On Why Method Matters, Or, Lawrence O’Donnell, Let’s Talk About DADT

I had the MSNBC on last Thursday night, and Lawrence O’Donnell was talking to Ari Berman of “The Nation” about the new Obama Campaign Chief of Staff, Jim “Not Part Of Loggins &” Messina.

In the course of that conversation O’Donnell said something about the recent repeal of the “Don’t Ask, Don’t Tell” (DADT) legislation that suggests to me that he could use a short reminder of how that legislation fits into the larger view of what the LBGT community is looking for as the march toward true civil rights continues.

Luckily for Mr. O’Donnell, I am available to help him out on this one; that’s why today we’re going to audit “LBGT Agenda 101”—or at least the “Cliff’s Notes” version, anyway.

“In name we had the Declaration of Independence in 1776; but we gave the lie by our acts to the words of the Declaration of Independence until 1865; and words count for nothing except in so far as they represent acts. This is true everywhere; but, O my friends, it should be truest of all in political life. A broken promise is bad enough in private life. It is worse in the field of politics…”

--From Theodore Roosevelt’s “The New Nationalism” speech, Osawatomie, Kansas, August 31, 1910

So the first thing we better do so all this can make sense is to give you a bit of transcript to read, and the context into which it fits. I’m going to highlight what is particularly important to this discussion.

O’Donnell and Berman were, as we note above, talking about Jim Messina (Berman has an article up at “The Nation” entitled “Jim Messina Is Alienating Obama's Base”), and Berman was explaining that folks on the left have concerns about Messina because of his history working for Rahm Emanuel as Obama’s Deputy Chief of Staff, and as Chief of Staff for Max Baucus (who is today one of the most “corporate” elected officials working at Senate, Inc.).

This includes the LBGT community, who have already had trouble with Messina; some feel he tried as hard as possible to bury the DADT repeal issue on the theory that there’s no need to fight needless fights when the LBGT community ain’t gonna be voting Republican anytime soon anyway.

Now here’s the part of the transcript that we care about; Berman will be speaking first:

…And that`s all we can do, is look at what has he done. And in his time at the White House, in his time working for Baucus, he`s clashed with Democratic activists, with grassroots organizers over and over and over again. And that`s a pattern through his career that I found in this article.

O`DONNELL: On Don`t Ask, Don`t Tell, you have complaints about how long it took and -- but they succeeded.

BERMAN: Absolutely.

O`DONNELL: So when you succeed -- in my experience, working in the Senate, there`s all sorts of tensions and negativity within the party as you`re moving toward a goal. And then when you succeed everybody forgets it. They go hey, we did it.

So…Lawrence…let me explain what you got wrong here:

Most of the time, when you succeed in the Senate, you’re pursuing a single legislative item, and success is a good thing indeed.

But DADT repeal can’t be considered in a vacuum, and it is only one of four legislative “fronts” on which the battle for full civil rights has been joined.

I write a lot about Social Security, and legally married same-sex couples can’t collect those benefits the same way opposite-sex married couples do; the same is true with Medicare…and forget about “Married – Filing Jointly” at tax time.

All of that is because of the Federal Defense of Marriage Act (DOMA), and its repeal is the second metaphorical “front” in our civil rights battle.

The law could be overturned in the courts, but a lot of folks assume that the issue will rise to the Supremes and they’ll “find” a reason to uphold DOMA.

That means Congress might the only place to get something done (and a lot of the same folks think Messina slow-walked the issue in ’09, which might have been the best chance the Democrats had to move this along). Now that the ’12 Presidential is coming up—and DADT repeal was handled the way it was—it’s presumed that Messina is going to be even less help than ever before.

If you’re gay and you’re looking for a job, everyone from Cracker Barrel to Exxon/Mobil seems to look down on you, on one level or another (and if you’re perceived to be a transgendered person, it can be even worse).

After you get the job, if your boss thinks you’re part of the LBGT community, it might get you fired with no real legal recourse…but if Congress were to pass an Employment Non-Discrimination Act (ENDA), some of this might get better—and once again that makes last year’s battle over DADT relevant.

The fourth battle is the same issue in a different venue; just last month Minnesota’s Al Franken and Colorado’s Jared Polis introduced Student Non-Discrimination Act (SNDA) bills in the Senate and House, respectively, designed to protect LBGT elementary and secondary students from harassment at the schoolhouse.

That’s the short and the sweet of the thing, Lawrence, and that’s why the means by which DADT repeal was enacted is not going to make anyone forget much of anything.

After all, the guy who helped make life tough for those trying to get DADT repeal passed is now the Official Presidential Campaign Gatekeeper, and if the history of DADT repeal is any guide there isn’t gonna be a lot of Presidential help with the other three parts of this legislative agenda—unless, of course, the Administration needs to turn on the gAyTM for some reason.

