• The Obama Administration’s Department of Justice today announced it would be appealing the decisions from Massachusetts (Gill v. Office of Personal Management) which found parts of the Defense of Marriage Act unconstitutional.  Appealing the choice makes no sense on any front, especially when you consider the improbability of success with any plan to stand by the Administration’s promise to repeal DOMA through legislative action.  Considering what a fight Don’t Ask, Don’t Tell has been, I challenge anyone to present a reasonable theory on how this could happen through Congress.
• A federal judge ruled today that all investigations and discharges under Don’t Ask, Don’t Tell must stop immediately.  The ruling was not stayed, which means the era of DADT is over…unless the Obama Administration should decide to resurrect it by appealing the decision by U.S. district judge Virginia A. Phillips.  Based on all previous rulings that have found for gay rights, one has to expect that the Department of Justice will appeal this.  If one were to believe that President Obama wants to keep his campaign promises of repealing DADT and DOMA and enacting the Employment Non-Discrimination Act, the step after appealing this decision would be to finally push for repeal.  If this makes no sense to you, you’re not alone.

• Democrats are divided on whether the DREAM Act, mentioned in my last post, should be pushed independently of comprehensive immigration reform.  Given that it has been cosponsored by republicans in the past, it’s much more likely to pass than other immigration reform efforts, however some democrats fear splitting off a popular piece of immigration reform could hurt the chances of a broader reform bill.
  

  “The Congressional Hispanic Caucus doesn’t want us to take one piece, a piece that might be appealing, and leaving the undocumented behind,” Pelosi said at Netroots. She said that’s her sentiment. “If we take off rosier pieces of it, the thought is that it would diminish the prospect for comprehensive immigration reform.”

• John at AMERICAblog Gay once again points out the inconsistency (and inaccuracy) in the argument that the Obama Administration must defend laws it finds unconstitutional.  It’s an important fact check on the claim the administration doesn’t have a choice when it comes to defending DOMA that is too often overlooked by the mainstream press.  Kerry Eleveld at The Advocate also reports that Steve Hildebrand, who served as a top advisor on the Obama campaign doesn’t understand why the administration continues to defend DOMA.
• Florida Attorney General and gubernatorial candidate Bill McCollum described his opposition to allowing gay parents to adopt, the question of whether no parent is better than gay parents (“I don’t believe the gay family model is good for the kids”).  Meanwhile, new research once again confirms that gay parents are just as good as any other parents and goes so far as to call for an end to bans on gay couples adopting.
• Following their action in Las Vegas last week, GetEQUAL staged another protest in the rotunda of the US Capitol today, calling on Speaker Pelosi to push forward on a vote on the Employment Non-Discrimination Act.

The Associated Press covered the story and gave a peculiar (read:inaccurate) description (emphasis added):

U.S. District Judge Joseph Tauro said the law, the Defense of Marriage Act, interferes with the right of a state to define marriage and therefore denies married gay couples some federal benefits. He ruled Thursday in favor of gay couples’ rights in two separate challenges to DOMA, which the administration of President Barack Obama has argued for repealing.

Not sure you’d exactly call last June’s DOMA brief arguing for repeal.  In fact, while Obama called for the repeal of DOMA during the campaign, the White House is now not answering whether or not he finds DOMA to be constitutional and the Justice Department has defended it.  As Joe Sudbay and others have pointed out, the decision to defend DOMA again will create a lot of anger as we approach the 2012 election.

BREAKING NEWS: Boston Federal Judge Strikes Down DOMA!

Better yet?  This judge, who will undoubtedly be called an activist liberal, was appointed by Richard Nixon.

For once, Brown is remotely accurate.  For those who are legally inclined, the ruling is here [.pdf].  For the rest of us, Lisa Keen’s recap is here.

