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Archives – December, 2011

Golden Oldie: New Hampshire Public Hearing Day Thread

This Golden Oldie recalls the remarkable day in February when marriage equality supporters vastly outnumbered opponents in New Hampshire on their hearing day, helping spur the decision to shelve the bill. Many supporters were Courage members and/or P8TT readers, all wearing red.

We at P8TT are taking Christmas through New Year’s off, with occasional light posting. Golden Oldies you requested will run in the place of regular posts. If you’d like to suggest one from this year, please leave your suggestion in the comment thread. Regularly scheduled programming will resume on January 2nd -Adam

By Adam Bink

Update: Here’s a summary by an Associated Press writer.

Update: Zandra Rice-Hawkins, ED of Granite State Progress, kindly just sent the following over e-mail to me in response to a “what happens next” inquiry. I thought it would be informative for us all.

Adam,

The committee is very likely to vote today or next week to retain the bills. There is a small chance that some action could still be taken, but the last day to act on the bills would be mid-March and the full House has to complete all actions by Thursday, March 31st. That day is known as Crossover in New Hampshire and is when all bills must cross over to the Senate and visa versa. By general rule of thumb, retained bills will then lay in committee until next January.

It is not a guarantee that there will be another public hearing next year, so today’s turnout was critically important.

Update:With a tip of the hat to Ronnie in the comments, this ad is running in today’s Manchester Union Leader, from a conservative Marine.

//

Update: A sea of red marriage supporters:

Update: Back. The official pro-con count on the committee sign-in sheet is 540 in favor of equality, 40 opposed. Remarkable. For all those who joined in our Courage action to ask supporters to attend- or attended yourself- pat yourselves on the back!

Update: I have to get on a plane for the next two hours or so, but you can follow @NHFreedom2Marry, which is tweeting a good amount from the hearing, on Twitter.

Update: According to every person on the ground sending back updates from GSP, NHFTM, HRC and friends, anti-equality folks, aside from Maggie, simply didn’t turn out. Plus, hundreds of pro-equality folks went. The room is a sea of red. Contrast in organizing and perhaps more.

Update: I’m working off my PDA while in transit, and told the video may not start playing yet, but live video stream is set up to be here.

Update: Interestingly, at the open of the hearing, Rep Bates, the lead sponsor of one anti-marriage measure, calls for retention, or putting on hold, of the bill until next year (h/t NHFTM).

Update: This could go for some time. The chairman warns that he will hold the committee in session until “the wee hours” if necessary.

Update: Maggie:

Update- My friend Kevin Miniter, who is up in NH with Fred Karger’s campaign, reports at least 400 there- overwhelmingly equality advocates.

Update- Maggie is also there.

Photos coming in:

Updates will scroll from the top

By Adam Bink

This morning, starting between 10 and 10:30 AM EST, will be the big Public Hearing in New Hampshire to consider three different pieces of legislation to repeal the freedom to marry for same-sex couples in the state. For more background, I wrote a post on Tuesday outlining what was under consideration.

For those who have never seen what an event of this kind looks like, and its importance, watch this:

That was Mr. Philip Spooner testifying at the public hearing in Maine. Over 4,000 people showed up– so many that the legislature had to move the hearing to a larger auditorium. It was a watershed moment on the bill’s path to passage. We must make today’s event a watershed moment in defense of equality.

Several of our colleagues at Granite State Progress and HRC will be sending back dispatches throughout the day, which I’ll be sorting through and posting here (NOM bus tour style!). We’ll also likely have a live streaming link. I will be traveling through most of the morning, but updates will come throughout the afternoon. Please help out your fellow P8TTers by updating what you see in the comments for those unable to watch or listen live.

For your reading interest before the hearing starts, Courage Campaign, in partnership with Granite State Progress, has collected over 50 written testimonies over the past two days to be submitted for the record at today’s hearing. I’ve pasted many of them below with names redacted, but with location left in. I was struck by the volume of heartfelt testimonies submitted for the public record by straight allies. Thank you, my friends. It is heartening to have such kind people at our movement’s back.

If you’re a New Hampshirite and haven’t yet submitted a written testimony, you can do so here. Some testimonies are below.

