Tuesday, March 22, 2011

DOMA and Federalism Event at Indiana University School of Law

Mary Healey A "mini-symposium" on April 7, 2011, starting at 3pm, will feature a lecture on "One State's Challenge to the Defense of Marriage Act" by Maura Healey, Chief, Civil Rights Division, Massachusetts Attorney General's Office. 

Healy (pictured right) will be speaking about Massachusetts' successful constitutional challenge to section 3 of DOMA; Judge Tauro found that section 3 "offends" the Tenth Amendment reasoning that marriage is a quintessential matter of state, and not federal, power.

Healy's talk will be followed by a panel discussion, moderated by Steve Sanders, and including:

  • Thomas M. Fisher, Solicitor General, State of Indiana
  • Dawn Johnsen, Walter W. Foskett Professor, Indiana University Maurer School of Law, and former Deputy Assistant Attorney General, U.S. Department of Justice
  • Brian Powell, Rudy Professor of Sociology, Indiana University College of Arts & Sciences and co-author of Counted Out: Same-sex Relations and Americans' Definitions of the Family
  • Deborah Widiss, Associate Professor, Indiana University Maurer School of Law

More information about the event and its webcast available here.


March 22, 2011 in Conferences, Family, Fundamental Rights, Gender, Sexual Orientation, Spending Clause, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 16, 2011

Is DOMA's Demise Imminent?

The judicial finding that the Defense of Marriage Act is unconstitutional, preceded by DOJ's vigorous defense of DOMA in another case, some waffling, and then the announcement that the DOJ will not defend the constitutionality of DOMA, which some characterized as a constitutional crisis,  has seriously compromised the future of DOMA.  

Bill DOMA REPEAL Today, Senator Dianne Feinstein introduced the Respect for Marriage Act of 2011, which would repeal DOMA and change the federal law to provide:

§ 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.

Feinstein was joined by co-sponsors Patrick Leahy (D-Vt.), Kirsten Gillibrand (D-N.Y.), John Kerry (D-Mass.), Barbara Boxer (D-Calif.), Chris Coons (D-Del.), Ron Wyden (D-Ore.), Frank R. Lautenberg (D-N.J.), Richard Blumenthal (D-Conn.), Jeff Merkley (D-Ore.), Dick Durbin (D-Ill.), Al Franken (D-Minn.), Patty Murray (D-Wash.), Sheldon Whitehouse (D-R.I.), Charles Schumer (D-N.Y.), Mark Udall (D-Colo.), Jeanne Shaheen (D-N.H.), Dan Inouye (D-Hawaii), and Daniel Akaka (D-Hawaii).

 The precusor Respect for Marriage Act was previously introduced in 2009.

With considerably less fanfare, the State Department has amended its policy to include same-sex partners of foreign service employees. (H/T Professor Janet Calvo).  Here is an excerpt from the State Department's explanation of the process:

Scenario Three: American Foreign Service Employee Partners with Same-Sex American or non-American

Amending the Orders: To add your same-sex domestic partner to your orders, you will need to provide your HR Assignment Technician with an updated Foreign Service Residence and Dependency Report (OF-126), a completed affidavit Pursuant to Declaring Domestic Partner Relationship (DS-7669 ), and a medical clearance. The DS-7669 affidavit should be submitted to the State Department’s Bureau of Human Resources, Office of the Executive Director, Assignment Support Unit (HR/EX/ASU). As soon as your HR Assignment Technician has all of these documents, he/she can process your orders. Guidance can be found at 3 FAM 1600. In addition, if your partner is not a U.S. citizen, please note procedures outlined in 12 FAM 275 – Reporting Cohabitation with and/or Intent to Marry a Foreign National (http://www.state.gov/documents/organization/88344.pdf) or contact HR/CDA.

For non-US partners, this will include an alteration of the immigration policies, to include a same-sex partner that would not be included ordinarily:

Foreign-born partners holding non-U.S. passports: If your new partner is not an American citizen, he/she may be able to enter the U.S. on a J-1 visa. In February, 2011, the Department designated the Bureau of Human Resources as an Exchange Visitor Program (J-1 visa) sponsor for a government visitor program under which non-US-citizen same-sex domestic partners (SSDP) of members of the Foreign Service may be eligible to come to the United States during their partners' domestic assignments. . . . 

Strictly speaking, this process is not barred by DOMA, but it does cast even more doubt on the federal government's committment to enforcing DOMA.

