MAP: Which States Spend/Cost Federal Tax Money

From Matt Yglesias by way of The Economist here is an interesting graphic showing how much money each state in the Union gives or gets (federal taxes minus federal spending) as a percentage surplus or deficit.

Another Gay Rights Win For Obama: DADT Ends 09/20/2011

Today, President Barack Obama, Secretary of Defense Leon Panetta and Joint Chiefs of Staff Admiral Mike Mullen all certified that the lifting of the ban on open service by lesbian, gay or bisexual Americans in the U.S. Armed Forces will not negatively impact national security. The certification was the last step to be taken after DADT repeal legislation passed the Congress last December and was signed into law by the President in front of a crowd of cheering supporters. The military's anti-gay policy will cease to be in effect 60 days after today's certification, or on September 20, 2011.

This is the another huge gay rights win which must be credited to Obama, following his enactment of the federal hate crimes act in 2009, his determination by the federal government that laws affecting sexual orientation must receive heightened scrutiny and thus declaring DOMA to be unconstitutional earlier this year and now the enactment of the repeal of "Don't Ask, Don't Tell."

The main thing left on the gay rights agenda is some forward movement on federal government forcing it's contractors not to discriminate on the basis of sexual orientation or gender identity, since it is unlikely that the Employment Non-Discrimination Act (ENDA) will be passing Congress any time soon.

Statement by the President on Certification of Repeal of Don't Ask, Don't Tell

Today, we have taken the final major step toward ending the discriminatory ‘Don’t Ask, Don’t Tell’ law that undermines our military readiness and violates American principles of fairness and equality.  In accordance with the legislation that I signed into law last December, I have certified and notified Congress that the requirements for repeal have been met.  ‘Don’t Ask, Don’t Tell’ will end, once and for all, in 60 days—on September 20, 2011. 

As Commander in Chief, I have always been confident that our dedicated men and women in uniform would transition to a new policy in an orderly manner that preserves unit cohesion, recruitment, retention and military effectiveness.  Today’s action follows extensive training of our military personnel and certification by Secretary Panetta and Admiral Mullen that our military is ready for repeal.  As of September 20th, service members will no longer be forced to hide who they are in order to serve our country.  Our military will no longer be deprived of the talents and skills of patriotic Americans just because they happen to be gay or lesbian.

I want to commend our civilian and military leadership for moving forward in the careful and deliberate manner that this change requires, especially with our nation at war.  I want to thank all our men and women in uniform, including those who are gay or lesbian, for their professionalism and patriotism during this transition.  Every American can be proud that our extraordinary troops and their families, like earlier generations that have adapted to other changes, will only grow stronger and remain the best fighting force in the world and a reflection of the values of justice and equality that the define us as Americans.

DADT Certification

Wolfson Testimony At DOMA Repeal Hearing

President Obama Endorses DOMA Repeal Bill!

Today is when the Senate Judiciary Committee is hearing testimony about the repeal of the so-called Defense of  Marriage Act, through consideration of S. 598, the Respect for Marriage Act.

However, yesterday the Whuite House Press Secretary Jay Carney made news yesterrday when he announced that the President was endorsing the legislation, even before its first committee hearing (a rare step for Presidents to take with legislation).

The response was to a question by openly gay reporter Chris Geidner of Metro Weekly:




The transcript of the exchange is available:

Metro Weekly: The president has said in the past that he opposes the Defense of Marriage Act, but he is yet to endorse the Respect for Marriage Act, which is the specific piece of legislation --

Carney: Senator [Dianne] Feinstein [(D-Calif.)], yeah.

Metro Weekly: -- aimed to repeal the bill. Tomorrow, the Senate will hold the first hearing into that bill. Is the administration ready to endorse that bill?

Carney: I can tell you that the President has long called for a legislative repeal of the so-called Defense of Marriage Act, which continues to have a real impact on the lives of real people -- our families, friends and neighbors. He is proud to support the Respect for Marriage Act, introduced by Sen. Feinstein and Congressman [Jerrold] Nadler [(D-N.Y.)], which would take DOMA off the books once and for all. This legislation would uphold the principle that the federal government should not deny gay and lesbian couples the same rights and legal protections as straight couples.

It should be interesting how far Senate Democrats want to push DOMA repeal. They presumably have the votes to get it out of committee but probably not the 60 votes to break the inevitable filibuster. And passage in the U.S. House is a non-starter.

MAP: Sexual Orientation & Gender Identity Discrimination in U.S.

