In the 8-1 decision, the court determined in the case of Doe v. Reed that public disclosure of referendum petitions doesn’t — as a general rule — violate the First Amendment rights of signers.

But the decision left room for anti-gay activists to succeed at a lower court on the more focused question of whether making public the signatures for Referendum 71 specifically runs contrary to the U.S. Constitution.

Writing the majority opinion for the Supreme Court was Chief Justice John Roberts. The sole dissenting voice in ruling came from Associate Justice Clarence Thomas.

The initiative in question, Referendum 71, came before Washington State residents in 2009 and threatened to abrogate the expansion of the state’s domestic partner registry. But 53 percent of the electorate voted in favor of upholding the law, keeping the registry in place.

Concurrent with the campaign against the law, those who put the anti-gay initiative on the ballot — led by Protect Marriage Washington — challenged Washington State’s Public Records Act, which requires public disclosure of the names of petition signers who put referenda on the ballot.

The U.S. District Court of the Western District of Washington issued a preliminary injunction blocking the publication of signatures, and the issue made its way to the Supreme Court.

Plaintiffs argued the law could put those who signed the petition in danger after their names became public. In defense of the statute, Washington State argued disclosure contributes to electoral integrity of the ballot process and allows the public to double-check in case a mistake is made.

Roberts, who wrote the majority opinion of the Supreme Court, affirms the arguments that public disclosure promotes electoral integrity and concludes the disclosure law enables the public to find potential mistakes or instances of forgery.

“Public disclosure thus helps ensure that the only signatures counted are those that should be, and that the only referenda placed on the ballot are those that garner enough valid signatures,” Roberts writes. “Public disclosure also promotes transparency and accountability in the electoral process to an extent other measures cannot.”

Roberts also rejects the assertion from plaintiffs that the court should overturn the disclosure law on the basis that disclosure of the names who signed the Referendum 71 petition would place these signers in danger.

The chief justice says the question before the court isn’t “whether PRA disclosure violates the First Amendment with respect to those who signed the R–71 petition,” but whether this disclosure “in general violates the First Amendment rights of those who sign referendum petitions.”

“The problem for plaintiffs is that their argument rests almost entirely on the specific harm they say would attend disclosure of the information on the R–71 petition, or on similarly controversial ones,” Roberts writes.

Roberts says the court must reject this broad challenge to all disclosure laws, but says this ruling doesn’t necessarily “foreclose a litigant’s success” in a narrower challenge before the district court.

The chief justice recalls how the court previously determined withholding names may be appropriate in some instances with “reasonable probability” that individuals would be harassed.

In a statement, Anne Levinson, chair of Washington Families Standing Together, which fought to maintain the state’s domestic partnership law, praised the high court’s decision.

She said the Supreme Court made clear that public disclosure laws ensure “measures are not put on the ballot by fraudulent means or mistake.”

“Nowhere is the integrity and transparency of elections more important than where the ballot box is being used in an attempt to take away fundamental rights,” she said. “Nowhere is it more important for the public to know that attempts to affect the lives of their fellow citizens by promoting ballot measures are free from fraud and error.”

But Larry Stickney, president of the Washington Values Alliance, said he’s “optimistic” anti-gay activists would be able to keep the petition names secret following action from the district court.

“Likely we’re going to be back in district court and we’ll be able to bring out some of the harassment and intimidation efforts that were made against Protect Marriage Washington,” he said. “We’re happy that that effort will carry on.”

Levinson dismissed the idea that those working on the campaign to overturn the domestic partner registry faced harassment and said there’s “absolutely no evidence of harassment” of signers.

“What the petitioners cite to by way of threats or other harassment, they talk about their campaign manager of other leadership in their campaign,” she said. “Those are the folks like me who were debating on TV or radio or leading a campaign effort, so that’s irrelevent to making any case about petition signers.”

Jon Davidson, legal director for Lambda Legal, said he doesn’t think plaintiffs have a shot keeping the names of petitions signers under wraps in light of the “reasonable probability” standard the Supreme Court established.

“I think they are very unlikely to have any success because the standard that the Supreme Court imposed here is — in a particular case — you can only prevent disclosure if you can show a reasonable probability that disclosure will subject to threats, harassment or reprisal,” he said. “So not the possibility — not that it could happen — but a reasonable probability that it will happen.”

In a two-paragraph notice issued May 17, the state’s high court said it wouldn’t hear the case of Michael Moore v. Virginia Museum of Natural History because there’s nothing in the situation the justice system could rectify.

“Upon review of the record in this case and consideration of the argument submitted in support of and in opposition to the granting of an appeal, the Court is of opinion there is no reversible error in the judgment complained of,” the notice states. “Accordingly, the court refuses the petition for appeal.”

The notice says that Justice Williams Mims took no part in considering the case.

Last month’s petition denial is the result of a process that began when Moore allegedly was forced to resign his position as public relations associate at the Virginia Museum of Natural History in Martinsville, Va., in November 2006 because of his sexual orientation.

On appeal to Virginia’s high court, Moore also contended his dismissal violated his rights under the U.S. Constitution providing for freedom of religion and equal protection.

Moore, who has since moved to Lakeland, Fla., and is now preparing for law school, said the court decision was disappointing but not unexpected.

“We’ve been dealt blows all along, so I was kind of pessimistic going into it,” he said. “Them having to decide either for me or against me would have just required sweeping change. It should have been the reason they made a decision and they didn’t, so I’m disappointed actually.”

Moore said he plans to appeal the decision to the U.S. Supreme Court based on violation of rights in the U.S. Constitution. He noted that he has 90 days from when Virginia’s high court issued its notice to appeal the case.

In his case, Moore has said his supervisor discovered he was gay and asked him shortly thereafter to resign, even though he was rewarded with satisfactory marks after completing a performance review.

Following his firing, Moore filed a complaint first within the state government and later with the courts based on an executive order from former Gov. Tim Kaine (D) prohibiting job bias against gay employees in the state and public workforce.

