News for the Week Ended April 20, 2011
BY ANN ROSTOW
House Picks Paul Clement to Champion DOMA
We finally got some actual answers to the critical questions surrounding the federal challenges to the Defense of Marriage Act. You know, of course, that the President and the Justice Department decided to stop defending the insidious ban on federal recognition of same-sex marriage. Thank you again, President and Justice Department. We profoundly appreciate your decision, particularly since we are in the middle of six, or maybe even twelve federal “Gay People v. United States” type court cases.
With the United States vacating the defendants’ chair, the House of Representatives picked up the sword to defend DOMA, but for two months we’ve received no details. Who is acting on behalf of the House? Which lawsuits will they litigate? Will they intervene as actual defendants, or simply write briefs as friends of the court? And finally, how will they argue? Will they rely on antigay stereotypes, or will they try to thread legal needles and defend the statute without ripping our community to shreds?
Here’s what we learned on Monday. The House “Bipartisan Legal Advisory Commission” (BLAG) has hired the international corporate law firm King & Spalding, and has signed a contract to pay the firm’s lawyers an average of $520 an hour up to a maximum of $500,000 through April of 2013 if necessary. The contract covers work on any and all DOMA litigation, but does not specify exactly which cases will be defended. Also, the half million dollar cap can be lifted if more money is needed. Considering the work ahead, we’ll be hitting the DOMA debt ceiling in no time.
Leading the charge will be GW Bush’s former Solicitor General, Paul Clement, who will presumably handle any oral arguments. On Monday, Clement and company filed a motion in a New York federal court, asking permission to intervene in the ACLU’s case on behalf of lesbian widow, Edith Windsor, who is forced by DOMA to pay estate taxes on her own property.
In an entertaining sideshow, gay allies in Congress and elsewhere are now making hay about the cost of the DOMA defense, which to be honest, is nothing. Even if the final figure triples and triples again, this is not a significant “taxpayer expense.” Nonetheless, Speaker Boehner is trying to get the Justice Department to pay the bill, reasoning that since they were the ones who would usually defend a federal law in court, they must have saved some money by abandoning the fight. Attorney General Eric Holder, in turn, said the salaried lawyers under his roof have plenty of work and have not set aside special DOMA funds.
So here’s what we don’t know, going forward.
We don’t know what Paul Clement is going to do about the other DOMA cases.
In addition to the Windsor case, there are two cases now pending before the U.S. Court of Appeals for the First Circuit; The Gay and Lesbian Advocates and Defenders (GLAD) case on behalf of same-sex couples married in Massachusetts, and the State of Massachusetts’ states rights case against the United States.
Then there’s another GLAD case in lower federal court in Connecticut, filed on behalf of same-sex couples from New England, but not from Massachusetts.
Then there’s the case of California-based federal lawyer Karen Golinski, asking for spousal benefits in a federal court in San Francisco.
Over the bay in Oakland, married gay federal workers are seeking long-term care benefits in another federal DOMA case. That’s six off the top of my head, and I’ve read articles that say up to twelve cases are pending in federal court. I plan to research these other cases later. Note that the Prop 8 case does not involve the U.S. government, since it was filed against the state of California. And another federal gay couples case, now in the Ninth Circuit, pits Arizona state workers against the Dry Heat State.
Anyway, there are a lot of cases out there in various stages. All of them involve different facts and to some extent, different legal issues. Paul Clement isn’t going to be able to send boilerplate briefs all over the country although there should be some overlap. But for example, the states rights case in the First Circuit would seem to require a unique set of arguments. This is a ton of work.
Nor will Clement be able to defend DOMA in just one or maybe two cases. If the mission is to defend DOMA, you have to defend it everywhere, in every case, in every federal court. Our side has a whole array of legal groups and partner firms, working more or less in concert across the country. Their side has Paul Clement and his colleagues.
Finally, we don’t yet know which arguments Clement will use to attack our marriages. In his motion to intervene in the Windsor case, he did not include any kind of actual legal pleading on the merits. Such pleadings are usually included in a motion to intervene, but they’re not required.
Since Clement represents the House Republicans, it will be difficult (I think) for him to fall back on antigay strategies. If he condemns gay parents or suggests that gay men and women are unfit to form families, the outrage will be intense, not just from us, but from our allies.
We do know that Clement will have to argue that sexual orientation should not be considered a suspect class worthy of constitutional protection on the level of, say, race or religion. He can make this argument in an innocuous way, by pointing out that no federal court has hitherto awarded such status to gays or lesbians. But that’s not a powerful rationale. In addition, he will probably have to insist that sexual orientation is a lifestyle choice and that gays have a great deal of political power and don’t need protection.
It was exactly this conundrum that led Obama and Holder to drop their defense of DOMA last February, so it will be interesting to see how Clement handles the hot potato.
