By Kenneth Jost
Supreme Court Editor, CQ Press
The Obama administration will no longer defend the central provision of the 1996 law that prevents the federal government from providing marriage-based benefits to legally married same-sex couples.
In announcing the new stance on Wednesday (Feb. 23), Attorney General Eric H. Holder Jr. said the government has concluded that all anti-gay laws should be subject to “heightened scrutiny” in the courts. The Defense of Marriage Act (DOMA), now being challenged in federal cases in Massachusetts, Connecticut and New York, cannot meet that standard, Holder said.
The government’s call for heightened scrutiny, if adopted by courts, could doom other anti-gay laws, including the bans on same-sex marriages on the books in some 40 states.
Gay rights groups hailed the administration’s move, which Holder said was personally approved by President Obama. Evan Wolfson, president of the New York City-based Freedom to Marry, praised Obama and Holder “for acknowledging that sexual orientation discrimination has no place in American life and must be presumed unconstitutional.”
Laws such as DOMA “must be looked at with looked at with skeptical eyes, not rubber-stamped,” Wolfson said.
The government announced the position in advance of filings due March 11 in the two most recent challenges to DOMA in federal district courts in Connecticut and New York. For appellate purposes, those two states are both in the Second Circuit. Plaintiffs in those cases, legally married in their home states, say DOMA prevents the federal government from providing them specified financial benefits, such as tax breaks available to other married couples, Social Security benefits and employee health benefits.
The government had previously defended the constitutionality of DOMA in a case filed in Massachusetts, which is in the First Circuit. In that case, a district court judge in July 2010 ruled the law unconstitutional.
The government adopted the new position, Holder explained, because the Second Circuit, unlike the First, has no binding precedent on what standard of review to apply to laws that treat gays and lesbians differently from other people. With the government forced to address the issue for the first time, Holder said, “the President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny.”
The Massachusetts case is currently pending before the First U.S. Circuit Court of Appeals. The First Circuit applies a relaxed “rational basis” test to laws aimed at gays and lesbians. In his ruling in July, U.S. District Court Judge Joseph Tauro said DOMA could not satisfy that test because it serves no legitimate government purpose.
Holder announced the new position in a statement as well as in a letter to House Speaker John Boehner. The Justice Department is required to notify Congress whenever it concludes that it will not follow the normal practice of defending a law in court despite policy disagreements with the measure.
In the letter, Holder said that laws based on sexual orientation meet four established criteria for triggering heightened scrutiny when challenged in court. Gays and lesbians, he said, have suffered a “significant history of purposeful discrimination,” both by government and private entities. In addition, Holder said sexual orientation is now widely recognized as an “immutable” characteristic, that gays and lesbians have “limited political power” and that sexual orientation “bears no relation to ability to perform or contribute to society.”
Holder said the government will notify the First Circuit of its new position. The notification to Congress affords lawmakers or others the opportunity to take steps to defend the law in court if they want. Boehner’s office had no immediate response to the move.
The new stance could affect the government’s defense of the “don’t ask, don’t tell” policy on gays in military. That policy remains in effect despite the law approved by Congress and signed by Obama in late December that calls for it to be repealed after a specified certification by Obama, the secretary of defense and the chairman of the Joint Chiefs of Staff. A federal judge in California ruled the policy unconstitutional in October; the government appealed the case to the Ninth U.S. Circuit Court of Appeal, which refused the government’s request last month to put the case on hold while awaiting the Pentagon review.
Anti-Gay Laws Suspect: Government
Gay Rights: Lots of Noise, but No Tangible Progress
By Kenneth Jost, Associate Editor, CQ Researcher
Gay-rights advocates made no tangible progress toward most of their policy goals after a weekend of high-profile events in Washington that included a major presidential speech and a national march by tens of thousands of gays and straight allies.
President Obama drew raucous cheers on Saturday night [Oct. 10] as he reiterated at the Human Rights Campaign’s $250-a-plate dinner his support for enacting a federal law to prohibit discrimination against gays in employment, repealing the Defense of Marriage Act and ending the military’s “don’t ask, don’t tell” policy.
The next day, however, Obama’s remarks drew decidedly mixed reactions from speakers who addressed the National Equality March from the west lawn of the U.S. Capitol. Many of the speakers and many of the march participants described themselves as Obama supporters but complained of the lack of concrete action in his speech.