Meanwhile, earlier this month Speaker of the House John Boehner issued a statement entitled House Will Ensure DOMA Constitutionality Is Determined By The Court:

“Today, after consultation with the Bipartisan Leadership Advisory Group, the House General Counsel has been directed to initiate a legal defense of this law.  This action by the House will ensure that this law’s constitutionality is decided by the courts, rather than by the President unilaterally.”


March 16, 2011 in Courts and Judging, Current Affairs, Executive Authority, Family, Federalism, Foreign Affairs, Fundamental Rights, Gender, News, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Thursday, March 3, 2011

Libby Adler's Rights Critique, Law Reform, and Responses

Harvard Civil Rights - Civil Liberties Journal has held an online forum on Professor Libby Adler’s piece (available on the forum) entitled “Gay Rights and Lefts: Rights Critique and Distributive Analysis for Real Law Reform." 

  Harvard Civil Liberties-Civil Rights
Adler, author of The Gay Agenda, here argues for a "critical approach to law reform agenda setting," with a methodology that


rests on a distinction between reconstruction and decisionism. Decisionism, according to my usage, consists of making difficult choices about which law reform initiatives to undertake based on broadly informed distributional hypotheses and cost-benefit calculations and then acting on the best information one can get with the best judgment one can muster, always prepared to bear the costs of one’s choices. Each law reform achievement, should it materialize, rather than being a step along a path in the direction of a lodestar such as formal equality, will—one hopes—effectuate a positive distributive impact for marginalized persons while imposing bearable costs. As a theoretic matter, the achievement is likely to be generalizable only to a limited extent, if at all. In other words, it will not necessarily further any overarching theoretic objective

Twelve invited commentators respond to Libby Adler's advocation of  “decisionism" including Angela Harris, Art Leonard, Aziza Ahmad, Francisco Valdes, Katherine Franke, Nancy Polikoff, Darren Rosenblum, Sarah Valentine, and Anthony Varona. 

Adler's piece and the comments demonstrate that the problem of "rights" in constitutional law remain a persistent issue, as well as the problems of "equality" and "identity."  

This forum could be an excellent basis for discussion in a constitutional law seminar or a jurisprudence class.

A "live" Colloquium will be held on March 9, 2011 at 5-7p.m. at Harvard Law School in Austin North.


March 3, 2011 in Conferences, Current Affairs, Gender, Profiles in Con Law Teaching, Race, Sexual Orientation, Sexuality, Teaching Tips, Theory | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 1, 2011

Does the Obama DOJ's Position on DOMA Create a Constitutional Crisis? Redux

The DOJ's decision not to defend the constitutionality of DOMA, but to continue to enforce DOMA, is being illustrated in a few examples, such as that of Karen Golinski, the lawyer who works for the Ninth Circuit Court of Appeals as the ABA Journal noted.  An excellent overview by Aziz Huq over at Slate compares Golinski's situation to that of a few others who the DOJ decision might assist.

As for the unprecendented "constitutional crisis" character of the DOJ's decision not to defend the law, Nina Totenberg at NPR offers some historical perspective:

While the administration's DOMA shift is unusual, it is not rare. It has happened more than a dozen times since 2004 and many more in the past 60 years, including in some very important cases.

  • During the Eisenhower, Kennedy and Truman administrations, the presidents, in one form or another, refused to defend separate-but-equal facilities in schools and hospitals.
  • The Ford Justice Department refused to defend the post-Watergate campaign finance law, much of which was subsequently upheld by the Supreme Court.
  • The Reagan administration refused to defend the independent counsel law, a law subsequently upheld by the Supreme Court by a 7-to-1 vote.
  • It also refused to defend the one-house legislative veto of many executive actions; in that case, the administration was more successful, winning 7-2 in the Supreme Court.
  • The Clinton administration refused to defend a federal law mandating the dismissal of military personnel who were HIV-positive.
  • The George W. Bush administration refused to defend a federal law that denied mass-transit funds to any transportation system that displayed ads advocating the legalization of marijuana.
  • And in the George H.W. Bush administration, the Justice Department refused to defend a federal law providing affirmative action in the awarding of broadcasting licenses — a law subsequently upheld by the Supreme Court by a narrow 5-4 vote. Solicitor General Kenneth Starr was recused in the case, so the lead counsel for the government in the case was Starr's deputy, a fellow by the name of John Roberts, now the chief justice of the United States.


