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Archives – April, 2012

Law firm fighting Prop 8 files brief in legal challenge to laws affecting military benefits for gay and lesbian servicemembers

By Scottie Thomaston

Yesterday, Servicemembers Legal Defense Network filed an amicus curiae (“friend of the court”) brief on behalf of gay and lesbian servicemembers challenging a part of the United States Code that affects military benefits and denies those benefits to gays and lesbians alone. They enlisted the law firm fighting Proposition 8 in court, Gibson, Dunn & Crutcher LLP, to help fight this federal law, known as 38 U.S.C. § 101(31). This is the same law that the Justice Department recently decided is unconstitutional because it’s similar to the Defense of Marriage Act in that it defines a spouse in a restrictive and regressive way.

The challenge, like the current ones to the Defense of Marriage Act, asks the courts to apply heightened scrutiny instead of mere rational basis review to laws affecting gays and lesbians. Like the other challenges, however, they suggest the law would fail even rational basis scrutiny:

The brief traces the legislative history of the statutes animating the Department of Veterans Affairs denial of spousal benefits to gay and lesbian veterans, focusing on 38 U.S.C. § 101(31), which defines a “spouse” for veterans’ benefits purposes as “a person of the opposite sex who is a wife or husband.” Notwithstanding this language, amici argue that the statute’s legislative history “reflects a broad commitment to equality and the provision of benefits to improve the lives of all veterans” and therefore should not “be given the perverse effect of advancing inequality by excluding veterans and their spouses from benefits based solely on their sexual orientation.”

“To prevail in this case, the Government must establish that there is a constitutionally sufficient interest underpinning the Spouse Definition’s discriminatory treatment of gay and lesbian veterans,” the brief states.

Urging that the statutes are subject to heightened scrutiny, amici argue that the statutes would fail even under rational basis review. It concludes that “because the ban on spousal benefits is inconsistent with the statutory purpose of veterans’ benefits laws, and serves only to discriminate against gay and lesbian veterans, the Spouse Definition must be struck down as unconstitutional.”

The New York Times wrote about the case last year:

In what experts say is the first case of its kind, a disabled Navy veteran from Connecticut is challenging the constitutionality of two federal laws that define marriage as being between opposite-sex partners, saying the government denied her veterans benefits because she is married to a woman.

The former sailor, Carmen Cardona of Norwich, married her partner in Connecticut last year. But when she applied for an increase in her monthly disability compensation because she was newly married, the Department of Veterans Affairs regional office in Hartford rejected her application, citing a federal statute that defines a spouse as “a person of the opposite sex.”
[…]
Ms. Cardona, 45, served in the Navy for 18 years, 12 on active duty and 6 in the Reserves. She received an honorable discharge in 2000 at the rank of petty officer second class, and went to work as a correctional officer for the State of Connecticut.

The Department of Veterans Affairs has rated her 80 percent disabled because of carpal tunnel syndrome in both her hands, for which she receives a monthly disability check. More severely disabled veterans with dependent spouses, children or parents are eligible for supplements to their disability checks.

But after she wed her partner of nine years in 2010, the department rejected her petition for a spousal increase in her benefit because her wife was of the same sex.

The brief was filed in the case Cardona v. Shinseki.

April 27, 2012

Civil unions bill passes Colorado Senate

By Jacob Combs

As expected, the Colorado Senate last note approved a civil union bill with bipartisan support on a third and final vote of 23-12.  All 20 Democrats voted for the legislation, joined by the chamber’s three female Republican Senators.  Although the state’s constitution prohibits marriage equality, the Colorado Civil Unions Act would provide gay and lesbian couples with many of the legal rights that heterosexual married couples enjoy.

