Brown

On the eve of the election for U.S. Senate in Massachusetts, I (belatedly) wanted to let folks here know about my article from Saturday at Metro Weekly, “Massachusetts Robocalls“:

The National Organization for Marriage appears to be making automated telephone calls today in support of U.S. Senate candidate and Massachusetts Senator Scott Brown (R) and attacking his opponent, Massachusetts Attorney General Martha Coakley (D), for her strong pro-marriage equality position. Coakley is running an unexpectedly close race for the seat held by the late Senator Edward Kennedy (D), the election for which will be held Tuesday.

Longtime LGBT activist Mary Breslauer, a volunteer member of Coakley for Senate cabinet, this afternoon relayed a report received by the campaign:

“Our household just got an automated call from the ‘National Organization for Marriage,’ with a 202 area code. The auto call features a male voice, which is clearly a recording, asking if you support marriage as being only between a man and a woman. If you say ‘yes,’ then the voice urges you to vote for Scott Brown as the only candidate with a proven record of supporting marriage as between a man and a woman. The call says that his opponent is a ‘radical’ supporter of same-sex marriage who has opposed letting the people decide and has used taxpayer dollars to support the agenda of same-sex marriage. The call ends by asking if ‘we can count on you to vote for Scott Brown.’ The quality of the recording is mediocre at best.”

[UPDATE: NOM also apparently sent out a mass-e-mail on Monday urging support for Brown, per the DC Agenda.]

Coakley

As President Obama and former President Clinton lent their support to Massachusetts Attorney General Martha Coakley’s race for U.S. Senate, so did a lesser, liberal voice from the other side of the country: San Francisco Mayor Gavin Newsom.

In a message sent today to his entire e-mail list, Newsom forwarded a letter from the late Senator Edward Kennedy’s widow, Vicki Kennedy, strongly calling for support for Coakley. In his message, Newsom said:

This Tuesday, there is a special election to fill Senator Kennedy’s Senate seat in Massachusetts. Following Senator Kennedy is no easy task, but I know that Martha Coakley will do everything she can to protect his legacy, starting with passage of the health care bill.

As Republicans across the nation pour money into this election, there is a good chance that Martha’s opponent can win in an upset. Without Martha Coakley in the Senate, health care for millions of Americans is in peril.

The full e-mail, with Vicki Kennedy’s attached e-mail, can be found below the jump.

[UPDATE: Ohio Lt. Governor Lee Fisher, running for U.S. Senate, did the same thing at 6:39 p.m. on a Friday evening, writing, in part:

As you may already know, Massachusetts is holding a special election next Tuesday to fill Senator Kennedy's Senate seat. Democrat Martha Coakley is committed to helping jump-start job creation and tackle the major problems facing our country, while her Republican opponent has pledged to do everything he can to block progress in Washington — starting with the health care reform bill.

Unfortunately, this message of obstruction has galvanized Republicans across the country, giving him an outside shot to win the race in an upset.

So, there you go.]

* * * * *

Newsom E-mail

Friends:

I wanted to pass on this message I received from Senator Ted Kennedy’s widow Vicki.

This Tuesday, there is a special election to fill Senator Kennedy’s Senate seat in Massachusetts. Following Senator Kennedy is no easy task, but I know that Martha Coakley will do everything she can to protect his legacy, starting with passage of the health care bill.

As Republicans across the nation pour money into this election, there is a good chance that Martha’s opponent can win in an upset. Without Martha Coakley in the Senate, health care for millions of Americans is in peril.

Now is the time to help Martha Coakley!

Please Click Here To Make A Contribution To Help In These Final Critical Days.

Sincerely,

Gavin Newsom

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From: Vicki Kennedy <office@marthacoakley.com>
Date: Wed, Jan 14, 2010 at 1:59 PM
Subject: A Message from Victoria Reggie Kennedy
To: gavin@gavinnewsom.com

Dear Gavin,

Throughout my husband Ted’s life, you were always there for him, for me and for the entire Kennedy family.  We are tremendously grateful for your friendship and support in the past, and we ask you to stand with us now to support Martha Coakley in the crucial race to fill Ted’s remaining term.

This Tuesday, January 19 everything is on the line.  The people of Massachusetts will decide who will be their next Senator, and we need  Martha Coakley.

The importance of having a voice and a vote that you can count on in Washington has never been more evident than during this ongoing health care debate. And we’re going to need every vote again.

Ted fought for national health care reform for 40 years.  He believed that every American deserved their chance at the American dream, but that as long as an illness or preexisting condition could bankrupt an American family, that great goal could never become a reality. We need Martha Coakley to continue our shared fight for national health reform, to reduce costs for businesses and families and increase coverage in Massachusetts and throughout this country.  This race will be very close and we need you to get us to victory.

