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Can Obama stop enforcing DOMA?

Experts divided as legal challenges loom

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President Obama (Blade photo by Michael Key)

The announcement from President Obama last week that he believes Section 3 of the Defense of Marriage Act is unconstitutional and that he will no longer defend the law in court is raising questions about whether he can further help the LGBT community by discontinuing enforcement of the law.

Dan Pinello, who’s gay and a government professor at the City University of New York, said he believes Obama has the authority to stop enforcing Section 3 of DOMA, which prohibits the federal government from recognizing same-sex marriages, now that he has deemed the statute unconstitutional.

“If an order came down from the White House to start treating married same-sex couples like married opposite-sex couples, I think that would be honored in terms of bureaucrats sitting up and doing what he says,” Pinello said. “A president can seek not to enforce a statute if he believes, legally and otherwise, it’s unconstitutional.”

In the past, presidents have declined to enforce laws that they believe are unconstitutional, but such situations are rare. President Woodrow Wilson ignored a statute that conditioned removal of postmasters on Senate approval. In 1926, the Supreme Court struck down the the law as unconstitutional without making any suggestion that Wilson overstepped his boundaries by not enforcing the statute.

In 1994, then-U.S. Assistant Attorney General Walter Dellinger wrote a memorandum to then-White House Counsel Abner Mikva asserting the president “may appropriately decline to enforce a statute that he views as unconstitutional.”

“As a general matter, if the President believes that the [Supreme] Court would sustain a particular provision as constitutional, the President should execute the statute, notwithstanding his own beliefs about the constitutional issue,” Dellinger writes. “If, however, the President, exercising his independent judgment, determines both that a provision would violate the Constitution and that it is probable that the Court would agree with him, the President has the authority to decline to execute the statute.”

But the memorandum examines whether a president can decline to enforce a statute in terms of whether the president has authority not to uphold a law recently approved by Congress. Dellinger states that if Congress is making progress toward passing a law that the president believes is unconstitutional, the White House should “promptly identify unconstitutional provisions and communicate its concerns to Congress.”

Such a situation would be different from what happened with DOMA, when the president determined the statute was unconstitutional nearly 15 years after a Republican Congress passed the bill and then-President Clinton signed it into law.

Jon Davidson, legal director for Lambda Legal, said there is “significant dispute” over whether a president can unilaterally decline to enforce a statute.

“When a president simply refuses to enforce the law, it’s not always clear that there is anyone who would have the legal ability to sue to require him to do so,” Davidson said. “This ability to exercise unilateral authority is troubling to many scholars.”

Still, Davidson noted that precedent exists for presidents to decline to enforce particular laws. For 25 years following its enactment in 1968, he said, every president refused to enforce a law seeking to make the Miranda case inapplicable to federal prosecutions until the courts struck down the law. Similarly, Davidson said numerous presidents refused to abide by laws allowing for legislative vetoes of presidential action, such as the 1973 War Powers Resolution.

For its part, the Obama administration seems intent on maintaining enforcement of DOMA even though the president has deemed it unconstitutional. In the case of Golinski v. U.S. Office of Personnel Management — concerning U.S. Ninth Circuit Chief Judge Alex Kozinski’s order to give court employee Karen Golinski benefits for her same-sex spouse — the Obama administration reiterates that it plans to continue enforcement of DOMA.

Kozinski ordered the U.S. government to answer questions about its continued refusal to offer Golinski federal benefits in light of its decision that DOMA is unconstitutional. On Monday, the Justice Department responded to Kozinski by saying that Obama is obligated to continue to enforce the law until either Congress repeals the statute or the courts strike it down.

“The President has determined that Executive agencies will continue to enforce Section 3 of DOMA, a course of action that accords appropriate deference to the Congress that enacted DOMA and allows the judiciary to be the final arbiter of DOMA’s constitutionality, as stated by the Attorney General,” the Justice Department states. “Moreover, as discussed, the Executive Branch has fulfilled its statutory obligation to notify Congress of the decision not to defend the statute and is committed to urging the courts to provide Congress with a full and fair opportunity to participate in the litigation of DOMA cases.”

