• Share this on Facebook
• Tweet This!
• Share this on LinkedIn
• Send this page to Print Friendly
• Share this on Tumblr
• Add this to Google Bookmarks
• Email this to a friend?
• Share this on Google+

Last week, President Obama surprised the world by announcing his support for marriage equality. The announcement was a cathartic moment for marriage equality activists like myself and the reaction of praise from the LGBT community and its allies has been well deserved.

As recently as a few weeks ago, I was on the pages of this newspaper offering a good dose of criticism of the president for failing to issue an executive order requiring federal contractors to add sexual orientation and gender identity to their nondiscrimination policies. Make no mistake, this should still be done and the president’s support of marriage equality diminishes the already weak arguments against it.

I’ve been critical of the president and what I have viewed as his lack of progress on LGBT issues. This announcement changes it all. For the first time, cynicism has become optimism for his re-election campaign. So many others clearly feel the same way. Within moments of the news, I started a donation page on the campaign website and in just over 24 hours, more than 100 people gave more than $13,500.

Strangely, the Log Cabin Republicans lambasted the president in one of the most bizarre press releases I have ever read. I suspect they are also behind the whisper campaign to distort the president’s position, creating confusion around whether marriage is a ‘state’ issue. Let me be clear: The president’s position is exactly the one sought by the most aggressive of activists.

The fact is that each state has its own marriage laws. The first time the federal government got into the business of defining marriage was when Republicans passed the Defense of Marriage Act. We are hopeful that courts will soon find that unconstitutional. It is also true that the U.S. Supreme Court will likely settle the marriage issue by overturning state marriage amendments because they are driven by animus and violate the U.S. Constitution. That is our end game.

Another important element of the president’s support for marriage equality is that countless young people who are struggling with their sexuality, as many of us once did, woke up to news that the president of the United States believed they should be fully equal in the eyes of the law. Many of these young people may not be hearing that from anyone else in their lives.  This should not be overlooked.

Also, the president’s announcement was more of a moment of honesty than really the conclusion of an evolution of a political position. That he was finally willing to say out loud what many of us already believed was his position is a rare moment of honesty in the cynical world of Washington. This will inspire others to let go of their political fear and embrace marriage equality.

When the history of our movement is told, this will go down as a major moment in our struggle for LGBT equality. It feels like President Obama has finally earned his self-appointed title of “fierce advocate.” We must work to ensure his victory in November.

I fully believe that his position on marriage will be an asset heading into this year’s election. While economic issues will loom large, if Mitt Romney seeks to use our community and our freedom to marry as a wedge issue, it won’t work. There will be no other issue on which Romney clearly represents the past and Obama the future.

While we should fully commit to re-electing this president, we cannot also lose sight of the work that remains to be done that can have an immediate, material impact on the lives of LGBT people. For instance, he should immediately issue that executive order, which would cover 20 percent of the nation’s workforce and help to build the case for passage of ENDA next year.

We can both support our president and continue to press for progress on LGBT equality.

• Share this on Facebook
• Tweet This!
• Share this on LinkedIn
• Send this page to Print Friendly
• Share this on Tumblr
• Add this to Google Bookmarks
• Email this to a friend?
• Share this on Google+

President Obama shocked the political establishment this week by completing his 19-month “evolution” and publicly endorsing marriage equality.

“I have to tell you that over the course of several years as I have talked to friends and family and neighbors when I think about members of my own staff who are in incredibly committed monogamous relationships, same-sex relationships, who are raising kids together, when I think about those soldiers or airmen or marines or sailors who are out there fighting on my behalf and yet feel constrained, even now that ‘Don’t Ask Don’t Tell’ is gone, because they are not able to commit themselves in a marriage, at a certain point I’ve just concluded that for me personally it is important for me to go ahead and affirm that I think same-sex couples should be able to get married.” (Obama made the remarks to ABC News’ Robin Roberts, an interesting choice for the interview given she has long battled rumors of being a closeted lesbian.)

It was a bold statement for Obama to make during what will undoubtedly be a close general election contest against Mitt Romney. But bold leadership is what we should expect from our elected officials. Romney can’t decide whether to wear jeans or roll up his sleeves during campaign stops without consulting a pollster. Obama’s brave decision this week again exposes Romney for the weak, unprincipled flip-flopper that even the most loyal Republican voters know him to be.

Yes, Obama should have done it sooner — preferably before North Carolina voters decided Tuesday to enshrine discrimination in their constitution. He shouldn’t have let his own vice president and Cabinet members get in front of him on the issue. And this surely wasn’t planned. Vice President Joe Biden’s unexpected marriage endorsement on Sunday, followed by all the laughable efforts at damage control by the campaign and the White House press secretary forced Obama’s hand.

But none of that matters now. For the first time, we have a sitting president unafraid to say publicly what we all assumed he believed privately — that same-sex couples deserve the rights of marriage. Kudos to Obama for not waiting until after the election — or until after he leaves office — to make this announcement. Too many public officials, including President Clinton and Vice President Dick Cheney, have waited until they left office to announce their support of marriage equality. Not exactly profiles in courage. But Obama is different. He’s deliberate and contemplative and, yes, he sometimes takes a while to make a decision, but once it’s made he communicates and leads. That’s what a president ought to do.