Listen to broadcast here: 20110301_me_17



March 1, 2011 in Courts and Judging, Executive Authority, Family, History, News, Sexual Orientation, Sexuality, Theory | Permalink | Comments (0) | TrackBack (0)

Friday, February 25, 2011

The Obama DOJ's Position on DOMA: Constitutional Crisis or Constitutional Opportunity?

The Obama DOJ's announcement that it will no longer defend the constitutionality of the Defense of Marriage Act has provoked a range of reactions.

New Gingrinch, in the video below (via) states that the president "is not a one-person Supreme Court" and that

the House Republicans next week should pass a resolution instructing the president to enforce the law and to obey his own constitutional oath, and they should say if he fails to do so that they will zero out [defund] the office of attorney general and take other steps as necessary until the president agrees to do his job."

Gingrich continues:
“I don’t think these guys set out to create a constitutional crisis. I think they set out to pay off their allies in the gay community and to do something that they thought was clever. I think they didn’t understand the implication that having a president personally suspend a law is clearly unconstitutional.”



Attorney General Holder anticipates such arguments in his original letter to Congress:

the Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense, a practice that accords the respect appropriately due to a coequal branch of government.   However, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because the Department does not consider every plausible argument to be a “reasonable” one.   “[D]ifferent cases can raise very different issues with respect to statutes of doubtful constitutional validity,” and thus there are “a variety of factors that bear on whether the Department will defend the constitutionality of a statute.”   Letter to Hon. Orrin G. Hatch from Assistant Attorney General Andrew Fois at 7 (Mar. 22, 1996).   This is the rare case where the proper course is to forgo the defense of this statute.   Moreover, the Department has declined to defend a statute “in cases in which it is manifest that the President has concluded that the statute is unconstitutional,” as is the case here.   Seth P. Waxman, Defending Congress, 79 N.C. L.Rev. 1073, 1083 (2001).

Steve Sanders on the U Chicago Law School Faculty Blog supports the DOJ analysis; Tony Infanti discusses the tax consequences and Sheila Velez Martinez discusses the immigration aspects over at Feminist Law Professors. 


February 25, 2011 in Congressional Authority, Current Affairs, Executive Authority, Family, Full Faith and Credit Clause, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 23, 2011

Obama DOJ: Holder Announces DOMA will Not be Defended because it is Unconstitutional

Eric Holder, Attorney General of the United States, informed Congress today that "After careful consideration, including review of a recommendation from me, the President of the United States has made the determination that Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment."  

Holder's letter is worth reading in full.  It contains a lengthy and substantive discussion of the law, focusing on equal protection theory and doctrine to support this conclusion:

After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a heightened standard of scrutiny.  The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional.

Nevertheless, the letter states that DOMA will continued to be enforced by the Executive branch.

Holder also issued a Statement which outlines the arguments and conclusions.

This is a reversal of earlier policy in which the DOJ appealed a district judge's opinion that DOMA was unconstitutional.  And it is quite different from the DOJ defense of DOMA in which the Obama Administration argued "DOMA is rationally related to legitimate government interests and cannot fairly be described as "born of animosity toward the class of persons affected.""

Holder will now "instruct Department attorneys to advise courts in other pending DOMA litigation of the President's and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3."






February 23, 2011 in Congressional Authority, Current Affairs, Equal Protection, Family, Fifth Amendment, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)

Thursday, February 17, 2011

Lawrence in Louisiana: Lawsuit Challenges Sex Offender Registration Scheme

In the landmark case of Lawrence v. Texas, the United States Supreme Court held a statute criminalizing sodomy violated due process as guaranteed by the Fourteenth Amendment.  The opinion specifically noted that the case did not involve commercial sex.  800px-Rue_Bourbon_street

But may a state constitutionally punish commercial sex involving sodomy more severely than commercial sex generally?

The complaint in Doe v. Jindal contrasts two types of commercial sex offenses:  the "Crime Against Nature by Solicitation" statute criminalizes solicitation of "unnatural carnal copulation for compensation;"  the general prostitution statute criminalizes solicitation of "indiscriminate sexual intercourse" for compensation.  Because of the broad definition of "sexual intercourse," the general prostitution statute actually includes any act punishable by the more narrow  "unnatural carnal copulation" statute.

However, the punishment for two statutes is not identical, even after recent amendments.  Additionally, only convictions under one of these statutes requires registration as a sex offender.  According to the complaint, Louisiana is the only state that requires sex offender registration for any solicitation offense.