Shin Inouye, a White House spokesperson, said Obama plans to continue to enforce DOMA even though he’s decided no longer to enforce the statute in court.

“Consistent with past practice when a president determines and announces publicly that a law is unconstitutional, the president has directed the Department of Justice to cease defending the law in court,” Inouye said. “Until there is a final determination by the courts of the law’s validity or it is repealed by Congress, however, it remains the law of the land and the president will continue to enforce it as such.”

Many legal experts who are LGBT advocates are wary of the prospects of the president declining to enforce a statute — even one as harmful to married same-sex couples as DOMA — simply on the basis that Obama deems the law unconstitutional.

Nan Hunter, a lesbian law professor at Georgetown University, said no one believes more strongly than she that DOMA is unconstitutional, but cautioned against having the president stopping to enforce DOMA because “you have to look beyond your nose when you’re thinking about the ramifications of these sorts of decisions.”

“We do not want to live in a country in which the president can declare statutes to be unconstitutional because he doesn’t like them,” Hunter said. “That’s really not a place where any of us should want to live.”

To support the idea of a president ceasing to enforce a statute because the administration believes it’s unconstitutional, Hunter said she wants to see a guiding set of principles that would allow Obama to stop enforcing the statute while being consistent with the rule of law.

“I think everyone agrees that the criteria would have to be extremely limited so that such a situation would be extremely rare,” Hunter said. “Maybe someone could persuade that this fits into that very limited criteria, but I just haven’t heard any.”

Richard Socarides, president of the media watchdog group Equality Matters, said given the history of DOMA, the Obama administration would be “hard pressed” to decide unilaterally to stop enforcing DOMA.

“I just think it would be disruptive to the normal order of things,” Socarides said. “I’m sure that their lawyers made pretty convincing arguments that the more orderly way to do this was to await a definitive ruling from the court, which should be fairly quickly forthcoming based upon the government’s new position.”

Amid this debate, another LGBT advocate is drawing on the recent change in how the Obama administration is handling DOMA to press the administration to exercise prosecutorial discretion in cases involving bi-national same-sex couples.

Lavi Soloway, an attorney with Masliah & Soloway PC in New York, is representing three married, same-sex bi-national couples in New York, New Jersey and California who are facing deportation proceedings.

Alex Benshimol and Doug Gentry are scheduled for a July 13 hearing in San Francisco; Monica Alcota and Cristina Ojeda are scheduled for a March 22 hearing in New York; and Henry Velandia and Josh Vandiver scheduled for a May 6 hearing in Newark, N.J. Each of the American spouses in these cases has filed green card petitions on behalf of their foreign national partners, although DOMA prevents American nationals from sponsoring their partners.

“We intend to argue as a result of the shifting position of the executive branch with respect to DOMA that it’s appropriate for the immigration judges and also for the attorneys that represent the Department of Homeland Security to exercise what’s called prosecutorial discretion, which simply means exercising more discretion in how to proceed with these cases,” Soloway said.

In the three pending cases, Soloway is asking for judges to consider changes that were made to how the Obama administration is handling DOMA in court and to put off deportation proceedings until another time when different relief of legal options may be available. According to Soloway, if anyone in these cases is deported, they won’t be able to return to the United States for another 10 years, even if DOMA is repealed or overturned sometime before then.

“I’m calling on the Department of Homeland Security … to develop reasonable innovative policy to deal with the particular moment that we’re in,” Soloway said. “We’re just in a very short-term moment where things are in a state of flux. I’m not asking them to stop enforcing any law; this is part of enforcing the law.”

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National

Acclaimed gay doctor to be honored at LGBT History Month event

Pediatric cardiologist moved from Louisiana to N.Y. in protest over anti-LGBTQ bills

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Dr. Jake Kleinmahon, his husband Tom, and their kids.

Dr. Jake Kleinmahon, a gay pediatric cardiologist and pediatric heart transplant specialist, is scheduled to be honored Oct. 1 by the Equality Forum at its annual LGBT History Month Kickoff and Awards Celebration in Philadelphia.

He has been named a recipient of the Equality Forum’s 28th annual International Role Model Award. 

