Looks Like Obama's Moment Of Truth Has Arrived... And It Isn't About Evolution

I have no idea if wine drinkers or beer drinkers-- or non-drinkers-- are more or less likely to favor marriage equality. But the new issue of Out has a cute survey by the World Wine Guys Mike DeSimone and Jeff Jenssen, "The Ethical Wine List," about which wine-producing countries' products should be served at same-sex weddings. They base their findings on which wine-producing countries legalized same-sex unions. Alas, Napa wine is still out-- although, gloriously, the fantastic wines from NY's Finger Lakes area and Suffolk County are now fine. Turns out France legalized the pacte civil de solidarité in 1999. Other wine-producing countries which legalized same-sex unions while President Obama was evolving include Canada, New Zealand and Spain, all in 2005, South Africa in 2006, and Argentina last year. (I might add that non-wine-producing countries that have recognized marriage equality include Belgium, Holland, Iceland, Sweden, Portugal, Norway, Mexico, Israel, Brazil, Ecuador, Denmark, Hungary, Ireland, Uruguay, England, Germany, Finland and... Nepal.)

I'm sad to say that my mistrust for our president has grown so rapidly that Tuesday, when he announced he would be supporting Dianne Feinstein's and Jerry Nadler's legislation to repeal DOMA, my first reaction was to look for shady motives. I mean, did he suddenly evolve in one leap and bound? The White House blog:

President Obama is proud to support the Respect for Marriage Act, which has been introduced by Senator Dianne Feinstein and Congressman Jerrold Nadler. 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.

The President has long called for a legislative repeal of the so-called Defense of Marriage Act (DOMA), which continues to have a real impact on the lives of real people-- our families, friends and neighbors.

Why the caution? Well, it just happened to be the day that the media reported that Obama was supporting the efforts of the Gang of Six's conservative consensus plan to redefine "shared sacrifice" as meaning more sacrifice from working families and more tax breaks for millionaires and billionaires.

With the deadline for raising the nation’s debt ceiling just 14 days away, Mr. Warner and the other five senators-- three Republicans and three Democrats in all-- appear to have given new life to a grand bargain with President Obama that could reduce the nation’s deficit by about $4 trillion over the next decade.

In an early afternoon news briefing, Mr. Obama called the proposals unveiled by the senators on Tuesday morning “good news” and a “very significant step.”

Senators from both parties appeared optimistic as well. Forty-nine of them, from both parties, attended a briefing by Mr. Warner and his group’s members on Tuesday morning. Mr. Warner said the reaction had been positive.

“You could almost feel a sigh of relief as people said, ‘Oh my gosh, here’s something that we could be for,’” Mr. Warner said.

...Republicans in the House, who have stated their opposition to any tax increases, could continue to balk at the proposals, which raise nearly $1 trillion in new revenue by lowering rates while closing tax loopholes.

Republican members of the “gang” are trying to persuade House members to support the plan, he said. “There are a number of our Republican colleagues who are working hard on this,” Mr. Warner said.

Democrats, too, will need to be brought along to support the idea that entitlement programs like Medicare and Social Security can be modified without sacrificing their basic nature. A deal could be scuttled if Democratic opposition to some of those proposals develops.

My worry was that Obama would toss the idiotic same-sex marriage bone to hysterical and obsessed gays clamoring for the right to imitate unhappy heterosexuals while slipping in the long-cherished conservative dream to open the doors to the dismantling of Social Security and Medicare. Opposing marriage equality is horrifyingly reactionary and unreasonable. No one opposing marriage equality is fit for public office. But using it as a trade-off to wreck Social Security and Medicare is far worse... far, far, far worse.

Bernie Sanders, addressing Vermont wine growers (and others in the nation's most forward-thinking state) on Ed Schultz's show Tuesday night:



Can we trust Obama on the cuts? I'm not sure. Everyone I know says "no." A usually reliable source of mine in the administration asked me to hold my fire and swore that the president will never do anything to harm Social Security. We should know soon enough. Meanwhile, DeSimone and Jenssen have recommended Ruca Malen Kinien cabernet sauvignon 2007 (an Argentine red) that they describe as "Raspberry and dried-fig flavors with just a hint of spice." For a white, he suggests a South Africa Raats Family Wines Cabernet Franc, 2008, which they describe as "black cherry, plum, and earth tones... super with red meat or game." And for bubbly they're in France: Taittinger Brut La Française champagne-- "granny smith apple and brioche flavors," which they say is "ideal on its own or with caviar." If My White House source is correct and Bernie Sanders and Donna Edwards (and Ed Schultz) are wrong, we're all going to need something a lot stronger than the wines. Bernie-- if you need to read it and not just hear it:

In my view, this Gang of Six proposal is a disaster. iI lowers the tax rate very substantially for the wealthy, and it will make devastating-- this is not modification-- devastating cuts in Social Security, Medicare, Medicaid, education, nutrition... you name the program that are struggling, working class in this country desperately needs, it is going to be cut. I would estimate if the Gang of Six proposal were ever to pass-- I will do my best to see that doesn't happen-- it would be absolutely devastating to working families. We have to do everything we can to rally the American people to prevent it. You're giving the Republicans about 90% of what they ever dreamed of.