Here’s one last example of how all this DADT repeal “process” matters.

You may recall this open letter from the Obama ’08 Campaign, where Obama said:

“…as President, I will place the weight of my administration behind the enactment of the Matthew Shepard Act to outlaw hate crimes and pass a fully inclusive Employment Non‐Discrimination Act to outlaw workplace discrimination on the basis of sexual orientation and gender identity.

As your President, I will use the bully pulpit to urge states to treat same‐sex couples with full equality in their family and adoption laws.”

Now, knowing what we do about how DADT repeal passed…do you, Mr. O’Donnell, think it is more or less likely that the President will use the bully pulpit to pass a fully inclusive Employment Non-Discrimination Act—and do you see why the way one piece of legislation “Hail Mary-s” its way into law might impact the way a whole community feels about the rest of its legislative goals?

And for the LBGT community, this isn’t just “ordinary” legislation.

This is about the right to have a place to live, and a job, and the right to marry, and the right to have a marriage recognized everywhere, just like anyone else’s, and not getting separated from your partner of 20 years just because the county says so—and it’s also about how a community is sick and tired of hearing that “if you help us today…in a few more years you won’t have to be a second-class citizen any more”.

I really do like your work much of time, Mr. O’Donnell, but you really did whiff this one by concentrating entirely on the one thing and missing the larger picture—but hey, none of us are perfect, and hopefully this’ll be a useful object lesson for the next time.

Now get out of here and make some TV, ya crazy nut.

On Asking Experts, Part One, Or, Do Democrats Really Understand Their LBGT Problem?

Stories begat other stories, or at least they do for me; this two-part conversation came from a comment that was made after I posted a story suggesting that voting matters this time, especially if you don’t want environmental disasters like the recent Hungarian “toxic lake” that burst from its containment and polluted the Danube River happening in your neighborhood.

Long story short, we are going to be moving on to ask what, for some, is a more fundamental question: if you’re an LBGT voter, and the Democratic Party hasn’t, to put it charitably, “been all they could be” when it comes to issues like repealing “don’t ask, don’t tell” or the Federal Defense of Marriage Act...what should you do?

Now normally I would be the one trying to develop an answer to the question, but instead, we’re going to be posing the question to a group of experts, and we’ll be letting them give the answers.

And just because you, The Valued Reader, deserve the extra effort, for Part Two we’ve trying to get you a “Special Bonus Expert” to add some input to the conversation: a Democratic Member of Congress who represents a large LBGT community.

“We were liberated not only empty-handed but left in the power of a people who resented our emancipation as an act of unjust punishment to them. They were therefore armed with a motive for doing everything in their power to render our freedom a curse rather than a blessing.”

--From “The Reason Why the Colored American Is Not in the World's Columbian Exposition”, Ida B. Wells, 1893

So we have our question, now we need a panel of experts.

As it happens, one of the sites to which I post is The Bilerico Project (“daily experiments in LBGTQ”), so I went to the site, posted the question (“What Would You Tell A Frustrated Gay Voter?”), and told the readers that I wanted to stand back and let them inform the conversation so that I could pass the message on to the larger Democratic and Progressive audience.

Most of what you’ll be reading in this two-parter will be those comments; I’ll be offering a few thoughts of my own, but my main effort will be to be “set the stage” for others.

So as we said, the big take-away here is that there is a portion of the LBGT community that feels like they have been “left behind”, if you will, by the very Democrats they helped to elect; Hannah offers an example of how that thinking manifested itself in the comments:

I don't think many politicians really are pro-gay. Democrats will vote for gay issues, but the issue in question can't stand alone. It needs to be attached to military spending or to credit card legislation, so that their constituents that don't pay attention to detail will miss their pro-gay votes. When it gets there, I don't think ENDA [the Employment Non-Discrimination Act] will be a stand-alone bill. I can't even think about how DOMA [Defense of Marriage Act] will end.

Bill Perdue puts it a lot more strongly:

The 'progressive' wing of the Democrat party is a wet noodle. It has no - zero, nada, zilch - clout or influence. It's barely tolerated as left cover and if it gets too pushy they call the cops...

The Democrats have a long and clear history of bigotry and of doing what they have to do to appease bigots and get their votes. Democrats voted for DADT [Don’t Ask, Don’t Tell] and DOMA in large majorities and a Democrat bigot signed both bills.

Rank and filers and supporters are welcome to donate time and money and even attend conventions to watch their betters maneuver and scheme but they have no power.

Gina9223 picks up part of Bill’s theme and runs a bit further with it:

Between the DNC [Democratic National Committee] and HRC [Human Rights Campaign, a pro-civil rights organizing group] they both use GLBT and our struggles for gaining equal rights ONLY to generate money for their bottom line. How often have you heard or seen the some ad hack saying 'the fight has only begun and they need your dollars now!'??? A few weeks or months go by with the assurance that they're "doing everything possible" to secure the passing of ENDA, but they had to let that fall to give support to repeal of DOMA but they had to let that go to run after repeal of DADT. But don't worry, they'll come around in the bus next time to pick up our money. Just not us.