Obama is “verbally committed” to gay-rights goals, said Marco Chan, co-chair of the Harvard College Queer Students and Allies, but there “wasn’t a particular point of action.” Chan was among a group of about two dozen Harvard students who came for the march, which began a couple of blocks from the White House and proceeded down Pennsylvania Avenue to the Capitol for nearly four hours of speeches and entertainment.
The march drew participants from all over the country, including 40 busloads from New York City’s theater community and an eight-person delegation from Alaska. Plans for the march had divided the LGBT (lesbian, gay, bisexual and transgender) community. National groups were slow to endorse the march. Some local and state groups complained the event was diverting money and manpower away from state ballot measures in Maine and Washington.
With no official counts, crowd estimates varied widely. Speakers claimed “hundreds of thousands” had marched. The Washington Post used “tens of thousands.” Time magazine made what seemed to many a generous estimate of about 200,000. Whatever the number, the crowd began drifting away by late afternoon after an appearance by the event’s star entertainment attraction: the bisexual pop singing sensation, Lady Gaga.
In his speech the night before, Obama had urged gay-rights supporters to increase pressure on politicians, “including me.” But he made no reference to the march in his 25-minute address. Obama told the crowd of about 3,000 that he expected Congress to complete action as early as this week on a federal hate-crimes provision that will add penalties for offenses motivated by prejudice based on, among other categories, sexual orientation. The bill is named for Matthew Shepard, the Wyoming college student who was beaten, tied to a fence and left to die on Oct. 12, 1998.
On other issues, however, Obama was less concrete. He repeated his pledge to end the military’s “don’t ask, don’t tell” policy, which prohibits service members from being openly gay or lesbian. But he did not reply to calls from some gay-rights advocates to use his power as commander in chief to suspend the policy in advance of congressional action. (For background, see Peter Katel, "Gays in the Military," CQ Researcher, Sept. 18.)
Obama also said he would work to repeal the Defense of Marriage Act, which denies federal benefits to gay couples. But he did not comment on the Maine ballot measure, which would overturn a law recognizing gay marriage, or a measure in the state of Washington, which would overturn a law granting domestic-partner benefits to gay couples. (For background, see Kenneth Jost, "Gay Marriage Showdowns," CQ Researcher, Sept. 26, 2008.)
Many gay commentators were critical. On CNN, columnist-blogger Dan Savage remarked that Obama had said nothing that he had not already said during his 2008 presidential campaign. Hillary Rosen, a longtime gay-rights supporter and now a CNN contributor, countered by appealing for more patience from gay-rights advocates.
The rally at the Capitol featured speeches by a diverse collection of upwards of 50 gay-rights advocates, ranging from veteran activist David Mixner to several leaders of LGBT youth organizations. Toward the end, the rally featured half a dozen openly gay elected local or state officials from Virginia to Hawaii. But no member of Congress or other federal official spoke.
Many of the speakers rejected calls for patience on LGBT issues. “Good things do come,” said keynote speaker Julian Bond, head of the NAACP. “They don’t come to those who wait,” he continued. “They come to those who agitate.”
In her turn, Robin McGehee, co-chair for the march, derided Obama for the lack of concrete action. She mocked Obama’s credit-taking for inviting LGBT families to the annual Easter Egg Roll on the White House law. The invitation, she said, was “just like the ticket for the back of the bus.”
“It is time to take action,” McGehee said, speaking to the absent Obama. “I want evidence that you can be a fierce advocate for the rights of my two children and the LGBT community.”
Excerpt from the "Gays in the Military" report
Below is an excerpt from the "Current Situation" section of this week's CQ Researcher report on "Gays in the Military" by Peter Katel, September 18, 2009
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Current Situation
Advocates of allowing gays to serve in the military may agree on the ultimate goal — but not on how to reach it. President Obama, for instance, wants Congress to repeal the 1993 law banning homosexuality in the armed forces. Congress passed the law, so Congress must undo it, he reasons.
But gay-ban opponents at the University of California's Palm Center say the congressional route is a dead end, at least for now.
“We don't think there is any chance of getting legislation through Congress any time soon,” says Aaron Belkin, the center's director. “The issue in Congress is completely stalled.”