This map is what the state of play in sexual orientation and gender identity discrimination in employment looks like in the various states as of March 2011. There are 29 states that have no protections for LGBT people in employment in any way (so your boss can say, "I'm firing you because you're a fag!") and you have no recourse what so ever.

As of July 6th, there are now 15 states which ban discrimination on the basis of gender identity, and there are 21 which ban employment discrimination on the basis of sexual orientation or gender identity (all the states which ban gender identity discrimination also ban sexual orientation discrimination). The six states which do not overlap are: New York, Wisconsin, New Hampshire, Massachusetts, Maryland and Delaware. (One should note that 3 of these 6 states have already enacted marriage equality!) Wisconsin is  ahead scratcher because they passed sexual orientation non-discrimination way back in 1982, the first state in the country to do so. There was gender identity nondiscrimination legislation pending  in New York and Maryland which died when those legislative sessions ended this Spring.

The Employment Non-Discrimination Act (ENDA) would prohibit employment discrimination nationwide on the basis of sexual orientation or gender identity. Significantly, A version of ENDA (without gender identity protection, thus some people called it "SplENDA") passed the U.S. House under Democratic control in 2007 but failed to be brought up for a vote in the 2009-2001 111th Congress. With Republicans in majority control of the U.S. House it is very doubtful that ENDA will pass that body in the 2011-2013 112th Congress.

BREAKING: 9th Circuit Kills DADT (Again)

Wow! A (admittedly decidedly liberal) 3-judge panel of the 9th U.S. Circuit Court of Appeals has unanimously lifted a stay against the U.S. Government from enforcing "Don't Ask, Don't Tell" in the case Log Cabin Republicans v. United States.

Here's the text of the order filed today:

Filed order (ALEX KOZINSKI, KIM MCLANE WARDLAW and RICHARD A. PAEZ) The Clerk shall amend the docket to reflect that Leon E. Panetta, Secretary of Defense, is substituted for Robert M. Gates, Secretary of Defense, as an appellant/cross-appellee. See Fed. R. App. P. 43(c)(2). Appellee/cross-appellant’s motion to lift this court’s November 1, 2010, order granting a stay of the district court’s judgment pending appeal is granted. See Hilton v. Braunskill, 481 U.S. 770, 776 (1987) (stating standard); Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) (same). In their briefs, appellants/cross-appellees do not contend that 10 U.S.C. § 654 is constitutional. In addition, in the context of the Defense of Marriage Act, 1 U.S.C. § 7, the United States has recently taken the position that classifications based on sexual orientation should be subjected to heightened scrutiny. See Golinski v. U.S. Office of Pers. Mgmt., No. C 3:10-00257-JSW (N.D. Cal.) (Doc. 145, July 1, 2011) (“gay and lesbian individuals have suffered a long and significant history of purposeful discrimination”); Letter from Attorney General to Speaker of House of Representatives (Feb. 23, 2011) (“there is, regrettably, a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities”). Appellants/cross-appellees state that the process of repealing Section 654 is well underway, and the preponderance of the armed forces are expected to have been trained by mid-summer. The circumstances and balance of hardships have changed, and appellants/cross-appellees can no longer satisfy the demanding standard for issuance of a stay. Appellee/cross-appellant’s alternative request to expedite oral argument is granted. The Clerk shall calendar this case during the week of August 29, 2011, in Pasadena, California. Briefing is completed.

And here's Legal Eagle Chris Geidner explaining what it means:

DADT cannot be enforced, per the order, unless the government gets a stay of the order from either the Ninth Circuit of the U.S. Supreme Court pending an appeal of today's decision.

Cynthia Smith, a Department of Defense spokeswoman, tells Metro Weekly that Pentagon officials "are studying the ruling with the Department of Justice" but added, "We will of course comply with orders of the court, and are taking immediate steps to inform the field of this order." 

The three-judge panel -- Judges Alex Kozinski, Kim Wardlaw and Richard Paez -- based the decision to lift the appellate court's earlier stay of Phillips's order pending the appeal of the LCRcase is based, the judges write, because, "The circumstances and balance of hardships have changed, and appellants/cross-appellees can no longer satisfy the demanding standard for issuance of a stay."

Among the citations by the court is the July 1 filing in Karen Golinski's federal case seeking health insurance benefits for her wife and the related Feb. 23 letter from Attorney General Eric Holder declaring that he and President Barack Obama had decided that heightened scrutiny applies to classifications -- such as DADT.

The judges also note that "the process of repealing Section 654 [-- the DADT law --] is well underway, and the preponderance of the armed forces are expected to have been trained by mid-summer." Smith echoed this fact, writing to Metro Weekly, "[I]mplementation of the DADT repeal voted by the Congress and signed in to law by the President last December is proceeding smoothly, is well underway, and certification is just weeks away."