Basically, there’s no way to make the legal case for DOMA without descending into antigay muck. Unlike a legislative fight filled with vague talk of mom and dad and religious scripture, a legal case involves specific individuals and (in theory) logical reasoning.
For example, in the Windsor case (where the judge ordered Congress to intervene by a specific date) House Republicans will not just be spouting off about “traditional marriage,” they’ll be insisting that an elderly New York woman who lived with her partner for 40 years and married her wife in Canada should be treated as a legal stranger to her own estate, forced to pay over $300,000 in taxes that would never be levied on a heterosexual widow.
Makes you wonder, have they thought this through?
--
Half The Toothpaste Is Out Of The Tube
I usually don’t cover polls, because poll headlines, like “51 percent of Americans Support Same-Sex Marriage” are meaningless unless you know the exact question asked, the number of respondents, and the way the poll was conducted. Ask a hundred people at the pride parade and you’ll get one answer. Call a thousand land lines and you’ll get another.
But when poll analyst extraordinaire Nate Silver writes an assessment of the latest marriage surveys, that’s news.
Silver, who crunches numbers on a wide range of social and political matters, reports that the ongoing increase in support for same-sex marriage has risen from about one to two points a year, to four points a year in each of the last two years. Four credible polls in the last eight months show a slim majority now in favor of same-sex marriage, a slim minority opposed, and only a small percentage undecided. The trend lines of marriage polling over the last two decades show a steady and solid improvement that seems to lead inexorably to a popular consensus in favor of marriage equality.
This is great, of course. But one thing polls don’t show is the intensity of the response. And this is why marriage remains a political third rail even as we add to our support. The fact is that the hard line conservatives who oppose same-sex marriage hate us with such a passion that they can overwhelm the people who sort of like us but don’t really care. We have passion on our side too. But we’re five percent of the population, and the violently antigay crowd is maybe 20 or 25 percent. I’m not sure.
Until our allies pump up the volume and more people on their side decide it’s not worth the fuss, we’ll still have trouble getting a Presidential nominee to come out in favor of marriage equality. To me, by the way, that will be the signal that the popular sentiment has really shifted--- when the Democratic party nominee comes in favor of equality, period. Not civil unions and not “the rights of marriage” blah blah blah. But marriage equality
That day may or may not have arrived. But the erosion of opposition to same-sex marriage is still significant. It’s pretty clear that Republicans don’t want to be associated with the subject, or with the toxic cloud that now surrounds the defenders of tradition.
It was fine to be against marriage equality when a 70 percent majority stood by your side and when most of those people were just regular folks who thought this is the way it’s always been.
But now, the people who ardently fight against marriage equality are no longer the regular folks. They’re the crazy gay bashers and they’re out there all by themselves, screaming into the wind about sickness and Jesus. So, um, no wonder the GOP is trying to keep a low profile and no wonder the defense of DOMA promises to be a circus.
The other noteworthy aspect of the poll story is the ongoing collapse of the middle ground as people realize that either they have to be for equality or against it. The idea that civil unions could ever be a permanent compromise is less and less credible. And although some embrace it as a stepping stone or an incremental move towards progress, it doesn’t seem as if many fence sitters now see it as a long term institution.
--
I Object!
Well, I see I’ve managed to ramble on about marriage and polls and such for nearly the entire column. Not that there’s anything wrong with that! However, in view of this extended coverage, I will skip the story about whether or not the Ninth Circuit will release the court tapes from the Prop 8 trial. Okay with you? Good.
I was also going to write about the gatekeepers at YouTube and Facebook, who both removed gay content because, I suppose, someone had clicked on the button that indicates they found it offensive.
YouTube deleted an excellent, compelling video, posted by GLBT Apple employees as part of the “It Gets Better” project. The video urged teens to tough it out, and remember that they’re not alone. After a few hours, the site put the video back up and apologized.
Likewise, Facebook removed a photo of two men kissing, for reasons unclear. The photo was reposted, also with an apology, but not before quite a few people had posted their own gay kissing shots to make a point.
Clearly, the censors at YouTube and Facebook have a lot on their plates, and rightly so. We don’t want animal snuff films or racist tirades befouling our cyberspace. But still! I imagine that most of the things flagged down by puritanical or homophobic users fall into the category of objectionable objections. How did these images fall through the cracks and get deleted by an actual employee?
Finally, there’s a lot of news out of the states, but it looks like we’re out of space! (Cue: loud noise of moaning crowd.) Delaware sent a civil union bill to the governor. Yay! Arizona and Virginia are attacking gay adoptive parents. Hiss. Hawaii passed a trans workplace bill. Yay! And there’s much talk about a push for marriage equality in New York this summer. I’m not sure how Governor Cuomo plans to strong arm the GOP leaders in the legislature, but I wish everyone luck.