And now politicians from both parties can point to Obama’s precedent-setting leadership and announce their own support. Can Hillary Clinton and other sitting Cabinet members be far behind? Obama’s announcement will inspire others who have remained quiet allies to come out in full support of LGBT equality.

Obama’s decision certainly means that support for marriage equality will become the default position of Democratic presidential nominees going forward. Who could have foreseen this moment just 20 years ago? President Clinton signed the Defense of Marriage Act and bragged about it in campaign radio ads. John Kerry, John Edwards, Hillary Clinton and other Democratic contenders took gay money and votes while cynically delivering nothing more than lip service to our issues. President Bush used marriage as a wedge issue in 2004 and called for a federal constitutional amendment banning same-sex marriage in his State of the Union Address. Then Obama came along and promised change and boy did he deliver this week.

But let’s not be lulled into complacency by this historic moment. It’s not the end of the road for the LGBT movement, but rather a promising new beginning. This question of will-he-or-won’t-he has sucked too much oxygen from the movement and so we must now move on to other pressing issues, like barring discrimination against LGBT workers in both the public and private sectors. Not everyone wants to get married, but everyone has to work. Obama should sign an executive order barring workplace bias against LGBT employees of federal contractors. And Congress needs to revive the Employment Non-Discrimination Act, which has languished since the 1970s.

The road ahead is long, but the LGBT movement took a huge leap forward this week. LGBT voters should line up and fight to ensure President Obama’s re-election.

• Share this on Facebook
• Tweet This!
• Share this on LinkedIn
• Send this page to Print Friendly
• Share this on Tumblr
• Add this to Google Bookmarks
• Email this to a friend?
• Share this on Google+

New York LGBT activists are trying for a fifth time to push passage of a gender identity non-discrimination bill. (Washington Blade photo by Michael Key)

N.Y. Assembly passes gender identity bill

ALBANY — The New York State Assembly has sent on to the Senate a bill that would bar employers from discriminating based on gender identity, according to the Empire State Pride Agenda.

In its fifth attempt, the Gender Expression Non-Discrimination Act passed 80-55 this week with bipartisan support, and now heads to the Senate where an intense battle over yet another pro-LGBT bill could be expected. Sixteen states and the District of Columbia have similar laws.

“Currently under New York State law, a person can lose their job, be refused service in a restaurant, kicked out of a public library or evicted from their home simply because of how they express their gender,” said ESPA interim executive director Lynn Faria. “As a result of this discrimination, more than one-third of transgender New Yorkers have been homeless at one time and 74 percent of transgender people have been harassed at work.”

Several municipalities and counties, including New York City and Albany, have passed local versions of the protections. New York State already bars discrimination based on sexual orientation.

Boehner to defend DOMA against veteran

WASHINGTON — Though she’s in the grips of stage IV breast cancer, Iraq war veteran Chief Warrant Officer Charlie Morgan will have to face a new foe in her struggle to have her marriage recognized by the defense department: House Speaker John Boehner.

According to Servicemembers Legal Defense Network, which is representing Morgan and seven other military families, though the Department of Justice has decided not to defend the law against claims that it sets up a two-class system for military personnel — especially in terms of spousal benefits like health insurance — Boehner has assembled a bipartisan legal advisory group and says he will fight to defend it.

“Speaker Boehner’s request to defend this case in the wake of the ongoing harm done to military families by these discriminatory laws is reprehensible and callous,” said Army veteran and SLDN Executive Director Aubrey Sarvis.

AU student president comes out as transgender

WASHINGTON — The outgoing president of student government at American University came out as transgender in a heartfelt editorial published Tuesday in the student newspaper, the Eagle.

Though students had always known her as Tim, she signed her editorial for the first time as Sarah McBride, helping promote visibility and awareness of transgender students, and promoting understanding of gender identity issues.

“With every birthday candle extinguished, with every penny thrown, my wish was always the same,” McBride writes. “I am now blessed with the opportunity to live my dream and fulfill a truth I have known since childhood.”

Family Equality Day events planned

BOSTON — Family Equality Council announced this week that celebrations for the first annual International Family Equality Day will be held in four American cities, as well as at venues around the world.

The May 6 multi-city event will celebrate the more than two million children being raised by LGBT parents with proceedings in New York, Minneapolis, Los Angeles and Dover, New Hampshire. Additionally, events will also take place on that day in Canada, Germany, Finland, Switzerland and South Africa.

“There is a need not only to recognize and celebrate our families at the local level, but to also take a moment to appreciate the global LFBT family community we are part of,” said Brent Wright, Director of Programs at Family Equality Council.

• Share this on Facebook
• Tweet This!
• Share this on LinkedIn
• Send this page to Print Friendly
• Share this on Tumblr
• Add this to Google Bookmarks
• Email this to a friend?
• Share this on Google+

From Bilerico: Though they were legally married in Iowa and raising a young daughter together, Inger and Phillipa Knudson-Judd were forced apart when Phillipa was forced to return to her native England this week because DOMA forces the government to ignore their marriage. (Via Bilerico)

Ding dong, ding dong: According to the New York Times, wedding bells are ringing for openly gay New York City Council leader Christine Quinn, who many expect to be the next mayor of America’s largest city.