The complaint alleges that this statutory scheme is a denial of equal protection, due process, and the Eighth Amendment.  While due process may be the most obvious claim after Lawrence, recall O'Connor's concurring opinion in Lawrence on equal protection grounds and recall  Powell's concurring opinion in Bowers v. Hardwick (the case Lawrence overruled) raising the specter of the Eighth Amendment.

More information about the lawsuit is here and here.


February 17, 2011 in Due Process (Substantive), Equal Protection, Fourteenth Amendment, Privacy, Sexual Orientation, Sexuality | Permalink | Comments (1) | TrackBack (0)

Monday, February 14, 2011

Constitutional Right to Same-Sex "Divorce"

394px-Broken_Heart_symbol.svg Jurisdictions that do not recognize same-sex marriages or civil unions have nevertheless been sites of petitions for divorce or dissolution of a legal status granted in another jurisdiction.  In an article forthcoming in California Western International Law Journal, Professor L. Lynn Hogue argues that such a denial is unconstitutional.

Hogue's article is entitled The Constitutional Obligation To Adjudicate Petitions for Same-Sex Divorce and the Dissolution of Civil Unions and Analogous Same- Sex Relationships: Prolegomenon to a Brief, and is available on ssrn here.  He bases his argument on what he terms a "trifecta" of three cases: Williams v. North Carolina, 317 U.S. 287 (1942), which considers the validity of migratory divorce, Boddie v. Connecticut, 401 U.S. 371 (1971), holding unconstitutional a mandatory filing fee for divorce, and Hughes v. Fetter, 341 U.S. 609 (1951), a less well known case discussing the Full Faith and Credit Clause.   Hogue concludes that this "trifecta,"  which he amplifies with a host of other cases, must prevail over Congress' Defense of Marriage Act and state jurisdictional rules.

It's a succinct argument suitable for Valentine's Day reading.


February 14, 2011 in Family, Federalism, Scholarship, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Friday, January 28, 2011

France's Constitutional Court Upholds Ban of Same-Sex Marriage

CC France The Conseil Constitutionnel of France rejected a challenge to France's limitation of marriage to a man and a woman.

In a relatively brief (by US standards) and long anticipated opinion (English translation),  the court reasoned that the issue of equality - - - or not - - - between same-sex couples and opposite sex couples is one for the legislature and the court should not "substitute" its own judgment.  The French opinion provides:

estimé que la différence de situation entre les couples de même sexe et les couples composés d'un homme et d'une femme peut justifier une différence de traitement quant aux règles du droit de la famille ; qu'il n'appartient pas au Conseil constitutionnel de substituer son appréciation à celle du législateur sur la prise en compte, en cette matière, de cette différence de situation....

This reasoning is familiar to those who have read other cases, in the US and elsewhere, that have rejected challenges to excluding same-sex couples from marriage.

France has had same-sex civil unions since 1999, but the status lacks the parental and inheritance rights accorded to married couples.


January 28, 2011 in Comparative Constitutionalism, Family, Opinion Analysis, Sexual Orientation | Permalink | Comments (2) | TrackBack (0)

Thursday, January 20, 2011

Iowa District Judge Pratt Dismisses Challenge to Iowa Judicial Selection

 On November 2, 2010, three Iowa Supreme Court justices stood for retention and were not retained by the voters of Iowa.  This result is widely assumed to be attributable to the campaign against the judges based upon the Iowa Supreme Court's unanimous opinion in Varnum v. Brien holding that a denial of same-sex marriage is unconstitutional under the state constitution. 


Filling those vacancies under the state constitutional process is done by the State Judicial Nominating Commission which accepts applications and create a list of three nominees for each vacancy for the Governor's appointment.  The Commission has 15 members, 7 of whom were appointed and 7 of whom were elected by members of the Iowa Bar, as well as the chair who is the Iowa Supreme Court justice “who is senior in length of service on said court, other than the chief justice."

The gravamen of the complaint is that the plaintiffs, who are not members of the Iowa Bar, are denied their Equal Protection rights and their voting rights because they are excluded from participating in the elections of the elective members of the Commission.

In a 35 page opinion Judge Pratt dismissed the Complaint.  He stated:

At base, Plaintiffs are asking this Court to recognize an entirely new substantive Fourteenth Amendment right.  The Court declines Plaintiffs’ invitation to do so.  It not the business of the federal courts “to create substantive constitutional rights in the name of guaranteeing equal protection of the laws.”  See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 33 (1973).  That is especially true, where, as here, Plaintiffs have failed to provide adequate legal support for their asserted “right to equal participation.”  The Court concludes that Plaintiffs do not have a right, let alone a fundamental right, to “equal participation” in the selection of state court judges—at least not as that “right” is conceptualized by Plaintiffs.

