• 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.

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.

“I’m accustomed to discrimination, I suppose, at my age and my experience as a gay woman, but I didn’t expect it against my child.”

Now it appears that the Boston Archdiocese is distancing itself from the school’s position.

Spokesman Terry Donilon said the archdiocese has no prohibition against same-sex couples sending their children to Catholic schools.

Further, it has drawn the attention of state Representative Garrett J. Bradley.  Bradley commented to the Globe:

“These parents thought enough of St. Paul’s to want to send their child there; St. Paul’s thought enough of their child to admit him. For the school to then discriminate against him and withdraw his acceptance because of his parents’ sexual orientation is not only inappropriate, but mind-blowing.  Shame on St. Paul’s, and shame on us as a community if we allow it.”

Here’s hoping that once the Archdiocese has reviewed the case they’ll say not just say it’s not their policy, but they’ll say it’s wrong.

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.

The whole segment is worth a watch here–Maddow concisely discusses what reform means (and when) and nails the new politics around health reform.

ht George

I’m naturally an optimist, but here is why I say this.  Yes, this has the potential to derail many of Obama’s plans, including health reform.  Oddly though, it seems that people have already forgotten what this administration has faced to date.  First, we relied on moderates like Susan Collins, Olympia Snow and Arlen Specter for passage of the stimulus.  Then Specter switched parties which gave the Democrats “60″ votes.  How much good did that do?

When came time to debate health reform we faced Olympia Snowe’s central role in getting a bill out of the Finance Committee which fell short of what progressives had outlined.  Then what happened?  Democrats got Liebermaned (I think I’m coining that).  After that?   We were put in a full (Ben) Nelson.  As Matt Yglesias points out, even Democrats who didn’t cause problems for health reform obstruct other progressive policies.

My point is only that having 60 Senators caucusing with the Democrats has produced some less than desirable results.  I get the incredibly sad irony that it was Kennedy’s seat that is torpedoing the (relatively) comprehensive health reform we thought we had.  It’s also tough to see exactly what reforms will end up passing.  I’ll leave that to people who have a better whip count.  It will inevitably be less than I want, but it should still be something.

One other observation:

I’ve heard a lot of grumbling now that issues of LGBT rights have no chance of passing now.  I have to wonder though, what did the 60 vote supermajority get us before?  The Hate Crimes Bill passed with bipartisan support because it was folded into the defense authorizations bill.  Other than that?  We’re not looking at much success.  A repeal of Don’t Ask, Don’t Tell?  Not passed.  The Employment Non-Discrimination Act?  Still waiting.

My point isn’t to say that it can’t get worse, so we shouldn’t bother.  My point is to say that we need to stop thinking of and describing some of these issues as “progressive” issues that will only pass when Democrats can drive it through.  The repeal of DADT is supported by a majority of Americans.  Further, the Employment Non-Discrimination Act has bipartisan support in the Senate and House.  We may not get the leadership we’d hope for from the White House, should they decide to play it safe for the midterms, but it is not unfathomable to imagine it being pushed through without White House leadership.  Sure, support from Democrats is often easier than Republicans, but we shouldn’t completely write off all Republicans.  The pressure needs to be felt by Reid and Pelosi.  Will we get a repeal of the Defense of Marriage Act?  No.  Could movement be made on DADT or ENDA?  I don’t think we should give up.

UPDATE: Worth a comparison (again, via Good As You):