In one challenge brought by the state of Massachusetts, Judge Joseph Tauro ruled that Congress violated the Tenth Amendment to the U.S. Constitution when it passed DOMA and took from the states decisions concerning which couples can be considered married. In the other, Gill v. Office of Personnel Management, he ruled DOMA violates the equal protection principles embodied in the Due Process Clause of the Fifth Amendment.

In Commonwealth of Massachusetts v. Health and Human Services, Tauro considered whether the federal law’s definition of marriage — one man and one woman — violates state sovereignty by treating some couples with Massachusetts’ marriage licenses differently than others. In Gill v. Office of Personnel Management, Gay & Lesbian Advocates & Defenders (GLAD), a gay legal group, asked Tauro to consider whether DOMA violates the right of eight same-sex couples to equal protection of the law…

You may recall a bit of buzz when Senator Kerry supported the challenge from Attorney General Coakley.  The background on the GLAD case is here.  This effort was led by Mary Bonauto, who I’ve praised before.  Here’s the key point fo the challenge:

Section 3 of DOMA applies to the federal government only. It overrides a state’s determination that a same-sex couple is married and says that they are not married for purposes of all federal laws and programs, even though the federal government has always deferred to state determinations of marital status. Under this law, “the word ‘marriage’ means only the legal union of a man and a 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.” This law requires all federal departments and agencies to disrespect the valid state-licensed marriages of same-sex couples but not other married couples. As a result, only married same-sex couples are denied all rights, protections and responsibilities associated with marriage at the federal level [my note: i.e. tax benefits].

And as a slight digression from the excitement here, check out my favorite line from Brown’s email:

Despite the explicit language in DOMA that the law was designed to protect children’s right to their mothers and fathers, the judge disavowed that DOMA has anything to do with responsible procreation.

“Responsible procreation.”  Not sure what that is.  Are two loving individuals who wait to make a conscious effort to have children and raise them engaging in “responsible procreation?”  Or only two people who can produce a child biologically–regardless of their intent to start a family or even see their partner again?  If you want to address “responsible procreation,” don’t come after two people who are making a commitment to each other and jumping through hoops to have children.  Try targeting one night stands or deadbeat dads.

Here’s the quote from the judge’s ruling, via The Family Equality Council, that addresses parenting:

A consensus has developed among the medical, psychological, and social welfare communities that children raised by gay and lesbian parents are just as likely to be well-adjusted as those raised by heterosexual parents. Denying their parents federal benefits of marriage, said the court, “prevent[s] children of same-sex couples from enjoying the immeasurable advantages that flow from the assurance of a stable family structure.

Like all this progress?  Sign the Freedom to Marry Pledge here.

While the law doesn’t apply to same sex partners because of the Defense of Marriage Act, Rep.Carolyn B. Maloney has introduced legislation to expand FMLA to same sex partners.

Rep. Maloney’s efforts here should be praised and encouraged.  The text of the bill is here.  As of today, the following members of the House have signed on as cosponsors–another effort we should all consider when we look to donate to support candidates.  If your member isn’t on this list below, make a quick call or shoot them an email encouraging them to co-sponsor the legislation.  You can find out who your representative is, and their contact information, here.