Now comes to the table Alex Blaze (who often gets stuck with the yeoman’s work of editing the things I post to Bilerico) with a bit of realpolitik:

It's a catch-22: If Dems do fine in November they'll learn that ignoring LGBT people was great and they should keep on doing it. If they lose big, then they'll think that they went too far to the left and they should do even less.

One would become suspicious about the fact that there's no situation where they become more responsive to public opinion and more queer-friendly, but we obviously can't question the Democrats' commitment to LGBT rights. That just wouldn't be polite.

Andrew W expands on Gina’s point that it’s not entirely a Democratic problem:

The frustration is warranted, but instead of simply singling out Democrats for not accomplishing something they never had the votes to accomplish, what about Gay Inc. and activist groups? A significant amount of money was spent in the last 2 years and we have nothing to show for it. GetEQUAL resurrected 1960s styled civil disobedience and protest - without any measurable results and mounting evidence that we've simply alienated our only "friends." HRC spent millions lobbying Congress and yet they cannot show us a single vote they "changed."

SoFloMo is of the opinion that a big part of the problem is staring at voters in the bathroom mirror each morning:

Too often we get indignant and then throw parties where politicians and/or Gay Inc. come to collect checks after everyone has found their way to the bottom of three or four cocktails.

I've been to events in South Florida where the house is packed to meet a gay-friendly celebrity or the head of a national LGBT organization. But few people will turn up to canvass on behalf of local candidates who have passed laws protecting LGBT rights. Few people will work the phones to defeat candidates supported by the Christian Coalition.

So I need to keep a handle on how long stories run, and “we’ve stated the problem, so let’s come back tomorrow and address some answers” seems like a reasonable plan for splitting the story in two...so that’s what we’re going to do.

Let’s bring this Part One to a close by restating the premise: there exists some number of LBGT voters who feel they have nothing to gain by voting this time, because they perceive no available political path to achieving forward progress on civil rights issues. There’s another group who feel Democrats are not a trustworthy partner in the effort to advance civil rights, and if they show up to vote at all this time, it probably won’t be for Democratic candidates.

Just as soon as I get this posted, I’ll be assembling Part Two; with the “question now asked”, we’ll be getting to answers—and I think you’re going to be surprised at the diversity of responses.

As I mentioned above, I’ve been in touch with a currently unnamed Member of Congress who has a significant LBGT constituency over the past 24 hours, and the Press Secretary over there has indicated that they’ll try to have a response for attribution in time for Part Two.

Between now and then, try on a thought exercise and see where it takes you: put yourself in the shoes of an LBGT voter, think about this election it it’s full context, and consider what advice would make sense to you—and then, after you’ve done that, consider how you’d pass along what you’re thinking to either the Democrats or the voters we’re talking about.

Prop 8 Preview: The “Basis” Is The Thing

As you look at today’s Prop 8 ruling, I want you to think back a few weeks to the Massachusetts Defense of Marriage Act (DOMA) rulings for a bit of legal logic that will make a huge difference as this case moves through any appeals process.

What I want you to think about are two moderately obscure concepts: “strict scrutiny” and “rational basis”. The difference between the two will tell us how hard Prop 8 will be to defend, and we’ll quickly walk through what you need to know, right here, right now.

We have a long discussion available, here and here, that explains exactly what happened in Massachusetts a few weeks ago, but the short version is something like this: a series of Plaintiffs, including private persons and the State of Massachusetts, sued the Federal Government, alleging that DOMA violates the Constitution.

Judge Joseph Tauro, of the District of Massachusetts, ruled in two rulings, released on the same day, that DOMA does indeed fail Constitutional muster, but he added a rather unusual twist to the ruling, and to explain that twist, we now need to talk about the concepts of “strict scrutiny” and “rational basis”.

It works like this: according to the Supreme Court, some rights are more “fundamental” than others. If a government seeks to intrude upon one of these fundamental rights, they need a very good reason…one that’s so good, in fact, that it can survive the “strict scrutiny” of an examining Court.

Marriage for the purpose of procreation has already been established as a fundamental right by the Supreme Court in the 1967 ruling Loving v Virginia; nobody’s ever really specifically addressed the question of whether those who do not intend to have children have that same fundamental right to marriage.

Other rights are considered less fundamental; governments can intrude upon those “liberty interests” if the intrusion:

“…is “narrow enough in scope and grounded in a sufficient factual context for [the Court] to ascertain some relation between the classification and the purpose it serve[s]… …As such, a law must fail rational basis review where the “purported justifications…[make] no sense in light of how the [government] treated other groups similarly situated in relevant respects…”

That intrusion is far easier to justify under this “rational basis” standard than it is under strict scrutiny.

