WBEZ | DOMA

Tea Leaves, Notes on Prop 8 and DOMA

Fri, 29 Mar 2013 22:34:00 -0500

There seems to be a growing consensus that the Supreme Court will strike down the Defense of Marriage Act but step away from Prop 8, ruling that the plaintiffs in the case -- private citizens who led a public referendum to undo California’s same sex marriage legalization -- don’t actually have standing.

If that’s what they do -- and I tend to lean in that direction -- the net effect will mean that, on Prop 8, the ruling of the lower courts will stand: Prop 8 will be thrown out and same sex marriages will be legal in California again. The ruling will affect only California.

Ruling DOMA unconstitutional will mean that same sex couples married in any one of the eight states and the District of Columbia that permit it will be eligible for all the rights and privileges of opposite sex couples -- and as the Justices pointed out, there are more than 1,000 benefits from which same sex married couples are currently excluded, including Social Security survivor benefits, military family housing, tax filing, etc.

But here are a few other things to consider:

* There may be no majority opinion on Prop 8. Justice Anthony Kennedy seemed torn between wanting the case tossed and not wanting to devalue referendum efforts. But some of the Justices may rule the law unconstitutional (probably Justices Sonia Sotomayor, Elena Kagan, Steven Breyer and Ruth Gingsburg), others may argue standing (Samuel Alito, John Roberts), and some may argue that Prop 8 should be upheld (Antonin Scalia and Clarence Thomas). If the majority opinion doesn’t have five Justices signing it, there’s no precedent. If the Justices don’t rule it out on standing, this may be the only way out on Prop 8. Otherwise, the court will be forced into establishing a constitutional precedent: either there’s a right to same sex marriage (which the conservatives don’t want on the books) or there’s not (which the liberals don’t want). Prop 8 is all or nothing -- there's almost no way to narrow it down; ruling on standing avoids both of those conclusions, as does not getting a majority.

* If the Justices strike down California's ban on gay marriage by upholding Prop 8, tossing the case, or not getting a majority, it would trigger marriage ban repeal efforts in other states. Forty-one states now ban same-sex marriage. On the other hand, a verdict to find Prop 8 unconstitutional would render all of those bans illegal without state recourse.

* If the Justices rule that the citizen organizers of Prop 8 don’t have standing, that the interests of the people of California can only be represented in court by elected officials such as the state’s governor, attorney general or solicitor general, they will seriously cripple California’s referendum system (perhaps not the worst thing that could happen, given the state’s history of controversial, and frequently problematic, propositions).

* Standing -- whether there is an actual adversarial relationship between the parties before the court -- may actually be more tentative in DOMA than in the Prop 8 case. In fact, the Justices appointed an attorney to argue there’s no standing in DOMA but not in Prop 8.

In DOMA, the government has already determined the law is unconstitutional but has continued to enforce it in spite of lower rulings that agree. In other words, the Obama administration and Edie Windsor, the plaintiff, are on the same side. In the meantime, the people defending DOMA are with the House of Representatives’ Bipartisan Legal Advisory Group (BLAG). Both Roberts and Scalia made a point of saying it was unprecedented for a case to come to the court in which the law was being defended by a group that had not sustained injury or, basically, had much to do with the original suit. Nancy Pelosi, the Minority Leader in the House, has argued BLAG does not, in fact, represent the House’s interests but only that of the GOP leadership. (BLAG has racked up a a $3 million bill so far.)

If the court decides BLAG doesn’t have standing, it’s less clear what will happen. Most likely, there will be no precedent and DOMA will continue on the books until there’s another case or until Congress repeals it. Windsor would most likely get her tax monies back, as ordered by the lower courts.

* Should there be no decision on DOMA, and if the law gets kicked back to Congress for repeal, the votes would break straight down party lines in the Senate but not quite in the House. There are currently six Republicans who support repealing DOMA, and 19 Democrats who support DOMA, including two in Illinois: Jerry Costello and Dan Lipinsky.

* The National Organization for Marriage has said that, should there be a vote for same sex marriage in either case, it will begin a campaign for a Federal Marriage amendment, banning marriage equality nationwide. “We need a solution in this country, we cannot be, as Lincoln said, half slave, half free,” said Brian Brown, NOM’s president. The FMA has been around since 2002, when former Supreme Court aspirant Robert Bork helped draft it, but it’s never had enough support to even come for a vote. Nothing suggests it would have any better success now.

Gay GOP group hits Hagel with ad, ignores Republican homophobes

Thu, 03 Jan 2013 10:28:00 -0600

When it comes to queer stuff, Republicans never cease to amaze and amuse me.

