lieberman (D-CT)
Mikulski (D-MD)
Moseley-Braun (D-IL)
Moynihan (D-NY)
Murray (D-WA)
Pell (D-RI)
Reid (D-NV)
Robb (D-VA)
Rockefeller (D-WV)
Sarbanes (D-MD)
Simon (D-IL)
Simpson (R-WY)
Snowe (R-ME)
Specter (R-PA)
Wellstone (D-MN)
Wyden (D-OR)

NAYs —50
Abraham (R-MI)
Ashcroft (R-MO)
Bennett (R-UT)
Bond (R-MO)
Brown (R-CO)
Burns (R-MT)
Byrd (D-WV)
Campbell (R-CO)
Coats (R-IN)
Cochran (R-MS)
Coverdell (R-GA)
Craig (R-ID)
DeWine (R-OH)
Domenici (R-NM)
Exon (D-NE)
Faircloth (R-NC)
Ford (D-KY)
Frahm (R-KS)
Frist (R-TN)
Gorton (R-WA)
Gramm (R-TX)
Grams (R-MN)
Grassley (R-IA)
Gregg (R-NH)
Hatch (R-UT)
Heflin (D-AL)
Helms (R-NC)
Hutchison (R-TX)
Inhofe (R-OK)
Kassebaum (R-KS)
Kempthorne (R-ID)
Kyl (R-AZ)
Lott (R-MS)
Lugar (R-IN)
Mack (R-FL)
McCain (R-AZ)
McConnell (R-KY)
Murkowski (R-AK)
Nickles (R-OK)
Nunn (D-GA)
Pressler (R-SD)
Roth (R-DE)
Santorum (R-PA)
Shelby (R-AL)
Smith (R-NH)
Stevens (R-AK)
Thomas (R-WY)
Thompson (R-TN)
Thurmond (R-SC)
Warner (R-VA)

Not Voting – 1
Pryor (D-AR)

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?"]

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.

# # #

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.