Interestingly, Pratt's language reverberates with the very accusations that were lodged against the unretained Iowa judges - - - creating new substantive rights and essentially being "activist."  The complaint was filed on behalf of four Iowans by James Bopp, Jr.

Judge Pratt's opinion analyzes whether or not the members of the Commission are representative of any constituencies and concludes they are not. His conclusion is straightforward:

Undoubtedly, the right to vote for political representatives is the bedrock of American
democracy.  In this case, however, Plaintiffs are asking the Court to radically expand the scope of this fundamental right beyond all existing precedent and to recognize an entirely new Fourteenth Amendment “right” to greater influence in the selection of judges.  Their claims, therefore, are fatally flawed.  Plaintiffs may prefer that Iowa had a different method of judicial selection, but absent a violation of a clearly-established constitutional right, the people of Iowa are entitled to retain the judicial selection system they chose in 1962.

According to the Iowa Judicial Nominating Commission, more than 60 candidates have filed applications (and supporting materials) for the 3 vacancies.

Relatedly, there have been proposals to impeach the remaining Justices who joined the unanimous opinion in Varnum v. Brien: Press Release from Iowa representative here; Des Moines Register reporting here; NYT editorial here.


January 20, 2011 in Courts and Judging, Current Affairs, Elections and Voting, Equal Protection, Sexual Orientation, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Monday, December 6, 2010

Prop 8 Perry v. Schwarzenegger Oral Argument in Ninth Circuit

The extensive oral argument in Perry v. Schwarzenegger has just concluded before a panel of the Ninth Circuit.  In Perry, federal district judge Walker found California's Proposition 8 unconstitutional, and the case is on appeal under an expedited schedule. 

Picture 2 16-06-20
Today's oral argument was scheduled for an hour on the issue of standing and an hour on the merits. 

The two hour and 45 minute video from C-SPAN, with an uncorrected transcript, is available here.


December 6, 2010 in Cases and Case Materials, Current Affairs, Family, Fourteenth Amendment, Fundamental Rights, Sexual Orientation, Standing | Permalink | Comments (0) | TrackBack (0)

Thursday, December 2, 2010

Proposition 8 Appeal in Ninth Circuit: Updates and Recusal Controversies

Perry v. Schwazenegger, in which a federal district judge found California's Proposition 8 unconstitutional, is on appeal to the Ninth Circuit, under an expedited schedule and including the issue of the standing of the proponents.  

The three judge panel, pictured below, was announced by the Ninth Circuit Monday. 


The proponents quickly filed a motion to disqualify Judge Reinhardt alleging:

Judge Reinhardt is married to Ramona Ripston, the long-time Executive Director of the
ACLU of Southern California.  As Executive Director, Ms. Ripston is “responsible for all phases of the organization’s programs, including litigation, lobbying and education.”
Under Ms. Ripston’s leadership, “ACLU/SC has taken a lead role” in what it calls “the fight to end marriage discrimination” in California.

The motion relies on statutory grounds for disqualification and does not make a due process argument relying on Caperton v. Massey Coal Co.

Judge Reinhardt quickly issued an order denying the motion.  The order in full provides:

Before: REINHARDT, Circuit Judge:
I have before me defendants-intervenors-appellants’ motion to disqualify myself from this appeal. I have not hesitated to recuse from cases in the past when doing so was warranted by the circumstances. See Khatib v. County of Orange, 622 F.3d 1074, 1074 (9th Cir. 2010); Mohamed v. Jeppesen Dataplan, Inc., 586 F.3d 1108, 1109 (9th Cir. 2009); Buono v. Kempthorne, 527 F.3d 758, 760 (9th Cir. 2008); Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 913, 914 (9th Cir. 2003); Valeria v. Davis, 320 F.3d 1014, 1015 n.** (9th Cir. 2003); Alvarez-Machain v. United States, 284 F.3d 1039, 1039 n.1 (9th Cir. 2002); Coalition for Econ. Equity v. Wilson, 122 F.3d 692, 711 (9th Cir. 1997).