Here in Illinois, Pat Brady, chair of the state GOP, just came out unequivocally for same sex marriage while the crazies in Congress just authorized yet more bucks to keep defending the Defense of Marriage Act in the courts — a bill whose costs already exceeds $2 million in taxpayer money.

Meanwhile, last week, the Log Cabin Republicans, the oldest gay GOP group out there, threw away $100,000 on a full page ad in the New York Times denouncing former Nebraska Sen. Chuck Hagel because he once wondered aloud if an openly gay ambassador — whom he stupidly described as “openly, aggressively gay” — was a good idea.

What’s so wrong with that? Well, for starters, Hagel hasn’t been nominated or appointed to anything. The ad calling him out is based on a rumor — a persistent one, I admit — that President Obama is considering Hagel, an honest to God maverick Republican, to lead the Pentagon. But Hagel has been pummeled so hard for once having referred to pro-Israel forces as the “Jewish lobby,” and for expressing a willingness to talk to countries such as Iran and Pakistan, that it’s unlikely that he’ll ever actually get the nod.

Hagel, however, isn’t really my concern here. What I find ridiculous is the Log Cabin assailing him for comments made 14 years ago and ignoring much more recent, and much more egregious, anti-gay rhetoric and action by Republicans who are in much greater positions of power even as I write.

This past week, for example, as they attack Hagel, they failed to even mention the move by Boehner and the GOP leadership to tie the legal defense of DOMA to House rules.

Heck, when Boehner actually authorized the initial expenditure to defend the DOMA after President Obama and his attorney general decided not to, not only did the Log Cabin boys not run ads against him, but their then director, R. Clarke Cooper, actually went on MSNBC’s “Hardball”and defended him! (Cooper, who recently stepped down, also said what would be brave for Obama was not to stop supporting DOMA but to come out and say that he was for same sex marriage ... a demand he hasn’t made of any Republicans and which Obama has since met.)

And this past election, for Pete’s sake, Log Cabin Republicans endorsed Mitt Romney for president — a man who’d signed the National Organization for Marriage’s pledge against same sex marriage!

In 2008, Log Cabin endorsed John McCain, who was against repealing Don’t Ask Don’t Tell. And he sure as hell hasn’t changed: Less than a month ago, McCain was picking up the slack for defeated Rep. Todd Akin, who’s still trying to undo DADT one way or another and proposed a bill that said: “The Armed Forces shall accommodate the conscience and sincerely held moral principles and religious beliefs of the members of the Armed Forces concerning the appropriate and inappropriate expression of human sexuality and may not use such conscience, principles, or beliefs as the basis of any adverse personnel action, discrimination, or denial of promotion, schooling, training, or assignment....”

In other words, Akin’s bill, which then became McCain’s until most — but not all — of the offensive language was removed, was trying to get the armed forces to accommodate faith-based bias against LGBTQ soldiers.

Did Log Cabin feel any sense of betrayal? Who knows, there were no ads denouncing McCain, one of the most senior and powerful Republicans in the senate.

Why Hagel? Why now? Log Cabin didn’t even take out an ad at the time of Hagel's original comment, even though they were already a well-established political organization. All Log Cabin is saying is that they did the fiscally responsible thing by getting a handful of donors to pay for the ad, costing the organization nada.

Here’s my question: Who wanted this? Hagel seems a million miles from a priority for gays of any political persuasion. For whom was Log Cabin carrying water? And if they could raise this kind of money, why not put it toward electing openly gay Republicans or lobbying?

Hagel, of course, immediately came out with an apology which everyone seems to think was, not surprisingly, a little convenient. Still, maybe Hagel has, in fact, had a change of heart about gays. Two years before his comment, the Senate passed DOMA (Hagel was for it). Every single Democrat who’s still in the senate today voted for it then — and every single one has now signed on as a co-sponsor for repeal. Why not give Hagel the benefit of the doubt?

By the way, every Republican senator serving then and now — McCain, Chuck Grassley, Mitch McConnell, Jim Inhofe — voted against it then, remains against it now, and has been spared attacks by Log Cabin.

Gay rights arrive at the Supreme Court

Tue, 11 Dec 2012 14:00:00 -0600

On Tuesday, Supreme Court Justice Antonin Scalia, challenged during a Q&A after a lecture about the loaded language he has sometimes used when discussing gay people, shot back, "If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?"