I have many gay friends. Love is love. It does no harm to me or my children if my gay friends marry. Fitzwilliam, NH

 

I’ve been married for nearly 20 years. In that time, I’ve seen many of my lesbian and gay friends meet the loves of their lives and I’ve watched as they’ve built the same stable homes for their children, as they contributed to their communities, and as they shared their lives in exactly the same ways my husband I have. Durham, NH

 

I am a straight young woman who has many LGBT friends. They are no different than anybody else. Love has no boundries. Just as there was a fight for couples of different races to be accepted, now we must fight to ensure our LGBT friends and family members have their right to marry as well.

 

I have been married to my husband for 7 years now and we have 2 beautiful children. My friends who are in same-sex relationships should be able to enjoy and live their life, and marry whom they want, without any questions asked! My 7 years of marriage have been amazing and I am showing my children what it’s like to have a partner and be in a loving relationship. Everyone’s children should be able to experience the same, whether they have a mom and dad, two mom’s or two dad’s. It’s a right. It’s equality. Born in Litchfield, now living in Nashua, NH.

 

My mother is a lesbian and has lived with her same-sex partner for the past four years. Although I was already in college when my mother came out, my younger siblings went through the most critical period of their adolescence in a same-sex household. Since my mother recognized her orientation and began a same-sex relationship, our family environment has vastly improved. My mother is far happier than she has ever been and this is reflected in a greater sense of peace and harmony within our family. My siblings (now 15 and 19) have grown into well-adjusted young adults. We are all extremely close to our mother’s partner and consider her an integral part of the family. Manchester, NH

 

I’ve been married since 1996. My husband is a wonderful man and a terrific partner. However, it’s always struck me as incredibly unfair that just because he’s a man and I’m a woman, we have rights that were, until last year, denied to couples of the same sex in New Hampshire. When their families are now recognized, their marriages (which are just as meaningful as ours) are celebrated, and their children are protected in the same way mine are… why should that be taken away? Durham, NH

 

While i am straight, married and a father i know many, many people- singles and couples- who are gay. For example my sister is gay as is a respected and close colleague at work. There is every reason to support equal marriage rights for same sex couples and no credible reason not to. I am proud to be a resident of one of the few states to take a bold step forward on this issue and i would be both dismayed and angered if the state decided to reverse itself. It would be a statement on the fear, insecurity and single mindedness of a few people; not of most persons in this state. Newmarket, NH

December 27, 2011

Golden Oldie: Sturm und drang, or not

Following up on today’s earlier Golden Oldie on the Administration’s decision to not defend DOMA in court, here’s the flip side: the reaction from right-wingers. From February 25th, 2011.

We at P8TT are taking Christmas through New Year’s off, with occasional light posting. Golden Oldies you requested will run in the place of regular posts. If you’d like to suggest one from this year, please leave your suggestion in the comment thread. Regularly scheduled programming will resume on January 2nd –Adam

By Adam Bink

The predictions from anti-equality leaders in response to the Obama administration’s move on DOMA are pouring in:

NEW YORK — Angered conservatives are vowing to make same-sex marriage a front-burner election issue, nationally and in the states, following the Obama administration’s announcement that it will no longer defend the federal law denying recognition to gay married couples.

“The ripple effect nationwide will be to galvanize supporters of marriage,” said staff counsel Jim Campbell of Alliance Defense Fund, a conservative legal group.

[…]

“The president has thrown down the gauntlet, challenging Congress,” said Tony Perkins of the Family Research Council. “It is incumbent upon the Republican leadership to respond by intervening to defend DOMA, or they will become complicit in the president’s neglect of duty.”

[…]

In Rhode Island, the Roman Catholic bishop of Providence, Thomas Tobin, said Thursday that his diocese would “redouble its efforts’ to defeat a pending same-sex marriage bill in response to the announcement. In Iowa, conservative activist Bob Vander Plaats said the DOMA decision would invigorate a campaign to repeal the state’s court-ordered same-sex marriage law.

“This gives us more credibility than ever with this issue,” said Vander Plaats, who wants to topple the Democratic leadership in the state Senate that is blocking efforts to put a same-sex marriage repeal proposal on the ballot.

[…]

Perkins, the Family Research Council leader, suggested that House Republicans would risk alienating their conservative base if they did not tackle the marriage issue head-on.