Republican Senator Ellen Roberts said she hoped the vote would undo some of the damage of Amendment 2, a successful 1992 ballot measure prohibiting any of the state’s three branches of government from recognizing gays as a protected class.  The measure was struck down in the landmark Supreme Court decision of Romer v. Evans.  Speaking to OutFront Colorado, Sen. Roberts said:

“In 1992, when Amendment 2 passed, I was stopped in my tracks,” she said. “It was a punch in my stomach. (Passing civil unions) will restore your’s, mine and Colorado’s collective soul we lost in the 1990s.”

The legislation, which also passed the Colorado Senate last year, now moves to the House of Representatives.  Last year’s bill was killed by a House panel on a 6-5 party line vote, and was never considered in committee or by the full chamber.  The bill will likely suffer the same fate this year: the Colorado Observer reports that Assistant House Majority Leader Mark Waller, a Republican, said the bill would be killed as written now.  Remarkably, Waller was quoted indirectly in the Observer as saying the bill “would create a special class of citizens under Colorado law that does not conform to federal laws.”  A Republican spokesman later told OutFront that Waller was “misquoted” and that the bill will get a fair hearing.

The civil unions bill will likely be quickly assigned to the House Judiciary Committee, where it will be scheduled for consideration next week.

14 Comments April 27, 2012

Supporters of anti-gay Amendment 1 in North Carolina misrepresent research cited in their newest ad

By Scottie ThomastonGoal Thermometer

The supporters of Amendment 1, Vote FOR Marriage NC, have a new ad that uses language in a very interesting, sleight-of-hand way. Opponents of the amendment have been pointing out that the phrase “only domestic legal union” in the text of the amendment would eliminate protections for people in domestic partnerships and civil unions, possibly reaching as far as affecting children’s health insurance and domestic violence law. That claim has been made repeatedly by opponents, by lawyers in the state and elsewhere, and by elected officials. This ad calls those claims misleading while also suggesting that “unmarried couples and single women” would indeed be protected from domestic violence. Of course, what they did is conflate civil unions and domestic partnerships with “unmarried or single” people.

They cite research purportedly backing up their claims. It’s important to note what’s going on here: the research they cite is a paper that was written in response to another paper, which had suggested that unmarried people would be affected by the amendment in situations involving domestic violence. In other words, the research they cite is based on a very narrow claim about the amendment that was made in a research paper, and the claim is different from the one being put forth by the campaign to defeat the amendment. While telling viewers “don’t be confused” by misleading ads, they continue to confuse viewers with their claims.

Another important fact is that the paper takes no position on the amendment, and the authors note they are speaking only for themselves, and not for their school or for any campaign. One of the very first things their paper says disproves their claims entirely:

“We begin with a point on which we agree with Professor Eichner and other Amendment
opponents: The proposed Amendment will bar not only same-sex marriages, but also recognition or validation of civil unions and domestic partnerships that constitute legal substitutes for the marriage relationship. The question is whether the Amendment will apply to other domestic relationships beyond marriage or marriage-like legal statuses.

Right away, they agree completely with assertions that the amendment will have far-reaching consequences. Then they go on to make the assertion that is the real point of their research, and it’s a narrow one:

“In our view, then, Professor Eichner errs when she claims that “the phrase ‘domestic legal union’ potentially refers to any domestic relationship that receives any legal recognition, protection, or rights from the state.”24 She has not shown that North Carolina courts would apply the term “union” in the proposed Amendment to all unmarried persons who are cohabiting, dating, or just friends, nor can the term “union” reasonably be applied to parentchild, grandparent-grandchild, and sibling relationships.”