But the administration wasn’t able to find restitution for Moore, and the courts have said the executive order didn’t provide a legal basis by which the courts could take action.

Claire Guthrie Gastanaga, general counsel for Equality Virginia, said the failure of the Virginia Supreme Court to take up the case shows the need for the passage of state legislation that would help protect LGBT Virginians against workplace discrimination.

“The bottom line is this decision just demonstrates what we’ve held for years — that LGBT employees don’t have any meaningful law to seek redress for discrimination, and frankly, they don’t have any cause of action under the old executive order, either,” she said.

When he took office this year, Republican Gov. Bob McDonnell didn’t renew the executive order for workplace protection against gays and instead replaced it with a less forceful executive directive.

Gastanaga said if there weren’t any meaningful protections under Kaine’s order, “there really, really isn’t any protection now” under McDonnell’s directive.

Greg Nevins, supervising senior staff attorney for Lambda Legal, called the Virginia Supreme Court case decision “a disappointing result” and said the reasoning for the court’s rejection “isn’t completely clear.”

Still, he said LGBT people have some workplace protections because the U.S. Constitution grants them some rights.

“It doesn’t mean that public employees in Virginia don’t have recourse for discrimination,” he said. “The Equal Protection Clause of the U.S. Constitution does protect state workers from arbitrary discrimination that’s based on sexual orientation.”

Nevins said many courts have found that the Equal Protection Clause protects LGBT people against discrimination in the public workplace, although a U.S. district court in Virginia hasn’t made such a ruling.

“A whole bunch of different courts around the country have said it,” he said. “I don’t really think it’s controversial.”

Solicitor General Elena Kagan, a U.S. Supreme Court nominee, could be asked to address past comments on ‘Don’t Ask, Don’t Tell’ and same-sex marriage during her confirmation hearings. (Photo by Lawrence Jackson; courtesy of White House)

President Obama’s nomination of Solicitor General Elena Kagan to the Supreme Court is inspiring varied reactions, ranging from excitement to caution, as questions linger about her record on LGBT issues.

Many LGBT advocacy groups are pleased that Kagan opposed military recruitment on Harvard’s campus because “Don’t Ask, Don’t Tell” violates university non-discrimination policies, but others are waiting for her to clarify her positions on LGBT issues in congressional testimony before the Senate.

Meanwhile, questions about Kagan’s sexual orientation distracted attention from her record this week, as some anti-gay conservatives — along with more than a few LGBT bloggers — speculated that she is a lesbian.

Obama nominated Kagan to fill the seat that will be vacated at the end of the term by retiring Associate Justice John Paul Stevens. If the Senate confirms her to the position, there would be three women sitting on the Supreme Court, the most women the bench has seen in its history.

Prior to her tenure as solicitor general, in which she defended federal law before the Supreme Court, Kagan was a clerk for former Associate Justice Thurgood Marshall, an associate White House counsel for former President Bill Clinton and dean of Harvard law school.

In a statement, Sen. Patrick Leahy (D-Vt.), chair of the Senate Judiciary Committee, said the Senate would consider Kagan’s nomination this summer and should confirm her nomination before the August recess.

Joe Solmonese, president of the Human Rights Campaign, in a statement, praised Obama for selecting Kagan to serve on the bench.

“We applaud President Obama for choosing Elena Kagan to become our nation’s next U.S. Supreme Court Justice,” Solmonese said. “We are confident that Elena Kagan has a demonstrated understanding and commitment to protecting the liberty and equality of all Americans, including LGBT Americans.”

Doug NeJaime, a gay associate law professor at Loyola Law School, expressed similar excitement over the nomination of Kagan, whom he called a “fantastic” choice to serve on the bench.

In 2008, NeJaime said he attended a Harvard gay and lesbian caucus conference where Kagan moderated a panel with sexual orientation law scholars. He noted that Kagan “was clearly really knowledgeable about these issues.”

“I think she’ll do a good job in dealing with them and hopefully having conversations with other justices — getting them more on board with what LGBT legal issues entail,” NeJaime said.

But Hayley Gorenberg, deputy legal director for Lambda Legal, was more cautious about embracing Kagan’s nomination and said she was awaiting the Senate confirmation process.

“She’s just been nominated, and we are studying everything that we can on her,” she said. “We’re looking toward the confirmation hearings so that we can learn more about her positions on legal areas that are core to the right of LGBT people and people with HIV.”

In particular, Gorenberg said she’s looking to see whether Kagan will separate herself from the Justice Department’s legal briefs defending challenges to the Defense of Marriage Act and “Don’t Ask, Don’t Tell,” which occurred under her watch during the Obama administration.

“Those briefings give us concern, and we certainly voiced it with the Obama administration,” Gorenberg said. “So, what we need to see now is her views apart from an institutional position, and that’s what we’re looking toward in confirmation hearings.”

‘Don’t Ask’ stance
could be obstacle

One potential obstacle that Kagan may encounter on her path to confirmation — despite the favor it may win her among LGBT supporters — is her opposition as dean of Harvard law school to military recruiting on campus because of “Don’t Ask, Don’t Tell.”

In October 2003, Kagan wrote in an e-mail to students that military recruiting on campus caused her “deep distress” and that she “abhor[s] the military discriminatory recruitment policy,” according to a recent report in the Washington Post.


She was quoted as calling the recruitment policy in the U.S. military “a profound wrong — a moral injustice of the first order.”

In 2005, Kagan was also one of 40 Harvard professors who signed a friend-of-the-court brief in favor of an appellate court ruling overturning the Solomon Amendment, which would have allowed colleges to limit the military’s presence at campus recruiting events. The Supreme Court unanimously disagreed with the lower court ruling.

Conservative senators could pounce on Kagan’s views on military recruitment on campus as dean of Harvard law school as reason to vote against her confirmation.

Sen. Jeff Sessions (R-Ala.), ranking Republican on the Senate Judiciary Committee, said in a statement published shortly after her nomination that Kagan’s position is “deserving review.”

