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DOMA ruled unconstitutional in Calif. employee case

Federal court also strikes down portion of U.S. tax code



Another federal court has ruled against Section 3 of the Defense of Marriage Act in a California case challenging the constitutionality of the law as well as a portion of the federal tax code.

On Thursday, the U.S. District Court for the Northern District of California declared the laws unconstitutional because they preclude plaintiffs from allowing their partners — whether in a union of marriage or a domestic partnership — from participating in a long-term care insurance program maintained by the California Public Employees’ Retirement System, or CalPERS. The decision was signed by U.S. District Judge Claudia Wilken.

“The Court finds that § 3 of the DOMA violates the equal protection rights of Plaintiff same-sex spouses, and subparagraph (C) of § 7702B(f) violates the equal protection rights of Plaintiff registered domestic partners,” Wilken writes. “Therefore, both provisions are constitutionally invalid to the extent that they exclude Plaintiff same-sex spouses and registered domestic partners from enrollment in the CalPERS long-term care plan.”

The class-action lawsuit, known as Dragovich v. Department of the Treasury, was filed against both federal and state defendants because they precluded California public employees from taking part in CALPERS. The San Francisco-based Legal Aid Society–Employment Law Center filed the case along with Zelle Hofmann Voelbel & Mason LLP.

The decision by Wilken, who was appointed in 1993 by former President Clinton, enjoins both federal and state officials from blocking these workers from participating in these programs. However, a stay could be granted if an appeal is filed.

DOMA, a 1996 law that bars federal recognition of same-sex marriage, applies to CalPERS because the law regulates state-sponsored long-term care plans.

But Title 26 U.S.C. § 7702B(f), also enacted in 1996 as part of the Health Insurance Portability and Accountability Act, or HIPAA, was also struck down because it has language excluding same-sex partners from the program. That portion of the law aims to provide favorable federal tax treatment to participants in state-maintained long-term care insurance plans for state employees like CalPERS.

Michael Dragovich, the lead plaintiff in the case and a nurse specializing in liver transplants at the University of California, San Francisco, praised the decision for allowing him and his partner to participate fully in CalPERS, which he joined as a state employee in 1997.

“I’ve been in a committed relationship with my partner for more than 30 years,” Dragovich said. “I am so pleased that our relationship will now be treated equally to the committed relationships of my heterosexual co-workers.”

Elizabeth Kristen, senior staff attorney for the Legal Aid Society–Employment Law Center and director of its gender equity program, said the decision upholds fairness under the law.

“Lesbian and gay couples are entitled to fair and equal treatment from the federal government,” Kristen said. “Judge Wilken’s ruling ensures that both same-sex spouses and registered domestic partners will be treated fairly with respect to the CalPERS long term care insurance program.”

In the determination that DOMA is unconstitutional, Wilkens brings up examples of statements made by members of Congress in 1996 suggesting an anti-gay animus, including an attempt to overturn to defund D.C.’s domestic partnership law in the early 1990s.

“Congress discussed registered domestic partnership laws prior to and during 1996, when the statutes challenged here were passed,” Wilken writes. “These discussions occurred after the District of Columbia passed, in April 1992, the Health Care Benefits Expansion Act, which established a domestic partnership registry in that jurisdiction. Congress reacted to the new law by barring any local or federal funding to implement, enforce or administer the registry.”

Douglas Nejaime, who’s gay and a law professor at Loyola University, said the decision is noteworthy because it strikes down both DOMA and separately finds excluding California registered domestic partners under the long-term care insurance regulations violates constitutional equal protection principles.

“The other interesting thing here is that the case implicates the relationship between state programs and federal regulation in a way that will continue to arise and produce issues not simply regarding marriage recognition for same-sex couples but recognition of non-marital same-sex relationships that are treated as ‘spousal’ relationships under state law,” NeJaime said.

According to the decision, plaintiffs had sought summary judgment in the case to obtain immediate relief. State defendants and lawyers for attorneys working for the Bipartisan Legal Advisory Group under U.S. House Speaker John Boehner (R-Ohio) had opposed this motion. Nonetheless, the court denied these requests and granted summary judgment in favor of plaintiffs.

Wilken’s decision marks the fourth time a federal court has ruled against DOMA. The first time was in 2009 when U.S. District Judge Joseph Tauro in Masschusetts ruled against DOMA in two separate cases: Gill v. Office of Personnel Management and Commonwealth of Massachusetts v. Department of Health & Human Services. Those case are now pending before the U.S. First Circuit Court of Appeals.

The third time took place in February. U.S. District Judge Jeffrey White of the U.S. District Court for the Northern District of California ruled against DOMA in the case of Golinski v. United States. The case is before the U.S. Ninth Circuit Court of Appeals and oral arguments are scheduled for September.