Their own research even backs up another claim made by the opposition to Amendment 1, namely that the phrase “domestic legal union” is nowhere to be found in North Carolina law but at a baseline it bans legal recognition of domestic partnerships and civil unions:

While the precise phrase “domestic legal union” is neither defined in the proposed Amendment nor heretofore has been used in North Carolina law, it plainly refers to marriage or marriage imitations or substitutes. The key term is “union”—not domestic “relationships,” as Professor Eichner argues. The Amendment does not forbid the legal recognition or validity of all domestic relationships, but only of domestic “unions.” The flaw in Professor Eichner’s analysis is that she does not give the term “union” its proper effect in limiting the Amendment’s reach. (In her 27-page report, she only devotes a single sentence to the meaning of the term.9). North Carolina courts frequently have used the term “union” to describe the marital relationship.10 Black’s Law Dictionary defines marriage as the “[t]he legal union of a couple as spouses.”11 Thus, in the context of the proposed Amendment, a “domestic legal union” is a marriage or legal status resembling marriage. The Amendment bars North Carolina from recognizing or validating same-sex marriages or other similar legal statuses, such as civil unions and domestic partnerships, which are meant to embody marriage-like relationships.

The ad says the amendment “does one thing” which is to protect marriage as between a man and a woman. The research they cited, as I just showed you, does not agree with that assertion whatsoever. Amendment 1 will be on the ballot May 8, but early voting is going on now. The people opposing it have been up front about what they believe and it is backed up by doctors and lawyers. Don’t be fooled by misleading ads.

What you can do to help on Amendment One:Goal Thermometer

1. Contribute to the campaign on ActBlue so they have the resources they need to get our message out.

2. Sign up for a Courageous Conversation about Amendment One with someone you know in NC.

3. Follow the campaign on Facebook and Twitter.

4. Download social media tools and yard signs to show your opposition to Amendment 1.

5. Volunteer to Call for Equality – a GOTV phone banking effort against Amendment 1.

18 Comments April 26, 2012

Video: *Even more* theocracy from NC’s campaign against *CIVIL* marriage rights

Crossposted at Good As You

By Jeremy Hooper

In this one, we even get an all-out declaration that gay people cannot have joy in their marriages “because God ordained” marriage:

Vote For Marriage NC: The marriage campaign that forever exposes (and demolishes) the “pro-marriage” community’s typical campaign ruses.

What you can do to help on Amendment One:Goal Thermometer

1. Contribute to the campaign on ActBlue so they have the resources they need to get our message out.

2. Sign up for a Courageous Conversation about Amendment One with someone you know in NC.

3. Follow the campaign on Facebook and Twitter.

4. Download social media tools and yard signs to show your opposition to Amendment 1.

5. Volunteer to Call for Equality – a GOTV phone banking effort against Amendment 1.

6 Comments April 26, 2012

Sponsor of anti-gay Amendment 1 in North Carolina abandons it, will vote against it

By Scottie ThomastonGoal Thermometer

State Representative Jim Crawford is a conservative Democrat in North Carolina who was one of the supporters and sponsors of Amendment 1, working to get it onto the ballot for this year’s primary election on May 8. He was one of only ten House Democrats who supported putting the measure on the ballot. Now that support for the amendment is fading and people are coming to understand how broad and dangerous it would be to families and children, gay and straight alike, Crawford is withdrawing his support and pledging to vote no:

In the video, a lesbian woman takes Crawford to task over his support for the amendment.

“(T)hat hateful piece of discriminatory legislation that would be put in our constitution of this state was introduced by Jim Crawford and I’ll never forgive you for that, because you slapped me and every gay person in this state when you did that,” she said.

Crawford responded by acknowledging he had submitted amendment drafts but he did not favor the version that’s on the ballot.

“I will definitely vote against it because I think it goes to far,” Crawford said.

She says:

“I want to put a face on this amendment,” and she says, “I am what I am, and I’m a damn good citizen of this county.”

Pam Spaulding, who lives in North Carolina, comments:

It clearly didn’t “go too far” before that forum. What it goes to show is that even the people who wanted this on the ballot now, seeing the tide turning with conservatives and people of faith rallying against Amendment One, are running away from their decision to put civil rights of a minority on the ballot. And they are running for cover and in Crawford’s case, so desperate they are lying about their original commitment.