Kleinmahon became the subject of national news media coverage in early August when he announced he was leaving the state of Louisiana with his husband and two children and ending his highly acclaimed medical practice in New Orleans after the state legislature passed bills targeting the LGBTQ community.

He had been working since 2018 as the medical director of pediatric heart transplant, heart failure, and ventricular assist device programs at Ochsner Hospital for Children in New Orleans.

Kleinmahon told the Washington Blade his and his family’s decision to leave New Orleans was a difficult one to make. He said it came after the Republican-controlled Louisiana Legislature passed three anti-LGBTQ bills, including a so-called “Don’t Say Gay” bill targeting public schools and a bill banning transition-related medical care for transgender youth.

The state’s Democratic governor, John Bel Edwards, vetoed all three bills. But the legislature overturned his veto of the bill banning transition-related medical care for trans minors beginning Jan. 1, 2024.

Kleinmahon said he and his family moved at the end of August to Long Island, N.Y., after he accepted a new job as director of pediatric heart transplant, heart failure and ventricular assist devices at Cohen Children’s Medical Center in the town of New Hyde Park, which is located along the border of the Borough of Queens in New York City and Nassau County, Long Island.

“The decision to leave is not one that we took lightly at all,” Kleinmahon told the Blade. “And it was not one because I got a better job or other factors,” he said. “The main driver for it was that as we realized where things were going, we were raising our children in a state that was actively trying to make laws against your family,” he said in a phone interview. “And that’s not the type of environment that we want to raise our kids in.”

Kleinmahon said he and his husband Thomas timed their move to Long Island at the end of August so their daughter, who’s seven, could begin school at the start of the school year and their son, who’s four, could begin pre-kindergarten sessions.

“We have been open with our children about why we’re moving because we think it’s important that they carry on this message as well,” said Kleinmahon, who noted that his daughter expressed support for the move.

“We were at the dinner table one night and we were explaining what happened,” Kleinmahon said. “And she goes, you know daddy, we do have a choice, but there is only one good one. And she agreed with our moving to New York.”  

Kleinmahon acknowledges that some in New Orleans, which is considered an LGBTQ supportive city in general, questioned his decision to leave on grounds that the two bills that would directly impact him and his family did not become law because the governor’s veto of the two bills were upheld.

“One of the things I’ve heard is that none of these really directly affect a family because the ‘Don’t Say Gay’ bill didn’t go into effect, and my children are not transgender, and I don’t work in a transgender clinic,” he told the Blade.

“But that’s really not the point,” he continued. “The way we think about it as a family, the people who are elected officials that are supposed to take care of the people in their state are casting votes against our families,” he points out. “So, sure, while the laws may not be in effect this year, certainly there’s a push to get them passed. And why would we want to remain in a state that is trying to push forward hateful laws?”

He said he will begin his new job at Cohen Children’s Medical Center on Long Island on Nov. 1.

“They have been incredibly supportive,” Kleinmahon said. “They have actually encouraged me to be open with why we left Louisiana,” he said. “And they have a Pride resource group that’s reached out to me to lend their support,” he said, adding that the hospital and its parent company have been “exceptional in helping us make this transition.”

During his medical practice at Ochsner Hospital for Children in New Orleans, Kleinmahon has been credited with helping to save the lives of many children suffering from heart-related ailments. He said his decision to leave behind his colleagues and patients was difficult.

“Unfortunately, it had ramifications for the kids in Louisiana, which was the hardest part for me,” he said. “And the reason for that is I was one of three pediatric heart transplant cardiologists, and I was the director of the only pediatric heart transplant program in Louisiana.”

He added, “While there are two other fantastic heart transplant cardiologists in Louisiana, the ability to keep a program running that serves an entire state needs a full army of people. And me leaving took 33 percent of that army away.”

He said he was also one of just two pediatric pulmonary hypertension providers in the state, and he just learned that the other provider had also left Louisiana recently. Pulmonary hypertension doctors provide treatment for people with the condition of high blood pressure in their lungs.

Regarding his extensive experience in treating and caring for children with heart disease, Kleinmahon, in response to a question from the Blade, said about 400 children receive heart transplants in the U.S. each year.