Here, for reasons that I shall provide in a memorandum to be filed in due course, I am certain that “a reasonable person with knowledge of all the facts would [not] conclude that [my] impartiality might reasonably be questioned.” United States v. Nelson, 718 F.2d 315, 321 (9th Cir. 1983); see also Sao Paulo State of the Federated Republic of Brazil v. Am. Tobacco Co., 535 U.S. 229, 233 (2002) (per curiam). I will be able to rule impartially on this appeal, and I will do so. The motion is therefore DENIED.

The Ninth Circuit announced in a press release that the panel has "given consent for live broadcast of the proceeding, which is scheduled to air on C-SPAN. In addition, the court will distribute a live audio/video feed from the courtroom to remote viewing locations across the country, including some of the nation’s top law schools."

The Ninth Circuit has also established a special website for the case.


December 2, 2010 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Gender, News, Sexual Orientation, Sexuality, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 30, 2010

Don't Ask, Don't Tell Report: Recommendations for Repeal of Military Policy

The Report of the Comprehensive Review of the Issues Associated with a Repeal of "Don't Ask, Don't Tell" has just been issued by the Department of Defense.   Department-of-Defense-logo1

In its 250plus pages, the report concludes that the overall effect of a repeal of the "don't ask don't tell" policy on military effectiveness is low. 

The Report has a number of recommendations necessary - - - or unnecessary - - - to effectuate the repeal:

  • Leadership - strong leadership, a clear message, and proactive training and education are necessary  ("In our view, the starting point for this message should be a written communication
    from the leaders of the Department of Defense, to include the Secretary of Defense and the
    senior military leaders of each Service, that deliver their expectations in clear and forceful
  • Standards of Conduct - revised regarding dating and public displays of affection
  • Moral and Religious Concerns - recognition of pluralism, but not necessary to change policies to guarentee religious freedom or chaplain's regulations.
  • Equal Opportunity -  the Department of Defense should NOT place sexual orientation alongside race, color, religion, sex, and national origin as a class eligible for various diversity programs, tracking initiatives, and the Military Equal Opportunity program complaint resolution processes.
  • Collection and Retention of Sexual Orientation Data - the Department of Defense should continue to NOT seek such data
  • The Uniform Code of Military Justice - the Congressional repeal of Article 125 which criminalizes sodomy, and amend Article 120 of the UCMJ362 to include forcible sodomy and sodomy offenses against children. 
  • Privacy and Cohabitation - the Department of Defense should expressly prohibit berthing or billeting assignments or bathroom facilities assignments based on sexual orientation, except that commanders should retain the authority to alter berthing or billeting assignments on an individualized, case-by-case basis, in the interest of maintaining morale, good order, and discipline, and consistent with performance of mission.
  • Benefits - many benefits to same-sex partners are prohibited under the Defense of Marriage Act, however for some benefits, such as housing and legal services, the Department of Defense and the Services should review the benefits in this category and assess whether they can be extended to same-sex partners
    in accordance with  “member-designated” benefits rather than spousal benefits.
  • Duty Assignments - the Department of Defense and the Services should not, at this time, rewrite their
    regulations to specifically accommodate same-sex committed relationships for purposes of duty assignments. However, gay and lesbian Service members in committed relationships— with either a civilian or a military partner—should be able to make an individualized, hardship-based request for accommodation in assignment.
  •  Medical - there need not be any change in policies regarding HIV
  • Re-Accession - Service members previously separated on the basis of homosexual conduct to be should be considered for re-entry, assuming they qualify in all other respects.
  • Release from Service Commitments - For those who object to serving with gay and lesbian servicemembers, this shall not constitute a ground for voluntary discharge.

The much anticipated Report occurs against a backdrop of federal courts finding the Don't Ask, Don't Tell policy unconsitutional.


November 30, 2010 in Congressional Authority, Current Affairs, News, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Saturday, November 13, 2010

DADT: The Supreme Court and the Status Quo

Navy_Nurse As expected, in a brief order on Friday the United States Supreme Court has refused to vacate the Ninth's Circuit's Stay of District Judge Virginia Phillips' injunction against enforcement of the military's "don't ask don't tell" (DADT) policy regarding "homosexuality" in the military on the grounds that it is unconstitutional.

Justice Kagan did not participate in the Supreme Court's deliberations.

Meanwhile, initial descriptions by WaPo regarding a soon-to-be released 370 page report by a Pentagon study group support a conclusion that eliminating DADT would not impede government interests:  "More than 70 percent of respondents to a survey sent to active-duty and reserve troops over the summer said the effect of repealing the "don't ask, don't tell" policy would be positive, mixed or nonexistent."  