“The president was kind of tossing this cultural grenade into the Republican camp,” he said.

“If they ignore this, it becomes an issue that will lead to some very troubling outcomes for Republicans.”

[…]

Brian Brown, president of the conservative National Organization for Marriage, predicted that Obama’s decision not to defend the federal DOMA would spur efforts in some of the remaining states to join the ranks of those with constitutional bans.

Indiana lawmakers took a step in that direction last week, and Brown said it was possible that amendments could gain traction in Wyoming, Minnesota, North Carolina and even New Hampshire, if GOP lawmakers succeed in repealing the state’s same-sex marriage law.

“This raises the stakes and makes clear the executive branch is not willing to carry out its responsibility,” Brown said. “I don’t think by any stretch of the imagination the tables have turned on this issue. People in this country know what marriage is.”

Thing is, as I look at the numbers and get a sense of people’s priorities when I travel the country, it’s harder and harder to find people who (a) are even clear on what DOMA is (b) prioritize it above whether their trash gets picked up twice or three times per week, or whether they have a job. I’m serious. I’m not saying there aren’t hard-right activists and politicians out there and we shouldn’t expect DOMA-style legislation in the states to fight, but for goodness’ sake, look at CPAC. For years it was the bedrock of everything anti-LGBT, anti-choice, school prayer, you name it. But younger conservative activists are coming into the party who are with us on some of the LGBT issues and, even if they aren’t, don’t give a flip. Not only that, but I took a class on European politics in college, and I always remember a fascinating paper demonstrating that legislation and regulation on non-economic “soft” issues- LGBT rights, drug policy, the environment, etc.- always advanced in strong economic times and never in poor economic times. Now, there are obviously exceptions to that- look at repeal of “Don’t Ask, Don’t Tell”- but my point is people have a few dozen bigger priorities in this economic climate, and with threats of climate change and other issues looming, when evaluating, say, their Presidential candidates, than DOMA, if they even understand what it is.

I think Perkins and the rest are expecting a very different party rise up than what they will see.

2 Comments December 26, 2011

Golden Oldie: BREAKING: DOJ announces they’ll no longer defend DOMA in court

We at P8TT are taking Christmas through New Year’s off, with occasional light posting. Golden Oldies you requested will run in the place of regular posts. Today’s is to recall the big news back on February 23rd, when the Obama administration announced they’d no longer defend DOMA in court. Their full memo is below. It spurred an incredibly vibrant comment thread with 293 comments on the decision, which you can find here.

Regularly scheduled programming will resume on January 2nd–Adam Bink

By Adam Bink

Update: This is amazing news. We at Courage put together an open letter to thank the President for taking this action, and to ask him to speak out for the freedom to marry.

It’s time, Mr. President.

Please sign here.

And share here on Facebook, and here on Twitter.

Big news that just landed in my inbox (bolding mine)

STATEMENT OF THE ATTORNEY GENERAL ON LITIGATION INVOLVING THE DEFENSE OF MARRIAGE ACT

WASHINGTON – The Attorney General made the following statement today about the Department’s course of action in two lawsuits, Pedersen v. OPM and Windsor v. United States, challenging Section 3 of the Defense of Marriage Act (DOMA), which defines marriage for federal purposes as only between a man and a woman:

In the two years since this Administration took office, the Department of Justice has defended Section 3 of the Defense of Marriage Act on several occasions in federal court. Each of those cases evaluating Section 3 was considered in jurisdictions in which binding circuit court precedents hold that laws singling out people based on sexual orientation, as DOMA does, are constitutional if there is a rational basis for their enactment. While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard.

Section 3 of DOMA has now been challenged in the Second Circuit, however, which has no established or binding standard for how laws concerning sexual orientation should be treated. In these cases, the Administration faces for the first time the question of whether laws regarding sexual orientation are subject to the more permissive standard of review or whether a more rigorous standard, under which laws targeting minority groups with a history of discrimination are viewed with suspicion by the courts, should apply.

After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases. I fully concur with the President’s determination.

Consequently, the Department will not defend the constitutionality of Section 3 of DOMA as applied to same-sex married couples in the two cases filed in the Second Circuit. We will, however, remain parties to the cases and continue to represent the interests of the United States throughout the litigation. I have informed Members of Congress of this decision, so Members who wish to defend the statute may pursue that option. The Department will also work closely with the courts to ensure that Congress has a full and fair opportunity to participate in pending litigation.

