Popcorn and a Movie: Part II

Did you enjoy yourself at intermisson, guys?  Now that everyone's back in their seats, I'll continue with the discussion - which is as much to summarize and clarify what I know for my own benefit as for anyone else's.  Once again, I'm not a legal expert, just a highly interested observer of these things from afar.

(If you do want to hear a legal expert's opinion on these cases, read the excellent analysis by David Cole, Professor of Law at Georgetown University.  But he won't give you any popcorn or free movies, like me.)

Well, to pick up from Thursday's post, there are a number of ways the Supreme Court could decide the Prop 8 case, depending on which one can get at least five votes. Marty Lederman at SCOTUSblog analyzes at least seven possible rulings.

1. reversal on the merits, upholding Proposition 8 as being constitutional, not discriminatory against gays and lesbians;
2. dismissal of the Proposition 8 sponsors’ petition for lack of appellate standing (leaving the ruling of U.S. district judge Vaughn Walker intact and thus returning same-sex marriage to California immediately, if not sooner);
3. dismissal of the petition as improvidently granted by the Supreme Court – a “DIG” (same result as above); or
4. overturning of the court of appeals’ decision (which upheld what Judge Walker ruled) and sending the case back to the Ninth Circuit for reconsideration in light of whatever the Court does in Windsor, the DOMA case.

and three different ways of striking down Proposition 8, in line with Judge Walker's findings of fact that it does discriminate against gays and lesbians for no good reason:

1. a ruling that applies only to California;
2. a ruling that would guarantee same-sex marriage in the eight states that already offer all the benefits and other incidents of marriage (i.e., most civil unions and some domestic partnerships); or
3. a sweeping ruling that would provide a constitutional right to same-sex marriage nationwide.

After a good bit of argument and analysis, he sees the dismissal on standing grounds or an “eight-state” ruling on the merits as being the most likely outcomes.  He doesn't see a reversal on the merits, or a nationwide ruling, as being within the realm of possibilities for the Court at this time.  I'll leave it up to you guys to go read his analysis and see if you agree.

Many commentators I've read this week do seem to think that, having considered the cases back to back, the DOMA ruling will likely have a major effect on how the high court decides the Prop 8 case.  So let's turn to that now.

Continued after the jump . . .

Clarifications and Comments on That Memo

The Washington Blade reports:

Gay rights attorney Evan Wolfson, who heads the same-sex marriage advocacy group Freedom To Marry, said congressional passage of the Domestic Partnership Benefits and Obligations Act would take precedent over DOMA in the area of federal employee benefits. Thus approval of that measure would enable the Obama administration to provide full federal personnel benefits to same-sex partners of federal employees without the repeal of DOMA.

"A more recent bill would undo or at least limit the other one," Wolfson said.

Hirsch of Federal GLOBE said White House officials kept his group informed of the administration's efforts to prepare the presidential memorandum during the past several months. He said the plan all along was to issue the memorandum during LGBT Pride Month in June. He said the memorandum's signing shortly after the administration issued its controversial defense of DOMA in federal court, in response to a lawsuit challenging DOMA, was coincidental.

Hirsch and Solmonese of HRC each called the presidential memorandum a small but important first step in the ongoing effort to provide equal rights and treatment of LGBT people who work for the federal government.

According to Hirsch, a presidential memorandum has the same force of law as a presidential executive order, with the memorandum used more often in federal personnel matters. Hirsch and White House officials noted that some news accounts claiming that a presidential memorandum expires at the end of a president's term in office are incorrect. A presidential memorandum remains in effect indefinitely unless another president rescinds it, just as presidents can rescind executive orders issued by their predecessors.

Solmonese pointed to a statement by Berry in a phone conference for reporters, in which the gay OPM director said the president's memorandum would give him greater authority to prohibit workplace discrimination against LGBT employees.

"Although today's actions are only the beginning in what will be a multi-step process towards achieving real and tangible equality for our community, it is no doubt an important first step," Solmonese said. " We commend President Obama and his administration for taking this action to provide some basic benefits for same-sex partners of federal employees and his endorsement of legislation that would provide domestic partner health benefits."

