On A Pair Of Victories, Part Two, Or, DOMA Ruled Unconstitutionally Irrational

by: fake consultant

Mon Jul 12, 2010 at 21:54:12 PM EDT

In the first half of the conversation, we examined the ruling in Commonwealth of Massachusetts v Department of Health and Human Services (HHS), today we examine the companion case, Gill v Office of Personnel Management (OPM).

I don't usually tell you the end of the story at the beginning, but this time I will: there are a lot of happy Plaintiffs this week, and the Federal Government, as Defendant (whom I will refer to as "the Feds" from time to time), is not so happy at the moment.

As with last time, there's a lot of ground to cover, and the sooner we get to it, the better.

On A Pair Of Victories, Part One, Or, "I DOMA Think Congress Can Define Spouse Anymore"

by: fake consultant

Sat Jul 10, 2010 at 00:06:18 AM EDT

We are all aware of the Federal Defense of Marriage Act (DOMA), championed by former Congressman Bob "I'm A Libertarian If It Doesn't Involve Your Penis Or Vagina" Barr; we now have two rulings, released on the same day by the same Federal judge, that will render the Act moot, if they're either upheld throughout the appeals process...or if the Obama Administration decides to end that appeals process right now.

There's a lot of ground to cover, and time is short.

Let's get to work.

SCOTUS: Petition signatures not protected speech

by: Gerald Weinand

Thu Jun 24, 2010 at 18:13:05 PM EDT

The ruling may indicate how the SCOTUS will view challenges to cases involving laws that force the disclosure of donors to campaigns, such as the investigation by the Maine Ethics Commission of the actions of the National Organization for Marriage (NOM) in 2009.

The Court held, by an 8 to 1 vote, that there are no 1st Amendment protections that signatories to petitions will remain anonymous, excepting when it can be demonstrated that such disclosure would have a high probability of engendering harassment to the signers.

Writing at SCOTUSBLOG, Tom Goldstein has this summary of the Washington State case involving R-71. From it:

The district court ruled for the plaintiff on the first, broadest argument. It did not reach the narrower claim. The Ninth Circuit reversed. Today, the Supreme Court agreed with the Ninth Circuit (pause for dramatic effect), but remanded for the lower courts to consider the plaintiffs' narrower argument regarding the circumstances of this particular gay-rights referendum. This outcome seemed likely to me from the oral argument, which I discussed in this post:  Not so fast in Doe v. Reed.

Preliminarily, the Court held that the disclosure law is subject to First Amendment scrutiny.  Signing a petition, the Court reasoned, is an expressive act - expression of a political view - that implicates the First Amendment. That said, the level of scrutiny must account for states' wide latitude in implementing their voting systems, as well as the fact that disclosure does not itself prevent speech. The Court held that disclosure of referendum petitions generally survives constitutional scrutiny because it helps to combat fraud and eliminate mistakes (because the public is able to review the signatures) and because it promotes governmental transparency and accountability.

Citing Buckley v. Valeo - which held that campaign finance disclosure requirements are generally constitutional, but left open the prospect of a suit challenging a particularly onerous requirement - the Court nonetheless left open the possibility that the plaintiffs could prevail on remand in their challenge to disclosure with respect to this particular referendum. The Court thus held that the plaintiffs' claim that disclosure here would have the purpose and effect of facilitating harassment of individual signatories should be addressed in the context of that narrower claim.

You can find the actual opinion here: Doe v. Reed. Chief Justice Roberts wrote the Court's opinion, with several justices writing concurring opinions (Thomas was the lone opposition). Striking is the concurring opinion from Justice Antonin Scalia, who wrote:

Plaintiffs claim the First Amendment, as applied to theStates through the Fourteenth Amendment, forbids the State of Washington to release to the public signed refer-endum petitions, which they submitted to the State in order to suspend operation of a law and put it to a popular vote. I doubt whether signing a petition that has the effect of suspending a law fits within "the freedom ofspeech" at all.

---

Our Nation's longstanding traditions of legis-lating and voting in public refute the claim that the First Amendment accords a right to anonymity in the performance of an act with governmental effect.