[image "Navy Nurse" circa WWII via]

November 13, 2010 in Current Affairs, Equal Protection, First Amendment, News, Sexual Orientation, Speech | Permalink | Comments (1) | TrackBack (0)

Tuesday, November 9, 2010

Two (more) challenges to DOMA

As the two decisions by Judge Joseph Tauro declaring section 3 of the Defense of Marriage Act (DOMA) are on appeal and being defended by the Obama DOJ, two more challenges were filed today. 

The complaint in Pedersen v. Office of Personnel Management is filed in the District of Connecticut on behalf of five same-sex couples and one survivor of a same-sex couple in Connecticut, New Hamshire and Vermont. The injuries include denials of federal employees and retirees benefits, Social Security benefits, survivor benefits under federal pension laws, and work leave to care for a spouse under the Family Medical Leave Act.  

The complaint in Windsor v. United States is filed in the Southern District of New York on behalf of the survivor of a same-sex couple in New York who were married in Canada.  Windor seeks a refund of estate taxes paid because the marriage was not recognized by the federal government. 

Both complaints argue DOMA section 3 is a denial of equal protection.  In Judge Tauro's decision in Gill v. Office of Personnel Management, he applied rational basis and found that the government interests - - - the interests used to support the original 1996 DOMA statute and the interest of maintaining the status quo used by the OBAMA DOJ to support the litigation - - - were problematic.  

Two additional judges will be deciding whether or not they agree. 

And, as the NYT reports, the Obama DOJ will have to decide whether to continue its support of DOMA despite some indications to the contrary. 



November 9, 2010 in Equal Protection, Family, Federalism, Fourteenth Amendment, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Sunday, October 31, 2010

Federalism, Marriage, Perry and DOMA: Sanders on States Amicus Brief

Steve Sanders has posted an interesting commentary on the amicus brief filed by thirteen states in Perry v. Schwarzenegger, the Proposition 8 case now in the Ninth Circuit, which we last discussed here.

Sanders points to the inconsistency in the arguments in this amicus brief with the appeal in Commonwealth of Massachusetts v. HHS, the DOMA case in which the district judge agreed that DOMA conflicts with the Massachusetts' Tenth Amendment reserved powers.   He writes that these 13 states are "unlikely to link arms with Massachusetts," because given "the choice between a consistent position in favor of states' rights over marriage, or a consistent position against recognition of same-sex marriages by any level of government, it is predictable that they will choose the latter."  

The Tenth Amendment argument in the Massachuetts DOMA case also poses consistency issues for those relying on the Tenth Amendment in the context of challenges to Arizona's immigration law, SB 1070.


October 31, 2010 in Family, Federalism, Sexual Orientation, Tenth Amendment | Permalink | Comments (1) | TrackBack (0)

Wednesday, October 27, 2010

Court Conclusions of Unconstitutionality and Government Decisions to Appeal

The Obama DOJ's footnote one in the Emergency Motion appealing the district judge's injunction of the military's "don't ask, don't tell" policy states the DOJ has a "longstanding practice of defending the constitutionality of federal statutes."   But is that really true? 

120px-Doj In an excellent column published today, Tony Mauro thinks not.  He contends that the DOJ has declined to defend the constitutionality of a federal statute "at least 13 times" since 2004.   Indeed, Mauro relates that as recently as June, the Obama DOJ decided not to appeal the D.C. Circuit's opinion in SpeechNow.org v. FEC that declared unconstitutional two provisions of the Federal Election Campaign Act of 1971 limiting contributions to political committees.   Mauro also provides some other examples that are staples of ConLaw: Buckley v. Valeo (1973) and INS v. Chadha (1983).

Additionally, the stated (if untrue) DOJ policy to defend is in contrast with recent decisions in some states not to defend a statute.  Florida, for example, recently chose not to appeal a decision that its homosexual adoption ban was unconstitutional.   In California, the Governor and the Attorney General both chose not to defend Proposition 8 in a challenge to its constitutionality, and then chose not to appeal the judge's decision.

Meanwhile, the Obama DOJ has filed its notice of appeal of the district judge's ruling that section 3 of the Defense of Marriage Act, DOMA, is unconstitutional. 