90%. Is that hyperbole? Exaggeration? Bernie doesn't think so. Speaking about reactionary gang members Tom Coburn (R-OK), Mike Crapo (R-ID) and Saxby Chambliss (R-GA), he maintained that “while I am sure that they did not get everything that they wanted, I think it’s fair to say they won about 80 percent to 90 percent of what they fought for. Despite President Obama’s campaign promise not to cut Social Security benefits, the Gang of Six plan, which he apparently embraced, calls for massive cuts in that vitally important program... Under the Social Security proposal, a new formula for calculating cost-of-living adjustments would cut a typical 75-year-old’s yearly benefits in 10 years by $560. The average 85-year-old would see a $1,000 a year cut in 20 years. Furthermore, the proposal demands that Social Security be solvent for a 75-year period, which could include additional cuts. The proposal also cuts Medicare by $298 billion over 10 years and makes massive cuts to Medicaid."

Sanders said that the president "apparently embraced" this. My source denies it-- 38-dimensional chess, I'm guessing-- and we'll be finding out pretty soon. I'm guessing Obama's reelection bid depends on it. If he doesn't stand up for working families this time, and takes the part of Wall Street and Big Business again, he's toast... one-termer, no matter what kind of walking freak show the GOP puts up against him.

Lawrence O'Donnell doesn't agree. It looks like my friend in the White House has been talking to him too. And he seems pretty sure it's for real. Listen carefully:

A Justice Dept. brief takes an unprecedented government stand against sexual-orientation discrimination

"Some sentences in the brief," writes Metro Weekly's Chris Geidner, "will become staples of every filing in every lawsuit attempting to advance sexual orientation nondiscrimination."

by Ken

No, the name of Karen Golinski didn't pop out at me either. But her name is attached to the lawsuit seeking equal health benefits at work for her wife, in the process arguing that the Defense of Marriage Act (DOMA) is unconstitutional, the lawsuit for which the House of Representatives' Republican majority bought its first piece of work from legal hired hand Paul Clement in its mission to defend the constitutionality of DOMA in the wake of the Obama administration's decision not to.

On June 3 Clement filed a brief with motions to dismiss (curiously, I can't find any citations for the brief itself, or its filing), and on Friday the Justice Department filed an opposing brief that Metro Weekly's Chris Geidner describes in an analysis today as "a must-read legal filing that became a historic document almost immediately upon submission." In his report Friday on the filing of the brief, in which Chris characterized the new DoJ brief as "arguing strongly that [DOMA] is unconstitutional in terms unparalleled in previous administration statements."

DOJ acknowledged the U.S. government's "significant and regrettable role" in discrimination in America against gays and lesbians.

The summary of the DOJ argument that Golinski's case should not be dismissed begins simply: "Section 3 of the Defense of Marriage Act, 1 U.S.C. Section 7 ('DOMA'), unconstitutionally discriminates."

In his analysis today, Chris writes that the brief --

is the single most persuasive legal argument ever advanced by the United States government in support of equality for lesbian, gay and bisexual people. Moreover, although the case did not include transgender issues, the government's previously described position that the same legal standard should apply to gender identity classifications could prove helpful for court cases looking at gender identity-based discrimination.

Some sentences in the brief will become staples of every filing in every lawsuit attempting to advance sexual orientation nondiscrimination, most notably when the Justice Department acknowledged, "The federal government has played a significant and regrettable role in the history of discrimination against gay and lesbian individuals." The Justice Department goes on to spend two pages detailing the specifics of that discrimination, including efforts by the State Department, FBI and U.S. Postal Service to seek out or track those who were thought to be gay.

This admission is an essential part of lawyers' arguments before courts when they are arguing why ''heightened scrutiny'' should be applied under the 14th Amendment's Equal Protection Clause to laws that classify people based on sexual orientation. To have an admission from the Department of Justice that the government did so is significant because lawyers can now go into court and say, "Not only do we think this, but so does the federal government – and they admit that they have been part of the problem."

The brief also goes extensively into state and local discrimination, "citing more than 20 different instances of state or local discriminatory practices – from laws and judicial opinions making adoption and teaching more difficult or impossible for gay and lesbian people, to police raids of gay bars, including notations of raids over the past years in Atlanta and Fort Worth, Texas." The brief even includes as an example of state discrimination the Tennessee law prohibiting localities within the state from passing laws prohibiting discrimination on the basis of sexual orientation. And the brief goes beyond establishing a history of discrimination -- one test used by courts to determine the applicability of "heightened scrutiny" under the Equal Protection Clause of the 14th Amendement -- "to address the others as well," Chris writes, offering the example of "political powerlessness" in the form of "the strong backlash in the 1970, 1980s, and 1990s" against new LGBT legal protections.