We have just 5 days to do the hard work of electing Martha Coakley so that we can continue the agenda that Ted made the fight of his life  –  reforming health care, ensuring equality and justice for all, protecting our seniors, and rebuilding our economy to allow everyone to prosper.  That fight for working families cannot stop – not now, not when so much is at stake for Massachusetts and America.  And that’s why I’m asking you to ensure that we are victorious this Tuesday.

Stand with me and support Martha Coakley by making a contribution of $35, $50, or whatever you can do today.  My husband fought all his life to keep moving this nation forward — now we must make it the fight of ours.

We need to do everything it takes to ensure our shared fight continues.  I am asking you personally to do one more thing for Martha Coakley.

We cannot do this without you.

With gratitude,
Vicki Kennedy
P.S.  I know together we can keep fighting for our shared vision of the future.  Please go online today to www.marthacoakley.com to make a difference.

But, this evening, I want to go back to the first federal marriage challenge brought this year.  The case comes from Massachusetts and was brought by the Gay & Lesbian Advocates & Defenders, which was successfully brought the Goodridge challenge that allowed for marriage equality in Massachusetts.

Gill v. Office of Personnel Management et al., challenges the ability of the federal government, through Section 3 of the Defense of Marriage Act, to discriminate among those couples who are legally married in Massachusetts.  Section 3 of DOMA limits the federal definition of marriage and spouse to only opposite-sex couples.  The Amended Complaint in Gill (covered here) alleges that such a limitation is unconstitutional.

This past week, GLAD filed its opposition to the government’s Motion to Dismiss (covered here), as well as moving for summary judgment in the plaintiffs’ favor.  It is clear from this filing that GLAD is seeking a quick resolution of this case, perhaps in an attempt to stay ahead of the Perry v. Schwarzenegger California Proposition 8 challenge in the ever-winding process up through the federal courts.  The GLAD brief argues that “these motions should be decided together and should be decided now.”  Gill, Memo in Opposition to Defendants’ Motion to Dismiss and in Support of Plaintiffs’ Motion for Summary Judgment (pdf), at 11.

GLAD gives three reasons why the discrimination it alleges should be subject to a more searching inquiry — or “heightened scrutiny” — by the court:

Because DOMA establishes a conflicting and supervening federal definition of marriage, in contravention of the States’ constitutional sovereignty over marriage, it merits particularly close review.  Heightened scrutiny also is warranted because DOMA burdens Plaintiffs’ fundamental interests in the integrity of their existing familial relationships and because it impermissibly targets gay men and lesbians.

Id., at 1.  These reasons create a three-pronged basis for the court engaging in a more searching inquiry of this law.  Of particular interest is the way GLAD addresses the “immutability” prong of heightened scrutiny for classifications based on sexual orientation.  The Plaintiffs argue, not that sexual orientation is a genetically based, unchangeable reality, but that it “Is a Defining Characteristic of a Person’s Identity.”  GLAD goes on:

Moreover, sexual orientation is extremely resistant to change. . . . As with classifications such as religion and alienage, which are treated as “inherently suspect,” City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976), this more than satisfies the requirement of “obvious, immutable, or distinguishing characteristics that define them as a discrete group.”  Bowen, 483 U.S. at 602.

Id., at 26.  This, to me, seems to be the smartest approach to ensuring the fullest possible protection from sexual orientation and gender identity discrimination in the long run, and it’s good to see GLAD pursuing that route.  The other requirements to be considered in finding if heightened scrutiny applies to classification-based legislation are: (1) political powerlessness, (2) a history of discrimination and (3) a finding that the factor is unrelated to an individual’s ability to contribute to society.

If the court does not find that such a searching inquiry — on any of the three grounds — is justified, then it would apply a “rational basis” test, which usually — though not always — results in government action being found to be constitutional.

The plaintiffs in the case are people who have been impacted by distinctions in the tax code or by virtue of the fact that their spouse is or deceased spouse was an employee of the federal government.  GLAD does not leave the claims at that, though, noting:

Apart from these concrete financial losses, many Plaintiffs have also faced additional harm from the confusion and uncertainty that arise from having their marriages not “count” for many purposes, causing anxiety in everyday situations and inviting discrimination by private parties.  For example, after his husband passed away, Plaintiff Lewis-Kendell repeatedly contacted the company holding his deceased husband’s mortgage.  However, despite repeated efforts over a number of months, the company refused to talk to him and seemed incapable of understanding that he was the mortgagor’s widower.

Id., at 8.  It is this sort of situation that can — and should — be used to show a more complete story of the ways in which DOMA allows for discrimination against same-sex couples.