So here’s the twist: in the Massachusetts cases, Plaintiffs argued that DOMA failed the strict scrutiny test—and if marriage without procreation is considered to be a fundamental right, then the Plaintiffs should prevail, and DOMA should be ruled unconstitutional.

But the Judge ignored that argument.

Instead, he analyzed the case from a rational basis point of view—and even under that far less restrictive standard, he ruled that there was no rational basis for the existence of DOMA. In fact, during rational basis review the Defendant’s attorneys, or even the Judge, can invent their own “rational bases” for the law, during the trial, and apply those to the argument, and even with all that help nobody could figure out any reason for DOMA to exist—except for the possibility that a majority of the Congress at the time just didn’t like gay people.

Again, from Tauro’s opinion in Gill v Office of Personnel Management:

“In sum, this Court is soundly convinced, based on the foregoing analysis, that the government’s proffered rationales, past and current, are without “footing in the realities of the subject addressed by [DOMA].” And “when the proffered rationales for a law are clearly and manifestly implausible, a reviewing Court may infer that animus is the only explicable basis. [Because] animus alone cannot constitute a legitimate government interest,” this Court finds that DOMA lacks a rational basis to support it…

…As irrational prejudice plainly never constitutes a legitimate government interest, this Court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution.”

And that’s what I want you to be looking for today: does the opinion from California look beyond strict scrutiny and analyze this case under rational basis review—and if they do, will the challenge to Prop 8 be upheld, even under a standard that is easier to defend?

If Prop 8 fails, even under rational basis, it’s going to be a lot tougher for the Supreme Court, who we assume will eventually be getting this case, to justify keeping the law alive. That’s because they would presumably have to find some rational basis of their own to assign to the law, which, so far, has proven to be rather a tough thing to do.

There’s still a few hours to wait, so go grab a coffee, settle back, and wait for the fun…but it will indeed be a big legal deal, especially if a rational basis analysis is applied, and Prop 8 still fails.

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

We are back, just a bit late, to wrap up the discussion we began about the pair of rulings issued in Boston by Federal District Judge Joseph Tauro this week that declare the federal Defense of Marriage Act (DOMA) unconstitutional.

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.

In the companion case, Massachusetts v HHS, the Plaintiff was the State of Massachusetts, who alleged, convincingly, that the DOMA definition of “spouse” was forcing the State to illegally discriminate against its own citizens.

Today’s Plaintiffs are seven same-sex couples, all legally married in Massachusetts, and three survivors of same-sex spouses.

They all seek to overturn Section 3 of DOMA; the definitions of “marriage” and “spouse” are the issue in question.

The Feds report that Congress is acting under the authority of Article IV Section 1 of the US Constitution, which allows them to determine the “effect” of certain legal instruments issued by the various states:

“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”

When DOMA (H.R. 3396 (104th)) was enacted, in 1996, Section 2 changed the “effect” of marriage by allowing one State, for the first time, to ignore the legal proceedings of another:

"No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship."

The Federal Government also refuses to recognize that same-sex couples are married, and over the years several of these Plaintiffs, who are federal employees, have been trying to enroll their same-sex spouses in various federal health care plans, including the surviving spouse of now-deceased former Representative Gerry Studds; all were denied.

Other plaintiffs seek certain Social Security benefits, including survivor benefits, and one seeks to have their monthly Social Security payment adjusted upward based on how much their spouse earned.

The final group of plaintiffs want to be recognized as married couples for federal income tax purposes.

The Court denied standing to Representative Studd’s spouse; this because other legal action must be concluded before this Court could act on his claims.

The Judge pointed out that 1138 various federal benefits are at issue; many of them non-monetary.

He also reviewed the statements made by various Members of Congress as DOMA was being enacted; these statements all revolved around how the moral fiber of the Nation was threatened by same-sex marriage, or something similar.

Now we need to address how Courts resolve questions related to equal protection. This, from the opinion:

“To say that all citizens are entitled to equal protection of the laws is “essentially a direction [to the government] that all persons similarly situated should be treated alike.” But Courts remain cognizant of the fact that “the promise that no person shall be denied the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons.” And so, in an attempt to reconcile the promise of equal protection with the reality of lawmaking, Courts apply strict scrutiny, the most searching of constitutional inquiries, only to those laws that burden a fundamental right or target a suspect class. A law that does neither will be upheld if it merely survives the rational basis inquiry–if it bears a rational relationship to a legitimate government interest."

The Plaintiffs assert DOMA should fail under the strict scrutiny standard, and explain why...but the Judge ignores those arguments; this is because the Judge believes DOMA fails the rational basis test, which is the “easier” of the two standards:

“...a challenged law can only survive this constitutional inquiry if it is “narrow enough in scope and grounded in a sufficient factual context for [the Court] to ascertain some relation between the classification and the purpose it serve[s]...