“This is a significant issue for me since I worked hard for the passage of the Solomon Amendment,” Sessions said. “Her actions in this case, along with other issues, will need to be addressed, and Ms. Kagan will be given a fair opportunity to respond.”

Sen. James Inhofe (R-Okla.) said Monday he plans to vote against Kagan’s confirmation — making him the first senator to commit to a “no” vote — because of her position on campus military recruitment.

But NeJaime said he didn’t think Kagan’s position would be problematic because it’s “very much in the mainstream of the legal academic community,” and other law schools besides Harvard have challenged the constitutionality of the Solomon Amendment in court.

“It’s not like she was even completely out in front on that issue,” NeJaime said. “I also think public sentiment against ‘Don’t Ask, Don’t Tell’ is pretty high, and so it’s not a non-mainstream position.”

But Gorenberg said Senate opposition to Kagan’s confirmation because of her position on military recruitment is already apparent.

“We can already see that the positions that she promoted as dean that were targeted against discrimination against LGBT people — that those positions are already the subject of potshots from anti-gay extremists,” Gorenberg said. “We saw that instantly upon her nomination, if not before.”

Kagan’s views on military recruitment also raise the question of whether she would be asked to recuse herself in the event a “Don’t Ask, Don’t Tell” case came before the Supreme Court while she’s on the bench.

Gorenberg said “it’s not clear” that Kagan would need to seek recusal in such a situation based on her comments as dean of Harvard law.

The Servicemembers Legal Defense Network didn’t immediately respond to the Blade’s request to comment on Kagan’s statements on military recruitment or whether she would have to recuse herself if a “Don’t Ask, Don’t Tell” case reached the high court.

Same-sex marriage
a potential issue

Another topic that may come up during Kagan’s confirmation hearings is her position on same-sex marriage and whether she thinks the U.S. Constitution provides for marriage rights for same-sex couples. Such a position would be especially important for LGBT people because cases on same-sex marriage could be on their way to the Supreme Court.

Kagan previously denied that the U.S. Constitution grants a right to same-sex marriage in a questionnaire answer prior to her confirmation hearings to become solicitor general.

“There is no federal constitutional right to same-sex marriage,” she wrote in a response to a question on the issue.

In response to a subsequent question, she added that she doesn’t believe she expressed an opinion on the question before that time.

Kagan’s response could be troubling for organizations behind federal lawsuits seeking to overturn the Defense of Marriage Act or bans on same-sex marriage within states.

The American Federation for Equal Rights, the organization behind the Perry v. Schwarzenegger case seeking to overturn California’s Proposition 8, didn’t respond to the Blade’s request to comment on the Kagan nomination.

A spokesperson for the Gay & Lesbian Advocates & Defenders — which is behind Gill v. Office of Personnel Management, a case seeking to overturn part of DOMA that prohibits federal recognition same-sex marriage — said her organization isn’t commenting on the Kagan nomination because the lawsuit could go to the Supreme Court.

On the Perry case, NeJaime said Kagan’s comment on same-sex marriage could be relevant depending on whether the court takes up the case as a broad question about constitutional rights to same-sex marriage or, more simply, California’s legitimate interest in passing Proposition 8.

“I also think we don’t really know what her position will be on an issue like that until the issue is briefed and until it’s actually at the court,” he said. “I’m pretty confident that she is at least open-minded to LGBT claims under the federal Constitution.”

Gorenberg said she’s “not sure” whether Kagan’s comments would be a predictor of how the nominee would rule if marriage cases came before the Supreme Court.

She said the remarks raise the question of what Kagan meant in her questionnaire answer, but noted that it’s unknown whether Kagan’s position would become more clear during confirmation hearings.

“We would always like to know what would happen in the future on a specific issue, but it’s not surprising to us — for any nominee — that we don’t get a specific forecast on a case because it’s just not standard that the nominees ever give them to us,” Gorenberg said.

Still another issue surrounding the nomination is whether Kagan, who’s unmarried, is a lesbian.

In a deleted CBS News posting published prior to the announcement of Kagan’s nomination, conservative blogger Ben Domenech wrote that confirmation of Kagan would make her the “first openly gay justice.”

The White House disputed Domenech’s characterization of Kagan as an out lesbian and said he was making false charges. After the posting was deleted, Domenech maintained that he heard discussion about her sexual orientation.

In a later posting on the Huffington Post, Domenech wrote that he “erroneously believed” Kagan was an out lesbian because “it had been mentioned casually on multiple occasions by friends and colleagues — including students at Harvard, Hill staffers, and in the sphere of legal academia — who know Kagan personally.”

Sessions’ office didn’t respond to the Blade’s request to comment on whether the matter was of concern to the senator or whether he would expect questions on the issue to come up during the confirmation hearings.

NeJaime said he didn’t anticipate discussions of Kagan’s sexual orientation to arise during her confirmation hearings, but said it would be “sad commentary” if the matter became a stumbling block for her.

“We don’t know about her sexual orientation one way or the other, and I don’t really anticipate it being an issue that anyone takes up,” he said.

Gorenberg said she didn’t have any information on Kagan’s sexual orientation and didn’t know how lawmakers would respond to speculation that she’s a lesbian.

“There are a lot of senators out there and I don’t know [who] may or may not be inclined to go after any nominee based on their sexual orientation,” Gorenberg said.

She said one of Lambda’s central tenets is that people shouldn’t face discrimination based on sexual orientation and noted that principle could be applied in Senate confirmation hearings.

A friend of Kagan’s told Politico this week that Kagan is not a lesbian.

“I’ve known her for most of her adult life and I know she’s straight,” Sarah Walzer, Kagan’s law school roommate, told Politico. “She dated men when we were in law school, we talked about men … She definitely dated when she was in D.C. after law school … and she just didn’t find the right person.”