Rep Ackerman, Gary L. [NY-5] – 5/7/2009
Rep Baldwin, Tammy [WI-2] – 4/28/2009
Rep Berkley, Shelley [NV-1] – 4/30/2009
Rep Capps, Lois [CA-23] – 5/7/2009
Rep Chu, Judy [CA-32] – 4/15/2010
Rep Connolly, Gerald E. “Gerry” [VA-11] – 10/22/2009
Rep Courtney, Joe [CT-2] – 5/19/2010
Rep Cummings, Elijah E. [MD-7] – 10/13/2009
Rep Delahunt, William D. [MA-10] – 4/28/2009
Rep Farr, Sam [CA-17] – 4/28/2009
Rep Frank, Barney [MA-4] – 4/28/2009
Rep Grijalva, Raul M. [AZ-7] – 10/13/2009
Rep Gutierrez, Luis V. [IL-4] – 4/15/2010
Rep Hirono, Mazie K. [HI-2] – 4/28/2009
Rep Israel, Steve [NY-2] – 4/28/2009
Rep Jackson-Lee, Sheila [TX-18] – 10/8/2009
Rep Lee, Barbara [CA-9] – 10/22/2009
Rep Lewis, John [GA-5] – 5/12/2009
Rep Matsui, Doris O. [CA-5] – 6/17/2009
Rep McMahon, Michael E. [NY-13] – 12/3/2009
Rep Meek, Kendrick B. [FL-17] – 4/29/2009
Rep Nadler, Jerrold [NY-8] – 4/28/2009
Rep Norton, Eleanor Holmes [DC] – 3/3/2010
Rep Pastor, Ed [AZ-4] – 9/15/2009
Rep Polis, Jared [CO-2] – 4/28/2009
Rep Sestak, Joe [PA-7] – 6/3/2009
Rep Sherman, Brad [CA-27] – 6/3/2009
Rep Wexler, Robert [FL-19] – 5/20/2009
Rep Woolsey, Lynn C. [CA-6] – 4/28/2009

Among those bringing the lawsuit, considered to be the first serious challenge of the Federal Defense of Marriage Act, or DOMA, are Kathy Bush and Mary Ritchie. When they married in 2004, they thought they would finally get the benefits and protections other couples do, without having to hire lawyers to draw up special contracts to secure everything from their parental rights to health care proxies.

“We said, ‘Wow! We can actually exhale now,’ ” recalls Ritchie. “You know, if someone says the word ‘married,’ everybody knows what that means.”

But it wasn’t long before they discovered that “everybody” did not include the federal government, which is barred by DOMA from recognizing gay marriages. For all federal purposes, Ritchie and Bush are still single. So, for example, if Ritchie, a State Police lieutenant, were killed in the line of duty, Bush would not be eligible for federal benefits available to other widows of law enforcement officers.

Pointing out that the federal government doesn’t interfere with the laws around marriage on any issue other than the gender of the spouses, Andrew Koppelman, a professor at Northwestern University Law School argues that,

The federal government has never taken this step against any other class of marriages in American history.  Not between uncles and nieces, not between blacks and whites, not between young teenagers. Never, ever before.

The case is being argued by Mary Bonauto, of Gay & Lesbian Advocates & Defenders (GLAD), who has played a leading role in the fight for marriage equality in Maine.  A clip from one of the most memorable moments of the Maine debates (in my humble opinion) is below.

If Polis were from a state that recognizes same-sex marriage, I can’t help but wonder if this would be a case that could challenge the Defense of Marriage Act in the courts in a way that would certainly grab headlines.  Polis v. the United States would be quite the case to watch.

Here is the long and short of the effort:

We are asking voters to pledge to withhold contributions to the Democratic National Committee, Organizing for America, and the Obama campaign until the Employment Non-Discrimination Act (ENDA) is passed, Don’t Ask Don’t Tell (DADT) is repealed, and the so-called Defense of Marriage Act (DOMA) is repealed -– all of which President Obama repeatedly promised to do if elected.

Here’s my take: I think the idea of pausing in our donations is a great one.  However, it does mean that we need to be more informed about the individuals to whom we should direct our donations (which we really should do anyway…).  People like Rep. Chellie Pingree Sen. Kirsten Gillibrand and Rep. Patrick Murphy who have been incredibly strong leaders and advocates for equality issues.  Groups like the Victory Fund can also help us identify these politician.  The key is that we keep giving in the mean time, just not through OFA or the DNC.

Do I agree with all the reasoning behind the fundraising “pause?”  No.  If you look back at my posts since I began blogging here, you’ll see that I disagreed pretty strongly with some of the complaints listed at AMERICAblog.  Given the extraordinary times we’re witnessing right now, I give Obama a bit more wiggle room than some.  However, the DNC and OFA have made some big faux pas.  ESPECIALLY their silence on Question 1.