Instead, he and five colleagues argued in a paper last May, the president should use authority granted him by the so-called “stop loss” law to halt sexuality-based discharges of military personnel. As the Palm Center team analyzes the law and related statutes, the president is authorized to prevent discharges during periods of national emergency if it is found that keeping personnel from leaving is essential to national security. [Footnote 59] The liberal Center for American Progress advocates the same strategy.
Such a move, Belkin says, would show opponents that allowing gays and lesbians to remain in the ranks does no harm. With that result established, he says, “Politically and operationally, it would be extremely difficult to get this toothpaste back in the tube.”
Remaking military policy by executive fiat would eventually make congressional action easier, not harder, he argues, although repealing the law would be necessary eventually. “It doesn't take any political capital to sign an order because the issue is polling at 75 percent in favor,” he says, citing recent surveys. [Footnote 60]
Ban supporter Donnelly at the Center on Military Readiness says bypassing the political process would be “outrageous,” and an admission of desperation. “I don't think the president is politically unwise enough to do something like that.”
The Palm Center also sees the proposed move as a way of short-circuiting Pentagon opposition, she notes. Indeed, a follow-up paper by the center said: “The legislative process would open a can of worms by allowing military leaders to testify at hearings and forge alliances with opponents on the Hill. A swift executive order would eliminate opportunities for them to resist.”[Footnote 61]
The Washington-based Servicemembers Legal Defense Network, however, views congressional action as the only practical approach — and one with excellent prospects. “We're looking at the next 12 months for repeal,” says Kevin Nix, the network's communications director. That time frame would put the matter before the Democratic-controlled 111th Congress, which runs through 2010.
Congressional-strategy advocates say hearings expected later this year will create new legislative momentum by providing a national forum for evidence of the practical and moral benefits of opening the armed forces to gays.
By early September, however, no dates had been set for the hearings. On the House side, an aide to Armed Services Committee Chairman Ike Skelton, D-Mo., said the panel is unlikely to take up the issue until a new under secretary for personnel and readiness has been allowed to settle into the position. The Senate Armed Services Committee hasn't set a date either. Chairman Carl Levin, D-Mich., has said he would hold a hearing in the fall.
“We firmly believe that repeal can get done in this Congress,” Nix says.
Footnotes
[59] Aaron Belkin, et al., “How to End ‘Don't Ask, Don't Tell’: A Roadmap of Political, Legal, Regulatory, and Organizational Steps to Equal Treatment,” Palm Center, May, 2009, www.palmcenter.org/files/active/0/Executive-Order-on-Gay-Troops-final.pdf. For background on stop-loss, see Pamela M. Prah, “Draft Debates,” CQ Researcher, Aug. 19, 2005, pp. 661–684. Lawrence J. Korb, et al., “Ending ‘Don't Ask, Don't Tell’: Practical Steps to Repeal the Ban on Openly Gay Men and Women in the U.S. Military,” Center for American Progress, June 2009, .
[60] Morales, op. cit.
[61] Aaron Belkin, “Self-Inflicted Wound: How and Why Gays Give the White House a Free Pass on ‘Don't Ask, Don't Tell,’” Palm Center, July 27, 2009.
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Gays in the Military
Should the ban on homosexuals be lifted?
By Peter Katel, September 18, 2009
Political passions over the ban on open homosexuality in the U.S. military are stirring again. A new legislative fight on the issue may be headed for House and Senate hearings as early as this fall. 
Iraq War veteran Rep. Patrick J. Murphy, D-Pa., is proposing legislation to end sexuality-based discrimination in the armed forces. Under the “don't ask, don't tell” policy, gays and lesbians are barred from military service unless their orientation stays hidden. The policy was designed as a compromise to a 1993 call to lift the ban. Supporters of the policy say dropping it would degrade the “unit cohesion” that is critical to battlefield effectiveness. But Murphy and some other recent vets argue that most of today's warriors don't care about their comrades' sexuality. In another element of political drama, some gay political activists are questioning President Barack Obama's level of commitment to pushing for repeal, as he has promised to do.
The Issues
- Can military units function effectively with openly homosexual members?
- Is the “don't ask, don't tell” approach to differentiating sexual “orientation” from conduct a viable compromise?
- Should the United States follow other countries' examples and allow gays to serve openly in the military?