Kameny is the first known gay person to challenge the federal government after he was fired for being gay from his job as a civilian astronomer with the Army the late 1950s, He called Obama's presidential memorandum an important development.

"There's been a great deal of adverse criticism of the president in recent weeks because people got the feeling that things they wanted to see weren't happening," Kameny said. "My feeling is he made clear that he's on the right side, he's with us, things are moving as fast as he can get them to move, and I feel very satisfied."

Leonard Hirsch has posted a personal reflection on his recent life-threatening illness and the President's action here (PDF document).

Related links:

Federal GLOBE - Gay, Lesbian, Bisexual, and Transgender Employees of the Federal Government

GLIFAA - Gays and Lesbians in Foreign Affairs Agencies

Noted in the GLIFAA press release:

President Obama's announcement today follows earlier news reports that Secretary Clinton would soon expand the State Department's definition of "Eligible Family Member" (EFM) to include same-sex and opposite-sex domestic partners and their children. Presently, domestic partners are classified as "Members of Household" (MOHs), a term that denies critical protections to family members, including those separated from their employee partners who have served in Iraq and Afghanistan. The Foreign Service Act of 1980 grants the Secretary of State exclusive authority to define the term EFM, and GLIFAA has pushed for years to update the definition of the term. GLIFAA also thanks Congresswoman Baldwin, Congressman Berman, Congresswoman Ros-Lehtinen, Congressman Ackerman, Senator Feingold, and Senator Wyden, who repeatedly wrote Secretary Rice and Secretary Clinton to remind them of the hardships facing lesbian, gay, bisexual, and transgender (LGBT) families serving overseas.

As soon as she took office, Secretary Clinton received a letter from over 2,200 current and former employees of the State Department and other foreign affairs agencies asking her to treat all families equally: "We question the logic of leaving same-sex partners to fend for themselves during an emergency evacuation of a high danger post. We are embarrassed when the Department will reimburse a variety of moving expenses, including the cost of transporting a pet, when an employee is assigned overseas, but will not do the same for a same-sex partner... Madam Secretary, we believe that no colleague of ours is a second-class colleague, and no colleague's family is a second-class family." Ninety-two percent (92%) of the letter's signers did not have an MOH family member but signed because, like Secretary Clinton, they know that leaving families vulnerable and without diplomatic protections while in service to the U.S. Government abroad is wrong.

The impact of H1N1 influenza on one GLIFAA family highlighted the second-class status suffered by MOHs. In Mexico, tests confirmed that one Foreign Service Officer's two sons had contracted H1N1. The Health Unit quickly sprang into action and gave Tamiflu to the children and to the employee father. However the Health Unit would not provide Tamiflu to the other father -- even though it was unavailable locally -- because he was an MOH, and not an EFM. It took the personal intervention of the Chargé d'Affaires before the Health Unit took this basic public health measure. Once regulations are revised based on the administrations guidance, no Embassy children will have to watch their parents bear this discrimination again, because all family members will have access to Tamiflu when medically appropriate.

What I Say: You wonder why the doctor or nurse, with hypodermic in hand, didn't just give the other dad the shot and keep quiet about it; lie if necessary. You wonder what kind of fricking tight-ass bureaucrat down in Mexico would sacrifice those kids' dad for the sake of a petty homophobic rule.

You wonder why the God of all Creation, the God who is Love as "the Bible says," would get all huffed up and indignant and rain down fire and brimstone over something like this, like some backwoods shyster multimillionaire TV preacher with a shit-eating grin and a hateful arrogant self-righteous heart as hard as board.

Shove it up your ass, Pat Robertson.

NOW He Throws Us a Bone

This just in from the Washington Post:

As John Berry forecast in his Advocate interview at Gay Pride in D.C. on Sunday, Obama is going to sign an order tomorrow extending healthcare and other benefits to partners of federal employees.

That's great news for all those who are eligible, and I'm happy for them.

But that doesn't make everything all right now between Obama and the LGBT community. There's millions of us who won't be affected in any way by his signature tomorrow.

We deserve ALL the rights and benefits that anybody else does, in or out of Washington, D.C. We are Americans, we are citizens, we are human beings too.

Nothing less than the equal protection of the laws everywhere in the land will satisfy us; because that's simply our due as the equals of everybody else in this country.