Furthermore, pursuant to the President’s instructions, and upon further notification to Congress, I will instruct Department attorneys to advise courts in other pending DOMA litigation of the President’s and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.

The Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense. At the same time, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because – as here – the Department does not consider every such argument to be a “reasonable” one. Moreover, the Department has declined to defend a statute in cases, like this one, where the President has concluded that the statute is unconstitutional.

Much of the legal landscape has changed in the 15 years since Congress passed DOMA. The Supreme Court has ruled that laws criminalizing homosexual conduct are unconstitutional. Congress has repealed the military’s Don’t Ask, Don’t Tell policy. Several lower courts have ruled DOMA itself to be unconstitutional. Section 3 of DOMA will continue to remain in effect unless Congress repeals it or there is a final judicial finding that strikes it down, and the President has informed me that the Executive Branch will continue to enforce the law. But while both the wisdom and the legality of Section 3 of DOMA will continue to be the subject of both extensive litigation and public debate, this Administration will no longer assert its constitutionality in court.

Big news and good on the Administration.

Consequently, Attorney General Holder sent the following letter to Speaker Boehner:

LETTER FROM THE ATTORNEY GENERAL TO CONGRESS ON LITIGATION INVOLVING THE DEFENSE OF MARRIAGE ACT

The Honorable John A. Boehner

Speaker

U.S. House of Representatives

Washington, DC 20515

Re: Defense of Marriage Act

Dear Mr. Speaker:

After careful consideration, including review of a recommendation from me, the President of the United States has made the determination that Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment. Pursuant to 28 U.S.C. § 530D, I am writing to advise you of the Executive Branch’s determination and to inform you of the steps the Department will take in two pending DOMA cases to implement that determination.

While the Department has previously defended DOMA against legal challenges involving legally married same-sex couples, recent lawsuits that challenge the constitutionality of DOMA Section 3 have caused the President and the Department to conduct a new examination of the defense of this provision. In particular, in November 2011, plaintiffs filed two new lawsuits challenging the constitutionality of Section 3 of DOMA in jurisdictions without precedent on whether sexual-orientation classifications are subject to rational basis review or whether they must satisfy some form of heightened scrutiny. Windsor v. United States, No. 1:10-cv-8435 (S.D.N.Y.); Pedersen v. OPM, No. 3:10-cv-1750 (D. Conn.). Previously, the Administration has defended Section 3 in jurisdictions where circuit courts have already held that classifications based on sexual orientation are subject to rational basis review, and it has advanced arguments to defend DOMA Section 3 under the binding standard that has applied in those cases.

These new lawsuits, by contrast, will require the Department to take an affirmative position on the level of scrutiny that should be applied to DOMA Section 3 in a circuit without binding precedent on the issue. As described more fully below, the President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.

Standard of Review

The Supreme Court has yet to rule on the appropriate level of scrutiny for classifications based on sexual orientation. It has, however, rendered a number of decisions that set forth the criteria that should inform this and any other judgment as to whether heightened scrutiny applies: (1) whether the group in question has suffered a history of discrimination; (2) whether individuals “exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group”; (3) whether the group is a minority or is politically powerless; and (4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual’s “ability to perform or contribute to society.” See Bowen v. Gilliard, 483 U.S. 587, 602-03 (1987); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441-42 (1985).

Each of these factors counsels in favor of being suspicious of classifications based on sexual orientation. First and most importantly, there is, regrettably, a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities, based on prejudice and stereotypes that continue to have ramifications today. Indeed, until very recently, states have “demean[ed] the[] existence” of gays and lesbians “by making their private sexual conduct a crime.” Lawrence v. Texas, 539 U.S. 558, 578 (2003).

Second, while sexual orientation carries no visible badge, a growing scientific consensus accepts that sexual orientation is a characteristic that is immutable, see Richard A. Posner, Sex and Reason 101 (1992); it is undoubtedly unfair to require sexual orientation to be hidden from view to avoid discrimination, see Don’t Ask, Don’t Tell Repeal Act of 2010, Pub. L. No. 111-321, 124 Stat. 3515 (2010).