Gary Gates, research fellow at the Williams Institute at the University of California, said one survey revealed that 5 percent of people who identified as LGBT have experienced discrimination in housing. (Washington Blade photo by Michael Key)

LGBT rights advocates are still waiting for the U.S. Department of Housing & Urban Development to issue regulations on changes it announced late last year to include LGBT families in low-income housing programs.

The department announced plans to make the changes Oct. 26 — more than six months ago — but the changes have yet to be enacted.

Natalie Chin, a Lambda Legal staff attorney, said she didn’t know whether HUD has taken an unreasonably long time to implement the changes, but acknowledged that “it’s been quite some time” since they were first announced.

“It would be nice to get updates just to let us know what’s going on,” she said. “We just haven’t heard anything about it, so that just makes me concerned they’re getting credit for something that doesn’t even exist yet, and it’s important that this actually happens and that they follow through.”

Darlene Nipper, deputy executive director of the National Gay & Lesbian Task Force, said her organization is among those waiting for HUD to issue the new regulations.

“Like everyone else, we’re hoping that they do it sooner rather than later,” she said. “And probably, like everyone else, we’re not surprised that it’s taking time. Unfortunately, that’s the way things go with the government sometimes.”

The changes are intended to ensure the department’s low-income housing programs don’t discriminate on the basis of sexual orientation or gender identity. They would clarify the term “family,” as used to describe the public housing and Housing Choice Voucher programs, to include otherwise eligible LGBT people and couples.

Additionally, the changes would require grantees and others who participate in HUD programs to comply with local and state non-discrimination laws regarding LGBT people. The changes also would ensure that all Federal Housing Administration-insured mortgage loans are based on a borrower’s credit-worthiness and not on unrelated characteristics such as sexual orientation or gender identity.

The proposed but unimplemented changes were among the accomplishments that Human Rights Campaign President Joe Solmonese recently cited in crediting the Obama administration with improving the lives of LGBT people. He praised HUD for making the changes during an April 22 discussion on the Michelangelo Signorile radio show on Sirius XM’s OutQ.

“We asked them to do a number of things at HUD to ensure that LGBT families are not discriminated against in housing issues,” Solmonese said. “They’ve done all of them.”

In a statement, Michael Cole, an HRC spokesperson, said Solmonese’s comments during the radio show “gave credit where credit is due” to the Obama administration.

“The Department of Housing & Urban Development committed to concrete steps to protect our community and they are doing so,” Cole said. “A proposed regulation prohibiting LGBT discrimination in HUD programs is under internal review and will soon be published for public comment.”

Cole said HRC would like the process to “move more quickly,” but that doesn’t “diminish the fact that they are positive and praiseworthy steps forward.”

“We will continue to urge HUD and the myriad other agencies to move as quickly as possible to address the real problems facing our community every day,” he said.

Brian Sullivan, a HUD spokesperson, confirmed that the regulations for the changes haven’t yet been issued and said he didn’t know when they’d be published.

He said putting forth new regulations after changes have been announced often doesn’t happen “with the speed many people want it to,” but that the process is “methodical and deliberate and necessarily so.”

“Lawyers are looking at this and trying to discover what is our authority to do this,” he said. “Can we support this if it were challenged? You don’t want to go down a certain road and then fail ultimately.”

Sullivan said issuing new regulations for proposed changes can often take some time and recalled how recently issued HUD rules changing the way people buy and refinance their homes under the Real Estate Settlement Procedures Act took about seven years to implement.

“I don’t believe that this will take that long because when we were talking about RESPA reform, it was changing how people do business,” Sullivan said. “Millions of people buy and refinance homes every year, so it was a giant rule to be sure.”

Concurrent with developing regulations for proposed pro-LGBT changes in housing programs, Sullivan said HUD is also in the process of seeking public comment for a multi-year, comprehensive project examining housing discrimination that LGBT people throughout the country have faced.

“You should know that there is a series of things that have been suggested in helping promote inclusion and to broaden the prohibition of exclusive activities in our federal programs,” he said. “You know that we’re undertaking an unprecedented study of housing discrimination as it relates specifically to the LGBT community.”

Gary Gates, research fellow at the Williams Institute at the University of California, Los Angeles, said a question in the General Social Survey for 2008 revealed that 5 percent of people who identified as LGBT said they’d experienced discrimination in housing.

He noted that the question wasn’t restricted to low-income housing programs and the sample surveyed for the initiative was about 70 people, so the finding “comes with a pretty wide margin of error.”

Whatever the number of LGBT people facing discrimination in housing programs, advocates say the new guidelines would benefit the LGBT community.

Chin said the LGBT community “just really needs to be persistent” in making sure that HUD follows through on its proposed changes because current practices have a significant impact.

“If you’re not considered a family because you’re LGBT and your relationship isn’t recognized, then you can lose your home after living with the same person for 45 years,” she said. “It’s a really unfortunate and really unequal treatment.”

Nipper said she considers HUD’s proposals “very important changes” because they would enable the department to “take our community, which, up until now, has been rendered virtually invisible within this agency, and redefine family to include us.”

“Everyone thinks that our community is somehow all rich, white men,” she said. “The reality is that that’s not an accurate picture of the LGBT community. We’re from all racial and ethnic backgrounds and all across the social-economic strata. So, there are certainly people within our community who will benefit from these changes.”

The House voted 31-20 to pass the legislation, which had stalled for several months and was revived in the last day of the legislative session. The Senate approved its version of the bill in January.

Lingle has 45 days to sign the bill, veto it or allow it to take effect without her signature. According to the Washington Post, Lingle’s office has said the governor intends to “carefully review” the legislation.

In a statement, Jennifer Pizer, marriage project director for Lambda Legal, said the vote represents years of hard work from advocates and concerned lawmakers. She said Lambda was prepared to act with litigation if the Legislature didn’t approve the bill.

“In fact, we were already on O`ahu this week in final preparations for litigation if the legislature failed to act by today’s end of session,” Pizer said. “We’re delighted that, as long as Governor Lingle does not veto the bill, our lawsuit won’t be necessary.”