While heart transplants for kids are not as frequent as those for adults, he said kids needing a heart transplant and their families “deal with a tremendous amount of stress and medical appointments that really change their life,” including the need to take medication to prevent the body from rejecting a new heart for the rest of the children’s lives.

“My hope as a transplant doctor is that I can get these kids to live as normal a life as possible,” he said.

In addition to presenting its International Role Model Award to Kleinmahon, the Equality Forum was scheduled on Oct. 1 at its LGBT History Month event to present its Frank Kameny Award to Rue Landau, the first LGBTQ Philadelphia City Councilperson. It was also scheduled to present a Special Memorial Tribute to the late Lilli Vincenz, the longtime D.C.-area lesbian activist and filmmaker credited with being a pioneering LGBTQ rights activist beginning in the early 1960s.

“I am beyond humble to receive this award that is really not an award for me but is an award for my family and for families like ours and for people that are going to continue to fight discriminatory policies,” Kleinmahon said.

Blade editor Kevin Naff will present Kleinmahon with the award on Oct. 1 in Philadelphia.

“Dr. Kleinmahon and his family took a brave stand in solidarity with the LGBTQ community and they deserve our gratitude,” Naff said. “I’m excited and honored to present him with the International Role Model Award.”

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Federal Government

Attorney details the harms of waiving anti-discrimination rules for religious universities

Incentives aligned for continuation of anti-LGBTQ discrimination

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The Lyndon Baines Johnson Building, Washington D.C., headquarters of the U.S. Department of Education (Photo Credit: GSA/U.S. Dept. of Education)

Democratic lawmakers re-introduced the Tyler Clementi Higher Education Anti-Harassment Act on Friday, which marked the 13th anniversary of the 18-year-old New Jersey college student’s death by suicide after he was targeted with homophobic harassment by his peers.

The bill, which establishes cyberbullying as a form of harassment, directing colleges and universities to share anti-harassment policies to current and prospective students and employees, was introduced by U.S. Senators Tammy Baldwin (Wis.) and Patty Murray (Wash.), along with U.S. Rep. Mark Pocan (Wis.), Chair of the Congressional Equality Caucus.

Advocacy groups including the Tyler Clementi Foundation, the American Foundation for Suicide Prevention, and The Trevor Project have endorsed the legislation, which comes as issues concerning anti-LGBTQ harassment in institutions of higher education have earned renewed scrutiny on Capitol Hill and beyond.

Earlier this month, the Washington Blade connected with an expert to discuss these and other subjects: Paul Southwick, a Portland, Oregon-based litigation attorney who leads a legal advocacy group focused on religious institutions of higher education and their treatment of LGBTQ and other marginalized communities.

On Tuesday, he shared a statement responding to Friday’s reintroduction of the Tyler Clementi bill, stressing the need for equal enforcement of its provisions in light of efforts by conservative Christian schools to avoid oversight and legal liability for certain federal civil rights regulations:

“We are still evaluating the bill regarding how the bill would interact with the religious exemption in Title IX,” Southwick said. “We fully support the expansion of anti-harassment protections for students and corresponding requirements for educational institutions.”

He added, “We also believe that such protections and requirements should extend to students at taxpayer funded, religiously affiliated educational institutions, regardless of whether those institutions claim, or receive, an assurance of religious exemption from Title IX regulations” through the U.S. Department of Education’s Office of Civil Rights.

Baylor University’s unprecedented Title IX exemption

In response to a request from Baylor University, a conservative Baptist college located in Waco, Texas, the Education Department in July granted a first of its kind religious-based exemption from federal regulations governing harassment, a form of sex-based discrimination proscribed under Title IX.

Southwick explained that during the Obama administration, the federal government began to understand and recognize discrimination based on sexual orientation and gender identity as forms of sex-based discrimination covered by the statute. The Biden-Harris administration issued a directive for the Education Department to formalize the LGBTQ inclusive definitions under Title IX, with a Notice of Proposed Rulemaking that is now underway at the agency.