Importantly, GLAD does not give up the argument that Plaintiffs should still succeed even under a rational basis review, which requires only that the government provide a legitimate state interest to which the restriction — in this case, a federal definition of marriage limited only to opposite-sex couples — is rationally related. GLAD argues:

The post-hoc rationalizations that the government advances for DOMA – that it “preserves the status quo,” furthers an interest in “incremental[ism],” and preserves “consistency” by ensuring that all gay and lesbian people are treated alike, whether they are married or not – are insubstantial and counterfactual.  And the reasons Congress actually articulated when it enacted DOMA – reasons the government (wisely) declines to defend here – are either nonsensical or reflect outright animus against gays and lesbians.

Id., at 11-12.  Most notable in GLAD’s response to the alleged government justifications for DOMA is its sharp and biting analysis of the argument that DOMA is an “incremental” response to changing conditions:

To begin with, there is nothing “incremental” about DOMA.  It is a permanent ban on federal recognition of marriages of same-sex couples.  It does not sunset or provide for revision based on changing policies in the States.  Nor does it afford some partial recognition to same-sex couples.  Defendants have confused the President’s stated support for DOMA’s eventual repeal . . . with what the law itself actually does.  The fact that some in Washington now support repeal does not transform DOMA into something other than a complete and permanent refusal to treat Plaintiffs and other married same-sex couples as married for any federal purpose.

Id., at 31.  One of the more interesting arguments made by the federal government in its defense of DOMA was that Plaintiffs’ lawsuit challenged restrictions of the receipt of federal benefits based on marital status — not the right to marry itself.  GLAD comes back at this too-cute-by-half defense directly:

Defendants’ assertion that heightened scrutiny is unwarranted because “there is no right to receive federal benefits on the basis of . . . marital status,” . . . misses the forest for the trees.  DOMA does not merely deprive Plaintiffs of discrete selected federal “benefits” (although it does), it sweeps so broadly and indiscriminately as to effect a virtual change of their legal status – from “married” to “single.”  In so doing, it strips Plaintiffs’ closest familial relationships of much of their legal meaning, depriving them not only of the multitude of rights and benefits that accrue to marriage under federal law, but also of the unique public validation, social recognition, respect, support and private and personal value that come with marriage.

Id., at 21.  This is an argument that DOMA constitutes a badge of discrimination against same-sex couples, the effect of which is far greater than its terms (as referenced by the mortgage company difficulties that I pointed out above).  I was reminded, when reading this, of the discussion of the “badges and incidents of slavery” in the Civil Rights Cases, and was struck by a line from Justice Harlan’s dissent:

If the constitutional amendments be enforced, according to the intent with which, as I conceive, they were adopted, there cannot be, in this republic, any class of human beings in practical subjection to another class, with power in the latter to dole out to the former just such privileges as they may choose to grant.

Civil Rights Cases, 109 U.S. 3, 62 (Harlan, J., dissenting).

The Department of Justice will now have to reply to the Plaintiffs’ opposition to its Motion to Dismiss and respond to their Motion for Summary Judgment.  GLAD will then have one last opportunity to reply to the DOJ’s response to GLAD’s Motion for Summary Judgment.

A couple more law dork-y items can be found below the jump.

* * * * *

For the real law dorks, I’ve not before seen argued this idea, that there could be a constitutional problem with the fact that DOMA now has the effect of “repudiat[ing]” the laws of some states “while vindicating the laws of others”:

Through its sheer breadth, DOMA in substance, if not in form, arrogates to the federal government a substantial portion of the power – previously exercised only by the States – to define eligibility for marriage and render decisions regarding marital status.  Moreover, it does so in a manner that repudiates the family law of certain States while vindicating the law of others, which raises additional constitutional concerns.  Cf. Northwest Austin Mun. Util. Dist. No. One v. Holder, 129 S. Ct. 2504, 2512 (2009) (law that “differentiates between the States” must be justified by a showing the difference is “sufficiently related to the problem it targets” given the “historic tradition that all States enjoy equal sovereignty) (internal citation omitted).

Id., at 18.

Finally, GLAD argues that, at the least, the federal government’s interpretation of the FEHB, the federal health insurance program, is incorrect and should allow for same-sex couples to enroll.  GLAD argues:

Defendants contend that the FEHB Plaintiffs are not “spouse[s]” due to DOMA, and therefore cannot be “member[s] of the family” pursuant to 5 U.S.C. § 8901(5).  . . . This reading of the statute is mistaken.

Although the definition of “member of family” in the FEHB statute contains an enumeration of covered individuals, both the House and Senate Reports specifically note that the phrase is defined “to include” the enumerated individuals.  FEHB H. Rep. at 6, 1959 U.S.C.C.A.N. at 2919; S. Report 86-468 (July 2, 1959) (“FEHB Sen. Rep.”) at 20.  Defendants’ resort to the statutory interpretation maxim of “expressio unius est exclusio alterius” to exclude married same-sex spouses . . . implicitly acknowledges that the scope of coverage under the FEHB statute is ambiguous.