...As such, a law must fail rational basis review where the “purported justifications...[make] no sense in light of how the [government] treated other groups similarly situated in relevant respects...”

Attorneys for the Defendant assert that Congress wanted to achieve the following:

“...(1) encouraging responsible procreation and child-bearing, (2) defending and nurturing the institution of traditional heterosexual marriage, (3) defending traditional notions of morality, and (4) preserving scarce resources.”

The Court the notes that those same attorneys have now “disavowed” Congress’ stated intents in defending against these lawsuits...but that doesn’t matter, because, when passing legislation:

“...the government “may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.”

As a result, the Court will examine those proffered motivations.

The Court believes there is no truth to the idea that banning same-sex marriage somehow encourages responsible child-bearing; the Feds acknowledge the same.

“But even if Congress believed at the time of DOMA’s passage that children had the best chance at success if raised jointly by their biological mothers and fathers, a desire to encourage heterosexual couples to procreate and rear their own children more responsibly would not provide a rational basis for denying federal recognition to same-sex marriages. Such denial does nothing to promote stability in heterosexual parenting.”

The Judge goes on to point out that it’s not all about procreation: childless heterosexual couples are allowed to marry, and the ability or inability to breed has never been part of deciding who can marry.

Is “traditional” marriage nurtured or protected by banning same-sex marriage?

The Court notes that telling same-sex couples they can’t “Federally” marry probably won’t make them want to marry members of a different sex...especially if they’re already married, as all these Plaintiffs are.

The Court also can’t figure out how making same-sex couples pay more income tax makes heterosexual marriages more secure.

“What remains, therefore, is the possibility that Congress sought to deny recognition to same-sex marriages in order to make heterosexual marriage appear more valuable or desirable. But to the extent that this was the goal, Congress has achieved it “only by punishing same-sex couples who exercise their rights under state law.” And this the Constitution does not permit...

...Neither does the Constitution allow Congress to sustain DOMA by reference to the objective of defending traditional notions of morality. As the Supreme Court made abundantly clear in Lawrence v. Texas and Romer v. Evans, “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law....” (Emphasis is original)

With the Defendants already behind 4-0, they have presented to the Court new “rational bases” for the purposes of this litigation:

They now assert that Congress can impose the status quo through legislation until the states work it out for themselves, and that DOMA was the only way to make sure everyone gets the same federal marriage benefits; they also feel that when new social problems come along, Congress is allowed to employ an “incremental response”.

Judge Tauro disagrees. He continues a conversation he began in Massachusetts v HHS that relates the long history of marriage as a state-regulated activity. He suggests the government has no legal interest in pursuing a uniform national definition of marriage; in fact, says the Judge, the Feds have deferred to the states all along on who is married, and, with this one exception, still do.

He provides numerous current examples from law and regulation:

“...42 U.S.C. § 416(h)(1)(A)(i) (defining an “applicant” for purposes of Social Security survivor and death benefits as “the wife, husband, widow or widower” of an insured person “if the Courts of the State” of the deceased’s domicile “would find such an applicant and such insured individual were validly married”); 20 C.F.R. § 404.345 (Social Security) (“If you and the insured were validly married under State law at the time you apply for . . . benefits, the relationship requirement will be met.”)...”

Judge Tauro notes that the states were even allowed to decide for themselves the validity of interracial marriages until the 1960s:

“The government suggests that the issue of same-sex marriage is qualitatively different than any historical state-by-state debate as to who should be allowed to marry because, though other such issues have indeed arisen in the past, “none had become a topic of great debate in numerous states with such fluidity.”

Tauro disposes of this argument by reminding everyone that the question of interracial marriage was also just a bit controversial, in its time.

He then reminds us that this is the first time the Federal Government has ever defined marriage; he also notes that all previous efforts to create a Federal definition were attempted Constitutional Amendments; he assumes this was because Congress knew that absent an Amendment, they couldn’t define marriage for the states.

“...The states alone have the authority to set forth eligibility requirements as to familial relationships and the federal government cannot, therefore, have a legitimate interest in disregarding those family status determinations properly made by the states.”

The Defendant tries to explain that DOMA is an incremental approach, but the Court dismisses this explanation. The Judge explains that DOMA does not incrementally advance same-sex marriage; instead, it permanently denies it to the Plaintiffs.

On the other hand, the Feds do recognize any opposite-sex marriage, under any state’s laws, and there appears to be no federal consistency in how marriage is defined...except to ban same-sex marriage.

The Court provides an example: a 13- and a 14-year-old opposite-sex couple could marry in New Hampshire, and even though Judge Tauro feels no other state would sanction such a marriage, the Feds would, because New Hampshire says their married, and that’s good enough for the Federal Government.