As Chris notes, the brief's unadorned declaration that "The federal government has played a significant and regrettable role in the history of discrimination against gay and lesbian individuals," backed up by "two pages detailing the specifics of that discrimination, including efforts by the State Department, FBI and U.S. Postal Service to seek out or track those who were thought to be gay," which enables lawyers to "go into court and say, 'Not only do we think this, but so does the federal government –- and they admit that they have been part of the problem.'"

In the analysis today, Paul also notes that the brief was clearly being worked on at DoJ --

as Obama himself was taking some pretty hard hits –- and repeated questions –- about his commitment to equality due in large part to his ''evolving'' status and unwillingness to publicly embrace marriage equality. By not trotting out the brief in the midst of that criticism and waiting until after the White House LGBT Pride Month Reception to file, however, the administration made a strong statement that this brief was just that –- a legal filing removed from and independent of the political debate.

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A federal bankruptcy court strikes a powerful blow at DOMA

The opening of the U.S. Bankruptcy Court for the Central District of California's decision striking down Section 3 of DOMA (click to enlarge)

"In the end, the court finds that DOMA violates the equal protection rights of the Debtors as recognized under the due process clause of the Fifth Amendment."

-- from the court's "Conclusion"

by Ken

It's a decision whose practical impact may seem modest: It simply denies a U.S. Trustee's attempt to block two individuals from making a joint bankruptcy filing. But the ground for the trustee's opposition was none other than the infamous federal Defense of Marriage Act (DOMA), already under multiple challenge in the federal courts, and in order to arrive at its ruling -- personally signed, in extraordinary, possibly unprecedented fashion, by 20 members of the U.S. Bankruptcy Court for the Central District of California -- the court had to declare:

The Debtors had demonstrated that DOMA violates their equal protection rights afforded under the Fifth Amendment of the United States Constitution, either under heightened scrutiny or under rational basis review. Debtors have also demonstrated that there is no valid governmental basis for DOMA. In the end, the court finds that DOMA violates the equal protection rights of the Debtors as recognized under the due process clause of the Fifth Amendment.

And again, the decision was rendered in a form that has left our legal eagle consultant, at least, in addition to finding the legal reasoning extremely compelling, gasping for precedent, with those signatures by 20 justices of the court, out of a total of either 24 or 25 -- as Chris Geidner notes in his Metro Weekly blogpost: "The confusion comes because one of the signatories, Kathleen Thompson, is not listed as a judge on the court's website."

The "Conclusion" of the ruling, with its invocation of Supreme Court Justice William O. Douglas's majority opinion in Griswold v. Connecticut

To return to Chris Geidner's post, here is how Chris frames the case:

The underlying basis for the challenge was described by the court:

This case is about equality, regardless of gender or sexual orientation, for two people who filed for protection under Title 11 of the United States Code (Bankruptcy Code). Like many struggling families during these difficult economic times, Gene Balas and Carlos Morales (Debtors), filed a joint chapter 13 petition on February 24, 2011. Although the Debtors were legally married to each other in California on August 20, 2008, and remain married today, the United States Trustee (sometimes referred to simply as “trustee”) moved to dismiss this case pursuant to Bankruptcy Code § 1307(c) (Motion to Dismiss), asserting that the Debtors are ineligible to file a joint petition based on Bankruptcy Code § 302(a) because the Debtors are two males.

It is important to note that the case was filed on Feb. 24, one day after President Barack Obama's position that Section 3 of DOMA was unconstitutional was announced in a letter sent from Attorney General Eric Holder to House Speaker John Boehner.

As the court summed about the trustee's position:

The trustee seeks dismissal solely because the Debtors are a same-sex married couple, in violation of DOMA’s definition of “spouse” as the statute applies to Bankruptcy Code § 302(a).

The case had been brought to the attention of the House Bipartisan Legal Advisory Group, which is defending the Defense of Marriage Act in several other cases, but the BLAG had not intervened in this case, according to the opinion:

The House Bipartisan Legal Advisory Group, acting through the United States Trustee, at the last minute orally requested a short continuance of the May 17 hearing in order to determine whether to intervene in this case to address the issues. Debtors consented and the court granted the request; yet, there have been no further pleadings and no challenge from the government to any issue raised by the Debtors. The government’s non-response to the Debtors’ challenges is noteworthy.

THE JUDGES' SIGNATURES




The 20 signatures personally entered by judges of the Central District of California federal bankruptcy court -- our legal eagle was left gasping for judicial precedent.

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