Let’s Get Ready to Rumble on DOMA

GLBT Week in Review
December 21, 2011
BY ANN ROSTOW


Let’s Get Ready to Rumble on DOMA

Good news everyone. We’ve finally seen some action in one of our many federal challenges to the Defense of Marriage Act. Last Friday, attorneys went to court in San Francisco to conduct a two-hour argument before U.S. District Judge Jeffrey White. And although conventional wisdom instructs us never to anticipate the ruling of a federal judge, I think it’s safe to say that Judge White is on our side.

Judge White presides over the case of Karen Golinski, a federal lawyer who has long been trying to get spousal benefits for the woman she married during California’s window of opportunity in 2008.

Golinski first tried to convince her bosses at the U.S. Court of Appeals for the Ninth Circuit to extend the benefits. They agreed, but the Obama administration refused to go along, citing the Defense of Marriage Act.

Golinski then went to court, asking Judge White to force the feds to pay up. Judge White also refused, pointing out that the bureaucrats in Washington had the authority to ignore her marriage as long as DOMA remains good law. But Judge White went further, suggesting that Golinski and her Lambda lawyers might have better luck if they simply challenged the law itself instead of trying to mess around with questions of jurisdiction.

Lambda Legal got busy revising Golinski’s lawsuit and was preparing to send it back to Judge White as a DOMA case. Then last February, as you surely recall, the Obama administration reversed itself, announcing that sexual orientation discrimination should be subjected to tough legal review and that laws like DOMA should be found unconstitutional under those higher legal standards. Suddenly, instead of suing the United States, Lambda found the Justice Department had their backs.

With the Justice Department abandoning the antigay field, the House Republicans jumped into the fray to defend DOMA in several legal challenges, including the Golinski case. And in July, the Obama administration indicated that it had not simply decided “not to defend” antigay laws in court; it went much further, submitting a blistering condemnation of DOMA in a brief to Judge White.

On Friday, we saw another indication of how seriously the Justice Department views these DOMA cases. Representing the U.S. government in Judge White’s courtroom was none other than Assistant Attorney General Tony West, head of the Justice Department’s civil division and one of the administration’s biggest legal guns. It’s not quite as dramatic as seeing Eric Holder step up to address the bench, but it’s close.

As for the opposition, the House has hired former solicitor general and renowned appellate lawyer Paul Clement to defend the antigay marriage law. But Clement sent an associate to Judge White’s courtroom, and in fact, you have to wonder how much time he’ll be spending on these loser DOMA cases considering Clement is also the lead attorney fighting Obama’s health care law before the U.S. Supreme Court.

Meanwhile, Judge White made his views pretty obvious when he issued a list of questions to the attorneys a couple of days before Friday’s arguments. Not only were Judge White’s questions phrased as if our side had written them, but he also raised a key issue that thus far has been mostly ignored, and that’s this one:

Does the group defending DOMA really represent Congress?

There’s never been a legitimate vote on whether Congress wants to defend DOMA. There’s also never been a vote to authorize the million dollars or so that Congress will have to pay to Paul Clement and his law firm. I know it’s not much in terms of the budget, but still, lawmakers are not technically allowed to appropriate and spend public funds without a vote.

How did the DOMA defense come into being? Well, John Boehner appointed a “bipartisan” committee, made up of three Republicans and two Democrats. The committee then voted 3-2 to defend DOMA and contract with Clement for that purpose. There’s never been a general vote, and of course the Senate has never weighed in either. I think it’s clear that Boehner does not want to force all his members to cast an antigay vote if he doesn’t have to, but then again, does he have to?

This was the question Judge White raised. It will be interesting to see if the legal standing of the “bipartisan” committee comes under a cloud in any of the other DOMA cases.

Personally, I’d love to see Judge White or someone else deny standing to the committee and force Congress to vote on whether or not to defend the Defense of Marriage Act, wouldn’t you?

Meanwhile, we are keeping an eye on what we might call our main DOMA case, the lawsuit filed by the Gay and Lesbian Advocates and Defenders on behalf of several married couples in Massachusetts. I call it the main case because we’ve already won this suit in federal court and are now well along in our appeal before the U.S. Court of Appeals for the First Circuit. We have finished the briefing process before the First Circuit (I’m pretty sure; if not we’re close) and oral arguments for early next year should be scheduled soon.

At least four other cases are still pending in lower federal courts, but let’s avoid a rehash for now. It’s Christmas!
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Lesbian Survivors Get Spousal Treatment in Indiana

Do you remember the tragic collapse of reviewing stands at an Indiana concert last August? Two lesbians were killed in that accident, and their partners were both recognized by the state in a settlement deal announced this week. It’s noteworthy that the Hoosier powers that be decided to treat the women as spouses even though a 2004 Indiana statute says that only a marriage between a man and a women can be recognized.