BY ANN ROSTOW
House Picks Paul Clement to Champion DOMA
We finally got some actual answers to the critical questions surrounding the federal challenges to the Defense of Marriage Act. You know, of course, that the President and the Justice Department decided to stop defending the insidious ban on federal recognition of same-sex marriage. Thank you again, President and Justice Department. We profoundly appreciate your decision, particularly since we are in the middle of six, or maybe even twelve federal “Gay People v. United States” type court cases.
With the United States vacating the defendants’ chair, the House of Representatives picked up the sword to defend DOMA, but for two months we’ve received no details. Who is acting on behalf of the House? Which lawsuits will they litigate? Will they intervene as actual defendants, or simply write briefs as friends of the court? And finally, how will they argue? Will they rely on antigay stereotypes, or will they try to thread legal needles and defend the statute without ripping our community to shreds?
Here’s what we learned on Monday. The House “Bipartisan Legal Advisory Commission” (BLAG) has hired the international corporate law firm King & Spalding, and has signed a contract to pay the firm’s lawyers an average of $520 an hour up to a maximum of $500,000 through April of 2013 if necessary. The contract covers work on any and all DOMA litigation, but does not specify exactly which cases will be defended. Also, the half million dollar cap can be lifted if more money is needed. Considering the work ahead, we’ll be hitting the DOMA debt ceiling in no time.
Leading the charge will be GW Bush’s former Solicitor General, Paul Clement, who will presumably handle any oral arguments. On Monday, Clement and company filed a motion in a New York federal court, asking permission to intervene in the ACLU’s case on behalf of lesbian widow, Edith Windsor, who is forced by DOMA to pay estate taxes on her own property.
In an entertaining sideshow, gay allies in Congress and elsewhere are now making hay about the cost of the DOMA defense, which to be honest, is nothing. Even if the final figure triples and triples again, this is not a significant “taxpayer expense.” Nonetheless, Speaker Boehner is trying to get the Justice Department to pay the bill, reasoning that since they were the ones who would usually defend a federal law in court, they must have saved some money by abandoning the fight. Attorney General Eric Holder, in turn, said the salaried lawyers under his roof have plenty of work and have not set aside special DOMA funds.
So here’s what we don’t know, going forward.
We don’t know what Paul Clement is going to do about the other DOMA cases.
In addition to the Windsor case, there are two cases now pending before the U.S. Court of Appeals for the First Circuit; The Gay and Lesbian Advocates and Defenders (GLAD) case on behalf of same-sex couples married in Massachusetts, and the State of Massachusetts’ states rights case against the United States.
Then there’s another GLAD case in lower federal court in Connecticut, filed on behalf of same-sex couples from New England, but not from Massachusetts.
Then there’s the case of California-based federal lawyer Karen Golinski, asking for spousal benefits in a federal court in San Francisco.
Over the bay in Oakland, married gay federal workers are seeking long-term care benefits in another federal DOMA case. That’s six off the top of my head, and I’ve read articles that say up to twelve cases are pending in federal court. I plan to research these other cases later. Note that the Prop 8 case does not involve the U.S. government, since it was filed against the state of California. And another federal gay couples case, now in the Ninth Circuit, pits Arizona state workers against the Dry Heat State.
Anyway, there are a lot of cases out there in various stages. All of them involve different facts and to some extent, different legal issues. Paul Clement isn’t going to be able to send boilerplate briefs all over the country although there should be some overlap. But for example, the states rights case in the First Circuit would seem to require a unique set of arguments. This is a ton of work.
Nor will Clement be able to defend DOMA in just one or maybe two cases. If the mission is to defend DOMA, you have to defend it everywhere, in every case, in every federal court. Our side has a whole array of legal groups and partner firms, working more or less in concert across the country. Their side has Paul Clement and his colleagues.
Finally, we don’t yet know which arguments Clement will use to attack our marriages. In his motion to intervene in the Windsor case, he did not include any kind of actual legal pleading on the merits. Such pleadings are usually included in a motion to intervene, but they’re not required.
Since Clement represents the House Republicans, it will be difficult (I think) for him to fall back on antigay strategies. If he condemns gay parents or suggests that gay men and women are unfit to form families, the outrage will be intense, not just from us, but from our allies.
We do know that Clement will have to argue that sexual orientation should not be considered a suspect class worthy of constitutional protection on the level of, say, race or religion. He can make this argument in an innocuous way, by pointing out that no federal court has hitherto awarded such status to gays or lesbians. But that’s not a powerful rationale. In addition, he will probably have to insist that sexual orientation is a lifestyle choice and that gays have a great deal of political power and don’t need protection.
It was exactly this conundrum that led Obama and Holder to drop their defense of DOMA last February, so it will be interesting to see how Clement handles the hot potato.