Id., at 41-42.

Mass. A.G. Coakley, Senate candidate?

The Associated Press reported today that someone claiming to be representing Massachusetts Attorney General Martha Coakley took out the necessary paperwork to file to run in the special election to fill Sen. Edward Kennedy’s seat in the U.S. Senate.

Michael Jones at change.org reported on the good news that this could be for LGBT equality — including noting the fact that Coakley is responsible for the first state challenge to the Defense of Marriage Act, which I reported on earlier.  The Boston-based Jones wrote:

But when it comes to LGBT rights and working on behalf of LGBT constituents, she’s certainly on par with the legacy of Sen. Kennedy.

An individual who answered Coakley’s campaign number this afternoon said that no statement has been issued regarding the AP report but that they would be in touch if there was.

I’m a big Coakley fan and am very excited at the prospect of her being a major candidate for the Senate seat.  As early as February, I noted that the signs were pointing toward Coakley seeking a way to the Senate.

Mass. A.G. Martha Coakley

From the Attorney General’s office:

Attorney General Martha Coakley will announce the details of a lawsuit that her office has filed challenging the constitutionality of the federal Defense of Marriage Act (DOMA) as it relates to Massachusetts.  Currently, 16,000 married same-sex Massachusetts couples are unfairly denied federal benefits under this act.

Here’s the Complaint (pdf).

Here’s the AP article.

Coakley is only going after section 3 of the Defense of Marriage Act and has made clear that the state itself suffers additional injuries in addition to those raised in Gill, the lawsuit brought by the Gay & Lesbian Advocates & Defenders.

* * * * *

THE NEWS CONFERENCE: AG Coakley introduces Jonathan Miller, Civil Rights AAG, and Maura Healey, Civil Rights Section Chief, who are with her.

Coakley begins by saying that the words of John Adams, in Massachusetts’ constitution, were determined in 2004 to mean that marriage must be available to all couples regardless of sexual orientation. After five years of living that experience, today, Massachusetts filed a lawsuit in federal District Court challenging Section 3 of DOMA.

Coakley gave three reasons for the suit:

1. DOMA created a federal definition of marriage, directly interfering with Massachusetts’ longstanding soverign authority to determine who it determines are “married” under federal law.
2. DOMA is a discriminatory law.
3. DOMA places Mass. in the position of choosing whether to adapt its programs to fit federal law, but if it does so, it limits the ability of Mass. residents to have full equality under Mass. programs.

Section 2, the Full Faith and Credit portion of DOMA, is not challenged.

Among the commonwealth-specific harms Coakley cited are:

• The commonwealth is affected when it provides health benefits because same-sex couples who choose to receive them are tax on those partners’ benefits, which “frankly creates a paperwork nightmare.”  She referred repeatedly to the “two-tiered” system the state had to create after 2004 as a result of DOMA.
• DOMA requires that Mass treats individuals differently under public medical benefits like Medicaid and Medicare.
• Mass. cannot inter the same-sex spouses of military veterans in federal military burial locations.

The lawsuit, per Coakley, is seeking an injunction against the federal government prohibiting it from applying DOMA to Massachusetts.

DOMA also violates the Spending Clause, the suit alleges.  One clear limitation is that Congress cannot compel the states to violate its states’ citizens state constitutional rights. This is interesting because it is something that is far more effectively raised by a state than any private party.

Asked about the GLAD Gill lawsuit, Coakley said that the state’s lawsuit is brought on behalf of all citizens, so it is in that sense broader.  “They [the GLAD suit's lawyers] bring similar and related issues as to the impact” of DOMA.

Consolidation with the Gill suit is a possibility they have considered, as she said judges “often put together” cases containing similar issues.

As to why now and why Massachusetts, Coakley noted, “We now have a record of five years” of implementing marriage equality and seeing the development of the “two-tiered” system.

* * * * *

REACTIONS: From my perspective, Coakley has done a great job of advancing the reasons why the state — as the state — has additional burdens to bear because of DOMA beyond the burdens that individual couples bear.  As such, this suit does have a slightly different flavor than the Gill challenge.

GLAD has said that it “applaud[s] the Commonwealth’s move to protect legally married same-sex couples from the harms caused by federal discrimination.”

HRC also has issued a statement, saying, in part:

This lawsuit, which names the United States and the Secretaries and Departments of Veterans affairs and Health and Human Services as defendants, marks the first time that a state has challenged the federal government’s discriminatory treatment of its LGBT citizens.

Chairman Barney Frank says: “Martha Coakley’s decision to join the lawsuit against the part of The Defense of Marriage Act (DOMA) that denies federal recognition of thousands of valid Massachusetts marriages deserves the support and gratitude of all of the state’s residents.”