Thus far, Indiana is one of the few reddish states to avoid passing a constitutional amendment against marriage, but still. The decision to include these partners as survivors without a court fight is significant. One of the couples had an Illinois civil union. The other had a Hawaii domestic partnership. Both survivors will receive the same amount as the heterosexual spouses, $300,000.
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No Gays In Restaurants Says Ron Paul Newsletter

That story was too sad to be followed up with amusing digressions. In fact, I don’t have many amusing digressions this week. Instead, I’ve got a couple of good court rulings, a new discrimination lawsuit, and some idle comments about the ludicrous lineup of GOP presidential wannabes.

For example, I was taken aback by the news of Ron Paul’s various newsletters, published in the early 1990s, which included racist and antigay statements. There was something about how AIDS is transmitted by saliva and gay people shouldn’t be allowed to eat in restaurants. Then there was a description of Blacks running off to cash welfare checks during the LA race riots. Martin Luther King Jr. was accused of beating up women and sleeping with underage boys and girls. The holiday in his name was referred to as “Hate Whitey Day.” Another letter blamed 95 percent of crime in D.C. on black males. Yet another called Barbara Jordon a “half educated victimologist,” and people with AIDS were said to enjoy the attention they received for being ill.

I know Ron Paul’s a complete nutcase who favors completely dismantling the federal government. But I didn’t know he was a stone bigot as well. Now, he claims that someone else wrote the stuff (which may well be true) and that the whole story is irrelevant because “it was twenty years ago.” Hello Ron! The newsletter was published under your name! And that kind of lack of judgment and/or neglect has no expiration date.

Twenty years is not such a long time. We’re all talking about Mitt’s Senate run and Newt’s contract with America, so why not throw Ron Paul’s nasty newsletters into the mix? By the way, Kim Young ‘un is not God’s gift to the women of North Korea. Just caught a glimpse of him on MSNBC out of the corner of my eye. Homely little bugger.

Oh, and Newt told gay voters that if same-sex marriage is an important issue in their lives, they should probably vote to reelect the President rather than support his nomination. I don’t think many of us would quibble with that analysis.
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Thumbs Down for Georgia Counseling Student

Lambda Legal has taken up the cause of two lesbians who were turned away from a Hawaii bed and breakfast. The proprietor of the Aloha B&B reportedly said that lesbians were “despicable” and “defile our land,” leading the Hawaii Civil Rights Commission to join Lambda and the plaintiffs in a lawsuit against the inhospitable business. After all, it’s against the law to refuse service on the basis of sexual orientation in the Island State.

Then, do you remember the Christian gal who was getting her counseling degree from Augusta State University in Georgia? Jennifer Keeton made it clear that if faced with a gay client, she’d recommend reparative therapy. Keeton insisted that sexual orientation was a deliberate decision that could, and should, be reversed.

The school ordered Keeton to take a remediation course designed to help her comply with professional standards that forbid licensed counselors from bringing personal religious convictions to bear on their work with clients. When Keeton refused, she was dropped from the program and she then sued the school on religious freedom grounds.

This week, a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit ruled in favor of Augusta State, noting that that school has every right to hold students to general standards of professional behavior. No one was trying to squelch her religious beliefs. But nor were these beliefs allowed to undermine her counseling. And here’s the interesting thing. One of the three judges was William Pryor, who wrote a concurring opinion.

William Pryor is the conservative former Alabama Attorney General who we all hated back in the day when he was nominated to the bench by George W. Bush. I wrote about him just two weeks ago, when he and two of his colleagues issued an opinion in favor of a transwomen who was fired during her transition. Now, he pops up on the side of a secular university defending itself against a Christian conservative. What gives? Has Pryor undergone a sea change? Or has the law solidified in our favor to such an extent that even judges like Pryor must find in our favor?
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Crybaby Closet Case Cracks in Court

I’m feeling badly about this column, a serious rundown of legal developments unleavened by fluff or flimflam. And I still haven’t discussed the custody ruling out of New Jersey (in favor of two gay men) or the sleazepot politico out of New York (convicted of corruption along with his secret gay lover).

How about this? I’ll skip the details of the custody suit, but I will mention the sleazepot, Democratic state Senator Carl Kruger, who apparently spent many years in Albany exchanging votes for piles of cash. At least some of the moolah was funneled through Carl’s paramour, Michael Turano, who pled guilty to a bribery charge on Tuesday. Kruger also faced the music, copping to four charges of fraud and bribery that could cost him 20 years behind bars. According to the press, both men cried through the court proceedings.

Why is this gay news? Only because Kruger has denied being gay and has even opposed same-sex marriage. The only way we know that Kruger and Turano are more than roomies is thanks to the wire taps that captured baby talk and cooing between the two. According to the Times, the men live in a “garish” Brooklyn mansion that once belonged to the Luchese crime family, which they paid for with ill-gotten gains.

Here’s the bottom line: gay people who go to great lengths to deny or hide their sexual orientation without cause are often short of integrity in other aspects of their lives. I’m not talking about gay soldiers or uncertain teens. I’m talking about grown men and women who can’t face themselves. The parks at midnight aren’t filled with normal gay men.
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Ann’s column appears every week at sfbaytimes.com. She can be reached at arostow@aol.com