Third, the adoption of laws like those at issue in Romer v. Evans, 517 U.S. 620 (1996), and Lawrence, the longstanding ban on gays and lesbians in the military, and the absence of federal protection for employment discrimination on the basis of sexual orientation show the group to have limited political power and “ability to attract the [favorable] attention of the lawmakers.” Cleburne, 473 U.S. at 445. And while the enactment of the Matthew Shepard Act and pending repeal of Don’t Ask, Don’t Tell indicate that the political process is not closed entirely to gay and lesbian people, that is not the standard by which the Court has judged “political powerlessness.” Indeed, when the Court ruled that gender-based classifications were subject to heightened scrutiny, women already had won major political victories such as the Nineteenth Amendment (right to vote) and protection under Title VII (employment discrimination).

Finally, there is a growing acknowledgment that sexual orientation “bears no relation to ability to perform or contribute to society.” Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality). Recent evolutions in legislation (including the pending repeal of Don’t Ask, Don’t Tell), in community practices and attitudes, in case law (including the Supreme Court’s holdings in Lawrence and Romer), and in social science regarding sexual orientation all make clear that sexual orientation is not a characteristic that generally bears on legitimate policy objectives. See, e.g., Statement by the President on the Don’t Ask, Don’t Tell Repeal Act of 2010 (“It is time to recognize that sacrifice, valor and integrity are no more defined by sexual orientation than they are by race or gender, religion or creed.”)

To be sure, there is substantial circuit court authority applying rational basis review to sexual-orientation classifications. We have carefully examined each of those decisions. Many of them reason only that if consensual same-sex sodomy may be criminalized under Bowers v. Hardwick, then it follows that no heightened review is appropriate – a line of reasoning that does not survive the overruling of Bowers in Lawrence v. Texas, 538 U.S. 558 (2003). Others rely on claims regarding “procreational responsibility” that the Department has disavowed already in litigation as unreasonable, or claims regarding the immutability of sexual orientation that we do not believe can be reconciled with more recent social science understandings. And none engages in an examination of all the factors that the Supreme Court has identified as relevant to a decision about the appropriate level of scrutiny. Finally, many of the more recent decisions have relied on the fact that the Supreme Court has not recognized that gays and lesbians constitute a suspect class or the fact that the Court has applied rational basis review in its most recent decisions addressing classifications based on sexual orientation, Lawrence and Romer. But neither of those decisions reached, let alone resolved, the level of scrutiny issue because in both the Court concluded that the laws could not even survive the more deferential rational basis standard.

Application to Section 3 of DOMA

In reviewing a legislative classification under heightened scrutiny, the government must establish that the classification is “substantially related to an important government objective.” Clark v. Jeter, 486 U.S. 456, 461 (1988). Under heightened scrutiny, “a tenable justification must describe actual state purposes, not rationalizations for actions in fact differently grounded.” United States v. Virginia , 518 U.S. 515, 535-36 (1996). “The justification must be genuine, not hypothesized or invented post hoc in response to litigation.” Id. at 533.

In other words, under heightened scrutiny, the United States cannot defend Section 3 by advancing hypothetical rationales, independent of the legislative record, as it has done in circuits where precedent mandates application of rational basis review. Instead, the United States can defend Section 3 only by invoking Congress’ actual justifications for the law.

Moreover, the legislative record underlying DOMA’s passage contains discussion and debate that undermines any defense under heightened scrutiny. The record contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships – precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against. See Cleburne, 473 U.S. at 448 (“mere negative attitudes, or fear” are not permissible bases for discriminatory treatment); see also Romer, 517 U.S. at 635 (rejecting rationale that law was supported by “the liberties of landlords or employers who have personal or religious objections to homosexuality”); Palmore v. Sidotti, 466 U.S. 429, 433 (1984) (“Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”).

Application to Second Circuit Cases

After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in Windsor and Pedersen, now pending in the Southern District of New York and the District of Connecticut. I concur in this determination.

Notwithstanding this determination, the President has informed me that Section 3 will continue to be enforced by the Executive Branch. To that end, the President has instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive’s obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality. This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.