---

When a Washington voter signs a referendum petition subject to the PRA, he is acting as a legislator. The Washington Constitution vests "[t]he legislative authority" of the State in the legislature, but "the people reserve to themselves the power . . . to approve or reject at the polls any act, item, section, or part of any bill, act, or law passed by the legislature." Art. 2, §1. This "referendum" power of popular legislation is exercised by submitting a petition, in accordance with certain specifications, to the Washington secretary of state with valid signatures of registered voters in number equal to or exceeding four percent of the votes cast in the last gubernatorial election. The filing of a referendum petition that satisfies these requirements has two legal effects: (1) It requires the secretary to place the measure referred to the people on the ballot at the next general election; and (2) it suspends operation of the measure, causing it only to have effect 30days after it is approved during that election. A voter who signs a referendum petition is therefore exercising legislative power because his signature, somewhat like a vote for or against a bill in the legislature, seeks to affect the legal force of the measure at issue.

Scalia argues that the act of signing a petition that may - at least temporarily - stay a duly enacted law transforms an ordinary person into a citizen legislator. To extend such logic to those that fund signature gathering efforts and subsequent political campaigns, their anonymity is not protected either.

The SCOTUS referred the case back to the District Court to determine if disclosing the names of those that signed petitions to place R-71 on the ballot have a reasonable fear of harassment should their names become known.

NOM loses at Appeals Court

by: Gerald Weinand

Tue Jun 08, 2010 at 16:27:34 PM EDT

NOM is the Mormon front group that donated $1.9 million in a successful effort last year to overturn Maine's law that would have allowed same-sex couples to marry.

The Appeals Court found that the documents requested by the Ethics Commission do not violate 1st Amendment guarantees, nor does that request impose a "significant risk of chill."

Further, the Court found:

Moreover, Appellees [NOM] have a compelling interest in defending Maine's election laws against charges of unconstitutionality...In this case, that interest extends to review of the documents in question. In framing some of their underlying constitutional challenges to Maine's election laws, Appellant-Petitioners have made relevant the issue of whether NOM has as one its primary purposes the influencing of ballot questions and/or candidate elections. We conclude that the materials in question have the potential to be highly relevant to that issue, and we see no less restrictive means for Appellees to probe the issue than by reviewing the materials under the auspices of the strict protective order to which Appellees have consented.

MPBN reports that NOM will appeal this ruling to the SCOTUS.

The complete ruling can be found below the fold.

Judge to NOM: Turn over names of donors to Ethics Commission

by: Gerald Weinand

Tue May 25, 2010 at 14:04:28 PM EDT

NOM has refused to do so, and gone to court to block the order. On Sunday, Magistrate Judge John Rich denied their appeal

Judge Rich's conclusion:

For the foregoing reasons, I SUSTAIN in part and OVERRULE in part the plaintiffs' objections on relevance grounds to Second RFP Nos. 1 through 3, OVERRULE their objection on First Amendment grounds to Second RFP No. 1, and DIRECT them to produce documents responsive to Second RFP Nos. 1, 2, and 3, as those requests are herein modified, within seven days of the date hereof. I also DENY, without prejudice on the showing made, the defendants' request to order the plaintiffs to supplement their initial disclosures and to bar them from using additional witnesses or documents to the extent that such supplementation is not made.

You can find the complete ruling here.

This is a great ruling for those that oppose anonymous campaigns in any and all elections. It should be noted that Judge Rich has placed a confidentiality order on the financial disclosure, which "would prevent the Commission from using donor identifying information in the context of its investigation into possible violations of the state's BQC laws."

Archbishop: Allowing same-sex marriage will lead to more single-parent households

by: Gerald Weinand

Sat May 01, 2010 at 08:48:19 AM EDT

Why should Minnesotans care about passing a marriage amendment?

Marriage matters to every Minnesotan, whether or not we choose to marry personally, because it is the natural way we bring together men and women to conceive and raise the next generation. The intended reality of marriage as a lifelong, committed, life-giving union between one man and one woman, a reality long accepted as established fact, is severely challenged today. High rates of fatherlessness and family fragmentation impoverish children and leave women with the unfair burden of solo parenting. Children suffer, but so does the whole society, when marriage fails in its irreplaceable task of bringing together mothers and fathers with their children.