You will recal DADT was also not in effect worldwide or 8 days last fall when the Log Cabin Republicans first won an injunction against the government from federal judge Virginia Phillips. Now they have won at the appellate level as well on the question of the stay. The oral arguments about the merits of the case will be heard on August 29th. The government can ask for an en banc panel (11-judge panel) of the 9th Circuit or ask the US Supreme Court for a stay on the latest injunction against the enforcement of DADT..

It will be interesting to see what they do because the statute in question should be moot in a few weeks anyway when the DAT repeal is certified. However, there are some questions about whether sexual orientation will be a category of non-discrimination (which the lawsuit asks for but the legislation does not contain) and also whether the Uniform Code of Military Justice will include consensual sodomy (there is legislation in this year's Defense Authorization bill to repeal the UCMJ sodomy language).

US Applies Crack Sentencing Reform Retroactively

News you might have missed over the weekend: The U.S. Sentencing Commission has decided (unanimously!) to follow the lead of Congressional action in reducing the penalty disparity between powder cocaine and crack cocaine from 100:1 to 18:1 (still not what it should be which is 1:1) and apply these lesser penalties retroactively to (primarily Black and Brown) people who are currently serving excessive time in jail for crimes involving crack:

The Los Angeles Times has the story:

About 12,000 federal prisoners nationwide may soon be going home, some as much as three years early, under a U.S. Sentencing Commission decision to allow retroactive reductions in prison terms for inmates convicted of crack cocaine offenses.
The commission voted unanimously Thursday to bring "unfairly long sentences" for crack offenders, mostly African Americans, more in line with the shorter terms given to powder cocaine offenders, often white and sometimes affluent.

Patti B. Saris, the panel's chairwoman, said that when Congress passed the Fair Sentencing Act last year, it "recognized the fundamental unfairness of federal cocaine sentencing policy," and the commission sought to bridge the disparity between the two prison sentences.
"Justice demands this result," added Ketanji Brown Jackson, the commission's vice chairman.
When the reductions go into effect in November, the average crack sentence will be cut by about 37 months, and the federal Bureau of Prisoners said the reductions could save more than $200 million in the next five years. Nearly 6% of the federal inmate population would be released.
The reductions are not automatic. Prisoners must file a petition, and will be required to show they are no longer a risk to society. Inmates who used weapons in their crimes or have lengthy criminal histories may not be eligible.
The commission's mail, about 43,500 letters and emails, ran overwhelmingly in favor of the reductions. The Sentencing Project, a Washington group that pushes for reform in sentencing laws, also strongly encouraged approval of the reductions.
Kara Gotsch, director of advocacy for the Sentencing Project, said the panel's vote "confirms that fairness and equal treatment under the law are fundamental principles of our criminal justice system."
But Republicans, most notably Rep. Lamar Smith of Texas, chairman of the House Judiciary Committee, opposed the reductions. He had lobbied the commission not to grant the early releases, warning it "merely gets criminals back into action faster."

Good ol' boy Lamar Smith of Texas, always willing to stand up and demonstrate why people should never vote for Republicans. Thanks!

The main take-away is that this move is a move in the right direction towards adding some sanity to what is our insane "War on drugs" public policy.

Recent media profiles of same-sex binational "Love Exiles"

Max Oliva, left and Jesse Goodman have left the United States
 in order to remain together

The Los Angeles Times is just one of several West Coast-based newspapers which have been doing stories on the impact of the Defense of Marriage Act recently.

On Monday, the Times published "Same-sex couples find rough road to immigration." A key excerpt:

When Jesse Goodman and his Argentine fiance left the United States in 2006 after an unsuccessful immigration battle, they expected that one day they would be able to return home to New York.


Goodman and Max Oliva had become used to finding temporary ways to be together. They had fallen in love quickly and planned on marrying but soon learned that, unlike similar situations with straight couples, their relationship wouldn't help Oliva stay in the country.


For a time, they relied on a mix of work permits and tourist visas to stay together. When the last permit was set to expire five years ago, they decided it was best to leave the U.S.


"We ran out of options," Goodman said.


While straight American citizens can obtain green cards for their spouses and fiances, the Defense of Marriage Act has precluded same-sex couples from receiving the same benefits.


In February, the couple was encouraged when the Obama administration announced it would no longer defend the act in court, saying it violates the Constitution's equal protection clause, a conclusion that two federal district courts had reached in 2009.


The announcement that the Obama administration would no longer defend the law was applauded by gay and lesbian activists.