U.S. Supreme Court (DC Agenda photo by Michael Key)

U.S. Supreme Court justices posed tough questions Wednesday to plaintiffs seeking to keep secret the names of Washington state petitioners who last year put an anti-gay referendum on the state ballot.

In the case of Doe v. Reed, plaintiffs contend a state law requiring public disclosure of petition signatures violates the First Amendment rights of signers who placed on the ballot an initiative, known as Referendum 71, to rescind the state’s recently expanded domestic partner registry.

Despite the efforts, Washington residents upheld the state’s domestic partner registry, 53-47 percent. In the aftermath, opponents of the registry have sought to keep secret the names of people who put the measure on the ballot. The state contends it has a legitimate governmental interest in public disclosure of the names because it preserves electoral integrity and provides important information to voters.

Representing plaintiffs during oral arguments was James Bopp, a conservative attorney who also serves as general counsel for Focus on the Family. He argued the public disclosure would subject people who signed the petition to possible danger.

“No person should suffer harassment from participating in the political system,” Bopp said.

But many justices expressed skepticism about Bopp’s argument during his appearance before the court. Some of the toughest questions came from justices known for holding conservative views.

Associate Justice Antonin Scalia noted openness is a component of democracy, and said petitioning the court to strike the Washington law as unconstitutional was “asking us to go into a whole new field where we’ve never gone before.”

“The fact is running a democracy takes a certain amount of civic courage, and the First Amendment doesn’t protect you from criticism — or even nasty phone calls,” Scalia.

Also expressing skepticism about the plaintiffs’ arguments was Chief Justice John Roberts, who noted that striking down the Washington law would also mean the court would also strike down similar public disclosure laws throughout the country.

Associate Justice Ruth Bader Ginsburg questioned whether the names on the list would remain confidential without the public disclosure law. She noted that Protect Marriage, the organization that launched the initiative, would still have access to the names and could use them for fundraising or sell them to others.

As justices challenged his assertion that petitioners could be subject to harassment, Bopp replied that the campaign manager for Protect Marriage had his entire family sleep together in one room of his home because of threats he received.

Scalia replied that such threats “should be moved against vigorously,” but said they shouldn’t necessarily stop the political process as established by Washington law.

Defending the law on behalf of Washington during oral arguments was Washington Attorney General Robert McKenna, who maintained the law as it stood provided no information about signers that was unconstitutional.

He noted that Washington has had other controversial matters on the ballot, including a question regarding assisted suicide, and said there was no evidence that petition signers for those referenda were harassed.

Associate Justice Samuel Alito directed some of the toughest questions toward McKenna. The justice questioned why it’s necessary to disclose signatures to preserve electoral integrity when the secretary of state could crosscheck the names in a voter registration database.

Additionally, Alito asked whether the attorney general would disclose the names and addresses of people working at his office so people could come to employees’ homes and have “uncomfortable conversations” with them.

McKenna replied the office wouldn’t disclose the names, noting people with concerns can come to the attorney general’s office to have these “uncomfortable conversations.”

Multiple LGBT groups, including Lambda Legal, Gay & Lesbian Advocates & Defenders and the National Center for Lesbian Rights, filed friend-of-the-court briefs in the case on behalf of Washington state.

In a statement, Jon Davidson, Lambda’s legal director, criticized the notion that potential harassment against people who signed the petition compares to discrimination endured by the LGBT community.

“There’s no comparison between a few scattered instances of whispers and disapproving glares and the very real discrimination, harassment and even violence LGBT people experience every day all over the country,” he said. “After all, more hate crimes are reported against gay people than any other group per capita in the United States.”

Shannon Minter, legal director for the National Center for Lesbian Rights, called the plaintiffs’ arguments “an outrageous attempt by anti-gay groups to use false claims of persecution to undermine laws that protect the integrity of the democratic process.”

A decision in the case is expected before the end of the current term for the Supreme Court in July.

WASHINGTON — House Speaker Nancy Pelosi said last week she thinks a floor vote on the Employment Non-Discrimination Act will happen “soon” and the committee of jurisdiction is working hard to advance a strong bill.

Asked by DC Agenda during an April 15 press conference what’s preventing the bill from coming to the House floor as well as when she expects a vote, Pelosi said the House Education & Labor Committee is working hard to “have the strongest possible bill” and she believes a floor vote “will be soon.”

She added that she and House Majority Leader Steny Hoyer have agreed that ENDA will come to the floor as soon as the House Education & Labor Committee is ready to report out the legislation.

The legislation, sponsored by gay Rep. Barney Frank (D-Mass.), would bar discrimination in the workplace for LGBT people. The bill is pending before the House Education & Labor Committee and has 199 co-sponsors.

LGBT advocates have been pushing Pelosi to bring ENDA to a House floor vote. Longtime activist Cleve Jones, in conjunction with the Courage Campaign and GetEqual.org, wrote an open letter to the speaker last month calling on her to bring the measure to a vote immediately.

Supporters of ENDA were also arrested in Pelosi’s offices in D.C. and San Francisco last month after they staged sit-in protests to draw more attention to the measure.

2 New Yorkers face trial in immigrant’s death

NEW YORK — Two New York City men face trial on charges of beating two Ecuadorean immigrants — one fatally — while yelling slurs.

The Associated Press reported that opening statements were expected Tuesday. Hakim Scott and Keith Phoenix are charged with second-degree murder as a hate crime in the death of Jose Sucuzhanay. They’re also charged with assaulting his brother, Romel Sucuzhanay.

Prosecutors say Scott and Phoenix hurled anti-gay and anti-Hispanic slurs during the 2008 attack in Brooklyn. The brothers had been walking arm-in-arm to keep warm.

The defendants have pleaded not guilty. Phoenix says he acted in self-defense.

Texas says gays can’t get divorced

DALLAS — After the joy of a wedding and the adoption of a baby came arguments that couldn’t be resolved, leading Angelique Naylor to file for divorce.