The Feds argue for “consistency” in applying marital benefits and assert that DOMA reduces the federal administrative burden, and the Court dismisses both arguments: a consistent approach would be to treat all married couples equally, and there seems to be no extra administrative burden associated with same-sex married couples relative to opposite-sex couples when it comes to things like getting the spouse on the health insurance or processing a tax return as “married – filing jointly”.

The marriage license is the administrative issue, and that’s already been taken care of by the various states involved.

The Plaintiffs argue that DOMA actually makes things less consistent and more complex; the Judge agrees.

“In sum, this Court is soundly convinced, based on the foregoing analysis, that the government’s proffered rationales, past and current, are without “footing in the realities of the subject addressed by [DOMA].” And “when the proffered rationales for a law are clearly and manifestly implausible, a reviewing Court may infer that animus is the only explicable basis. [Because] animus alone cannot constitute a legitimate government interest,” this Court finds that DOMA lacks a rational basis to support it...

...As irrational prejudice plainly never constitutes a legitimate government interest, this Court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution.”

Well, I’ll tell you what...this is pretty heady stuff right here: you very rarely see a Federal Judge absolutely reject the positions of the Federal Government, but in this case Judge Tauro has.

He feels that the 10th Amendment reserves to the states the right to define who may marry and how, and that this has been the case since before we sent Marines to the shores of Tripoli.

He sees the Federal Government as having provided no rational basis for DOMA, twice; in fact, he feels that the effect of DOMA is exactly the opposite of what the Government attorneys claimed was the intent of Congress at the time the law was passed.

To put it very simply, just because the majority in Congress in 1996 may not have wanted same-sex couples to marry doesn’t mean the Constitution is on their side...and all that means there is a lot of thinking going on in the Department of Justice around an appeals strategy...but we have done enough for today, so we’ll leave that discussion for another time.

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

I have to work fast over the next two days to get you this story, but it is a good one.

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.

This will be too much analysis for one story; we’ll be, instead, discussing the ruling in Commonwealth of Massachusetts v. Department of Health and Human Services (HHS) today; the second opinion, which decides Gill v OPM (OPM is the US Government’s Office of Personnel Management) will be the topic of tomorrow’s discussion.

The goal of the Mass v HHS lawsuit (this is a bit informal: we’ll frequently refer to Massachusetts as Mass today) is to overturn section 3 of DOMA, which defines marriage as a union between one man and one woman:

“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.”

Mass has recognized same-sex marriage since the Supreme Judicial Court Of Mass ruled on the issue in 2004; the State alleges, in this suit, that DOMA violates the US Constitution’s 10th Amendment…

“…by intruding on areas of exclusive state authority, as well as the
Spending Clause, by forcing the Commonwealth to engage in invidious discrimination against its own citizens in order to receive and retain federal funds in connection with two joint federal-state programs.”

For those unaware, here’s the text of the 10th Amendment:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The Federal Government says it can regulate on this issue because of the Spending Clause, located in the US Constitution’s Article 1, Section 8:

“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States”

We have a problem because State definition of marriage causes conflicts when the State partners with the Federal Government in various programs, for example:

--The Veterans’ Cemetery Program: the State allows same-sex couple spouses to be buried in certain military cemeteries operated in partnership with the Federal Department of Veterans’ Affairs (DVA).

The DVA objects to this arrangement, offers DOMA’s definition of “spouse” as the reason why, and says they will recover all the money they have ever transferred to the State under this program if the State agrees to bury these spouses in these cemeteries.

An actual couple has applied under the program and will be affected by all of this.

--There are a variety of implications for the Medicare program as it exists in Mass: for one, income eligibility is calculated differently for same-sex and opposite-sex couples; for another, Mass makes extra Federal tax payments related to the fact that they provide health care benefits to same-sex state worker spouses that are taxed differently than when the same benefits are provided to opposite-sex couples.

The Federal Government tried to dismiss the case altogether by claiming that none of the Plaintiffs had any “standing” before the Court.

Long story short, you have to prove “actual harm” to bring a lawsuit, and the Federal Government position is that all harms alleged by the Plaintiff are hypothetical.

Federal District Judge Joseph Tauro, of Boston, completely dismisses this argument, pointing to actual harms that have already been suffered, including denial of burial benefits and the threat of cash costs to state if Medicare funding is cut off.

“…Standing is not contingent, as the government suggests, on Thomas Hopkins—or another similarly-situated individual—being lowered into his grave at Winchendon…

…Moreover, in light of the undisputed record evidence, the argument that the Commonwealth lacks standing to challenge restrictions on the provision of federal Medicaid matching funds to MassHealth cannot withstand scrutiny…”

Let’s move right along to the Constitutional analysis:

If there is an “enumerated power” in the US Constitution’s Article 1, Section 8, or “express[ed] jurisdictional elements” in a Statute passed by Congress, then the Federal Government can regulate family law; if not, you have to go to an Article 1, Section 8 “Spending Clause” analysis.