Anheuser-Busch has told MMA league, Ultimate Fighting Championship to extinguish the sexist, homophobic comments from their athletes, or the nation’s largest beer producer, and UFC major sponsor, is pulling out, according to Advertising Age.

WRAL.com has video of North Carolina Amendment One sponsor, Rep. Jim Crawford telling constituents he won’t vote for the ballot measure after all, because it goes to far. Well thanks so much for passing it and getting it in front of the voters and NOW having a change of heart #TooLittleTooLate

Rep. Linda Sanchez has introduced the Social Security Equality Act of 2012 in the House of Representatives, according to the Task Force. If passed, the law would equalize Social Security benefits for same-sex partners and opposite-sex couples.

BOMBSHELL: In 1994 Mitt Romney told a crowd during a debate that he believes the Boy Scouts should allow anyone be a scout or a scoutmaster regardless of their sexual orientation, and GLAAD is making sure that quote never goes away. Will he comment on it today?

At The American Independent: Did someone at the Michigan Department of Community Health leak confidential health records of thousands of HIV+ Michigan residents to an outside email address?

Finally in your video fix, a little more news. In Mt. Pleasant, Michigan, the town I attended college, there’s a massive Catholic church and school called Sacred Heart. When Sacred Heart Academy invited as graduation keynote Dominic Sheahan-Stahl, an aspiring actor living in New York and Sacred Heart Alumnus, the school did not realize that Sheahan-Stahl was gay. When they found out? They uninvited him. Now the town is in an uproar, and the students are asking to have him re-invited.

(Via The Morning Sun)

• Share this on Facebook
• Tweet This!
• Share this on LinkedIn
• Send this page to Print Friendly
• Share this on Tumblr
• Add this to Google Bookmarks
• Email this to a friend?
• Share this on Google+

By MAJOR SHANNON McLAUGHLIN

For seven years, I have run a tax center for the National Guard.  This year we will produce more than 1800 federal and state returns for service members and veterans in our community. I am very proud of this work, and I love working with the clients who walk through the door.  But to be honest, every time a same-sex married couple walks in, I cringe.

Filing taxes is a dreadful enough prospect for most Americans, but for Americans who happen to be in a same-sex marriage, it’s a nightmare. While most married couples gather their receipts, W2s, mortgage interest documents, and medical and daycare expenses, same-sex married couples have to hunker down for the added prospect of producing multiple returns and “dummy” returns.

Let me explain.

I am in a same-sex marriage. My wife Casey and I live in Massachusetts, and under state law, we are required to file either “married filing jointly” (most common and usually most advantageous) or “married filing separately” for our state taxes. Those are our only options. For the purposes of federal taxes, however, because of the so-called Defense of Marriage Act (DOMA), my wife and I are legal strangers.

So what does this mean as April 17, 2012 rolls around? My wife and I have to go through the following process:

First, we put together and file two separate federal tax returns, each filing as single people. Then, because the state requires us to file as a married couple and all state returns are derived from the federal return, we must create a “dummy” federal return in order to draw the numbers to create our state return. So, instead of one federal return and one state return like our straight counterparts, our family produces three federal returns and one state return.

Now I know all of this sounds like a lot of busy work, and some may look at it like it is only an irritation.  Unfortunately, though, there are real, bottom-line financial impacts for our family and the families like ours that come to my tax center as a result of being forced by DOMA to file these separate returns. For example, if we were allowed to file jointly, since my wife stays at home with our two children, we would be able to include her as a dependent on our family’s federal income tax return. But because I am forced to file with a “single” status known as “Head of Household,” we lose thousands in deductions and exemptions. In our case, that equals well over a thousand dollars in our refund.

Then, as an extra special gift from DOMA, since my wife cannot be on my health insurance, we paid nearly $700 a month for a separate health insurance plan for her. Yet, we cannot even deduct that expense from our taxes.

So as we wrestle with our shoebox of receipts and the ticker tape from the calculator that streams down the side of the desk, Casey and I are reminded once again why this fight for equality matters. It’s time to honor all love and commitment – and all American families – on Tax Day and every day.

MAJ Shannon McLaughlin is a United States Army Major in the Massachusetts National Guard and serves as a Judge Advocate General (JAG). Her current military assignment is Chief of Legal Assistance for the Massachusetts Army National Guard. She has served for 13 years and is married in the State of Massachusetts to Casey McLaughlin. They are the proud parents of sixteen-month old twins, Grace and Grant. They are lead plaintiffs in SLDN’s landmark litigation challenging DOMA and other federal statutes on behalf of service members and veterans. 

• Share this on Facebook
• Tweet This!
• Share this on LinkedIn
• Send this page to Print Friendly
• Share this on Tumblr
• Add this to Google Bookmarks
• Email this to a friend?
• Share this on Google+

A Massachusetts federal court has turned down a request from attorneys representing gay troops to move up the deadline for House Republicans to intervene in a case challenging the Defense of Marriage Act.