According to the Associated Press, that left her fighting both the woman she married in Massachusetts and the state of Texas, which says a union granted in a state where same-sex marriage is legal can’t be dissolved with a divorce in a state where it’s not.

The AP reported that a judge in Austin granted the divorce, but Texas Attorney General Greg Abbott is appealing the decision. He also is appealing a divorce granted to a gay couple in Dallas, saying protecting the “traditional definition of marriage” means doing the same for divorce.

A state appeals court was scheduled to hear arguments in the Dallas case on Wednesday, after DC Agenda’s deadline.

The Dallas men, who declined to be interviewed for this story and are known only as J.B. and H.B. in court filings, had an amicable separation, with no disputes on separation of property and no children involved, said attorney Peter Schulte, who represents J.B. The couple, who married in 2006 in Massachusetts and separated two years later, simply want an official divorce, Schulte said.

The drawn-out process has been frustrating for Naylor, who says she didn’t file for divorce as an equal rights statement — she just wants to get on with her life.

“We didn’t ask for a marriage; we simply asked for the courtesy of divorce,” said Naylor, 39, of Austin, who married Sabina Daly in Massachusetts in 2004.

That year, Massachusetts became the first state to let same-sex couples tie the knot. Now, Connecticut, Iowa, New Hampshire, Vermont and the District of Columbia also allow them.

Gay and lesbian couples who turn to the courts when they break up are getting mixed results across the nation. A Pennsylvania judge last month refused to divorce two women who married in Massachusetts, while New York grants such divorces even though the state doesn’t allow same-sex marriage.

“The bottom line is that same-sex couples have families and their families have the same needs and problems, but often don’t have the same rights,” said Jennifer Pizer, a lawyer for Lambda Legal, a national legal organization that promotes equal rights for gay, lesbian, bisexual and transgender people.

The case of Christian Legal Society v. Martinez came before the high court after the University of California in Hastings denied the Hastings Christian Fellowship status as an official student group on the grounds that it prohibits LGBT people from taking positions within group leadership.

In the 2004 academic year, the school affiliated itself with the Christian Legal Society, which has bylaws saying that officers must abstain from “acts of the sinful nature” that includes “unrepentant participation in or advocacy of a sexually immoral lifestyle,” including homosexual behavior.

Consequently, the group has no right to meet on campus, can’t communicate through the law school’s newsletter or weekly e-mail announcement, and can’t receive school funding. The Hastings Christian Fellowship contends the school’s decision violates the group’s First Amendment rights of association and free speech.

Arguing on behalf of the Christian group before the Supreme Court was Michael McConnell, a law professor at Stanford Law School and former judge for the U.S. Circuit Court of Appeals for the Tenth Circuit. He said that the non-discrimination policy at the law school infringes on the beliefs of chapter members and is a “front assault on freedom of association.”

“A public forum for speech must be open and inclusive, but participants in the argument must be entitled to their own voice,” McConnell said.

He said the policy at the law school would mean that an NAACP chapter would “have to allow a racist skinhead” to participate in board meetings to maintain eligibility as an official school group.

On the other side of the argument and representing the college was Gregory Garre, a partner at the D.C.-based office of Latham & Watkin and a former solicitor general for President George W. Bush.

Garre said the non-discrimination policy the school has in place is neutral and doesn’t target any particular viewpoint or make a distinction between religious and non-religious speech.

“The whole purpose of the policy is to stay out of the argument and have an all-comers policy,” he said.

Garre said similar non-discrimination policies are “not uncommon and reasonable policy” and in place at many colleges, including Georgetown University Law School.

Indicating that LGBT people may in fact be interested in the Hastings Christian Fellowship, Garre noted the record shows that an out lesbian took part in the group’s activities before the group affiliated itself with the national organization.

“The record shows she participated in the discussions,” he said. “The officer of the group said he enjoyed having her there.”

During oral arguments before the Supreme Court, justices volleyed questions at both attorneys on issues ranging from whether the non-discrimination was applied consistently to all college groups to the tradition of giving schools deference in non-discrimination policies.

Associate Justice Antonin Scalia asked several questions about whether the school had been consistently applying its policy to all groups in at the college and whether the standards for the non-discrimination policy had morphed since the lawsuit began.

He said the current policy would allow Democrats to become leaders in a Republican group or allow atheists to conduct Bible classes in a Christian group.

Also expressing concern was Associate Justice Samuel Alito. He questioned whether current policy would enable vehemently anti-Muslim people to take over the leadership of a Muslim group at the school.

But Associate Justice Ruth Bader Ginsburg dismissed the notion that the policy could allow for takeover of some groups, calling such ideas “hypotheticals about sabotage takeover that haven’t happened.” She noted that the law school’s current policy enables diversity.

“Hastings takes the position that it favors diversity not just among the groups, but within the groups,” Ginsburg said.

Also demonstrative some apparent sympathy for the school’s policy was Associate Justice Sonia Sotomayor, who asked whether the policy actually prohibited the group from fulfilling in its mission or meant that the group was being “ostracized or excluded from the school.”

Following the oral arguments, Shannon Minter, legal director for the National Center of Lesbian Rights, told DC Agenda the proceedings went “fantastically well” for the defendants, although he said predicting how justices will rule was difficult.

“They recognized that the policy that’s in front of the court is all-comers policy,” Minter said. “It was just very encouraging that a lot of justices understand that that is, under their existing doctrine, a viewpoint-neutral policy.”

A number of national organizations weighed in both sides of the issue, filing friend-of-the-court briefs with plaintiffs and defendants.

In a statement, Jon Davidson, legal director of Lambda Legal, which filed a brief in support of the law school, said plaintiffs put forth arguments that are substantively ludicrous.

“No one is telling CLS that they can’t shut their doors to whomever they want,” Davidson said. “But they can’t do that if they expect university funds. It’s wrong of them to expect taxpayers and students to pick up the tab for engaging in discrimination against select Hastings’ students.”