Beginning with the Department’s 2010 “dear colleague” letter clarifying the administration’s view that discrimination against LGBTQ people constitutes sex-based discrimination under the law, Southwick said the pushback from religious schools was immediate. In the years since, many have successfully petitioned the Education Department for “exemptions so they can discriminate against queer, trans and non-binary people,” but these carveouts were limited “to things like admissions, housing, athletics.”

No one had argued that “federally funded educational institutions [should] have no regulation by the federal government as to whether they’re protecting their students from harassment,” he remarked – at least not until the Baylor case.

Addressing the unprecedented move in a letter to the Department on September 5, U.S. Reps. Mark Takano (D-Calif.), Adam Schiff (D-Calif.), Greg Casar (D-Texas), Joaquin Castro (D-Texas), and Veronica Escobar (D-Texas) urged the agency to “clarify the narrow scope of this exemption and assure students at religious institutions that they continue to have protections against sex-based harassment.”

Southwick told the Blade other members of Congress have expressed an interest in the matter, as have some progressive nonprofit groups.

Asked for comment, a spokesperson for the Department confirmed receipt of the lawmakers’ letter and said the agency will respond to the members.

The Department’s issuance of the exemption to Baylor came despite an open investigation into the university by its Office of Civil Rights over a Title IX complaint brought in 2021 by Southwick’s organization, the Religious Exemption Accountability Project (REAP), on behalf of a queer student who claimed she was subjected to homophobic abuse from other students while university officials to whom she reported the harassment failed to intervene.

It is not yet clear whether the agency will close its investigation as a result of its decision to exempt Baylor from Title IX’s harassment rules.

Veronica Bonifacio Penales, the student behind the complaint against Baylor, is also a plaintiff in REAP’s separate class action lawsuit challenging the Education Department’s practice of waving Title IX rules for faith-based colleges and universities – which, the plaintiffs argue, facilitates anti-LGBTQ discrimination in violation of the 14th Amendment’s equal protection clause.

The case, Hunter v. U.S. Department of Education, is on appeal before the U.S. Court of Appeals for the 9th Circuit.

Other religious schools are likely to follow Baylor’s lead

Southwick said the agency’s decision in the Baylor case “puts students at risk of harassment without a civil remedy against their school’s failures to properly address harassment,” adding, “Taxpayer funded educational institutions, whether religious or secular, should never be permitted to escape oversight from OCR in how they handle anti-harassment claims from LGBTQIA+ or other students protected by federal non-discrimination law.”

Buoyed by Baylor’s successful effort, requesting exemptions to Title IX rules for purposes of allowing the harassment of LGBTQ students, faculty, and staff is likely to become routine practice for many of America’s conservative institutions of higher education, Southwick said.

The nonprofit group Campus Pride maintains a list of America’s “absolute worst, most unsafe campuses for LGBTQ youth,” schools that “received and/or applied for a Title IX exemption to discriminate against LGBTQ youth, and/or demonstrated past history and track record of anti-LGBTQ actions, programs and practices.”

193 colleges and universities have met the criteria.

Many of the thousands of LGBTQ students enrolled in these institutions often have insufficient support, Southwick said, in part because “a lot of the larger civil rights organizations and queer rights organizations are very occupied, and rightly so, with pushing back against anti-trans legislation in the public sphere.”

Regardless, even in America’s most conservative schools like Bob Jones University in Greenville, South Carolina, Liberty University in Lynchburg, Virginia, and Hillsdale College in Hillsdale, Michigan, Southwick noted that pro-equality students, faculty, and staff have pushed for change.

He added that while there are, no doubt, young people who harbor anti-LGBTQ views, “they often become much more progressive the longer they’re in school, because there’s just queer people coming out everywhere, you know, and it’s hard to hate people who are your friends.”

The powerful influence and role of financial incentives  

Southwick said meaningful reform at the institutional level is made more difficult by the reality that “financial incentives from the government and from the market are aligned to favor the continuation of discrimination.”

“Once the money stops flowing, they will almost all instantly change their policies and start protecting queer students,” he said, but added that colleges and universities have little reason to change without the risk that discriminatory policies and practices will incur meaningful consequences, like the loss of government funding and accreditation.

Another challenge, Southwick said, is the tendency of institutions of higher education to often prioritize the wishes and interests of moneyed alumni networks, boards of trustees, and donors, groups that generally skew older and tend to be more conservative.

