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May 16, 2009

Same-sex marriage and religious liberty: new opportunities for mutual accommodation and respect

Professor Ira "Chip" Lupu, who blogged in this space last month about same-sex marriage and religious liberty, has a new posting on the subject at Concurring Opinions taking into account recent developments in Vermont, Connecticut, and New York.  Lupu writes that "religious conservatives and secular progressives now have the opportunity to reach political bargains with one another, where both sides agree to a regime of reciprocal accommodation and respect."

Update: today's Washington Post has a piece on the same subject, in which Chip's posting is mentioned.

-SS 

May 16, 2009 | Permalink | Comments (0) | TrackBack

May 15, 2009

An example for Obama? NH governor shifts views, will support marriage equality

New Hampshire Gov. John Lynch said he will sign a bill legalizing same-sex marriage as long as the state legislature adds protections for religious groups that don't want to conduct the ceremonies, the Boston Globe reports. The announcement was a defeat for marriage opponents, who had pinned their hopes on the governor standing in the way of a bill that had been approved through the democratic process such groups claim to support (when it works in their favor).

According to the Globe, Lynch's earlier position had been to support civil unions but oppose marriage.  In this way, his position was the same as President Obama's.  As Obama told Rick Warren during the campaign, "I believe that marriage is the union between a man and a woman. Now, for me as a Christian ... it’s also a sacred union. You know, God’s in the mix." 

And so Obama, not unlike General Peter Pace in his comments on gays in the military, showed that he was unable or unwilling to separate his personal religious views from public policy -- indeed, that he would effectively impose such views by refusing to support equality in civil marriage, a troubling position for a former con law prof.  I suspect Obama actually does know the difference between civil and religious marriage, and so this episode demonstrated early on to me that Obama was more of a traditional politician than his supporters would acknowledge.

Contrast this stance with Gov. Lynch's statement on how he came to support fully equal marriage rights:

I have heard, and I understand, the very real feelings of same-sex couples that a separate system is not an equal system. That a civil law that differentiates between their committed relationships and those of heterosexual couples undermines both their dignity and the legitimacy of their families. 

I have also heard, and I understand, the concerns of our citizens who have equally deep feelings and genuine religious beliefs about marriage. They fear that this legislation would interfere with the ability of religious groups to freely practice their faiths.

Throughout history, our society’s views of civil rights have constantly evolved and expanded. New Hampshire’s great tradition has always been to come down on the side of individual liberties and protections.

That is what I believe we must do today.

-SS

May 15, 2009 | Permalink | Comments (0) | TrackBack

President could end military gay discharges by executive order, new study says

A study released this week by a group of military law experts shows that the president has the legal authority to end gay discharges with a single order, according to the Palm Center at the University of California-Santa Barbara.  According to the Palm Center's press release,

Many have argued that only Congress can lift the ban on service by openly gay troops.  But according to the study, Congressional approval is not needed.  Dr. Aaron Belkin, Director of the Palm Center and a study co-author, said “The administration does not want to move forward on this issue because of conservative opposition from both parties in Congress, and Congress does not want to move forward without a signal from the White House.  This study provides a recipe for breaking through the political deadlock, as well as a roadmap for military leaders once the civilians give the green light.”

The full study can be found here.

-SS

May 15, 2009 | Permalink | Comments (1) | TrackBack

May 14, 2009

It's dawning on gays that Obama has no interest in their issues

Andrew Sullivan has a powerful commentary on the Atlantic web site noting what many of us suspected even during the campaign: Obama has no serious interest in advancing legal or policy change on gay issues.  Sullivan writes:

I have a sickeningly familiar feeling in my stomach, and the feeling deepens with every interaction with the Obama team on these issues. They want them to go away. They want us to go away.

Here we are, in the summer of 2009, with gay servicemembers still being fired for the fact of their orientation. Here we are, with marriage rights spreading through the country and world and a president who cannot bring himself even to acknowledge these breakthroughs in civil rights, and having no plan in any distant future to do anything about it at a federal level. Here I am, facing a looming deadline to be forced to leave my American husband for good, and relocate abroad because the HIV travel and immigration ban remains in force and I have slowly run out of options (unlike most non-Americans with HIV who have no options at all).

And what is Obama doing about any of these things? What is he even intending at some point to do about these things? So far as I can read the administration, the answer is: nada. We're firing Arab linguists? So sorry. We won't recognize in any way a tiny minority of legally married couples in several states because they're, ugh, gay? We had no idea. There's a ban on HIV-positive tourists and immigrants? Really? Thanks for letting us know. Would you like to join Joe Solmonese and John Berry for cocktails? The inside of the White House is fabulous these days.

