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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Two items from the daily hatred and fear blotter

Know your church: Priests at Our Lady of the Rosary Church in San Diego have saved the Catholic Church from the abomination of allowing mass to be said for a dead homo. (The online world being what it is, I guess I better quickly add that the foregoing is written in total mocking derision of the Church's inhumane bigotry and hatred.)

by Ken

I know we've had our fair share of LGBT- or just-plain-gay-themed stories lately, and clearly these are of heightened interest to Howie and me, but I like to think they're of interest to anyone concerned with basic rights. More particularly, it seems to me that the attempt on the Right to hold the line or even push back on these fronts should be of serious concern to all lovers of freedom. I can think of two reasons:

(1) Wouldn't it be fair to say that when repression is in the air, it's targeted first at the most vulnerable groups? It would be wise not to imagine that the Unholy Warriors of the Right will only be going after the LGBT contingent. This is an "orthodoxy issue," and the Upholders of the Right have their sights set on all deviants from the One True Path.

Call this the Canary in the Mine Factor.

(2) Because hatred of all things LGBT is perhaps the most emotional of all the organized-religious hatreds, the current jihad is being waged with a backs-against-the-wall ferocity, with a sense of the Forces of Darkness closing in on the Righteous. What I'm suggesting is that we're seeing with better than usual clarity the special viciousness and dehumanization that lies at the core of the Defense of Orthodoxy when the defenders feel they're under siege.

It may seem paradoxical, but the very same ferocity can be triggered when the Defenders score victories, as they have, for example, in all the public referenda on same-sex marriage laws. It may not seem reasonable that they react almost identically in victory and defeat, but I think the common thread is raw hatred and fear, which when you get down to it seems really what the most fire-breathingly orthodox of orthodox religionists are all about.

Call this the Hatred and Fear Factor.

FROM TODAY'S HATRED AND FEAR BLOTTER --

I. DADT isn't going quietly

We know now that Don't Ask, Don't Tell (DADT) is not going to be consigned to the dustbin of lousy public policy during the Pentagon stewardship of Robert Gates on Thursday. Opinion is divided as to whether the advent of Leon Panetta as defense secretary is going to provide, intentionally or otherwise, an excuse for further delay in the secretary's certification of military readiness for repeal. Most obviously, a new secretary taking the reins of a department as vast and complex as the DoD, especially with approximately two and a half wars in progress, is going to have his hands full and could easily justify setting other priorities. Beyond that, if the new secretary feels that on this particular matter he must do his own due diligence, well . . .

Further delay would be regrettable from a theoretical standpoint, of course. DADT is not only demeaning to the people it targets, it also undermines our national security by depriving the military of the services (and special skills) of a lot of people who want nothing more than to serve honorably. But further delay continues to take a serious toll on servicemen and servicewomen. Remember, the Obama Pentagon has never stopped enforcing DADT.

Consider this report from Advocate.com:

Pentagon Confirms New DADT Discharges

By Andrew Harmon
Posted on Advocate.com June 27, 2011 03:30:00 PM ET

The Pentagon confirmed Monday that more service members have been discharged under “don’t ask, don’t tell” pending certification of the policy’s repeal, with one individual’s discharge approved as recently as Thursday.

A total of four airmen have been discharged under the policy in the last several weeks, Pentagon spokeswoman Eileen Lainez confirmed Monday.

One of those individuals is Airman First Class Albert Pisani, who spoke to The Advocate earlier this month of his voluntary separation under “don’t ask, don’t tell,” which defense officials approved on April 29.

Air Force spokesman Maj. Joel Harper told The Advocate that the discharges of three additional service members — two female staff sergeants and one male second lieutenant— have been approved since an April 29 discharge. Harper declined to say whether Pisani was the April 29 discharge, citing confidentiality reasons.

When The Advocate story ran, Defense officials had said that the separation approved April 29 was the only such discharge under DADT since late October, when the Defense Department limited authority for discharges to just five senior officials.

But in a statement, Harper confirmed the additional discharges since. “On May 31st, 2011, the Secretary of the Air Force approved discharges of two Airmen under the provisions of 10 USC 654 [the ‘don’t ask, don’t tell’ policy],“ Harper said. “On June 23, 2011, the Secretary of the Air Force accepted the resignation of an Airman who asked to be separated under the provisions of [DADT].”

Harper said that all four individuals discharged had made voluntary statements regarding their sexual orientation and had asked to be “separated expeditiously.” . . .

II. The Church hounds a victim beyond the grave

This item seems to me just plain nauseating. Without further preamble:

Catholic Church denies funeral mass to San Diego gay businessman

Posted by San Diego LGBT Weekly, Monday, June 27th, 2011

In a decision reminiscent of the Catholic Church’s refusal to hold a funeral mass in 2005 for openly gay businessman John McCusker, Our Lady of the Rosary Church in Little Italy has canceled a funeral mass scheduled this Thursday morning for openly gay businessman John Sanfilippo, owner of the SRO Lounge, a popular gay cocktail bar.