But the administration has sent mixed signals about its intent to enforce the law, which has led to some confusion among same-sex couples as they try to navigate the immigration system.


Rather than continue waiting for a resolution to that issue, Goodman and Oliva decided to move forward with trying to return to the U.S. by filing a fiance visa petition for Oliva.


The couple expects that it will be denied. But they are prepared to go to court.


"I think we're right," Oliva said. "We're fighting against something that is unfair."

In addition to the Los Angeles Times, the San Francisco Chronicle also ran an article about a binational couple facing deportation. Theirs was titled "Defense of Marriage Act threatens his citizenship."

An excerpt:

Bradford Wells, a U.S. citizen, and Anthony John Makk, a citizen of Australia, have spent the last 19 years together, mostly in an apartment in San Francisco's Castro district. 

Makk gave up his career, started a business in San Francisco and invested in rental property, all to be with Wells and meet various visa requirements. Seven years ago, they married in Massachusetts. 

Starting June 13, Makk, 48, faces possible deportation if he remains in the country illegally when his current visa expires. If he leaves, he would not be readmitted, the couple would be all but permanently separated and Wells, who has severe health complications from AIDS, would be left without his spouse and sole caregiver. 

"We're at the end of our rope," said Wells, 55. "Ever since we met, all we've tried to do is be together. The focal point of our lives, everything we've done, is just so we could be together."

Law denies benefits

They face this quandary because the 1996 Defense of Marriage Act denies all federal benefits, including spousal immigration preferences, to same-sex couples. If Wells and Makk were heterosexual, they could apply for an I-130 visa, or spousal petition, which could allow Wells to sponsor Makk for permanent U.S. residency. 

President Obama and Attorney General Eric Holder said in February that they believe the Defense of Marriage Act is unconstitutional and would no longer defend it in court, but the administration is enforcing the law as required until it is repealed or struck down by the courts. It is under challenge in several states and will probably be decided by the Supreme Court. 

"It's devastating, the idea of him leaving in a couple of weeks and not being able to get back in," Wells said. After suffering a near-fatal heart attack and severe arthritis in his hips, Wells said he is unable to care for himself. "I don't know how I'm going to manage," he said. "My stomach is in knots." 

An estimated 54,000 bi-national same-sex couples live in the United States, according to the Williams Institute, a pro-gay think tank at UCLA. Not all of them are married.

Of course, frequent readers know that I myself am part of a binational couple, but was able to become a United Citizen through familial relationships in 2003. I'm on the board of directors of Immigration Equality, the national LGBT immigration advocacy group.

Clement Quits Law Firm After It Exits DOMA Defense

It's been a big news morning today. First, responding to online pressure from Human Rights Campaign and Change.org, Paul Clement's law firm of King & Spalding announced that they had filed a motion to remove the firm from representing the Bipartisan Legal Advisory Group of the U.S. House of Representative in its defense of the Defense of Marriage Act (DOMA) in federal court.

The firm's statement:

Today the firm filed a motion to withdraw from its engagement to represent the Bipartisan Legal Advisory Group of the House of Representatives on the constitutional issues regarding Section III of the 1996 Defense of Marriage Act. Last week we worked diligently through the process required for withdrawal.

In reviewing this assignment further, I determined that the process used for vetting this engagement was inadequate. Ultimately I am responsible for any mistakes that occurred and apologize for the challenges this may have created.

In response to his firm's decision to refuse to sign on to a legal defense which per force requires them to argue that discrimination against same-sex couples is constitutional, Paul Clement (who was reportedly paid $5 million a year by King & Spalding) resigned from the firm and joined another:

"I resign out of the firmly held belief that a representation should not be abandoned because the client's legal position is extremely unpopular in certain quarters. Defending unpopular clients is what lawyers do," Clement wrote to King & Spalding chairman Robert Hays. "I recognized from the outset that this statute implicates very sensitive issues that prompt strong views on both sides. But having undertaken the representation, I believe there is no honorable course for me but to complete it." 

Clement said he will join Bancroft PLLC, a small Washington-based firm that is home to former Bush Justice Department official Viet Dinh.

The full text of Clement's resignation letter is also available. This is probably good news for the likelihood of DOMA not surviving judicial review since Clement will be forced to defend the discriminatory law without drawing upon the resources of a huge law firm like King & Spalding.

It should be noted that the pressure to get Clement's former law firm does not violate the principle that all defendants have a right to legal representation, like the Los Angeles Times editorial board foolishly claimed. DOMA is not a person, it does not have any Miranda rights; this is not a criminal case, it is a civil case. The contract that BLAG had signed with King & Spalding prohibited all members of the firm from expressing opposition to DOMA or advocating for the repeal of the law.