Sullivan refers to Tuesday's White House briefing in which press secretary Robert Gibbs brushes aside a series of questions on marriage, civil unions, and Don't Ask, Don't Tell.  You can find that here.

Sullivan's commentary comes on the heels of a similar piece last week in the New York Times, noting that 

Mr. Obama — who has said he opposes same-sex marriage as a Christian but describes himself as a “fierce advocate of equality” for gay men and lesbians — is under pressure to engage on a variety of gay issues that are coming to the fore amid a dizzying pace of social, political, legal and legislative change.

A standard response to such complaints is that gays should have patience while Obama deals with the economy, the Supreme Court, etc.  But not every issue of concern to gays requires a major presidential push and 60 votes in the Senate.  Obama gave a tepid, arguably even counterproductive, response to the Iowa marriage decision.  An expert on DADT has argued that Obama has the executive authority to stem the harmful firing of gays from the military if he wanted to.  And there is no apparent evidence that the administration is doing anything to plan for eventually following through on the promises it made on marriage-like federal benefits for legally recognized same-sex couples.

-SS

May 14, 2009 | Permalink | Comments (1) | TrackBack

May 13, 2009

Better AIDS treatments and prognosis mean disability insurer may terminate benefits, 7th Circuit rules

Charles Jenkins, a former employee of PricewaterhouseCoopers, was forced to stop working in 1993 due to AIDS, and the following year he began receiving long-term disability benefits under a company insurance plan administered by Connecticut General Life.  In 2004, CGL elected to take another look at the matter and decided, after review of Jenkins' medical condition, that Jenkins was capable of attempting sedenary employment.  CGL cut off his benefits. 

Jenkins sued under ERISA but lost in the district court.  In a decision last week, the 7th Circuit affirmed, holding that CGL's decision met the minimal ERISA requirement that it have some “rational support in the record.”  "That’s not to say the evidence compelled that decision" by CGL, the court noted in an opinion that tried to strike a sympathetic tone, "just that it permitted it." 

The last two paragraphs of the decision are interesting:

Nevertheless, Jenkins suggests that it is impossible to reconcile the initial determination of disability with the later decision that he could attempt full-time sedentary employment.  At best, Jenkins argues, the evidence showed that his condition was stable. If that condition was grave enough to warrant disability in 1994, why wasn’t it sufficient in 2006?

But Jenkins fails to recognize what CGL[] (and the general population, it seems) thought HIV and AIDS meant in the early 1990s. That impression was that HIV (and certainly AIDS) brought rapid death. Thankfully, the prognosis has changed—in large measure due to new drugs—both for Jenkins and countless others.  It was not “downright unreasonable” for CGLIC to shift its position along with that change when the medical evidence supported it.


(Sometimes the 7th Circuit's temporary links to opinions stop working.  If so, case information can be found here.)

-SS

May 13, 2009 | Permalink | Comments (0) | TrackBack

Prop 8 Article in Berkeley Journal of Politics and Policy

Those following the prop 8 litigation may find the following article interesting.  It was recently published in the Berkeley Journal of Politics and  by Courtney Joslin, Acting Professor at the University of California Davis School of Law.
 
Here is the abstract:
In a recent article, Professor Jesse Choper argued that, if held to be valid, Proposition 8 should not be applied retroactively. This conclusion, however, does not fully answer the question posed by the Court, which is: if valid, what effect does Proposition 8 have, if any, on the 18,000 marriages that were entered into before November 5, 2008. In order to answer the retroactivity question posed by the Court, one must consider another inquiry: what does it mean to apply Proposition 8 prospectively only? In this article, I argue that a prospective-only application of Proposition 8 would have no effect on the existing 18,000 marriages. Further, in response to an argument made by the interveners, I also urge that the fact that the putative spouse doctrine may extend some marriage-based rights for some limited period of time to persons who had a good faith belief that they were in a valid marriage does not in any way affect this conclusion.
 
And here is a link to the article:
http://www.bepress.com/cjpp/vol1/iss1/20/
 



May 13, 2009 | Permalink | Comments (0) | TrackBack

May 12, 2009

As NY legislature takes up marriage today, Rosie's brother is at the center

The New York state legislature begins debating same-sex marriage today, and the New York Times reports that Assemblyman Daniel O'Donnell, older brother of Rosie, "has emerged as a tenacious, ingratiating, playful and sometimes prickly leader of the effort to pass the legislation" and is mounting an intensely personal campaign among his fellow lawmakers. The legislation is expected to easily pass the Assembly, but its fate is less certain in the Senate.

-SS

May 12, 2009 | Permalink | Comments (0) | TrackBack