But NeJaime said this case is unlike the Golinski case because of the standard of review that Wilken exercised. In the Golinksi case, White conducted both a heightened scrutiny and rational basis analysis review. In the Dragovich case, Wilken finds that he’s constrained under Ninth Circuit precedent and thus applies only rational basis review, but still determines DOMA fails under this more deferential standard.

The decision also marks the first time that a court has made a decision on DOMA following President Obama’s announcement that he support same-sex marriage, although no reference to Obama’s words appears in the ruling.

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  1. Steve

    May 25, 2012 at 2:38 pm

    DOMA is on its way out. This is apparent to everyone but the Neanderthals who think it has the proverbial snowball’s chance of surviving the evolution of human social consciousness.

    Painful to watch and experience…but open up a beer, kick back, and enjoy the ongoing demise.

  2. Don

    May 25, 2012 at 2:43 pm

    One can only wonder at the IQ of attorneys defending against these frivolous “gay rights” lawsuits.

    From Funk & Wagnall’s Standard College Dictionary published in 1975:

    “marriage n. 1. The state of being married; a legal contract, entered into by a man and a woman, to live together as husband and wife”

    It is elementary, well settled law, that any analysis of a law or the Constitution must be based on the definitions of words at the time the laws were written. It is also elementary that the Fourteenth Amendment ONLY protects the class of persons the laws were created to protect. If you are not a member of the protected class, the law does NOT apply to you. For example, a man has no right to demand benefits a law provides to pregnant women. Not being a pregnant woman, he is not a member of the protected class and has no right to protection under the law. He cannot pop up and redefine the term “pregnant women” to include himself.

    Gays already have the EXACT same rights as everyone else. A gay man may marry a lesbian or any other woman and no one may discriminate against him because he is gay. And, like everyone else, if he, of his own free will, chooses not to marry a member of the opposite sex, that too is his right. He has no right whatsoever to benefits originally intended solely for opposite sex couples raising families, where a homemaker spouse’s duties left no room to obtain full time, gainful employment.

    These attorneys should also be turning to well settled law on suits brought by Mormons, regarding polygamy. Our highest court has repeatedly ruled that “marriage” does not apply to one man and lots of women. As the Highlander said, “There can be only one.”

    What these activist judges are overlooking is the fact that if same sex “marriage” is legitimatized, it would necessarily apply to same sex heterosexuals as well. In other words, it would leave the door open to “marriages” of convenience for anyone wanting to cash in on surviving spouse benefits, free medical, tax breaks, etc. While persons of the opposite sex might be reluctant to enter into such relationships, best buddies very well might be. That is, after all, the bottom line when it comes to “equality”. Today, a heterosexual person has NO right to cash in on marriage benefits by marrying a same sex, good buddy. That lack of a right is exactly the same for hetrosexuals as it is for anyone with different sexual preferences. If you aren’t one man and one woman, the law DOES NOT APPLY TO YOU.

  3. Steve

    May 25, 2012 at 3:23 pm

    I sincerely hope that among my LGBT sisters and brothers reading here, there are some doctoral candidates looking for a good thesis subject — because the subject of why homophobes (see Don’s post above) frequent LGBT websites and leave elaborately detailed comments on them is surely ripe for the picking.

    In a trillion trillion years I would never dream of posting on a right-wing web site, of which there are hundreds. I can’t even begin to fathom why a homophobe would want to post on an LGBT site.

    Surely, PhD candidates, this is an area ripe for exploration.

  4. jerry

    May 25, 2012 at 4:36 pm

    Steve, I have just read Don’s screed in which he demonstrated his total ignorance of the law. No where in any of the states that now give marriage licenses to same sex couples require that both be homosexual or even that one of the pair be homosexual. It’s the same stupid argument about breeding. No jurisdiction requires any couple to produce or adopt children.

    I can’t drink beer because it reacts negatively to my cancer medications, but I’ll sit back with a root beer. Can I offer you some of my popcorn while we watch the comedy show?

  5. Don

    May 25, 2012 at 11:17 pm

    Homophobe? Ignorant? Come on guys, can’t you do any better than Na, Na, na, na, Nah? Most folks find that form of argument to be ineffective beginning around age six.

    You may find the court’s opinion in Reynolds v. United States here:

    Gays often like to cite the precedent in “Loving”, which was a case where a white man was barred from marrying a black woman. That case is entirely inapposite to the gay marriage argument. The Lovings had a right to equal protection under the law because the marriage consisted of one man and one woman. The fact is gays can’t even lay claim the the far stronger First Amendment, freedom of religion argument of Mormons. They are basically in the same position as any non Mormon who simply has a sexual preference for multiple partners. I’ve read the Constitution most carefully and there is no place in it that entitles anyone to freebees on the public’s dime, based on their sexual tastes.