As you know, the Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense, a practice that accords the respect appropriately due to a coequal branch of government. However, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because the Department does not consider every plausible argument to be a “reasonable” one. “[D]ifferent cases can raise very different issues with respect to statutes of doubtful constitutional validity,” and thus there are “a variety of factors that bear on whether the Department will defend the constitutionality of a statute.” Letter to Hon. Orrin G. Hatch from Assistant Attorney General Andrew Fois at 7 (Mar. 22, 1996). This is the rare case where the proper course is to forgo the defense of this statute. Moreover, the Department has declined to defend a statute “in cases in which it is manifest that the President has concluded that the statute is unconstitutional,” as is the case here. Seth P. Waxman, Defending Congress, 79 N.C. L.Rev. 1073, 1083 (2001).

In light of the foregoing, I will instruct the Department’s lawyers to immediately inform the district courts in Windsor and Pedersen of the Executive Branch’s view that heightened scrutiny is the appropriate standard of review and that, consistent with that standard, Section 3 of DOMA may not be constitutionally applied to same-sex couples whose marriages are legally recognized under state law. If asked by the district courts in the Second Circuit for the position of the United States in the event those courts determine that the applicable standard is rational basis, the Department will state that, consistent with the position it has taken in prior cases, a reasonable argument for Section 3’s constitutionality may be proffered under that permissive standard. Our attorneys will also notify the courts of our interest in providing Congress a full and fair opportunity to participate in the litigation in those cases. We will remain parties to the case and continue to represent the interests of the United States throughout the litigation.

Furthermore, pursuant to the President’s instructions, and upon further notification to Congress, I will instruct Department attorneys to advise courts in other pending DOMA litigation of the President’s and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.

A motion to dismiss in the Windsor and Pedersen cases would be due on March 11, 2011. Please do not hesitate to contact us if you have any questions.

Sincerely yours,

Eric H. Holder, Jr.

Attorney General

______________________________________

i DOMA Section 3 states: “In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”

ii See, e.g., Dragovich v. U.S. Department of the Treasury, 2011 WL 175502 (N.D. Cal. Jan. 18, 2011); Gill v. Office of Personnel Management, 699 F. Supp. 2d 374 (D. Mass. 2010); Smelt v. County of Orange, 374 F. Supp. 2d 861, 880 (C.D. Cal.,2005); Wilson v. Ake, 354 F.Supp.2d 1298, 1308 (M.D. Fla. 2005); In re Kandu, 315 B.R. 123, 145 (Bkrtcy. W.D. Wash. 2004); In re Levenson, 587 F.3d 925, 931 (9th Cir. E.D.R. Plan Administrative Ruling 2009).

iii While significant, that history of discrimination is different in some respects from the discrimination that burdened African-Americans and women. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 216 (1995) (classifications based on race “must be viewed in light of the historical fact that the central purpose of the Fourteenth Amendment was to eliminate racial discrimination emanating from official sources in the States,” and “[t]his strong policy renders racial classifications ‘constitutionally suspect.’”); United States v. Virginia, 518 U.S. 515, 531 (1996) (observing that “‘our Nation has had a long and unfortunate history of sex discrimination’” and pointing out the denial of the right to vote to women until 1920). In the case of sexual orientation, some of the discrimination has been based on the incorrect belief that sexual orientation is a behavioral characteristic that can be changed or subject to moral approbation. Cf. Cleburne, 473 U.S. at 441 (heightened scrutiny may be warranted for characteristics “beyond the individual’s control” and that “very likely reflect outmoded notions of the relative capabilities of” the group at issue); Boy Scouts of America v. Dale, 530 U.S. 640 (2000) (Stevens, J., dissenting) (“Unfavorable opinions about homosexuals ‘have ancient roots.’” (quoting Bowers, 478 U.S. at 192)).

iv See Equality Foundation v. City of Cincinnati, 54 F.3d 261, 266–67 & n. 2. (6th Cir. 1995); Steffan v. Perry, 41 F.3d 677, 685 (D.C. Cir. 1994); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989); Ben-Shalom v. Marsh, 881 F.2d 454, 464 (7th Cir. 1989); Padula v. Webster, 822 F.2d 97, 103 (D.C. Cir. 1987).