Into this confusing mix, so-called same-sex "marriage" throws a whole new level of challenge and uncertainty. Defining marriage as simply a union of consenting parties will change the core meaning of marriage in the public square for every Minnesotan.

We might learn caution from experience. Back in the early 1970s, the experts told us that no-fault divorce would liberate women from bad marriages without affecting anyone else. We now know that as many as one-third of women fall into poverty with their children as a result of divorce. Social science caught up late with the common-sense wisdom that children need a mom and a dad working together to protect them.

In other words, changing the law of marriage to enshrine no-fault divorce had unintended consequences that few predicted. Same-sex marriage represents an even greater challenge.

If the Archbishop really thinks that divorce is awful, then he should be arguing against that, not same-sex marriage. Here he is erroneously conflating these two issues.

New rules will allow same-sex couples to visit partners in hospital

by: Gerald Weinand

Fri Apr 16, 2010 at 09:28:14 AM EDT

The White House announced the rule changes, which will also make it easier for gay men and lesbians to make medical decisions on behalf of their partners, in a memorandum released Thursday night. In it, the president said the new rules would affect any hospital that participates in Medicare or Medicaid, the government programs to cover the elderly and the poor.

"Every day, all across America, patients are denied the kindness and caring of a loved one at their sides," Mr. Obama said in the memorandum, adding that the rules could also help widows and widowers who rely on friends and members of religious orders who care for one another. But he says gay men and lesbians are "uniquely affected" because they are often barred from visiting partners with whom they have spent decades.

The memorandum containing the new rules is below the fold:

House drafts new rule that recognizes same-sex spouses

by: Gerald Weinand

Thu Apr 15, 2010 at 15:44:04 PM EDT

The House ethics committee has drafted rules that for the first time would define gay married couples as "spouses" for the purposes of filling out their annual Congressional financial disclosure forms.

Activists on both sides of the gay marriage issue said the reporting requirements, if adopted, would mark the first time Congress has recognized a gay partner as a spouse. Opponents of gay rights said the draft appears to contradict the 1996 Defense of Marriage Act, which mandates that for any federal regulations, "the word 'spouse' refers only to a person of the opposite sex who is a husband or wife."

The draft ethics committee rules were posted this week on both the ethics committee Web site and the Web site of the Clerk of the House, who manages the financial disclosure forms.

But they were removed from both sites after Roll Call inquired about them.

Another small step for mankind.

What Atrios said

by: Gerald Weinand

Tue Apr 06, 2010 at 10:30:00 AM EDT

Those damn gays are destroying the church:

A Catholic priest who fled Minnesota for India after being accused by two teenage girls of rape continues to serve as a priest in a Catholic school system five years after his case was brought to the attention of the Vatican, according to documents and testimony in a lawsuit against the Church.

To restate the obvious, the point isn't that there are bad (accused) priests. Of course there are! There are bad people everywhere. The point is the church using its institutional power to cover up alleged crimes, shield perpetrators, and put accused abusers and rapists in positions where they have continued access to teens and children.

UPDATE: Senate to vote to repeal D.C. same-sex marriage

by: Gerald Weinand

Wed Mar 24, 2010 at 11:50:49 AM EDT

::

The Senate is debating the Health Care and Education Reconciliation Act (H.R.4872), which has already been passed by the House. As part of the process, the senators can offer amendments to the bill, and they are.

One such amendment, S.Amd. 3568, has been put forth by Sen. Bob Bennett (R-Utah), which would repeal the law that allows same-sex couples in Washington, D.C., to marry (full text below the fold).

It is likely to come up for a vote later today.

If you support equal marriage for lesbian and gay couples, then I urge you to contact Sens. Snowe and Collins and ask them to vote against the Bennett amendment. Contact:

Olympia Snowe: 202.224.5344
Susan Collins: 202.224.2523

Thank you.

Portland Diocese pulls funding for homeless aid group

by: Gerald Weinand

Wed Mar 24, 2010 at 08:36:59 AM EDT

Preble Street's Homeless Voices for Justice program has lost $17,400 this year and will lose $33,000 that it expected for its next fiscal year.

Officials with the Roman Catholic Diocese of Portland and the Washington-based Catholic Campaign for Human Development say that Preble Street violated its grant agreement by supporting Maine's "No on 1" campaign last fall.