    Recognizing same sex marriage as a “right” would bankrupt Social Security over night and drive already predatory insurance costs beyond what any middle class, working American would ever be able to afford. On taxes, the near certain outcome would be to eliminate the marriage exemptions altogether.

    It isn’t about homophobia. It’s all about special interests, demanding special privileges, and trying to stick their grubby mitts in my pockets to take for themselves what is mine.

    As a single, heterosexual male, I have no right to marry another single, heterosexual male in order to glom onto his medical or surviving spouse benefits. Homosexuals currently have the EXACT same rights as I do.

    What two consenting adults do behind closed doors is none of my business until you insist I should pay for your fun, at which point it is my business and I’m unconditionally against it. Play your minority card someplace else. It isn’t any good here. It’s a lifestyle you picked of your own free will.

    You pay for it out of your own pockets, not mine.

  6. I'm Just Sayin'

    May 26, 2012 at 10:27 am

    Don, it should come as no surprise that your passion is not shared considering you chose to express it in a place where you have a 0% chance of convincing anyone to adopt your point of view regarding same-sex marriage. Maybe you should try penning a Letter to the Editor in the Washington Times where you might engage more like-minded readers, if it’s affirmation you were hoping to find.

    In your ranting, you do raise a valid point which is the potential for elimination of “marriage exemptions” or what some refer to as “marriage benefits” because of efforts to legalize same-sex marriage. However, you may have misidentified the source of the threat. It’s the marriage deniers that have put them in jeopardy. The “grubby hand trying to empty your pocket” might actually be your own.

    Right now, the federal courts are focused on equal access. However, it is entirely possible that when the matter reaches the Supreme Court (as it most certainly will) they could rule that you don’t have to recognize same-sex marriages, but unless you do, you cannot grant favorable treatment to the institution. They may also rule that if a state recognizes an opposite sex marriage affirmed in another state, it must recognize any marriage affirmed in another state. Who knows, but it is naive to think that there is no risk from the herculean efforts taking place to maintain the status quo.

    There are only two ways you can end a disparity since the concept of “separate but equal” has already been repudiated as nonsensical. You can either expand participation, or you can eliminate the benefit. So, how strongly do you really feel that marriage should be defined as the union of one man and one woman? If you knowingly and definitively exclude, should you be enriched and privileged for doing it?

    Are the marriage purists willing to put their money where their mouth is, so to speak, and give up all financial enhancements in order to limit marriage rights to couples of the opposite sex? Are they willing to go down to the court house and get remarried every time they relocate from one state to another in order to participate in the marriage related benefits of the 30 states that ban same-sex marriage? Should a religious body be “vested with the authority” to create a civil marriage contract if they won’t serve all persons legally entitled to enter into one?

    So what do you think will happen if in order to continue denying same-sex couples the right to marry, you must eliminate marriage benefits and end reciprocal recognition of marriages? I am going to guess that those same people who voted to ban marriage equality will be clamoring for the right to revisit their “principled” decision. The vote to repeal won’t even be close.

  7. Steve

    May 26, 2012 at 11:43 am

    Don, you are WAY too obsessed with this issue. Heterosexual men are usually obsessed with the opposite sex; why are you so preoccupied with same-sex relationships?

    Get a life, Don. Step away from your computer, go out, get some fresh air. Go see a good movie.

    And if that doesn’t help, professional mental health services are always available. :)

  8. rainbowreacher

    May 26, 2012 at 5:07 pm

    “It isn’t about homophobia. It’s all about special interests, demanding special privileges, and trying to stick their grubby mitts in my pockets to take for themselves what is mine.”

    And that is PRECISELY why you and everybody like you will forever be on the losing side of history, because it very much IS about homophobia. People of your mindset don’t like being called “bigots” or “homophobes.” And yet you all happen to wear it so proudly on your sleeves, living out your banal day-to-day lives doing everything in your collective power to keep other people down and deprived of the same “life, liberty, and pursuit of happiness” that you already have. Yeah, there’s absolutely nothing discriminatory about that, is there? This isn’t about homophobia? Sorry, my good man, but you’re a plain and simple liar.

    Special privileges, you say?!?!? It’s called equality and that is no more “special” of a privilege than the one you’ve already been enjoying and taking advantage of your entire life. A gay person living in this country is no less of an equal tax-paying American citizen than you are. So please get off your pathetic self-righteous high horse.

    And as for that insanely stupid argument you tried passing off in your earlier post: “A gay man may marry a lesbian or any other woman and no one may discriminate against him because he is gay.” Why would I want to marry a woman if I’m not and never have been attracted to women? You’re obviously not gay, so try turning that idiotic statement you made on yourself and consider whether you’d want to be forced to marry a man. Again, you obviously wouldn’t prefer that because you’re not homosexual, you’re heterosexual. And, believe me, I’m not the only one who will point that out to you either.