Mr. Obama does not yet see it that way, folks. He is doing this for political reasons to take the heat off. Understand: He is a straight man who still does not get it.

It's high time he did, though.

Also noted: this persuasive article, "Obama needs a bit of Truman's courage," by Dick Polman in the Philadelphia Inquirer.

Update: It's not even a bone he's throwing us, it's just a little piece of gristle, John Aravosis opines:

As you may have heard, President Obama tomorrow will be signing a presidential directive, not an executive order, providing "some" benefits to gay and lesbian employees. Well, the details, murky that they are, are coming. And they aren't great.

First off, Chuck Todd on MSNBC that because this is only a "memorandum," as he called it, it will expire when Obama leaves office. Lovely. Second, health benefits for federal employees won't be covered. Why? Because of DOMA, so says the Advocate.

Just which benefits will gay federal employees be getting? The White House is refusing to say. But it's unlikely it's anything involving money, like Social Security, or, as we now know, health care. Which is ironic, since health care is Obama's number one issue (but not for us). Also ironic, which I wrote about earlier, is that health care reform likely won't cover us either, since they'd have to include us as "families" and "dependents" - and let's face it, they just compared us to incest and pedophilia, does anyone think this administration or this congress is going to define us as "family" in their health care package? (It's also not clearly that DOMA would let health care reform provide us any benefits anyway.) In any case, Obama's inaction on DOMA, and outright defense of DOMA, is now undercutting his other efforts, meager that they are, to help us. It's all tied together.

Furthermore, John says about tomorrow's memo signing in the Oval Office:

It's also awfully convenient that the event is being held at 5:45pm, just a tad too late for the evening news to pick it up. Gosh, how did that happen?

Unfortunately, federal benefits for gay federal employees is not even one of the eight campaign promises Obama made to our community (there are only seven now on the White House Web site - the DOMA promise went down the memory hole about two months ago). . . .

Today, after having been compared to incest and pedophiles by our own Democratic president, it doesn't even begin to scratch the surface of what this president needs to do to win back our trust. Not to mention, we have to beat the bejeesus out of you for five days to even get your attention, and this is all we get?

What is he going to do on DOMA, DADT and ENDA? Is the President going to apologize for comparing us to incest and pedophilia last week? Is he going to support us in the next DOMA lawsuit, whose brief is due on the 29th, or he is yet again going to support a bigoted law that he has called "abhorrent," even though he is fully in his power as president to oppose an existing law IF HE CARES ENOUGH TO DO SO.

When you figure that one out, get back to us. Until then, spare us the cute photo opps that give the president an opportunity to stand around a bunch of gay people and show how loved he is by the gays. when everyone is really pissed off at him. This isn't North Korea.

Update 2: The NYT quotes Administration sources who confirm that tomorrow's Presidential doggie treat is indeed a political ploy for damage control:

Mr. Obama will be weighing in for the first time on one of the most delicate social and political issues of the day: whether the government must provide benefits to same-sex partners of federal employees. While he will announce a list of benefits, officials said, they are not expected to include broad health insurance coverage, which could require legislation to achieve. . . .

But administration officials said the timing of the announcement was intended to help contain the growing furor among gay rights groups. Several gay donors withdrew their sponsorship of a Democratic National Committee fund-raising event next week, where Vice President Joseph R. Biden Jr. is scheduled to speak.

And remember I told you the other day there is no fucking plan? Pam Spaulding says:

The more I think about how this stuff seems slapped together, the more I believe that there was no "plan" for our issues and legislation. But that can't be true, can it? John mulls the same thing.

Honestly, really I don't want to believe that It was all about placating and delay and deny -- and then laying the blame the lack of votes on the Hill for inaction. Harry Reid finally caught on to this asshattery. The question, then, is how could this well-oiled political machine that we saw during the campaign, turn into a crew that is so ham-handed on our issues that they thought tossing out an inflammatory DOMA brief wasn't going to be like dropping an A-bomb on the community?

Given some unnamed source in the administration actually admitted to the NYT that this partner benefit announcement was crafted to stop the benefit from tanking, the WH is clearly off balance and off message. It's amateur hour at our expense.