Bush Superlawyer Paul Clement Signs On To Defend DOMA

Paul Clement was U.S. Solicitor General from 2004-2008

U.S. House Speaker John Boehner has decided on former Bush Administration Solicitor General Paul Clement to represent the Congress' interest in defending the so-called Defense of Marriage Act (DOMA) in federal court. Clement is a well-known Supreme Court advocate (he succeeded Perry v. Brown Republican superlawyer Ted Olson in the Solicitor General position) and is rumored to make over 5 million dollars a year at  the law firm of King & Spalding and charge as much as $1,000 per hour. Clement has reportedly argued more than 50 cases before the United States Supreme Court.

Clement's defense will not be cheap, as DOMA has been declared unconstitutional in two cases before the 1st U.S. Circuit Court of Appeals, the Department of Justice has decided that the statute is unconstitutional and there are around 12 jurisdictions in which DOMA is being challenged in court.

Former House Speaker Nancy Pelosi  sent a letter to Boehner in response to the current Speaker's actions, reproduced below:

April 18, 2011

The Honorable John A. Boehner
Speaker of the House 
H-232, The Capitol
Washington, D.C. 20515 

Dear Mr. Speaker:

Thank you for your response earlier today to my letter of March 11, 2011 concerning litigation relating to the Defense of Marriage Act (DOMA).  My letter had requested that you provide me with the cost to the House and to taxpayers resulting from the decision of the Republican members of the Bipartisan Legal Advisory Group (BLAG) to hire outside counsel to represent the House in support of the DOMA.  You note that President Obama and Attorney General Holder have determined that DOMA is unconstitutional, a conclusion I share, and have declined to engage in further judicial proceedings in defense of the law.  As you may know, presidents have acted similarly in the past on at least 50 instances since 1979.  

Unfortunately, your letter did not respond to the central question in my March 11th letter: the cost to taxpayers of hiring outside legal counsel.  Again, I am requesting that you disclose the cost of hiring outside counsel for the 12 cases where DOMA is being challenged.  

Press reports indicate that the House, at your direction, will intervene today in the Windsor case, which is in a federal court in New York.  Ms. Edie Windsor spent more than 40 years with her partner, Ms. Thea Spyer, and they were married in 2007.  When Ms. Spyer passed away Ms. Windsor was unable to claim the federal estate marital tax benefit because of DOMA and the federal government imposed estate taxes of more than $360,000 on the money left to her.  This case is a prime example of the injustice perpetuated by DOMA on millions of American families.  

According to reports, a contract engaging Paul D. Clement to serve as the outside counsel reportedly was forwarded to the Committee on House Administration, although not to the Democratic members or staff of the Committee.  Mr. Clement, a former Solicitor General of the United States, is a partner in the Washington firm King & Spalding where he is in charge of the national appellate practice.  I would like to know when the contract with Mr. Clement was signed, and why a copy was not provided to Democrats on the Committee.

The House of Representatives need not enter into this lengthy and costly litigation.  Contrary to the assertion in your letter, a BLAG determination against House involvement in the litigation – which was the position of Democratic Whip Hoyer and me – would not have allowed the constitutionality of the law to “have been determined by a unilateral action of the President.”  As you know, only the courts can determine the constitutionality of a statute passed by the Congress.  

Thank you again, and I look forward to working together with you on behalf of our country.

best regards,


NANCY PELOSI
Democratic Leader

Love her!

ENDA Introduced in US Senate

The Employment Non-Discrimination Act (ENDA) was introduced in the 112th Congress today with lead co-sponsors Jeff Merkley (D-OR), Susan Collins (R-ME), Tom Harkin (D-IA) and Mark Kirk (R-IL).

The National Gay and Lesbian Task Force sent out a press release praising the action:

Statement by Rea Carey, Executive Director
National Gay and Lesbian Task Force

"An overwhelming majority of Americans know it is wrong to deprive their lesbian, gay, bisexual and transgender friends, family and neighbors of the ability to earn a livelihood and provide for their families simply because of who they are. They know our entire country benefits when all people are allowed to contribute their talents and skills free from discrimination. ENDA will simply help ensure everyone is allowed to participate on a level playing field in the workplace, a core value of this nation. Let's get ENDA passed. Our community has provided statistics and shared personal stories; we've seen LGBT workers lose their foothold in a struggling economy, not because of downsizing or poor performance, but solely because of prejudice. Our country can and must do better. We thank Senators Merkley, Kirk, Harkin and Collins for reintroducing this critical legislation, and urge Congress and the administration to work toward its passage."