Sanfilippo died on Friday, June 24.

City Commissioner Nicole Murray Ramirez, a friend of the Sanfilippo family, talked to his partner of 30 years, Brian Galvin. “The Sanfilippo family and Brian are, of course, devastated and are trying to get the mass in another church,” Murray Ramirez said.

When the parish priests found out about the gay relationship of Sanfilippo and Galvin, the priests said they were uncomfortable with Sanfilippo and Galvin’s relationship, according to Murray Ramirez, adding the church notified the family on Sunday that the Thursday funeral mass was canceled. . . .

I hate to be judgmental (chuckle), but this strikes me as beyond the pale even for the Church of Bigotry, Hatred, and Fear. The San Diego LGBT Weekly story notes that City Commissioner Ramirez has contacted the San Diego Diocese "for a clarification of its policy of funeral masses for LGBT Catholics and is planning to press for a policy statement from Bishop [Robert] Brom." It should be interesting to see how the bishop responds (or doesn't).

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After NY, is there any prospect of pushing for nondiscrimination in basic rights like employment and housing?

by Ken

The other night we saw Freedom to Marry's Evan Wolfson talking about marriage equality in a segment with Anderson Cooper. In the wake of yesterday's historic enactment of marriage equality by the New York State legislature, Evan tackles the queston on HuffPost: "The Freedom To Marry: What's Next After New York?"

Buried a number of paragraphs down is this key fact:

Fifteen years ago, only 27 percent of Americans approved of ending discrimination in marriage. But as gays and lesbians have talked with family and friends about why marriage matters, hearts have opened and minds have changed. Today, that number has literally doubled. According to a recent Washington Post poll, and confirmed by five other national polls, more than 52 percent of the public supports the freedom to marry for same-sex couples.

The New York development, Evan argues, "is a turning point for the country." Now he foresees:

We will secure the freedom to marry in more states. American history teaches that human rights and social justice movements must make gains at the state level, with some states serving as engines to tug the conversation and country forward. In every state (and every country) that has ended the denial of marriage to same-sex couples, support for the freedom to marry has only increased. People see with their own eyes that gays and lesbians in their state who get married share the hope and joy of other couples, and the heartfelt desire to make and strengthen a lifelong commitment to the person they love.

With each state win, we will inspire other states to follow. Republican support -- from Ken Mehlman, the former chair of the Republican National Committee, to Barbara Bush, the daughter of President George W. Bush -- was critical to passing the law through New York's Republican-controlled state senate. Democratic Governor Andrew Cuomo was the indispensable champion of the marriage bill, speaking often of the need for New York to live up to history and once again lead the way for the nation. New York's bipartisan triumph for the freedom to marry signals a major shift in the national political calculus for both parties and points the way to more victories.

We will continue to grow the number of Americans who support the freedom to marry. Not only is there now majority support for ending discrimination in marriage, but the freedom to marry is riding a demographic wave. Roughly 60 percent of millennials -- voters under 30, who represent the largest generation ever -- overwhelmingly support marriage rights for loving, committed same-sex couples. Their support ranges across virtually every demographic, including Republicans and even evangelicals. Elected officials looking to the future, let alone history, see voters -- Democratic, independent, and increasingly, Republican -- who want them to stand for the freedom to marry.

And we will tackle and end federal marriage discrimination. Under the so-called "Defense of Marriage Act" stampeded through Congress in 1996 -- before gay couples could marry anywhere in the world --tens of thousands of legally married couples are denied the 1138-plus federal protection and responsibilities triggered by marriage, including Social Security, immigration rights and fair tax treatment.

With court challenges mounting, the Department of Justice concluding that DOMA is indefensible under the Constitution, and the Respect for Marriage Act now pending in Congress to repeal DOMA, history's gaze now falls on our leaders in Washington, D.C. (where couples can legally marry, thanks to a legislative vote last year) to do their part in securing the freedom to marry.

I just have one reservation, which it really isn't fair to direct at Evan Wolfson, since he's president of Freedom to Marry, and that's his issue, after all. Still, what I was hoping to hear was that this breakthrough might lead to progress on other rights currently unavailable to an awful lot of LGBT folk: the begining of the end of discrimination in employment, housing, and other basic rights that other Americans take for granted. In an awful lot of states -- as a rule of thumb, check out the red states -- legislatures not only aren't moving to lessen discrimination, they're working actively to expand and codify it.

A lot of LGBT people have found themselves watching the marriage-equality struggle with a sense of disengagement. Many people who daily experience the reality, not theory, of being subject to being fired or denied housing for being who they are, with no legal recourse and no relief in sight, have understandably voiced serious reservations about the near-exclusive focus on the marriage battle. The answer usually has been that this is the currently visible issue, and it has momentum, as those numbers Evan Wolfson cites document. The theory is that success here will carry over to those areas of basic human dignity.

Again, it's not really fair to direct this at Evan, since his issue is marriage equality. Still, you'd think he might have mentioned it. Or somebody else might have.

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