The polemic came in the wake of the Supreme Court’s decision to hear two cases which involve marriage rights: the odious Defense of Marriage Act and California’s Prop 8. Never mind Scalia's casual stringing of together of homosexuality and murder and how it might suggest moral equivalency — neither case involves our rights to “feelings” or even to discriminate and hate.

Scalia, who’s a likely nay vote on both cases, saw their arrival on the court’s docket way back in 2003. At that time Justice Anthony Kennedy, writing for the majority in Lawrence v. Texas, said the court’s ruling “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”

“Do not believe it,” Scalia replied. The decision, he argued, opened up the way to legalizing same sex marriage. He added that it left state laws restricting unions to opposite sex couples pretty “shaky.”

Now here we are, as Scalia predicted. Prop 8 is a California case that will mostly affect Californians. The court could decide the merits — the very legality of same-sex marriage — but it could also come down very narrowly, making it possible for California to restrict or allow same-sex marriage without spillover effects to other states.

The Defense of Marriage Act, which has tax and immigration implications as well as those of equal access, is the real red meat before the Supreme Court. It’s what really keeps state bans alive, what keeps binational couples apart and what denies queer families a host of federal benefits available to heterosexually-constructed families. The repeal of DOMA would change that.

This time around, the defense of DOMA is brought us by, among others, the Republicans from the U.S. House of Representatives. When President Obama and Attorney General Eric Holder decided in March 2011 to stop defending the law, Speaker of the House John Boehner and his gang decided to hire Paul Clement (the same guy who argued against Obamacare in front of the Supreme Court), at a cost of $2 million of taxpayer money so far. His job: to convince the high court to keep the law on the books.

The law is ugly and it looks uglier now that public opinion seems to be favoring same-sex marriage, but it wasn’t always so: DOMA was signed by Bill Clinton and supported in the U.S. senate by none other than Joe Biden.

He was joined by several Democratic senators who are still serving: Tom Harkin of Iowa, Barbara Mikulski of Maryland, Carl Levin of Michigan, Max Baucus of Montana, Frank Lautenberg of New Jersey, Jeff Bingaman of New Mexico, Patrick Leahy of Vermont and even Senate Majority Leader Harry Reid.

In fact, DOMA passed 85-14, a shameful exercise in fear. Among those who stood up against the law there are a few who are still in the Senate: Both of California’s senators, Barbara Boxer and Dianne Feinstein, Hawaii’s Daniel Inouye, Massachusetts’ John Kerry, and Ron Wyden of Oregon. Not a single Republican voted to protect LGBTQ citizens.

In the House, DOMA passed 342-67, and only one Republican opposed it: Steve Gunderson of Wisconsin. In the Illinois delegation, only two Democrats voted against it: Jesse Jackson, Jr., and Luis Gutierrez. Even Bobby Rush, that great civil rights lion, voted for DOMA, as did current U.S. Sen. Dick Durbin.

But times change. Clinton says he’s sorry about DOMA, and Biden loves gays (I suspect he always did). Every single Democratic Senator who supported DOMA in 1996 now supports its repeal. Durbin and Rush are now on board.

And the Supreme Court? Well, if Lawrence v. Texas is an indication, Justices Kennedy, Ruth Bader Ginsburg and Steven Breyer – who were in the majority – should be votes to strike down DOMA. Scalia and Clarence Thomas, who were joined by William Rehnquist in this case, will likely continue their dissent.

Elena Kagan actively worked to undermine DOMA as Solicitor General and Sonia Sotomayor has a record of ruling against discrimination of LGBTQs, making them very likely supporters of a DOMA repeal.

Before joining the court, Samuel Alito had supported the right to privacy, including consensual sexual activity, but he also believes that "anti-harassment" policy violates free speech, including the right to make "derogatory" speech on "contentious issues" such as "sexual orientation." Speech and same sex marriage aren’t the same thing, of course, but part of the argument against same sex marriage, especially Scalia’s, involves the right of society to discriminate against certain behaviors and reserve certain privileges. If I were to bet, I’d say Alito joins Scalia and Thomas. Or maybe he dissents alone, but he very likely dissents.

So the count looks good for repeal, so much so that Chief Justice John Roberts’ vote might not be necessary. But I suspect that Roberts, who is keenly concerned with history and precedent, may be about to disappoint conservatives again. My suspicion is that Roberts’ hand will be felt in keeping the ruling to its narrowest possible conclusion, but that, in the end, he’ll support repeal.

It’s been a while so most folks will have forgotten, but Roberts is no stranger to gay rights. In fact, once upon a time, he volunteered, pro bono, to advise on the queer side of a gay rights case. He doesn’t talk about it, the Right tries to rationalize it, but it’s there: as a young lawyer, Roberts weighed in for gay rights.