No on 1 opposed a ballot proposal to overturn the new state law legalizing gay marriage. Voters approved Question 1 on Nov. 3.

Homeless Voices for Justice, a statewide advocacy group, is led by people who have been homeless. It works on issues that affect the homeless, such as supporting affordable housing and preventing violence against the homeless.

To be clear, Preble Street violated its own pledge, and the two Catholic groups are well within their legal rights to rescind their funding pledges.

But such a decision, in my mind, puts them clearly at odds with what is the core of the Churches mission: to work according to the teachings of Jesus, who spoke repeatedly about poverty, and demanded that they be sanctified.

The Catholic Church would instead sacrifice aid to those that can least afford to lose it, because some individuals would dare to ask for the same legal protections of marriage that straight people enjoy. This, while the Church does not advocate for the banning of divorce.

It is often said by people of faith, "Love the sinner, hate the sin." The Catholic Church ought to heed this message.

UPDATEDx2: NOM requests Ethics Commission to stay investigation - motion DENIED

by: Gerald Weinand

Thu Jan 28, 2010 at 10:26:19 AM EST

The hearing is this morning, and from the Commissions [agenda http://bit.ly/7nfurg}:

The National Organization for Marriage has objected to the Commission's investigative requests for documents and information.  The organization requests a stay of the investigation until the federal courts have reached a final decision on its constitutional challenge to the ballot question reporting statute.

Earlier this week, Keith Shortall had a story on Maine Things Considered about whether last week's Supreme Court's election ruling could bolster part of Maine's law:

Maine's laws don't apply any such spending restrictions to these groups, and so was not directly affected. Except, says Jonathan Wayne of the Maine Ethics Commission, for one possible area of state election law.

"What the court decided is that if corporations or labor unions want to spend money independently of candidates to influence their elections, they can, but they have to file disclosure statements with the federal government, stating that they spent "x" numbers of dollars on "x" date in support or against the candidates," he says.

And, says Wayne, that might actually provide some legal support for Maine's law, which requires that certain campaign spending reports be filed in the weeks before an election. "The Maine election law requires independent groups that are spending money in the 35 days before the general election to file reports if they mention candidates, and there's a Maine Clean Elections Candidate in the race. So that's one of the statutes that NOM is challenging."

NOM is the National Organization for Marriage, a Washington D.C.-based group that was a major funder behind the campaign to overturn Maine's same sex-marriage law this past November. NOM has so far refused to file spending reports with the Ethics Commission, but according to the PAC, Stand for Marriage Maine, it received nearly two-thirds of its funding -- more than $1.9 million -- from NOM.

We'll continue to follow this story.

Update: By a 4 to 1 ruling (Francis Marsano opposed), the Ethics Commission voted to deny the request to stay the investigation. The vote was not without interest, as when the Commission voted to investigate NOM three votes to two, Marsano was one of those that voted to investigate, and Edward Youngblood, who initially voted against investigating, now voting against the stay.

Great news.

Update: Audio of the hearing is now available here. There is no time marks on it, but the NOM case begins about 1/3 of the way in.

Prop 8 trial: summary of Day 2

by: Gerald Weinand

Tue Jan 12, 2010 at 21:22:00 PM EST

Why Bob Emrich should hang his head in shame:

by: jm

Mon Jan 04, 2010 at 09:55:09 AM EST

The American evangelicals who held a conference in Uganda this summer that led directly to the drafting of that bill are now backtracking, saying that it goes too far. But, given the history of American evangelical involvement in Uganda, not to mention Indonesia and Somalia, their concerns could be seen as more PR move than actual dismay.

And that's where Bob Emrich comes in.  

9th Circuit Court: DOMA takes a significant hit

by: Gerald Weinand

Fri Nov 20, 2009 at 22:13:42 PM EST

A federal judge today ordered compensation for a Los Angeles couple denied spousal benefits by the federal government because they are gay men.

U.S. 9th Circuit Court of Appeals Judge Stephen Reinhardt deemed the denial of healthcare and other benefits to the spouse of federal public defender Brad Levenson to be a violation of the Constitution's guarantee of due process and discrimination on the basis of sexual orientation, which is prohibited by California state law.