October 27, 2010 in Courts and Judging, Current Affairs, History, News, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 20, 2010

Ninth Circuit Grants Stay in Don't Ask Don't Tell

The Ninth Circuit has granted the DOJ Motion and issued an Order staying the district court's injunction (and refusal to stay the injunction) of the military's "don't ask don't tell" policy which the judge had declared unconstitutional:

This court has received appellant’s emergency motion to stay the district
court’s October 12, 2010 order pending appeal. The order is stayed temporarily in
order to provide this court with an opportunity to consider fully the issues

Appellee may file an opposition to the motion for a stay pending appeal by
October 25, 2010. To expedite consideration of the motion, no reply shall be filed.


October 20, 2010 in Current Affairs, Due Process (Substantive), First Amendment, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Obama DOJ Appeals Denial of "Don't Ask Don't Tell" Stay to Ninth Circuit

Judge Phillips denial of the DOJ's motion to stay her injunction of the military's "don't ask don't tell" policy in Log Cabin Republicans v. US is being appealed by the DOJ in an Emergency Motion (with memo) to the Ninth Circuit filed today.  District Judge Phillips original declaration of unconstitutionality is here.

The DOJ memo includes rather cursory constitutional arguments, mainly arguing the doctrine regarding granting a stay.  One argument, however, rests upon the Ninth Circuit's opinion in Witt, essentially that the Ninth Circuit in Witt v. Department of Air Force, 527 F.3d 806 (9th Cir. 2008), remanded for the district court to determine whether the statute had been validly applied to the plaintiff, which "makes no sense if the Act is unconstitutional on its face."   Thus the "district court’s decision is thus inconsistent with controlling precedent, as well as with numerous appellate decisions upholding various applications of the statute."  The district court in Witt recently ruled that Witt should be reinstated.

Footnote one on the DOJ Emergency Motion, as in the district court pleadings, seeks to distance the Obama Administration from "Don't Ask, Don't Tell," even as it seeks to have the policy reinstated by the Ninth Circuit:

The Administration does not support § 654 as a matter of policy and strongly
believes that Congress should repeal it. The Department of Justice in this case has
followed its longstanding practice of defending the constitutionality of federal
statutes as long as reasonable arguments can be made in support of their

[UPDATE here]


October 20, 2010 in Current Affairs, Fifth Amendment, First Amendment, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 19, 2010

Judge Phillips Denies Motion to Stay Order on "Don't Ask, Don't Tell"

In the latest round of Log Cabin Republicans v. United States, in which Federal District Judge has held the military's policy regarding "homosexuality" in the military unconstitutional, Judge Phillips has issued an Order denying the Government's Request to Stay.

Lt_Dan_Choi_March_on_Washington_2009  Highlights from the Judge's six page Order include an implicit admonishment to the Government attorneys:

Turning to the circumstances present here, the Court first notes Defendants had an opportunity to, but did not, present any of the evidence or arguments now advanced before the injunction issued. When the Court issued its Memorandum Opinion on September 9, 2010, it set out a briefing schedule regarding the form of the injunction. Although Defendants objected to the issuance of the injunction and its scope, they provided no evidence regarding the alleged disruption or need to revise "dozens of policies and regulations," as described in the Declaration of Clifford L. Stanley ("Stanley Declaration") . . . .  Furthermore, to the extent Defendants now submit evidence in the form of the Stanley Declaration, that evidence is conclusory and unpersuasive. It is belied by the uncontroverted evidence presented at trial regarding the Don't Ask, Don't Tell Act's effect on military readiness and unit cohesion.

Order at 2-3.

On the "public interest" prong of the stay analysis, the Judge rejected the Government's argument regarding the status quo:

The Court's analysis of the public interest is not so narrow . . .  the evidence at trial showed that the Don't Ask, Don't Tell Act harms military readiness and unit cohesion, and irreparably injures servicemembers by violating their fundamental rights. The public has an interest in military readiness, unit cohesion, and the preservation of fundamental constitutional rights. While Defendants' interests in preventing the status quo and enforcing its laws are important, these interests are outweighed by the compelling public interest of safeguarding fundamental constitutional rights.

Order at 6.

For the moment, the military's "don't ask don't tell" policy cannot be enforced.   News outlets, such as SF Chronicle, WaPo, WSJ, USA Today, and CNN report that recruiting offices are refraining from asking about sexual orientation and discharges on the basis of sexuality have ceased.

[UPDATE here]


[image: Lt. Dan Choi advocating for repeal of military policy, via]

October 19, 2010 in Current Affairs, Fifth Amendment, Fundamental Rights, News, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)