US Immigration Confirms Suspension of Married Binational Deportations

Excellent news on the LGBT Immigration front! Chris Geidner at Metro Weekly has been able to get a spokesperson from U.S. Citizenship and Immigration Services to confirm that USCIS has suspended action on deportation cases involving same-sex married binational couples who would have a legitimate petition for permanent residence if the Defense of Marriage Act were not in effect.

Following up on reports from this weekend, Metro Weekly just received confirmation from Christopher Bentley, the spokesman for the U.S. Citizenship and Immigration Services, that cases of foreign partners who are married to a same-sex partner and would otherwise be eligible for a green card are on hold in light of questions about the continued validity of the Defense of Marriage Act. 

Bentley writes, "USCIS has issued guidance to the field asking that related cases be held in abeyance while awaiting final guidance related to distinct legal issues." 

He notes, however, "USCIS has not implemented any change in policy and intends to follow the President's directive to continue enforcing the law." 

The legal distinction means that although DOMA is still being enforced, the USCIS is using its discretion to hold off on denying green card applications where applicable.

This is pretty amazing news!

Married Binational Lesbian Couple Has Deportation Suspended

Lavi Soloway of the Stop The Deportations project is reporting a monumental development in LGBT immigration reform: the very first decision by a U.S. immigration judge to suspend a deportation based on the legally married status of a same-sex couple.

Monica Alcota and Cristina Ojeda of Queens are the first married LGBT couple to argue in court that a pending deportation should be terminated since the Obama administration’s February announcement that it would no longer defend section 3 of the Defense of Marriage Act, according to their attorney. Alcota, a citizen of Argentina, wed her American wife last year in Connecticut but has continued to face removal proceedings.


At a Tuesday morning hearing in New York Immigration Court, a U.S. Immigrations and Customs Enforcement attorney indicated that the government was willing to adjourn the deportation proceedings against Alcota while Ojeda proceeds with a green card petition on behalf of her noncitizen spouse. The judge agreed with the government attorney’s recommendation and asked the couple for an update on Ojeda’s alien relative petition by December.


“It definitely brings us more hope,” Ojeda told The Advocate of the hearing. “It’s the first time someone has been willing to let us pursue our case and believes that we should be treated equal."


The couple’s attorney, Lavi Soloway, said that while there was no clear indication that the government's Tuesday decision has broader policy implications on other immigration cases involving married, binational gay couples, the outcome is nevertheless “tremendously significant.”


“It means that for the first time in a deportation proceeding, the judge and the government have looked at a married gay couple and considered fairly that they ought to have an opportunity to pursue a marriage-based immigration case, given the changing legal landscape," Soloway said.

This is a very important development, but it should be noted that immigration cases are very fact-dependent and venue-specific. An immigration judge in another state could hear a nearly identical case and come to a different result. Soloway is looking for other binational couples in other immigration situations such as where the foreign national is on a valid non-immigrant visa (i.e. H-1(B) for employment or F or J for students) legally married to a United States Citizen. You can contact them directly at stopthedeportations [at] gmail.com.

HRC Poll Shows Public Opposition To DOMA

FOR IMMEDIATE RELEASE: March 15, 2011Michael Cole-Schwartz | michael.cole-schwartz@hrc.org | Phone: 202-216-1553

HRC Poll: Voters Oppose Republican Defense of DOMA

Voters favor federal benefits to married same-sex couples; Marriage ranks last on priority list

WASHINGTON – American voters oppose the Defense of Marriage Act (DOMA) – the law that forbids the federal government from recognizing legally married same-sex couples – as well as efforts by the House Republican leadership to intervene in court cases defending the law, according to new polling released today by the Human Rights Campaign in partnership with Greenberg Quinlan Rosner Research.  This poll is the first in a series of quarterly surveys from HRC and GQRR that will analyze public opinion on critical lesbian, gay, bisexual and transgender (LGBT) issues.

Overall, voters say they oppose the Defense of Marriage Act – 51 percent oppose the law and 34 percent favor it.  Independent voters, who were instrumental in the Republican House takeover, oppose this law by a 52 percent to 34 percent margin.  Additionally when read statements for and against defending the law in court, 54 percent of voters oppose the House Republicans’ intervention, while only 32 percent support it.  Poll results are available at www.hrc.org/DOMApoll2011.