Levenson married his longtime partner, Tony Sears, on July 12, 2008, during the five-month period when same-sex marriage was legal in California. A ballot measure, Proposition 8, was passed a year ago defining marriage as between one man and one woman.

Reinhardt, who is the federal judge responsible for resolving employee disputes in the Federal Public Defenders office within the 9th Circuit, had earlier ordered the Administrative Office of the U.S. Courts to process Levenson's application for spousal benefits for Sears. The federal government's Office of Personnel Management stepped in to derail the enrollment, however, citing the 1996 Defense of Marriage Act (DOMA) that prohibits the recognition of same-sex marriage for the purpose of federal benefits or programs.

This is a significant ruling against DOMA, which adds the following to the U.S. Code:

Sec. 7. Definition of `marriage' and `spouse'

`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.'.

From the Order from the 9th Circuit Judge Steven Reinhardt for monetary compensation to the plaintiff:

Moreover, even if Congress could be said to have an independent interest in remaining neutral with regard to a contentious social issue, that is not what Congress did here. By enacting DOMA, Congress affirmatively stepped into the fray, and took the position that seam-sex partners should not have access to federal benefits no matter what legal status a state decides to accord their relationship. Congress thus sided with those states that would limit marriage to opposite-sex couples, and against those states that would recognize the marriages of same-sex couples. Taking that position did not further any governmental interest in neutrality, if indeed such an interest exists.

I can identify no other governmental interests that might be served by denying Levenson's request that his spouse, Sears, receive the same federal benefits as other spouses of FPD employees. Excluding from health care coverage spouses of employees who have entered into legally binding relationships does not serve the government's interest in promoting long-term relationship. Likewise, it does not serve any governmental interest in promoting a child-rearing environment, because children of same-sex couples are eligible for federal benefits and the denial of benefits to same-sex spouses will not affect the decisions made by same-sex couples regarding marriage or parenting. Aside from all else, the relationship of the denial of benefits to such potential objectives is "so attenuated as to render the distinction arbitrary or irrational." City of Cleburne, 473 U.S. at 446. Accordingly, a decision denying Levenson's request that federal benefits to his same-sex spouse would have no rational basis. In sum, to the extent that the application of DOMA serves to preclude the provision of health insurance coverage to a same-sex spouse of a legally married federal employee because of the employee's and his or her spouse's sex or sexual orientation, DOMA, as applied, contravenes the Fifth Amendment to the United States Constitution and is therefore unconstitutional.

I'll also note that there is an effort to repeal DOMA outright, the Respect for Marriage Act ([H.R. 3567]), of which Rep. Chellie Pingree is a cosponsor. It reads in its entirety:

SECTION 1. SHORT TITLE.

This Act may be cited as the 'Respect for Marriage Act of 2009'.

SEC. 2. REPEAL OF SECTION ADDED TO TITLE 28, UNITED STATES CODE, BY SECTION 2 OF THE DEFENSE OF MARRIAGE ACT.

Section 1738C of title 28, United States Code, is repealed, and the table of sections at the beginning of chapter 115 of title 28, United States Code, is amended by striking the item relating to that section.

SEC. 3. MARRIAGE RECOGNITION.

Section 7 of title 1, United States Code, is amended to read as follows:

'Sec. 7. Marriage

'(a) For the purposes of any Federal law in which marital status is a factor, an individual shall be considered married if that individual's marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State.

'(b) In this section, the term 'State' means a State, the District of Columbia, the Commonwealth of Puerto Rico, or any other territory or possession of the United States.'.

It takes courage to lead, and supporters know that

by: Gerald Weinand

Fri Nov 06, 2009 at 09:23:08 AM EST

The talk is heating up that instead of supporting that instead of supporting the Democratic Party with their time and money, gay rights advocates will instead support progressive candidates. Some may view this as an immature reaction to yet another loss, but I disagree - progressives and populists of all kinds still do not have a voice within the Democratic Party that equals their supporters.

And then look at the lack of public leadership amongst elected officials. Many members of our Legislature took a courageous stand on LD 1020, as did Gov. Baldacci. But on the Federal level, only Rep. Chellie Pingree had the courage to voice her convictions regarding equal marriage.

Hello Rep. Mike Michaud!