In a message Thursday, U.S. District Judge Richard Stearns denied the request from plaintiffs in the case of McLaughlin v. Panetta for an April 20 deadline for attorneys representing the Bipartisan Legal Advisory Group to intervene.

“ELECTRONIC ORDER entered denying [30] Motion to Set a Deadline for seeking intervention in this case,” the message states. “In light of the current posture of the case, the court sees no reason to set such a deadline.”

The lawsuit, McLaughlin v. United States, was filed by the Servicemembers Legal Defense Network before the U.S. District Court of Massachusetts in October on behalf of gay troops seeking benefits for their spouses. Chadbourne & Parke LLP is serving as pro-bono counsel in the case.

On Wednesday, plaintiffs filed a motion to impose an earlier deadline for House Republicans to intervene in the case. As it stands, the deadline for intervention is set for April 28.

David McKean, SLDN’s legal director, said even though the court denied the request, he expects BLAG attorneys in the case to intervene on behalf of DOMA.

“While we were hoping to expedite BLAG’s decision to intervene or not, we nonetheless expect that the Speaker’s attorneys will seek to intervene shortly and the case will move forward once the stay is lifted on April 28,” McKean said.

The Obama administration last year stopped defending DOMA in court, but the House, under the direction of Speaker John Boehner (R-Ohio) took up defense of the law after BLAG voted on a 3-2 party line basis to defend the statute in the administration’s stead. Boehner’s attorneys are expected to intervene in the McLaughlin case as they’ve done with other cases.

• Share this on Facebook
• Tweet This!
• Share this on LinkedIn
• Send this page to Print Friendly
• Share this on Tumblr
• Add this to Google Bookmarks
• Email this to a friend?
• Share this on Google+

SLDN advocates rally in favor of 'Don't Ask' repeal late in 2010 prior to the vote. (Blade file photo by Michael Key)

Attorneys representing gay troops in a lawsuit contesting the constitutionality of the Defense of Marriage Act are asking the court to impose an earlier deadline for House Republicans to intervene in the case.

In a motion dated April 11, plaintiffs ask the U.S. District Court of Massachusetts to shorten the deadline to April 20 for the Bipartisan Legal Advisory Group to respond to the case. As it stands, the current deadline for House Republicans to intervene is April 28.

“To help expedite the case and narrow the issues for trial, plaintiffs ask that the court set an April 20, 2012 deadline for potential intervenors to seek intervention in this case,” the motion states.

The lawsuit, McLaughlin v. United States, was filed by the Servicemembers Legal Defense Network before the U.S. District Court of Massachusetts in October on behalf of gay troops seeking benefits for their spouses. Chadbourne & Parke LLP is serving as pro-bono counsel in the case.

Plaintiffs say they are seeking an earlier deadline in the case because they want to resolve issues of intervention before a decision is reached in the DOMA cases pending before the First Circuit Court of Appeals. Oral arguments took place in those cases April 4.

“The plaintiffs hope that this case will move quickly once the First Circuit rules in those cases,” the motion states. “Accordingly, plaintiffs would like the court to set an earlier deadline for any third-parties to intervene, so that any issues concerning whether intervention should be permitted can be addressed and decided prior to the First Circuit’s decision in Massachusetts and Gill.”

David McKean, SLDN’s legal director, said the filing was made to speed up the process.

“This filing today was made in order to help expedite the case and resolve issues surrounding BLAG’s intervention sooner rather than later,” McKean said.

Attorneys representing BLAG didn’t immediately respond to a request for comment on the request to shorten the deadline.

The Obama administration last year stopped defending DOMA in court, but the House, under the direction of Speaker John Boehner (R-Ohio) took up defense of the law after BLAG voted on a 3-2 party line basis to defend the statute in the administration’s stead. Boehner’s attorneys are expected to intervene in the McLaughlin case as they’ve done with other cases.

Christopher Man, counsel at Chadbourne & Parke LLC, told the Blade on March 10 BLAG was likely to intervene soon in the lawsuit, but that intervention has yet to take place. According to the motion, attorneys for BLAG advised plaintiffs on March 7 that intervention would take place in the “next day or so.”

In a letter dated Feb. 17, U.S. Attorney General Eric Holder notified Congress the administration won’t defend other statutes barring spousal benefits from flowing to gay troops, such as Title 38, in addition to DOMA. The letter created the opportunity for Boehner’s attorney to respond to the case.

The parties involved in the case previously agreed to move the deadline from intervention from Feb. 28 to April 28. But that agreement was made before oral arguments took place in the two DOMA cases before the First Circuit Court of Appeals.

The McLaughlin case isn’t the only pending litigation against DOMA in which the plaintiffs are gay troops seeking spousal benefits. On Feb. 1, the Southern Poverty Law Center filed a lawsuit in a California federal court on behalf of Tracey Cooper-Harris, a lesbian veteran seeking benefits for her spouse. Boehner’s attorneys intervened last month against plaintiffs in the case.