It’s not often that the Supreme Court makes me feel optimistic. But this time, especially given everything that’s happened since Lawrence, LGBTQ Americans may finally get some real honest-to-god rights.

DOMA headed for Supreme Court: Obama or Romney could make the difference

Fri, 19 Oct 2012 09:59:00 -0500

President Barack Obama lived through the second presidential debates and may have blunted some of Mitt Romney’s momentum in these last few weeks. But a bigger reason to vote for Obama became clearer two days after the clash at Hofstra University, when the 2nd U.S. District Court of Appeals in New York determined that the 1996 Defense of Marriage Act, or DOMA, and its definition of marriage as between one man and one woman, is unconstitutional.

The majority opinion in Windsor v. United States was written by Judge Dennis Jacobs, an appointee of President George H.W. Bush. Bush gave us the thewless Clarence Thomas at the Supreme Court to replace the towering Thurgood Marshall, but perhaps more notable in the long run, he also put David Souter on the bench.

Souter, whose name has now become a verb unfortunately meaning to stealthily pretend to be one way in order to further something else, probably did more as the crucial fifth vote in the court’s liberal bloc to preserve judiciary independence and personal freedom than anyone currently wearing those black robes. Souter was, and will likely remain, the last non-idealogical GOP nominee to the court for a long, long time.

In other words, DOMA — and various other crucial civil rights issues — are headed straight for the Supreme Court in the next few years. Who sits on the court will make the difference in the lives of millions of people; in the case of Windsor, particularly the lives of partners in same sex marriages.

Over at the court, Ruth Bader Ginsburg, a reliable progressive vote, is 79 years old, and Steven Beyer is 74. The seemingly very healthy and very conservative Antonin Scalia is 76. They’re the most likely candidates for replacement, in that order.

In other words, the next president will very likely have an opportunity to replace at least one, if not two, liberal judges.

For Obama, that means preserving the court’s current balance. But for Romney, who has vowed to appoint judges in the mold of Scalia, that means changing the court’s direction for at least 20 years by replacing a progressive with an extreme conservative.

Among Romney’s possible appointments? Paul Clements, the man who argued against the Affordable Care Act before the court, and Tea Party fave Sen. Mike Lee of Utah, a former clerk to Justice Samuel Alito who thinks federal disaster relief and child labor laws are unconstitutional.

These choices — far more dramatic and idealogical than either Bush I or II or even Reagan — are part of what’s at stake in this election.

A critique of same-sex marriage from within the gay community

Wed, 01 Jun 2011 13:28:00 -0500

While civil unions are good news for some in the community, others are skeptical. Yasmin Nair is a co-founder of Against Equality, an online publishing and arts collective that critiques mainstream gay and lesbian politics. The writer and activist believes marriage is obscuring other significant issues in the gay community, and she joined Eight Forty-Eight to discuss her concerns.

Music Button: DJ Mark Farina, "Dubble-O: Big Fish", from the CD Mushroom Jazz 4, (Om)

Civil unions may not offer solution for some same-sex couples

Wed, 01 Jun 2011 13:25:00 -0500

As of June 1, couples around Illinois can enter civil unions. The news is particularly good for many in the gay and lesbian community, who don’t have the right to marry, but not everyone is celebrating.

DOMA, or The Defense of Marriage Act, defines marriage as between a man and a woman. So unlike their straight counterparts, same-sex bi-national couples can’t sponsor each other for citizenship. One local couple shared what that meant for them.

Same sex couples protest tax status

Mon, 18 Apr 2011 13:08:00 -0500

In some states many same-sex couples are using their returns to point out the effect that DOMA - The Defense of Marriage Act - has on their tax status. DOMA defines marriage as a relationship between a man and a woman. So same sex married couples cannot file federal joint tax returns.

Bernard Cherkasov is CEO of Equality Illinois and he explained what same sex couples face during tax time.

Obama administration challenges the Defense of Marriage Act

Mon, 28 Feb 2011 14:18:00 -0600

Last week, Attorney General Eric Holder said the Justice Department would no longer defend cases involving the Defense of Marriage Act. DOMA is the federal law instated during the Clinton presidency saying marriage is confined to the union of a man and a woman. But now defending that law falls to Congress. To learn more about what this move will mean for the future of DOMA—both legally and politically—Eight Forty-Eight spoke with Northwestern University School of Law professor Andrew Koppelman.

Music Button: Botany, "Feeling Today", Feeling Today (Western Vinyl)