The only other qualifier I’d add to my support for this “pause” is the point at which I’ll start donating again.  I’m on board until 2 of these three happen.  Again, these are all long overdue steps, but we live in extraordinary times.  One important step has already been taken in the signing of federal Hate Crimes Legislation, and I don’t think that should be overlooked.  I don’t consider this settling; I think it’s a sad reality and I recognize the huge strides that will have been made with the passage of any two of these.

You can sign up here.

Part 2:

“The President has long opposed divisive and discriminatory efforts to deny rights and benefits to same-sex couples, and as he said at the Human Rights Campaign dinner, he believes ‘strongly in stopping laws designed to take rights away.’ Also at the dinner, he said he supports, ‘ensuring that committed gay couples have the same rights and responsibilities afforded to any married couple in this country.’”

Jeremy at Good As You isn’t impressed.  The folks over at AMERICAblog are.  I’m somewhere in between.

Whenever people call on Obama to speak on the topic of gay marriage I get nervous.  Having said that he opposes the word marriage, I expect it to be a lose/lose.  He’s (politically understandably) forced to offer something less than full-throated support, and that can be twisted like it was in the Prop 8 campaign:

Prop 8 Flier

I think this statement from the White House, without video of Obama speaking the words, was safe and, while it won’t have much impact, it prevents his words from being misused.  I think it will effectively prevent another ad like the mailer above, but I don’t think it will convince anyone to support equality. Considering I was worried about something in this vein, the statement is definitely a good thing in my book.

On this note, I genuinely don’t believe that Obama–as a constitutional law professor, progressive politician and former supporter of marriage equality–opposes marriage equality and I think this is his way of ducking an issue that has historically been used as a wedge issue.  For me, a solid push to repeal DOMA from Obama would be the best we can hope for now because it will help break down the walls that DOMA puts up around these states that have created havens of equality.

The Defense of Marriage Act was passed in 1996 as a response to a Hawaii Supreme Court decision, which applied strict scrutiny to the sexual orientation class.  As it appeared Hawaii would legalize same-sex marriage, DOMA was intended to shield other states from being forced to recognize Hawaii’s same sex-marriages.  The act allows states to recognize out of state same sex marriages, but definitively notes that states are not forced to.  DOMA also defines “marriage” as reserved for opposite sex couples on the federal level.

Within the federal courts, judges have refused to create precedent on the law, and the Supreme Court has consistently refused to review it–essentially deferring to Congress on the matter.   With President Obama’s known (but slow to act) opposition to the law and Democrats controlling both houses of Congress, this reluctance might be a blessing in disguise.  If the court were to rule on DOMA, with its conservative make up, it could strike a significant blow to gay marriage.  Allowing time to pass before the court addresses DOMA could allow either Congress to repeal the act, or the make-up of the Court to change.

Because of the reluctance of the Court to review DOMA it is unlikely that Massachusetts’ recent lawsuit will ever see the High Court Docket, but just in case, here are the main arguments against it:

Fundamental Liberty Interest–Marriage has been defined by the court in Loving v. Virginia as “one of the ‘basic civil rights of man,’ fundamental to our very existence.”  An argument could be made that DOMA restricts this right and should be held to a strict scrutiny test.  With the implication in Lawrence that morality is no longer a legitimate government interest, its holding could be extended to wipe out DOMA as unconstitutional.

The Iowa Approach–Just like in Iowa, where they classified sexual orientation with an intermediate scrutiny, an argument could be made following Lawrence that sexual orientation as a class prompts a higher level of scrutiny and therefore DOMA should be ruled unconstitutional.

Full Faith and Credit–Article IV Section 1 of the Constitution requires that states recognize, “public acts, records, and judicial proceedings” of the other states.  This would seem to include marriage licenses as it includes other types of licenses and contracts.  DOMA’s wording inherently contradicts this clause of the constitution and is perhaps the most obvious argument against the constitutionality of DOMA.