v See, e.g., Lofton v. Secretary of the Dep’t of Children & Family Servs., 358 F.3d 804, 818 (11th Cir. 2004) (discussing child-rearing rationale); High Tech Gays v. Defense Indust. Sec. Clearance Office, 895 F.2d 563, 571 (9th Cir. 1990) (discussing immutability). As noted, this Administration has already disavowed in litigation the argument that DOMA serves a governmental interest in “responsible procreation and child-rearing.” H.R. Rep. No. 104-664, at 13. As the Department has explained in numerous filings, since the enactment of DOMA, many leading medical, psychological, and social welfare organizations have concluded, based on numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents.

vi See Cook v. Gates, 528 F.3d 42, 61 (1st Cir. 2008); Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 866 (8th Cir. 2006); Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004); Veney v. Wyche, 293 F.3d 726, 732 (4th Cir. 2002); Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289, 292-94 (6th Cir. 1997).

vii See, e.g., H.R. Rep. at 15–16 (judgment [opposing same-sex marriage] entails both moral disapproval of homosexuality and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality”); id. at 16 (same-sex marriage “legitimates a public union, a legal status that most people . . . feel ought to be illegitimate” and “put[s] a stamp of approval . . . on a union that many people . . . think is immoral”); id. at 15 (“Civil laws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexuality”); id. (reasons behind heterosexual marriage—procreation and child-rearing—are “in accord with nature and hence have a moral component”); id. at 31 (favorably citing the holding in Bowers that an “anti-sodomy law served the rational purpose of expressing the presumed belief . . . that homosexual sodomy is immoral and unacceptable”); id. at 17 n.56 (favorably citing statement in dissenting opinion in Romer that “[t]his Court has no business . . . pronouncing that ‘animosity’ toward homosexuality is evil”).

December 26, 2011

Government Could Ban Church Weddings

By Matt Baume

A new law in Ireland means that New Yorkers have more rights on Emerald Isle than they do in their own country. A hospital in Tennessee violates federal guidelines in denying visitation to a lesbian couple. There’s a new ad for marriage equality in New Hampshire that epitomizes Yankee thrift. And 20,000 Australian doctors agree: marriage equality is good for your head.

Here’s a holiday present for you: yet another Senator has signed on for the repeal of the Defense of Marriage Act. The repeal now boasts 32 sponsors with New Jersey Democrat Bob Menendez, who voted for the anti-gay ban back in the 1990s.

This means that fully one-third of the Senate is now sponsoring the repeal bill. That’s a record level of support — but let’s be realistic: we still have a long way to go — possibly years — before it has a chance of passing. And even when DOMA does go away, that won’t automatically legalize marriage. All DOMA does is prevent the federal government and individual states from recognizing the marriages of LGBTs who live in states that do recognize their marriages.

Or in other words, if you get married in Massachusetts, DOMA prevents states like Utah and agencies like the IRS from acknowledging your marriage. But if you live in Utah and want to get married, DOMA’s won’t stop you — it’s the local laws of Utah that do that. It’s a complicated patchwork of laws that, once again, highlights the need for national uniformity when it comes to full federal marriage equality.

There’s lots of reasons LGBTs want to get married — starting with wanting to spend the rest of our lives with the people we love — but this issue that keeps coming up is hospital visitation. This week Rolling Hills Hospital in Tennessee denied visitation to the partner of a woman in their care. They’re not actually allowed to do that: guidelines issued under President Obama stipulate that hospitals like this one allow patients to designate same-sex partners for visitation. The hospital has since apologized, but it’s still pretty incredible that without marriage, we still have to worry about this kind of thing anytime we go to the hospital for care.

The good news is that public opinion keeps turning in our favor. This week a survey in Utah showed that 64% of residents support legal recognition for LGBT couples. And across the country, a council member in Washington DC has introduced a bill that would reform the district’s divorce laws in 2012 to provide greater parity to LGBT couples. The move is necessary because, once again, differing laws in other states have complicated the process of recognizing DC marriages and divorces.

Advocates in New Hampshire have begun airing a new marriage equality television ad. It’s designed to pressure lawmakers into resisting an attempt by a small group of Republicans who want to eliminate both marriage and domestic partnerships. It’s about as no-frills as an ad can get, so we’ll see if this stoic approach resonates with natives.