It does seem like supporters are jumping ship these days. The coalition against Amendment 1 is growing by the day. Prominent statewide Republicans, libertarians and religious folks are united in opposition alongside the NAACP, civil rights and civil liberties groups, and some business groups. The Governor and Attorney General of North Carolina have come out in opposition, as well as former Democratic and Republican mayors of cities in the state. It’s increasingly awkward for supporters to stand in defense of an amendment that reaches so far it would eliminate insurance for children with unmarried parents and bar victims of domestic violence from seeking legal recourse, to say the least.

And the pro-Amendment web and TV campaign ads aren’t helping matters. They’re filled with distortions and confusing rhetoric about religious freedoms and the Bible. None so far have addressed the issue of removal of civil unions and domestic partnerships, the effects on children’s health insurance, the effects on domestic violence law, the war on women, or any other claims brought on by the broad and poorly-written language of the amendment – the statement that the “only domestic legal union” would be marriage between a man and a woman, something unheard of and undefined in North Carolina law. The ads don’t answer charges and they are not going to persuade independent and undecided voters to come out in support of the amendment with all these questions remaining, simply based on an appeal to religion. As more supporters abandon the amendment we’ll see how the pro-Amendment 1 campaign responds. It’s sure to be interesting.

What you can do to help on Amendment One:Goal Thermometer

1. Contribute to the campaign on ActBlue so they have the resources they need to get our message out.

2. Sign up for a Courageous Conversation about Amendment One with someone you know in NC.

3. Follow the campaign on Facebook and Twitter.

4. Download social media tools and yard signs to show your opposition to Amendment 1.

5. Volunteer to Call for Equality – a GOTV phone banking effort against Amendment 1.

26 Comments April 26, 2012

North Carolina’s anti-gay Amendment 1 and the escalating war on women and children

By Scottie ThomastonGoal Thermometer

Earlier this month, when North Carolina’s Governor Bev Perdue came out against Amendment 1 in a video release, she pointed specifically to the harms to women and to children of unmarried parents that could occur if the amendment were to pass. As she said, the stability of families would be in danger. Since the amendment would likely ban civil unions and prevent recognition of domestic partnerships in the state – because it broadly says that marriage between a man and a woman is the “only domestic legal union” allowed in the state – this means children’s health care is most likely one of the programs in danger, since it’s a benefit of currently existing domestic partnerships. Families could end up struggling to meet basic needs, not just for unmarried couples but for young, defenseless children.

Not to mention there are even more stark consequences for women. Domestic partnerships also allow couples to be protected against domestic violence through laws associated with the partnerships. The amendment could allow abusers even more access to their victims and take away any legal rights to fight against these attacks. In an era where women are already subjected to invasive, unnecessary medical procedures as a roadblock to health care they seek, why would anyone want to take away even more dignity and rights from women?

The Assistant District Attorney of Wake County, NC, put it in an even more pointed way:

Protect ALL Families @protectNC

Amily McCool, Asst DA of Wake Co: #Amendment1 would mean victims of domestic violence would have to marry their attacker for protection

This is, of course, assuming the attack happened within the confines of a heterosexual relationship and the woman could marry her attacker. A sad truth is that domestic violence can happen within a gay relationship as well, and those couples are in need of protection as much as anyone. However, it is necessary to point out that domestic violence disproportionately makes women the survivor or victim of an attack, so blocking legal repercussions will only exacerbate the long list of right-wing government-induced problems women are already facing.

Yesterday, Governor Perdue released a new video, coming back to this same theme. The video features footage from a speech she made at a women’s conference in the state.

Protect ALL NC Families released a web ad last night, from a woman whose sister was murdered by her boyfriend, talking about the disastrous effects the amendment would have on attempts to protect women from violence and murder by abusive partners:

http://youtu.be/-tZFZ8cDYnY

Here’s how their email tells her story:

I believe Amendment One is yet another in a long line of legislation that puts women in harms way.