Davidson called the lawsuit “another case of an anti-gay group claiming it deserves sympathy when its foot hurts due to kicking gay people in the head.”

But Mat Staver, a prominent social conservative and founder of the Liberty Counsel, said in a statement that the current policy jeopardizes First Amendment rights for the Christian group and potentially others.

“Of all places, one would think a public law school would respect the First Amendment,” he said. “The First Amendment is strong medicine to political correctness. If the government can drive out Christian viewpoints today, it can drive out any viewpoint tomorrow.”

A decision in the case is expected before the end of the current term for the Supreme Court in July.

Maryland Attorney General Doug Gansler (Photo courtesy of Maryland state government)

Maryland Attorney General Douglas Gansler issued a long-awaited opinion Wednesday saying same-sex marriages performed in other states or countries most likely would have full legal standing in the state.

But in his 53-page legal opinion, Gansler said the Maryland Court of Appeals would have the final say in the matter should opponents of same-sex marriage choose to contest the legal standing of married same-sex couples living in or visiting the state.

Gansler’s opinion comes one week before a law allowing same-sex marriages to be performed in D.C. is expected to take effect March 3. Same-sex couples in Maryland have said they would likely make wedding plans in the District in response to a favorable opinion from Gansler.

The attorney general’s opinion comes nine months after state Sen. Richard Madaleno (D-Montgomery County), who is gay, asked Gansler to issue an official opinion on the question of whether the state could legally recognize same-sex marriages from other jurisdictions.

“You have asked whether those marriages may be recognized under state law,” Gansler said in his opinion, which is addressed to Madaleno. “The answer to that question is clearly ‘yes.’”

Madaleno could not immediately be reached for comment, but he told the Washington Post in a brief interview that changes in state policy could now result from a court ruling, legislation or administrative action, though none of those is imminent.

Gansler says in the opinion that while he believes the legal concept of state “public policy” favors recognition of out-of-state gay marriages, others might raise legal grounds to contest that view.

In particular, he points to the 2007 ruling by the Maryland Court of Appeals upholding the state’s marriage law banning same-sex marriages from being performed in the state. In that 4-3 ruling denounced by LGBT activists, the court ruled that restricting marriage to a man and a woman doesn’t discriminate against same-sex couples or deny them rights under the state constitution. The court held that the ban on same-sex marriage instead promotes the state’s “interest” in traditional heterosexual marriage as a means of fostering procreation and protecting children.

But Gansler says in his opinion that the appeals court decision should not be a key factor in determining whether Maryland could recognize same-sex marriages from other jurisdictions.

“The Court of Appeals would start from the general principle that a marriage that is valid in the place of celebration remains valid in Maryland,” he said in his opinion. “There are exceptions to that rule if the particular marriage is contrary to a strong state public policy. A statute that limits marriage in Maryland to opposite-sex couples could be said to embody a policy against same-sex marriage.”

However, Gansler noted that the Court of Appeals has not prevented the state from recognizing various types of marriages performed in other states that are not allowed to be performed in Maryland under the state’s marriage law. Among them are common law marriages, which are recognized in many other states. The Court of Appeals also upheld a Rhode Island marriage between an uncle and a niece, even though the Maryland marriage law prohibits such a marriage, Gansler says in his opinion.

“While the matter is not free from all doubt, in our view, the court is likely to respect the law of other states and recognize a same-sex marriage contracted validly in another jurisdiction,” he says. “In light of Maryland’s developing public policy concerning intimate same-sex relationships, the court would not readily invoke the public policy exception to the usual rule of recognition.”

In response to a second question raised by Madaleno, Gansler says in his opinion that Maryland Gov. Martin O’Malley does not have authority to issue an executive order recognizing same-sex marriages from other jurisdictions.

In his May 19, 2009, letter to Gansler requesting the same-sex marriage recognition opinion, Madaleno pointed out that New York Gov. David Paterson issued such an order, clearing the way for New York to recognize out-of-state same-sex marriages, even though the legislature had not approved a same-sex marriage bill.

“An executive order of the governor must be consistent with existing Maryland law, as enacted by the General Assembly and construed by the courts,” Gansler says.

LGBT rights groups hailed Gansler’s opinion as an important breakthrough for the marriage equality movement.

“Today is a day to celebrate,” said Morgan Meneses-Sheets, executive director of Equality Maryland, a state LGBT advocacy group.

“Equality Maryland applauds a favorable opinion released by the Office of Attorney General Doug Gansler that states that the marriages of same-gender couples legalized in other jurisdictions have standing to be honored here at home.”

But Rick Bowers, director of Christian Impact Alliance, a Maryland group opposed to same-sex marriage, said Gansler acted without legal authority to issue such a ruling.

“The governing body over a decision like this should be the General Assembly or the people of the state of Maryland through a vote by referendum,” Bowers said.

Gay rights groups, however, disputed Bowers assessment, saying Gansler has authority to issue such an opinion.

Lambda Legal, a national LGBT group, praised Gansler’s opinion for “saying that recognition of out-of-state marriages of same-sex couples is consistent with Maryland law.”

Susan Sommer, director of the group’s Constitutional Litigation program, said the Gansler opinion “should bring some peace of mind to married same-sex couples and their families in Maryland as this state aligns itself with New York, making clear that there is no gay exception to long-standing marriage recognition law.”

Evan Wolfson, executive director of the national same-sex marriage advocacy group Freedom to Marry, said he was confident that the Maryland Court of Appeals would uphold Gansler’s assessment that valid same-sex marriages from other jurisdictions have full legal standing in Maryland.

“Maryland’s typical practice, like all states historically, is to honor marriages rather than destabilize them,” Wolfson said. “The Maryland Attorney General is concluding, looking at Maryland law, that there is no reason for a gay exception to that tradition and common sense practice.”

While praising Gansler’s opinion as an important development for same-sex marriage equality, some LGBT organizations said it focuses attention on the need for all states to adopt same-sex marriage laws.