And while they are not Democrats, our two senators, Olympia Snowe and Susan Collins, were not only mum on the issue, they refused to even provide any kind of statement about it when asked.

And we wonder why 53% of Mainers voted Yes on 1? Three-quarters of our delegation didn't think it important enough to try to influence their constituents.

I'm curious as to how Snowe, Collins, and Michaud actually voted on Question 1.

Equal marriage may have lost the battle in Maine, but the struggle will continue

by: Gerald Weinand

Wed Nov 04, 2009 at 19:39:48 PM EST

For those of you that support civil unions for gay couples but not "marriage," I urge you to watch these two ads that will run in the Garden State:

Loco!

Question 1: Yes 53% NO 47%

by: Gerald Weinand

Wed Nov 04, 2009 at 06:54:51 AM EST

I'm disappointed that LD 1020, An Act To End Discrimination in Civil Marriage and Affirm Religious Freedom, has been repealed. I'm disappointed that so many Mainers thought it necessary to deny some of the fellow citizens the right to form legal unions like the ones that they enjoy. Some chose to overturn our law out of fear and bigotry.

But many simply got hung up on a word: marriage.

It is these people, the ones that claim that they support civil unions for lesbian and gay couples that are legally exactly like marriages for straight couples, but called something else, that I am most disappointed with.

It has been heartening to hear and read about all those that worked so hard to defeat the people's veto, of the many Mainers that volunteered and of those from away that helped as well. I have met people whose breadth of knowledge about campaigning and of LGBT issues is amazing. ANd I've met others who simply believed as I do, that same-sex couples have every right to get married as straight couples do.

I know that many of you are as disappointed as I am. For now, take solace in the work you did, and the people that you met, during the campaign. There will be time to think of what to do next.

Guardian: Putting gay marriage to the test

by: Gerald Weinand

Tue Nov 03, 2009 at 10:39:10 AM EST

Rep. Chellie Pingree: Tomorrow We Can Make History

by: Gerald Weinand

Mon Nov 02, 2009 at 19:12:10 PM EST

Tomorrow, Maine voters decide whether to repeal Maine's 4-month-old same-sex marriage law. Don't be mistaken: this is an historic election. Tomorrow Maine can become the first state in the country to support marriage equality in a statewide vote.

Two summers ago I proudly watched as my daughter, Hannah Pingree, was married in a simple ceremony in our community. Good friends of ours -- two men in a long time committed relationship who had known Hannah since she was a small child -- performed the ceremony. I'll never forget what one of them said to Hannah the day before the wedding.

"I'm so proud of you, Hannah," David said. "But I want to remind you that tomorrow you will be doing something we can't do by getting married."

The next year Hannah became Speaker of the Maine House and she, along with other legislative leaders and our governor, made Maine one of the first states in the country to make same-sex marriage legal through the legislative process. I was so proud of my daughter and her colleagues in the state capitol that day.

Maine people have a live-and-let-live philosophy, and tend to be fair and open-minded. Left to themselves, I have no doubt that they would support true marriage equality for all Maine families.

The problem is, they haven't been left to themselves.

The same forces that were behind Prop 8 in California have moved their entire operation to Maine. The anti-marriage equality effort in Maine is a carbon copy of the California effort -- including false and misleading ads intended to frighten parents and distract attention from the real issue of marriage equality. Funded primarily by the right-wing National Organization for Marriage, they have tried to convince parents that legalizing same-sex marriage in Maine will lead to "explicit" discussions of gay sex as part of a "gay friendly curriculum." For kindergartners.

The anti-marriage side has not exactly set the standard for openness and transparency. Last month they went to court to try and avoid state law that requires the names of donors to be reported. And it's been two weeks since the last campaign finance report, so we have no way of knowing how much they've raised in these final days -- but I am told that they have increased their ad buy significantly. A massive infusion from an outside group (think the Mormon Church in California's Prop 8 campaign) at the last minute wouldn't be a surprise.

You can help. Go to Protect Maine Equality to learn more.

The vote in Maine can go one of two ways tomorrow. It can be a victory for those who prefer fear and misinformation over honest discussion. Or it can be a victory for fairness and equality that will resonate across the country and, I guarantee, through the halls of Congress. Please help make the difference for my state by clicking here.