And I’m not the only one. Rep. Rick Glazier and Sen. Josh Stein released the following statement around the amendment earlier today:

“Experts in Family Law at every one of our state’s law schools have studied this issue and reached the same conclusion – the proposed Constitutional Amendment represents a number of certain negative impacts for unmarried couples in our state, and because it contains such vague and untested language, could very well lead to even more harmful outcomes, including the loss of domestic violence protections for unmarried women and their children, and the loss of health care benefits for unmarried partners.”

But it isn’t just the experts who are worried. Meet Andrea.

Andrea’s sister was murdered by her boyfriend.

And Andrea opposes Amendment One.

She’ll be voting against because she fears, like many North Carolinians do, that if Amendment One passes unmarried domestic violence victims could have fewer protections and face more uncertainty.

Where will I live? Where will I work? How will I stay safe?

Along with their opposition and the governor’s, North Carolina’s Attorney General Roy Cooper is opposed. He wrote that:

I am writing you today to let you know I am voting against Amendment One in next month’s primary elections on May 8th. I believe it is unclear, unwise and unnecessary. Amending our constitution demands careful deliberation along with precise language – both are missing here. Amendment One’s lack of clarity will also result in a significant amount of litigation on many issues which will be decided by courts for years to come. This should be avoided. Thank you for the opportunity to serve as your Attorney General and letting me share my thoughts with you about this issue.

But it’s about our children, too. A child’s stability is incredibly important and putting a child’s parents in legal jeopardy just based on hatred is really a cruel and unnecessary thing to do. Especially when lawyers and doctors say it will affect children’s health care. Pediatricians have come out in opposition to the amendment based on that. The North Carolina Psychological Association, North Carolina Psychiatric Association, National Association of Social Workers, North Carolina Chapter and the Carolinas, and the Chapter of the American Association of Clinical Endocrinologists have made statements about the medical effects on children:

Speaking for the North Carolina Pediatric Society, past president Peter Morris, M.D., said he worries if the amendment were to pass, “families of all types will find themselves with stresses, toxic stresses, that will affect their lives and that will affect their children’s lives. The North Carolina Pediatric Society opposes the ratification of Amendment One.”

That opposition was echoed by Raleigh psychiatrist Jean Aycock, who explained that because of the amendment’s far-reaching language, potentially impacting health care and legal safeguards for all unmarried, cohabiting households, 911,186 North Carolina children could be threatened by Amendment One, according to 2010 census data. “That’s almost one million North Carolina kids who stand to be impacted by Amendment One,” said Aycock. “This is not so much an anti-gay amendment as an anti-child amendment.”
[…]
Speaking about the amendment he called “toxic” and “shocking” because of its potential impact to the health care of all children of unmarried couples in the state, Dr. Mansfield said “one half of my pediatric practice comes from children…and this amendment does something that I think is quite catastrophic. We have one million kids who may lose services and the ability to be seen in the health care system…and so I stand as a veteran, an ordained Baptist minister, I stand as a North Carolina Senator, and I stand as a [physician], to say that I am with my colleagues that we are against this toxic and shocking amendment.”
[…]
The opposition to Amendment One by North Carolina’s Medical and Mental Health professionals is reflective of national perspectives as well – the American Medical Association, the American Academy of Pediatrics, the American Psychological Association, the American Psychiatric Association and the National Association of Social Workers have all gone on record as opposing laws that restrict legal recognition and protections for unmarried couples, which is precisely the effect Amendment One would have if passed by voters on May 8.

I don’t know why people feel the need to target children because they don’t like gay people, but there you have it. This amendment is just one more front in the ongoing war on women and children; hopefully we can win this one.

What you can do to help on Amendment One:Goal Thermometer

1. Contribute to the campaign on ActBlue so they have the resources they need to get our message out.

2. Sign up for a Courageous Conversation about Amendment One with someone you know in NC.

3. Follow the campaign on Facebook and Twitter.

4. Download social media tools and yard signs to show your opposition to Amendment 1.

5. Volunteer to Call for Equality – a GOTV phone banking effort against Amendment 1.

4 Comments April 26, 2012

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