Basically, there’s no way to make the legal case for DOMA without descending into antigay muck. Unlike a legislative fight filled with vague talk of mom and dad and religious scripture, a legal case involves specific individuals and (in theory) logical reasoning.
For example, in the Windsor case (where the judge ordered Congress to intervene by a specific date) House Republicans will not just be spouting off about “traditional marriage,” they’ll be insisting that an elderly New York woman who lived with her partner for 40 years and married her wife in Canada should be treated as a legal stranger to her own estate, forced to pay over $300,000 in taxes that would never be levied on a heterosexual widow.
Makes you wonder, have they thought this through?
--
Half The Toothpaste Is Out Of The Tube
I usually don’t cover polls, because poll headlines, like “51 percent of Americans Support Same-Sex Marriage” are meaningless unless you know the exact question asked, the number of respondents, and the way the poll was conducted. Ask a hundred people at the pride parade and you’ll get one answer. Call a thousand land lines and you’ll get another.
But when poll analyst extraordinaire Nate Silver writes an assessment of the latest marriage surveys, that’s news.
Silver, who crunches numbers on a wide range of social and political matters, reports that the ongoing increase in support for same-sex marriage has risen from about one to two points a year, to four points a year in each of the last two years. Four credible polls in the last eight months show a slim majority now in favor of same-sex marriage, a slim minority opposed, and only a small percentage undecided. The trend lines of marriage polling over the last two decades show a steady and solid improvement that seems to lead inexorably to a popular consensus in favor of marriage equality.
This is great, of course. But one thing polls don’t show is the intensity of the response. And this is why marriage remains a political third rail even as we add to our support. The fact is that the hard line conservatives who oppose same-sex marriage hate us with such a passion that they can overwhelm the people who sort of like us but don’t really care. We have passion on our side too. But we’re five percent of the population, and the violently antigay crowd is maybe 20 or 25 percent. I’m not sure.
Until our allies pump up the volume and more people on their side decide it’s not worth the fuss, we’ll still have trouble getting a Presidential nominee to come out in favor of marriage equality. To me, by the way, that will be the signal that the popular sentiment has really shifted--- when the Democratic party nominee comes in favor of equality, period. Not civil unions and not “the rights of marriage” blah blah blah. But marriage equality
That day may or may not have arrived. But the erosion of opposition to same-sex marriage is still significant. It’s pretty clear that Republicans don’t want to be associated with the subject, or with the toxic cloud that now surrounds the defenders of tradition.
It was fine to be against marriage equality when a 70 percent majority stood by your side and when most of those people were just regular folks who thought this is the way it’s always been.
But now, the people who ardently fight against marriage equality are no longer the regular folks. They’re the crazy gay bashers and they’re out there all by themselves, screaming into the wind about sickness and Jesus. So, um, no wonder the GOP is trying to keep a low profile and no wonder the defense of DOMA promises to be a circus.
The other noteworthy aspect of the poll story is the ongoing collapse of the middle ground as people realize that either they have to be for equality or against it. The idea that civil unions could ever be a permanent compromise is less and less credible. And although some embrace it as a stepping stone or an incremental move towards progress, it doesn’t seem as if many fence sitters now see it as a long term institution.
--
I Object!
Well, I see I’ve managed to ramble on about marriage and polls and such for nearly the entire column. Not that there’s anything wrong with that! However, in view of this extended coverage, I will skip the story about whether or not the Ninth Circuit will release the court tapes from the Prop 8 trial. Okay with you? Good.
I was also going to write about the gatekeepers at YouTube and Facebook, who both removed gay content because, I suppose, someone had clicked on the button that indicates they found it offensive.
YouTube deleted an excellent, compelling video, posted by GLBT Apple employees as part of the “It Gets Better” project. The video urged teens to tough it out, and remember that they’re not alone. After a few hours, the site put the video back up and apologized.
Likewise, Facebook removed a photo of two men kissing, for reasons unclear. The photo was reposted, also with an apology, but not before quite a few people had posted their own gay kissing shots to make a point.
Clearly, the censors at YouTube and Facebook have a lot on their plates, and rightly so. We don’t want animal snuff films or racist tirades befouling our cyberspace. But still! I imagine that most of the things flagged down by puritanical or homophobic users fall into the category of objectionable objections. How did these images fall through the cracks and get deleted by an actual employee?
Finally, there’s a lot of news out of the states, but it looks like we’re out of space! (Cue: loud noise of moaning crowd.) Delaware sent a civil union bill to the governor. Yay! Arizona and Virginia are attacking gay adoptive parents. Hiss. Hawaii passed a trans workplace bill. Yay! And there’s much talk about a push for marriage equality in New York this summer. I’m not sure how Governor Cuomo plans to strong arm the GOP leaders in the legislature, but I wish everyone luck.
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