In international news, Ireland will begin recognizing marriages performed in New York. That means that married New Yorkers will have more rights when they travel abroad than they do in their own country. And Scotland is considering a compromise on marriage. The country may recognize civil marriage recognition while prohibiting marriage ceremonies in churches. That proposal has drawn strong criticism from Quakers, Unitarians, and numerous other faith groups that support the freedom to marry.

And in Australia, a Queensland MP is attempting to undo that state’s new civil unions law. That’s drawn strong opposition from psychologists, who explain that it would “re-traumatize” an oppressed minority group. Meanwhile the Australian Psychological Society issued a strong statement in favor of marriage equality on the grounds that social exclusion is harmful to mental health.

Those are the headlines, visit us at MarriageNewsWatch.com for more on all these stories and more. And visit AFER.org for more on the federal fight to overturn Prop 8 and win full federal marriage equality in every state. I’m Matt Baume at the American Foundation for Equal Rights. Have a great holiday time and we’ll see you next week.

8 Comments December 26, 2011

Golden Oldies 2011 version: Open thread, December 25th

An original version of this post was published on December 22, 2011. Here’s a fresh nomination thread-

By Adam Bink

Over at my home blog, OpenLeft.com, we on the management team like to take the holidays off to rest, recharge, etc. While folks are often driven to write anyway because of current events or inspiration, what we do to keep things lively is feature past pieces that our readers particularly like. We call them “Golden Oldies.” We did this last year at P8TT and had a lot of fun.

We at Courage are closed from Christmas through New Year’s, though we’ll be around, and Jacob and I will occasionally post. But while we’re gone, for the upcoming holiday season between Christmas and New Year’s, I’ll be re-posting some of the more interesting/provocative/brilliant front page pieces from P8TT’s history. The reason is because not everyone has a chance to read every piece throughout the year. As many of you know, if you Google “Prop 8 Trial”, it takes you here, and many folks who came here because they did that during the 9th Circuit hearing, or simply because they just heard about the blog, haven’t had a chance to read some of the better, more insightful pieces from the blog’s history.

So, we’d like to open up the floor to you to recommend your favorite stuff. How do you do that? Just leave a title AND URL in the comments and we’ll pick the best suggestions to post here over the holidays. And if you like someone else’s suggestion, leave a comment saying so.

Take a second and think about what you liked here. It could be live-blogging from this year’s 9th Circuit or California Supreme Court hearings. It could be NOM tour posts from 2010, whether the national tour or the California tour. It could be a great video. It could be a commentary piece you find particularly insightful that I did, or Eden, Julia, Rob T., Jacob, Shannon Minter and Chris Stoll, Jeremy Hooper, Karen Ocamb, Arisha, Rick, or a guest piece. Just leave a URL in the comments and we’ll pick the best suggestions.

Finding the URLs should take you less than a minute. To help you find the URLs, I recommend using the Categories “tags” on the right side of the page you’re currently viewing (they say Community/Meta, DADT Trial… NOM Tour Tracker… etc.). And if you want to go back to find earlier posts beyond the page you’re viewing, scroll down to the bottom and hit the “Older Posts” button. You can keep doing that to scroll back and back. Or, you could just use Google, and I recommend inserting the words “Prop 8 Trial Tracker” in your query along with whatever terms you remember, such as the author or topic. If you simply can’t find it, try asking your fellow P8TTers to help in the comments. And if you like someone’s nomination, be sure to leave a comment “second!” or “third!” or whatnot so we know what the good stuff is. An example is here.

I’ll be asking you as an open thread each night throughout the rest of the week and Christmas.

So, what are your favorites you’d like to see re-posted here for your fellow readers?

3 Comments December 25, 2011

Happy holidays, P8TT!

By Adam Bink

Merry Christmas this morning, Happy Chanukah this evening and Happy Kwanzaa starting tomorrow to anyone celebrating.

I’m sticking around town this holiday (went home for Thanksgiving), getting together with friends later, watching some movies (we’re thinking Indiana Jones trilogy) and opening some presents.

Courage to anyone who is taking this holiday time to have a conversation with a family member or loved one about LGBT equality, whether that’s same-sex marriage, coming out of the closet or anything else. Let us know how it goes.

How are you spending your holiday?

6 Comments December 25, 2011

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