• Share this on Facebook
• Tweet This!
• Share this on LinkedIn
• Send this page to Print Friendly
• Share this on Tumblr
• Add this to Google Bookmarks
• Email this to a friend?
• Share this on Google+

GLAD's Mary Bonauto (center) poses for a photo with Gill plaintiffs (Blade photo by Chris Johnson)

BOSTON — There was optimism in the air outside the John Joseph Moakley Courthouse after advocates seeking to overturn the Defense of Marriage Act emerged from the first-ever appellate hearing on the constitutionality of the law.

Nancy Gill, the lead plaintiff in one of the cases before the First Circuit Court of Appeals, said she “absolutely” thinks she’s on the cusp of  seeing the end of the anti-gay statute prohibiting federal recognition of her marriage.

“It’s definitely going to happen,” Gill told the Washington Blade. “We can’t fathom how anybody can make an argument against a relationship that’s 31 years old. We’ve been married for eight, have two children. We add to society, and we just want to make sure that we have the same rights and protections that our other married friends have.”

Gill, a postal worker who married her spouse, Marcelle Letourneau, in 2004 after same-sex marriage became legal in Massachusetts, is suing the federal government on the basis that DOMA unfairly precludes them from obtaining health insurance and pensions afforded to other federal workers.

The Washington Blade interviewed several individuals outside the courtroom following the court hearing on Gill v. Office of Personnel Management, filed by Gay & Lesbian Advocates & Defenders, and Commonwealth of Massachusetts v. Department of Health & Human Services, filed by Massachusetts Attorney General Martha Coakley.

Speaking to reporters, Mary Bonauto, GLAD’s civil rights project director, reiterated some of the arguments she made against DOMA during the oral arguments when she contended that DOMA violates the equal protection rights of her plaintiffs. Bonauto was lead counsel in the Goodridge case that led to the 2003 legalization of same-sex marriage in Massachusetts.

“Nobody’s trying to throw stones here but Congress wasn’t at its best for this,” Bonauto said. “They are supposed to act neutrally when it comes to the rights of people, but Congress couldn’t have been clearer that it disapproved of gay people and did not want them to have the same protections everyone else has. We all come before our government as equals, and it needs a reason other than ‘I don’t like you’ to treat people differently, especially on such a massive scale.”

Coakley expressed confidence the court would strike down DOMA after her deputy Maura Healey presented the argument that DOMA was unconstitutional on the basis that it violates state’s rights under the Tenth Amendment.

“I can’t speak for the judges, and I’m sure they will look at all the arguments fairly, but when you look at the thinness of the legal argument on the other side and really the emotional and real fact-based arguments made by the plaintiffs, I’m confident that Judge Tauro will be upheld,” Coakley said.

U.S. District Judge Joseph Tauro, a Nixon appointee, ruled against DOMA in 2010 in the two cases that are now before the appellate court on the basis that the anti-gay law fails the rational standard basis of review. The cases were brought to the First Circuit upon appeal.

Paul Clement, the former U.S. solicitor general whom House Speaker John Boehner hired to defend DOMA, wasn’t seen outside along with plaintiff couples and attorneys. Fresh from arguing against the health care law before the Supreme Court, Clement appeared to argue on behalf of DOMA and was set to argue in favor of the controversial Arizona immigration law later this month.

Clement bore the brunt of disparaging comments from LGBT advocates after the hearing for arguments he made in court. Among them, his claims that opposite-sex marriages are beneficial because they’re the only union that can produce children. He also said DOMA allows the federal government to stay out of the way while states decide the issue of same-sex marriage.

Dean Hara, another plaintiff in the GLAD case, said he thought Clement talked about DOMA in “abstract terms” that didn’t show the anti-gay law has a real effect on same-sex couples seeking federal benefits.

“It was the same arguments that they have used before,” Hara said. “If something has always been that way, it shouldn’t change, and I don’t think that’s a valid argument in anything. much less marriage.”

Hara, the widower of the late Rep. Gerry Studds, is suing the federal government to obtain the Social Security survivor benefits he would have been able to receive had he been in an opposite-sex marriage.

“I never thought that I would be a plaintiff challenging the Defense of Marriage Act — much less did I ever think that I’d be at the Court of Appeals where we are now,” Herra said. “We’ve come a long ways.”

Lavi Soloway, co-founder of Stop the Deportations and an immigration attorney at Masliah & Soloway, was also dismissive of the arguments that Clement brought before the three-judge panel hearing the case.

“I was surprised by the weakness of the arguments put forward by BLAG,” Soloway said. “I felt that they did not acquit themselves very well of the obligation that was placed upon them by the House Republicans to defend the statute. Their defense was very weak.”

Soloway isn’t a party to any of the DOMA cases that were brought before the First Circuit, but has advocated against the anti-gay law on the basis that it threatens to tear apart married bi-national same-sex couples living in the United States — some of whom are his clients.

One development during the hearing that pleased Soloway was the Justice Department’s Stuart Delery announcement that he wouldn’t defend DOMA on a rational basis standard of review if judges should examine it on that basis. The Justice Department had previously said it wouldn’t defend the anti-gay law because it doesn’t pass muster under heightened scrutiny.