In this case, the Federal Government claims they are entitled to regulate the Federal definition of marriage because of the power under Article 1, Section 8 to provide for the “general welfare” of the Nation.

Judge Tauro, however, notes that not all the harms alleged by Plaintiffs are spending-related: for example, provisions related to the way copyright protection and the Family Medical Leave Act work depend on the marital status of the involved parties.

“In South Dakota v. Dole, the Supreme Court held that “Spending Clause legislation must satisfy five requirements: (1) it must be in pursuit of the ‘general welfare,’ (2) conditions of funding must be imposed unambiguously, so states are cognizant of the consequences of their participation, (3) conditions must not be ‘unrelated to the federal interest in particular national projects or programs’ funded under the challenged legislation, (4) the legislation must not be barred by other constitutional provisions, and (5) the financial pressure created by the conditional grant of federal funds must not rise to the level of compulsion.”

The State claims that DOMA fails on several of these 5 elements.

---For example, getting the Federal money that is part of the partnerships we’ve been talking about requires the State to violate Section 1 of the 14th amendment, which reads as follows:

“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (Emphasis added by me)

The State alleges they are compelled to deny equal treatment to same-sex couples in order to get Medicare and veterans’ cemetery money (the Medicare money alone is about $5.5 billion a year).

The Court agrees with the State’s position on the Medicare issue; as a result there is no need to rule on the legally identical cemetery issue.

--Now we need to address the 10th Amendment analysis:

Assuming the appeals continue, this case will go to fairly conservative First Circuit, then to the Supremes. This Court, in the next section of the opinion, anticipates some of the thinking that appeals courts up the line might apply to this ruling:

“In United States v. Bongiorno, the First Circuit held that “a Tenth Amendment attack on a federal statute cannot succeed without three ingredients: (1) the statute must regulate the States as States, (2) it must concern attributes of state sovereignty, and (3) it must be of such a nature that compliance with it would impair a state’s ability to structure integral operations in areas of traditional governmental functions.”

The Court agrees that tests (1) and (2) have been met. This, regarding test (2):

“State control over marital status determinations is a convention rooted in the early history of the United States, predating even the American Revolution. Indeed, the field of domestic relations was regarded as such an essential element of state power that the subject of marriage was not even broached at the time of the framing of the Constitution…

…That same-sex marriage is a contentious social issue, as the government argues, does not alter this court’s conclusion. It is clear from the record evidence that rules and regulations regarding marital status determinations have been the subject of controversy throughout American history. Interracial marriage, for example, was at least as contentious a subject. But even as the debate concerning interracial marriage waxed and waned throughout history, the federal government consistently yielded to marital status determinations established by the states. That says something. And this court is convinced that the federal government’s long history of acquiescence in this arena indicates that, indeed, the federal government traditionally regarded marital status determinations as the exclusive province of state government.”

The Federal Government argues that just because they didn’t pass DOMA before 1996 doesn’t mean they weren’t allowed to do so; the Court finds that since the Feds failed the Article 1, Section 8 analysis already, they still fail when they try to use the same argument now.

The Feds also tried to argue that certain immigration cases give them power to regulate definition of marriage; the Court again finds their arguments unpersuasive.

The Feds argue that Massachusetts is an employer, so they have no standing to raise a sovereignty challenge; but the Court again disagrees, and says the State, as a sovereign, is entitled to regulate its employee relations.

Now we move on to (3), the proposition that for a law to violate the 10th Amendment “…it must be of such a nature that compliance with it would impair a state’s ability to structure integral operations in areas of traditional governmental functions.”

The question of what is a “traditional government function” is highly contentious in the Federal Appeals Courts; some question whether such an analysis can even be performed.

Based on First Circuit precedent, this Court will address the question of:

“…whether the federal regulation affects basic state prerogatives in such a way as would be likely to hamper the state government’s ability to fulfill its role in the Union and endanger its separate and independent existence.”

Judge Tauro finds that DOMA fails this test; points to the same issues we’ve been discussing (the Medicare and Cemetery partnerships), and says the DOMA definition of “spouse” unacceptably restricts the State from governing itself:

“That the government views same-sex marriage as a contentious social issue cannot justify its intrusion on the “core of sovereignty retained by the States,” because “the Constitution ...divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.” This court has determined that it is clearly within the authority of the Commonwealth to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status. The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment. For that reason, the statute is invalid.”

That’s a fair amount of law, all in one bite, and we have another ruling like this one tomorrow, with lots more “Strict Scrutiny” analysis…but for now, let’s stop right where we are, and we’ll all meet up here tomorrow.

On Same-Sex Inheritance, Or, "'Til Death Do We Part" Comes To Boyzone

There was a time, in the 1990s, when “boy bands” walked tall in the musical world. New stars with names like “BoyzIIMen” and “Backstreet Boys” and “*NSYNC” were everywhere to be seen, and positioned prominently within this firmament of stars was an Irish band, “Boyzone”.