DOMA prohibits the federal government from granting married same-sex couples things like Social Security survivor benefits, health insurance for federal employees’ spouses, joint tax filing, family and medical leave and other critical protections.  When asked if they favor or oppose some of these benefits for gay and lesbian couples who have been legally married, voters responded: on Social Security survivor benefits, 60 favor, 34 oppose; on federal employee health benefits for spouses, 58 percent favor, 36 percent oppose; on protecting spouses from losing their homes in cases of severe medical emergencies or death, 64 percent favor, 28 percent oppose; and on avoiding tax penalties by filing joint tax returns as a married couple, 55 percent favor, 38 percent oppose.

“The debate over DOMA isn’t about whether you favor marriage equality, it’s about whether the government can pick and choose which marriages they like, and which they don’t,” said HRC President Joe Solmonese.  “With five states and DC granting marriage licenses to same-sex couples, it’s time the federal government stop playing favorites and instead create an equal playing field for all families.”

On Wednesday, leaders in the House and Senate will introduce the “Respect for Marriage Act” – a bill to repeal DOMA and open up the benefits, protections and obligations of marriage under federal law to same-sex couples legally married in states that have ended their exclusion from marriage.

Last Wednesday, Speaker John Boehner announced that the House would intervene to defend DOMA in court, following a Justice Department announcement that the administration believes the law to be unconstitutional.  At least nine cases are challenging DOMA spanning three appellate courts and four district courts in six states.  The Speaker’s announcement did not make clear if they will intervene in all of the cases, who will represent the House, how much the defense will cost, what their arguments for the law will be or other critical issues.  More background on DOMA and the unanswered questions is at www.hrc.org/DOMApoll2011.

“When it comes to defending DOMA, House Republicans are wrong on the policy and wrong on the politics,” said Solmonese.  “It’s mind boggling that Republican leaders would so misread the tea leaves in their urgent effort to score some cheap and temporary political points.”

Given a list of issues important in determining their vote for President, voters ranked the economy and jobs (54 percent), Medicare and Social Security (23 percent) and education (19 percent) as most important with only 5 percent of respondents saying “gay marriage” was most important to them.

The poll also shows a plurality of voters disapprove of the way the Republicans are handling their job in charge of the House of Representatives: 42 percent approve, 45 percent disapprove.  When asked how the Republican majority is handling voters’ most important issue – jobs – 80 percent have a negative response while only 15 percent say they’re doing a good or excellent job.

“Americans are clamoring for Congress to deal with jobs and the economy,” said Solmonese.  “This new poll shows that House Republican leaders take their eye off the economic ball at their own peril.”

The telephone survey, including cell phones, was conducted 3/8/11 through 3/10/11 among 800 registered voters.  It has a margin of error of +/- 3.46 percent.  The results of the poll, including the questionnaire, a memo on the findings and charts, are available at: www.hrc.org/DOMApoll2011.

The Human Rights Campaign is America’s largest civil rights organization working to achieve gay, lesbian, bisexual and transgender equality. By inspiring and engaging all Americans, HRC strives to end discrimination against LGBT citizens and realize a nation that achieves fundamental fairness and equality for all.

# # #

Obama Administrations Ends Legal Defense of DOMA

FOR IMMEDIATE RELEASE                                                                                              AG

WEDNESDAY, FEBRUARY 23, 2011                                                             (202) 514-2007

WWW.JUSTICE.GOV                                                                             TDD (202) 514-1888

STATEMENT OF THE ATTORNEY GENERAL ON LITIGATION INVOLVING THE DEFENSE OF MARRIAGE ACT

WASHINGTON – The Attorney General made the following statement today about the Department’s course of action in two lawsuits, Pedersen v. OPM and Windsor v. United States, challenging Section 3 of the Defense of Marriage Act (DOMA), which defines marriage for federal purposes as only between a man and a woman:

In the two years since this Administration took office, the Department of Justice has defended Section 3 of the Defense of Marriage Act on several occasions in federal court.  Each of those cases evaluating Section 3 was considered in jurisdictions in which binding circuit court precedents hold that laws singling out people based on sexual orientation, as DOMA does, are constitutional if there is a rational basis for their enactment.  While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard. 

Section 3 of DOMA has now been challenged in the Second Circuit, however, which has no established or binding standard for how laws concerning sexual orientation should be treated.  In these cases, the Administration faces for the first time the question of whether laws regarding sexual orientation are subject to the more permissive standard of review or whether a more rigorous standard, under which laws targeting minority groups with a history of discrimination are viewed with suspicion by the courts, should apply.

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 more 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.  Given that conclusion, the President has instructed the Department not to defend the statute in such cases.  I fully concur with the President’s determination.