“In the First Circuit, there’s an open question as to whether heightened scrutiny would be applied in this case,” Soloway said. “Mr. Delery for the Department of Justice informed the court that the government’s position is that the Defense of Marriage Act fails under rational basis.”

What the court will ultimately decide remains to be seen. Paul Smith, who delivered the arguments before the Supreme Court for Lawrence v. Texas, was present during the oral arguments for the appeals court and said he’s “not really able to predict” the outcome of the cases. He’s a pro-bono counsel for the GLAD case.

“The court was listening closely to everyone,” Smith said. “They were somewhat surprisingly not asking very many questions except of Mr. Clement. You’re not always sure how to read that, but we come away very hopeful.”

Soloway said he thinks “there’s a strong chance” judges will uphold Tauro’s ruling from 2010, although he expects an appeal.

“I don’t know that the rationale will be the same,” Soloway said. “I think that the attorneys for the congressional Republicans will seek an en banc hearing, and will, of course, ultimately appeal to the Supreme Court.”

• Share this on Facebook
• Tweet This!
• Share this on LinkedIn
• Send this page to Print Friendly
• Share this on Tumblr
• Add this to Google Bookmarks
• Email this to a friend?
• Share this on Google+

A new lawsuit was filed Monday challenging the constitutionality of the Defense of Marriage Act — this time on the grounds that it discriminates against married bi-national same-sex couples seeking to remain together in the United States.

Immigration Equality, an LGBT advocacy group, filed the case in the U.S. District Court for the Eastern District of New York on behalf of five gay couples. The law firm Paul, Weiss, Rifkind, Wharton & Garrison LLP joined the organization in filing the lawsuit.

The lawsuit, known as Blesch v. Holder, targets the inability of these spouses to secure residency in the United States through the marriage-based green card application process.

Americans in opposite-sex marriages can sponsor their foreign spouses for residency in the United States, but that option isn’t available to same-sex couples because of DOMA. These couples are at risk of separation if the foreign national is undocumented or if a temporary visa obtained for work or some other purposes expires.

“Because of DOMA, the federal government does not recognize the marriages of same-sex couples and, therefore, denies them the immigration rights afforded to other married couples,” the complaint states. “As a result, these couples live their lives at constant risk of separation.”

The five couples represented in the lawsuit are Edwin Blesch and his South African spouse, Tim Smulian, who reside in Orient, N.Y.; Frances Herbert and her Japanese-born spouse, Takako Ueda, who reside in Dummerston, Vt.; Heather Morgan and her Spanish-born spouse, Maria del Mar Verdugo, who live in New York City; Santiago Ortiz and his Venezuelan-born spouse, Pablo Garcia, who live in Elmhurst, N.Y.; and Kelli Ryan and her British-born spouse, Lucy Truman, who reside in Sandy Hook, Conn.

The complaint details the stories of each of the couples involved in the lawsuit. For Blesch and Smulian, the complaint notes that Blesch has been living with HIV since 1987. For 11 years, the couple spent six months in the United States and six month abroad to stay together.

However, according to the complaint, complications from HIV therapy as well as other health problems have begun taking a toll on Blesch’s health. As a result, he’s no longer able to spend six months in South Africa because it would be too far from his doctors. The couple has been spending much of their time in Canada, but Blesch’s Medicare doesn’t cover him in that country and he’s forced to return twice to the United States for care.

“Tim, heartbroken, could not accompany Edwin to his doctors (as he always does), fearful he would be denied entry to the United States during those six-month periods,” the lawsuit states.

Immigration Equality’s lawsuit is one of about a dozen pending lawsuits challenging DOMA. This week, the First Circuit Court of Appeals was set to hear oral arguments for two cases, marking the first time an appellate court has held a hearing on DOMA.

Executive director of Immigration Equality Rachel Tiven (Blade file photo by Michael Key)

Rachel Tiven, executive director of Immigration Equality, said her lawsuit was a necessary addition to existing cases because no pending lawsuit focuses on bi-national couples.

“We worked closely in partnership with GLAD, Lambda, ACLU to determine what would make sense to protect the rights of people for whom their DOMA problem is immigration benefits, and really came to the conclusion that the time is now,” Tiven said.

Lavi Soloway, co-founder of Stop the Deportations and an immigration attorney at Masliah & Soloway, said the lawsuit will help draw attention to the plight of gay bi-national couples. He has no involvement with the lawsuit.

Still, Soloway expressed skepticism that the case would have any impact on the law because he thinks other DOMA lawsuits will reach the Supreme Court sooner.

“Certainly, bi-national couples experience Section 3 of DOMA in a way that is hard to compare to any other situation, but the reality is that this lawsuit will move through the federal judicial system for years and is unlikely to produce any immediate change,” Soloway said.

But the Immigration Equality case isn’t the first lawsuit to challenge DOMA on the basis that it’s unfair to bi-national same-sex couples. In September, a federal judge threw out a case filed by Handi Lui, an Indonesian native who was denied a marriage-based green card application.