One of the five members of Boyzone’s most famous lineup, Stephen Gately, died over the weekend in Mallorca, aged 33, much to the dismay of the group’s fans and friends.

Because Gately came out at the height of his career, and at considerable risk to his (and the group’s) “brand” prospects, the LBGT community is experiencing considerable dismay over the loss as well.

Today’s story, however, isn’t about any of that.

Instead, we’ll consider what’s likely to happen to Gately’s estate.

The point of the exercise? With this being one of the most prominent deaths of a gay celebrity to occur since civil commitment came to pass, and with Mr. Gately being legally committed to husband Andrew Cowles at the time of his death, it seems like a good time to examine how the law responds to these situations in the UK—and how it could work in the United States.

To get things started, a quick acknowledgement: I was unaware of Stephen Gately’s death until I saw Prince Gomolvilas’ story at the Bilerico Project (“daily experiments in LBGTQ”) describing the event. His story covers topics we won’t be covering here; I would encourage you to stop by and have a look. (Full disclosure: I’m also a continuing contributor to the Bilerico Project site.)

For those completely unaware of Boyzone’s body of work, you might wish to start with the song for which they are probably the most famous, “No Matter What”, an Andrew Lloyd Weber composition.

“You’re ‘committed’? How’s that work, exactly?”

The preliminaries out of the way, let’s talk law:

In the UK, same-sex civil commitments are already enshrined in national law and the process is fairly simple. Before either a marriage or a civil commitment can take place, advance notice must be given by both parties, in person, at the register office (analogous to a city or county clerk’s office) where the couple resides.

The notice will be displayed for fifteen days, after which the grant of authority for the union can be issued by a minister or some comparable official at the wedding. (If you’re to be married in a Church of England or Church in Wales facility this requirement is waived.)

If one of the partners dies, UK law treats marriages and civil commitments identically. I won’t go into every nuance of the law here, but basically, it works like this:

There is an inheritance tax, and if you died this year it would be triggered if you were passing an estate larger than £325,000 (at today’s exchange rates, that’s about $514,000). You would be taxed 40% for anything over that threshold, and the amount you can pass without paying the tax goes up over time. (Gifts above £3000 per year that you gave in the past seven years are considered part of the estate, except gifts given to spouses and for other purposes, such as charitable giving.) Under certain circumstances it is possible to double the amount that can be passed, tax-free, to the next generation or to unrelated individuals.

The tax normally does not apply at all, regardless of the size of the estate, if the assets are passing from one spouse to another or to charity.

Love, American Style

So how do we contrast all this to the American experience?

Right off the bat, in the UK the law applies nationwide, unlike in the US, where states like Virginia have introduced bills that, if enacted, would void any same-sex civil unions granted by any other state, and relatives try to use the courts to prevent enforcement of arrangements entered into by same-sex partners.

This means Mr. Cowles can at least sleep under his own roof without fear that a lawsuit will emerge forcing him to either vacate his home or mount a costly legal defense to keep it—or worse yet, to have to mount a costly defense...and lose his home in the process, something that happens in the US on a regular basis.

Additionally, should Mr. Gately have chosen to direct his assets to Mr. Cowles, that decision will likely be carried out; and there would be no special legal hoops (other than the civil commitment process) through which anyone would have to jump to make such a decision carry the force of law.

It is also highly likely that Mr. Cowles will be given full authority to make any decisions about funeral arrangements that are required, and that he won’t have to fight the relatives for the physical custody of the body of his deceased partner.

There are two other interesting contrasts of which you should be aware: the divorce rate in England and Wales today, nearly 4 years after gay weddings first began in England and Wales, is at a 26 year low, and there is evidence to suggest that allowing same-sex marriages actually leads to those who marry living longer lives than those who want to marry today, but can’t.

And that’s where we’re going to end this for today: in the UK, a family like Stephen Gately’s and Andrew Cowles’ may suffer from an unexpected tragedy, but the law doesn’t conspire to make a bad situation a thousand times worse for the surviving member of the same-sex couple—unlike in the US.

Disgruntled relatives aren’t able to challenge the union, the spouse can be confident that the decisions they make will be protected in law, and no one’s being thrown out into the street solely because of the nature of their marriage.

Oh, and I almost forgot the math part of the deal: same-sex unions not only help the spouses live longer, it’s apparently helping to reduce the UK divorce rate for all couples at the same time.

And if you add all that up, aren’t we really saying that legalizing same-sex marriages equals nothing less than legalizing Life, Liberty, and the Pursuit of Happiness?

So the next time someone claims gay marriage would somehow be threatening to the Nation...ask them: “why do you hate America, the Founding Fathers, the Constitution—and heterosexual marriages?”

Then stand back and let the stammering begin.