Southwick said when he and his colleagues at REAP discuss proposed pro-LGBTQ reforms with contacts at conservative religious universities, they are warned “over and over again,” that “donors will be angry.”

Following the establishment of nationwide prohibitions against segregation and other forms of racial discrimination with passage of the federal 1964 Civil Rights Act and the U.S. Supreme Court’s decisions in Brown v. Board of Education (1954), which applied to public schools, and Runyon v. McCrary (1976), which covered private schools, Southwick noted that “A lot of Christian schools and college colleges continued to deny admission to black students.”

One by one, however, the so-called “segregation academies” would permanently close their doors or agree to racial integration, Southwick said – buckling under pressure from the U.S. government’s categorical denial of federal funding to these institutions, coupled with other factors like the decision of many professional associations to deny membership to their professors and academics.

Another important distinction, Southwick added: unlike Title IX, the Civil Rights Act of 1964 “does not have a religious exemption.”

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Puerto Rico

Two men charged with attacking trans Puerto Rican woman plead guilty to federal hate crimes charges

Alexa Negrón Luciano attacked with paintball gun before her murder

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(Bigstock photo)

Two men on Monday pleaded guilty to federal hate crimes charges in connection with attacking a transgender woman in Puerto Rico in 2020.

A Justice Department press release notes Jordany Laboy Garcia, Christian Rivera Otero and Anthony Lobos Ruiz “were out driving together” in Toa Baja, a municipality that is about 15 miles west of San Juan, early on Feb. 24, 2020, “when they saw” Alexa Negrón Luciano “standing under a tent near the side of the road.”

“The defendants recognized A.N.L. from social media posts concerning an incident that had occurred the day prior at a McDonald’s in Toa Baja,” reads the press release. “During that incident, A.N.L. had used a stall in the McDonald’s women’s restroom.”

“Upon recognizing A.N.L., Lobos-Ruiz used his iPhone to record a video of himself yelling, ‘la loca, la loca,’ (‘the crazy woman, the crazy woman’) as well as other disparaging and threatening comments to A.N.L. from inside the car,” it notes. “The defendants then decided to get a paintball gun to shoot A.N.L. and record another iPhone video. Within 30 minutes, they retrieved a paintball gun and returned to the location where they had last seen A.N.L., who was still at that location. Lobos-Ruiz then used his iPhone to record Laboy-Garcia shooting at A.N.L. multiple times with the paintball gun. After the assault ended, Lobos Ruiz shared the iPhone video recordings with others.”

Negrón was later killed in Toa Baja.

Laboy and Rivera pleaded guilty to conspiracy to commit a hate crime and obstruction of justice. El Nuevo Día, a Puerto Rican newspaper, notes a federal judge sentenced Lobos to two years and nine months in prison after he pleaded guilty to hate crimes charges last November.

Laboy and Rivera are scheduled to be sentenced on Nov. 10.

They, along with Lobos, have not been charged with Negrón’s murder.

“To assault an innocent victim who posed no threat to the defendants for no other reason than her gender identity is reprehensible behavior that will not be tolerated,” said U.S. Attorney W. Stephen Muldrow for the District of Puerto Rico in the Justice Department’s press release. “The Justice Department will continue to vigorously defend the rights of all people, regardless of their gender identity, to be free from hate-fueled violence. Our community must stand together against acts of violence motivated by hate for any group of people — we remain steadfast in our commitment to prosecute civil rights violations and keep our communities safe and free from fear.”

Pedro Julio Serrano, spokesperson for Puerto Rico Para Todes, a Puerto Rican LGBTQ rights group, on Tuesday welcomed the guilty pleas. Serrano also urged authorities to bring those who killed Negrón to justice. 

“The time for total justice for Alexa is now,” said Serrano in a press release. “Her murder was a hate crime. Nobody doubts this. They falsely accused her, persecuted her, hunted her, insulted her with transphobic epithets, uploaded onto social media a video of them accosting her and they killed her. There are already three individuals who will serve time in federal prison for attacking her in a hate crime. That’s some justice, but not complete.” 

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