Tiven said her organization’s lawsuit will be more successful than other immigration-related DOMA cases because it was filed in a different circuit that is governed by different case law.

“We filed in the Second Circuit because we believe that a DOMA challenge based on immigration need will succeed here and because all of the states in the second circuit are marriage equality states,” Tiven said.

The Obama administration announced last year it would no longer defend DOMA in court, and since then — following a vote of the Bipartisan Legal Advisory Group — the House general counsel has taken up defense of the law.

In the Immigration Equality case, the Justice Department is similarly expected to decline to defend DOMA, and the attorneys of House Speaker John Boehner are expected to come to the defense of the anti-gay law.

Immigration Equality has called on the Obama administration to hold the marriage-based green cards of bi-national same-sex couples in abeyance — so they cannot be denied — until Congress or the courts act to repeal DOMA. Each time the organization has made the call, the administration has said it would continue to enforce DOMA as long as it remains on the books.

One of the couples involved in the lawsuit, Ryan and Truman, have asked the administration to make this change. In November, Sen. Richard Blumenthal (D-Conn.) wrote the Department of Homeland Security to ask officials to place on hold the couple’s green card application.

According to The Advocate, LGBT groups met with White House officials to January to discuss the possibility of putting the green cards in abeyance. But administration officials reportedly told LGBT rights supporters such action wouldn’t be taken.Case

Tiven said Immigration Equality filed the lawsuit because the administration’s decision left the organization no other option.

“We’ve been really working … for a year now to ask them to hold the green card applications for couples who are affected by DOMA and, after a lot of back and forth, they ultimately said ‘no,’” Tiven said. “So we really were left with no choice but to sue.”

Soloway said the administration has no reason not to take action to place the green cards in abeyance to protect bi-national same-sex couples.

“It is not a legally required position, it is a political choice,” Soloway said. “If they want to protect all LGBT families, then they could craft policy that would secure married bi-national couples in the interim period.”

While the administration hasn’t taken action to hold the marriage-based green card applications in abeyance, it has said it would include bi-national same-sex couples as part of an effort to take low priority cases out of the deportation pipeline by granting them prosecutorial discretion.

The criteria for being taken out of the deportation pipeline include a person’s ties and contributions to the community and family relationships, and administration officials have said these criteria are inclusive of LGBT families and same-sex couples.

But Soloway said these protections for bi-national same-sex couples are insufficient because, beyond speaking to media, the administration has never explicitly said this change covers LGBT families.

“We should not be fooled,” Soloway said. “There’s no expressed protection being provided under the prosecutorial discretion policy to lesbian and gay bi-national couples. It has worked in certain cases, but it’s far from consistent and it depends on individual ICE prosecutors understanding how to apply the guidelines.”

Moreover, Tiven said none of the couples in the lawsuit have received notification they would be taken out of the deportation pipeline as a result of this initiative.

According to Immigration Equality, Blesch and Smulian have one year of deferred action for a deportation hearing, while Herbert and Takako are applying for such action. Ryan and Truman as well as Morgan and del Mar Verdugo are able to stay together in the United States because of work visas.

“It doesn’t let them make any advance plans,” Tiven said. “In the [Morgan and del Mar Verdugo's] case, they talked about having children, but have postponed that because they just don’t know what could happen.”

• Share this on Facebook
• Tweet This!
• Share this on LinkedIn
• Send this page to Print Friendly
• Share this on Tumblr
• Add this to Google Bookmarks
• Email this to a friend?
• Share this on Google+

House Minority Leader Nancy Pelosi (Blade file photo by Michael Key)

House Democratic leaders are continuing to criticize Speaker John Boehner for defending the Defense of Marriage Act in court and accuse him of going beyond his existing authority ahead of his planned intervention in a lesbian veteran’s litigation against the statute.

In a letter dated March 30, House Minority Leader Nancy Pelosi (D-Calif.) and House Minority Whip Steny Hoyer (D-Md.) write to the speaker to express concern about Boehner intervening on behalf of DOMA in the case of Cooper-Harris v. United States.

“This latest decision not only ignores the civil rights of LGBT Americans but opens a new, direct assault on veterans,” Pelosi and Hoyer write. “The men and women of our Armed Forces serve with courage and dignity on behalf of our safety and security. They risk their lives for the country they love – and they should not face prejudice at home because of whom they love. These brave soldiers deserve nothing less than our gratitude, our respect, and the benefits they have earned in battle.”

On Feb. 1, the Southern Poverty Law Center filed the lawsuit against DOMA in the U.S. District Court for the Central District of California on behalf of Tracey Cooper-Harris, who’s seeking benefits as a disabled Army veteran her spouse, Maggie Cooper-Harris. The two were married in California in 2008 before Proposition 8 took effect.

Boehner’s attorney’s has yet to file the intervention, but the Washington Blade has obtained documents revealing their intent to intervene in the lawsuit. Informed sources are expecting a formal filing of the intervention next week.

Boehner will be defending not just DOMA in court, but Title 38, a law governing veteran benefits that as written precludes same-sex married couples from obtaining benefits. It’s the first time the speaker has elected to defend this statute in addition to DOMA.