“Today’s opinion by the Maryland Attorney General only continues to further highlight the burdensome patchwork of unequal laws same-sex couples face across the country,” said Joe Solmonese, president of the Human Rights Campaign. “With every step that is taken in the progress toward full equality, it becomes more and more obvious that separate is not equal and marriage by any other name is not marriage.”

The action by Gansler on Wednesday also comes less than a month after the Maryland House Judiciary Committee voted 12-8 to defeat a bill that would have banned same-sex marriage in the state. The measure was introduced by Del. Emmett Burns (D-Baltimore County), who said he anticipated Gansler’s opinion would back same-sex marriage recognition.

Maryland Del. Don Dwyer (R-Anne Arundel County), meanwhile, is “definitely” moving ahead with plans to file impeachment papers against Gansler for his same-sex marriage recognition opinion, according to spokesperson Louisa Baucom.

“His position about the opinion is that Attorney General Gansler had no right to issue the opinion, regardless of what the opinion is — that his constitutional limitations prohibit that,” Baucom said.

“He will be drawing up letters of impeachment against Attorney General Gansler,” she said, adding that the charges would be based on “violation of his oath of office.”

Burns claimed that he doesn’t support discrimination, but was tired of same-sex marriage supporters raising the Loving v. Virginia ruling that struck down interracial marriage bans. He said the current ban on same-sex marriage is not the same.

“It is not discriminatory,” he said during the House Judiciary Committee hearing Jan. 31 in Annapolis. “I cannot hide my color. I don’t want to. I’m proud to be who I am. But those who are of a different sexual orientation could.”

His exchange with fellow Democratic committee members grew testy as they quoted NAACP Chair Julian Bond and U.S. Rep. John Lewis (D-Ga.) as saying the LGBT and black civil rights struggles were shared. Burns dismissed the comments, saying he didn’t recognize their leadership.

Burns said the state faces a crisis with the neighboring District of Columbia poised to begin issuing same-sex marriage licenses, a development that could put Maryland’s same-sex marriage ban at risk.

Maryland Attorney General Douglas Gansler has given no timeframe for when he will release a long-expected opinion on the issue of recognizing same-sex marriage licenses issued in D.C. and elsewhere, but some sources speculated that he will wait until the legislative session ends in April to take that step. Burns said he feared Gansler’s opinion could legislate same-sex marriage “through the back door.”

“Our back door is wide open,” Burns said. “Our law does not speak to marriages performed in other jurisdictions.”

Committee member Michael Smigiel Sr. (R-Caroline, Cecil, Kent and Queen Anne’s counties) added that he believes Gansler has a political agenda and would act only after the current session had ended.

Gansler’s spokesperson denied the claim this week, saying the attorney general was still investigating the issue.

Mary Ellen Russell, executive director of the Maryland Catholic Conference, testified in support of Burns’ bill during the hearing, saying the recognition of out-of-state same-sex marriages would undermine the right of the General Assembly and the people of Maryland to decide the issue.

“The legalization of same-sex marriage in a small number of other states, and the prospect of its legalization in our neighboring jurisdiction, the District of Columbia, provides no legitimate legal cause for granting recognition in Maryland to those marriages,” Russell said. “House Bill 90 provides an added measure of assurance to the people of Maryland that the decisions of out-of-state courts or legislatures cannot, and should not, provide grounds for usurping the legitimate democratic process in our state for deciding this issue.”

She added that the Catholic Church supports the state’s current marriage definition in recognition that “only a man and a woman are capable of bringing children, our society’s next generation, into the world” and that voters have repeatedly agreed, even in liberal states.

Committee Chair Joseph Vallario Jr. (D-Calvert and Prince George’s counties) asked if gay Marylanders could meet, go to D.C., conduct a “drive through” wedding, return to Maryland and expect that marriage to be recognized “without even leaving their car.”

Lawyers for Lambda Legal and the American Civil Liberties Union testified that Maryland’s 1973 law defining marriage as one man and one woman would not be undermined if the attorney general upheld the full faith and credit clause of the U.S. Constitution, which mandates recognition of other states’ marriage licenses.

Del. Heather Mizeur (D-Montgomery County) testified against the bill, citing her own California-issued marriage certificate to her spouse Deborah.

“This bill is about me, and it’s about my family, and it’s about thousands of families across the state,” Mizeur said. “In Pasadena, Calif. — 3,000 miles from here — we’re treated as a married couple. In Pasadena, Md. — less than 30 minutes from here — we’re not. In Cambridge, Mass., our marriage would protect us were life to deal us a bad hand. In Cambridge, Md., we’re two unrelated women with some very expensive legal documents and a lot of uncertainty.”

Mizeur said Maryland’s current legal recognition of same-sex couples grants her 12 statutory rights of the 425 rights bestowed upon married couples.

Mizeur said she didn’t know how Gansler would decide the issue, but said that Maryland has a long tradition of upholding the full faith and credit clause and Maryland would eventually change its law, anyway.

“But either way, this bill is wrong,” she said. “It’s a step backwards for a state that presses forward.”

The hearing drew a standing-room-only crowd of mostly same-sex marriage supporters, including high school students, who frequently reacted to Burns’ colorful explanations of why LGBT bans were not discrimination.

Burns’ bill is not believed to have the necessary votes to make it out of the House Judiciary Committee. However, the as-yet-unscheduled vote will not be an indicator of support for legalizing same-sex marriage in Maryland.

Mizeur told DC Agenda that she doubts a marriage equality bill would be introduced in the state House this year. While confident there are enough votes in the House Judiciary Committee to pass such a bill, Mizeur said same-sex marriage supporters are still shy of their goal in the companion Senate committee.

“We have supporters [in the House] who we don’t want to put at risk when there isn’t the support in the Senate,” she told DC Agenda, alluding to possible electoral fallout.

Equality Maryland is holding its annual lobby day Feb. 8.