Consequently, the Department will not defend the constitutionality of Section 3 of DOMA as applied to same-sex married couples in the two cases filed in the Second Circuit.  We will, however, remain parties to the cases and continue to represent the interests of the United States throughout the litigation.  I have informed Members of Congress of this decision, so Members who wish to defend the statute may pursue that option.  The Department will also work closely with the courts to ensure that Congress has a full and fair opportunity to participate in pending litigation. 

Furthermore, pursuant to the President’s instructions, and upon further notification to Congress, I will 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. 

The Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense.  At the same time, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because – as here – the Department does not consider every such argument to be a “reasonable” one.  Moreover, the Department has declined to defend a statute in cases, like this one, where the President has concluded that the statute is unconstitutional. 

Much of the legal landscape has changed in the 15 years since Congress passed DOMA.  The Supreme Court has ruled that laws criminalizing homosexual conduct are unconstitutional.  Congress has repealed the military’s Don’t Ask, Don’t Tell policy.  Several lower courts have ruled DOMA itself to be unconstitutional.  Section 3 of DOMA will continue to remain in effect unless Congress repeals it or there is a final judicial finding that strikes it down, and the President has informed me that the Executive Branch will continue to enforce the law.  But while both the wisdom and the legality of Section 3 of DOMA will continue to be the subject of both extensive litigation and public debate, this Administration will no longer assert its constitutionality in court.

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NYT Editorial On Defending the Defense of Marriage Act

Today is Valentine's Day, and the New York Times took the opportunity to take the Obama Administration to task for its defense in court of the indefensible "so-called" Defense of Marriage Act (commonly known by its acronym DOMA):

Two new lawsuits, filed in Connecticut and New York, challenging the Defense of Marriage Act now offer the president a chance to put the government on the side of justice. We urge him to seize it when the administration files its response, which is due by March 11. The executive branch’s duty to defend federal laws is not inviolate. This one’s affront to equal protection is egregious.

As in the Massachusetts cases, there are two crucial questions here. The overarching one, of course, is whether it is constitutional for the federal government to deny benefits to some people who are legally married under their state’s laws. Much also depends on the standard of review. How should courts evaluate claims that a law discriminates against gay people?

On the merits, this should be an easy call. A law focusing on a group that has been subjected to unfair discrimination, as gay people have been, is supposed to get a hard test. It is presumed invalid unless the government proves that the officials’ purpose in adopting the law advances a real and compelling interest. That sort of heightened scrutiny would challenge the administration’s weak argument for upholding the act. It would also make it more difficult to sustain other forms of anti-gay discrimination, including state laws that deny same-sex couples the right to marry.

By now, such blatant discrimination should be presumed to be unconstitutional, and the Justice Department should finally say so. If conservatives in Congress want to enter the case to argue otherwise, so be it.

The editorial is referring to the cases Gill v. Office of Personnel Management and Massachusetts v. Department of Health and Human Services. These lawsuits are claiming that the United States is discriminating against legally married couples in Massachusetts by denying these couples access to a whole host of federal benefits due the Section 3 of the DOMA. The first lawsuit was filed by GLAD (Gay and Lesbian Advocates and Defenders); they have (essentially) won every marriage case they have filed, in Vermont, Massachusetts, and Connecticut. The State of Massachusetts filed suit separately on behalf of the same-sex couples who have been able to get legally married there since May 17, 2004. Both cases are now pending before the 1st U.S. Circuit Court of Appeals after the Justice Department decided to appeal a great opinion by U.S. District Court Judge Joseph Tauro,  with "the good guys" winning at the trial court level.

The Obama Administration has great leeway in how they handle the case. I support their decision to appeal the case(s) but I agree with the Times editorial that in addition to whether the justice Department appeals is how they appeal the case. The decision to appeal has already been made, anyway. The question is whether the Justice Department should continue asserting that it believes DOMA is constitutional, when the President has said that he wants it repealed. The main argument is that it is the Justice Department's job to defend statutes passed by Congress and it's not really a defense if you tell the court "I agree with my opponent that their legal argument is correct!"

However, the legal terrain on which the defense of the Defense of Marriage Act is crucially important for numerous pending lawsuits in federal court. There the question is whether the burden of proof will be on the Government to give a compelling reason for why they are discriminating against a class of people and burdening their exercise of a fundamental right (to marry) OR whether the Government can come up with any rational reason for the existence of the statute and Massachusetts and the same-sex legally married couples have to claim the government's rationales are not even rational. In legalese, it is whether "heightened scrutiny" should be given to the statute. I would argue that it should be, and the New York Times editorial page is beseeching the Obama administration to take this position as well.