In a letter last month, U.S. Attorney General Eric Holder notified Congress that the Obama administration would no longer defend portions of Title 38 related to same-sex couples as it has with DOMA.

It’s taking on defense of Title 38 that Pelosi and Hoyer belief are beyond Boehner’s authority. In the letter, the lawmakers request a formal Bipartisan Legal Advisory Group vote on defending Title 38 and ask that any extension of the existing legal contract receive prior examination by the Committee on House Administration and the House Ethics Committee.

Brendan Buck, a Boehner spokesperson, issued a statement saying the speaker’s intervention in the case against Title 38 is aligned with House rules.

“It was determined through consultations with each office — the process used to make such decisions regularly under then-Speaker Pelosi — that a majority of the BLAG believes the constitutionality of this statute, which the Attorney General described as ‘identical in material respect to the language of Section 3 of DOMA,’ should be determined by the judicial branch, not through a unilateral decree of the President,” Buck said.

Tracey (left) & Maggie Cooper-Harris (Blade file photo by Michael Key)

Tracey Cooper-Harris was diagnosed in 2010 with multiple sclerosis, and the Department of Veterans Affairs has determined is connected to her military service in Iraq and Afghanistan, She’s been receiving disability benefits as a veteran, but is unable to receive spousal benefits that she would otherwise be entitled to if she were in an opposite-sex marriage. Among them are disability benefits meant to ensure the financial stability of spouses.

Christine Sun, deputy legal director for the Southern Poverty Law Center, said her organization is pleased House Democratic leaders are taking interest in its lawsuit.

“We are pleased that Representatives Nancy Pelosi and Steny Hoyer are getting involved in the Cooper-Harris case and standing with veterans,” Sun said. “It is astonishing that Rep. John Boehner and his colleagues are continuing this shameful crusade against our brave men and women in uniform and is nothing short of disgusting.”

After the Obama administration announced that it would no longer defend DOMA in court last year, Boehner directed House General Counsel Kerry Kircher to defend the statute after BLAG voted 3-2 on a party-line basis to take up defense of the law.

According to Leader Pelosi’s office, the Cooper-Harris case marks the 12th time Boehner has intervened to defend. Earlier this week, officials testified this week that House defense of DOMA thus far has cost $742,000, although Boehner has raised the cost cap to $1.5 million.

The full text of Pelosi and Hoyer’s letter to Boehner follows:

March 30, 2012

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

Dear Mr. Speaker:

Today, we were notified that the House, through outside counsel acting at your direction, has decided to intervene in a case challenging the constitutionality of laws denying federal benefits to military spouses on the basis of their sexual orientation.  As members of the House Bipartisan Legal Advisory Group (BLAG), who were not consulted prior to this unwise decision, we strongly object to spending taxpayer money to intervene in this case against a decorated veteran, Tracey Cooper-Harris, and her spouse, Maggie Cooper-Harris.  This decision clearly exceeds the scope of the original BLAG authorization, with which we initially disagreed.

This intervention once again puts the House of Representatives on the wrong side of the future – supporting discrimination, unfairness, and the denial of basic equality to all Americans.  We have objected to prior decisions by the House Republican BLAG members to spend hundreds of thousands of taxpayer dollars to defend discrimination.  This latest decision not only ignores the civil rights of LGBT Americans but opens a new, direct assault on veterans.   The men and women of our Armed Forces serve with courage and dignity on behalf of our safety and security.  They risk their lives for the country they love – and they should not face prejudice at home because of whom they love.  These brave soldiers deserve nothing less than our gratitude, our respect, and the benefits they have earned in battle.

The plaintiffs in Cooper-Harris v. U.S. argue that federal law, including Section 3 of the Defense of Marriage Act (DOMA), 1 U.S.C. § 7, and portions of the Veteran’s Benefits title of the United States Code, 38 U.S.C. § 101(3) and (31), denies them equal protection under the law by failing to uphold our promises to our servicemembers to care for them and their families.  We agree, and note that the U.S. Department of Justice has notified Congress that Section 3 of DOMA – as well as the definitional portions in Title 38 dealing with military and veterans’ benefits – “cannot be constitutionally applied to same-sex couples who are legally married under state law.”  We applaud the decision of the Attorney General against defending indefensible discrimination.

Federal district courts have already deemed DOMA unconstitutional, and the Justice Department will not defend the law.  We call upon the Republican members of the BLAG to rescind your unilateral decision to expand your defense of DOMA to cases involving veterans.  If you insist upon continuing this costly and wasteful use of hundreds of thousands of dollars of taxpayer funds, we request: (a) a formal vote of the BLAG on extending your defense of discrimination to veterans and their families, and (b) any extension of the existing legal contract, any new contract, and any additional expenditure of public funds on behalf of outside counsel receive full prior examination by the Committee on House Administration and the House Ethics Committee.

We look forward to receiving your response to this and the several previous letters from House Democrats on this subject.

Thank you for your attention to this matter.

Best regards,

NANCY PELOSI               STENY H. HOYER

Democratic Leader          Democratic Whip