  9. rainbowreacher

    May 26, 2012 at 5:21 pm

    Oh, I almost forgot the other outright ignorant statement of yours:

    “It’s a lifestyle you picked of your own free will.”

    I really do wish the uneducated, deliberately stupid people who actually believe this would take the time to realize just how much they’re embarrassing themselves.

    I no more “chose” to be attracted to other men than you “chose” to be straight. Please do enlighten me and everybody else in regard to the long ago day when you DID choose the sex you were attracted to. Better yet, why don’t you try rolling over in bed tomorrow morning and telling your girlfriend/wife that you’ve “chosen” to dump her and start seeing other men. I mean, if it IS a choice, as you say, then you really shouldn’t have all that much of a problem!

  10. Chris

    May 29, 2012 at 10:51 am

    Don must have slept through his constitutional law course. The same argument he makes here was rejected in Loving. Defenders of the prohibition on interracial marriage argued that it was not discriminatory because it applied to all races the same, the identical burden was placed on blacks and whites who sought to marry someone of a different race. The courts saw through that fiction then, as it is seeing through the ban on same-sex marriage now. It is a bit odd for one group of people to make a decision for themselves, and then make it binding on everyone under the guise or equality. The logic is similar to a Republican Congress making membership in the Democratic Party a crime, and then claiming there is no equal protection problem because the law applies to all persons. (And it is a lot easier to change political party affiliation than sexual orientation.) Freedom is about making choices for yourself. As for protected classes, there are all sorts of constitutionally protected classes that are recognized today that were not recognized in 1789 — race, gender, alienage, persons born out of wedlock, etc. The constitution doesn’t change — it protects fundamental liberties. But what does change is that things our society had perceived as fair in the past are now better seen as unjustified discrimination against classes of people. Don also may want to review the Congressional Budget Office report on the cost of legalizing gay marriage, which concludes that it would SAVE the federal government money (most entitlement programs are means-tested based on family income, so while some additional benefits would be paid there would be a NET decrease in total payments). But even if that were not true, denying benefits to some class of similarly situated persons to save money has never been legitimate constitutionally. Nor is it fair. If a gay man serves his country in the military, why shouldn’t his same-sex spouse receive the same spousal benefits when his service is the same? And when gays pay into Social Security what their straight counterparts do (and often more), why shouldn’t they get the same benefits that their straight counterparts do? Bigotry is not a constitutional value.

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Federal Government

Veterans can now identify as transgender, nonbinary on their VA medical records

About 80 percent of trans veterans have encountered a hurtful or rejecting experience in the military because of their gender identity



Graphic via U.S. Department of Veterans Affairs

Veterans Affairs Secretary Denis McDonough announced Wednesday that his department added the options of transgender male, transgender female, nonbinary and other, when veterans select their gender, in medical records and healthcare documentation.

“All veterans, all people, have a basic right to be identified as they define themselves,” VA Secretary Denis McDonough said in a statement. “This is essential for their general well-being and overall health. Knowing the gender identity of transgender and gender-diverse veterans helps us better serve them.”

The statement also noted that the change allows health-care providers to better understand and meet the medical needs of their patients. The information also could help providers identify any stigma or discrimination that a veteran has faced that might be affecting their health.

McDonough speaking at a Pride Month event last June at the Orlando VA Healthcare System, emphasized his support for Trans and LGBQ+ vets.

McDonough said that he pledged to overcome a “dark history” of discrimination and take steps to expand access to care for transgender veterans.

With this commitment McDonough said he seeks to allow “transgender vets to go through the full gender confirmation process with VA by their side,” McDonough said. “We’re making these changes not only because they are the right thing to do, but because they can save lives,” he added.

In a survey of transgender veterans and transgender active-duty service members, transgender veterans reported several mental health diagnoses, including depression (65%), anxiety (41%), PTSD (31%), and substance abuse (16%).  In a study examining VHA patient records from 2000 to 2011 (before the 2011 VHA directive), the rate of suicide-related events among veterans with a gender identity disorder (GID) diagnoses was found to be 20 times higher than that of the general VHA patient population.

McDonough acknowledged the VA research pointing out that in addition to psychological distress, trans veterans also may experience prejudice and stigma. About 80 percent of trans veterans have encountered a hurtful or rejecting experience in the military because of their gender identity.

“LGBTQ+ veterans experience mental illness and suicidal thoughts at far higher rates than those outside their community,” McDonough said. “But they are significantly less likely to seek routine care, largely because they fear discrimination.

“At VA, we’re doing everything in our power to show veterans of all sexual orientations and gender identities that they can talk openly, honestly and comfortably with their health care providers about any issues they may be experiencing,” he added.

All VA facilities have had a local LGBTQ Veteran Care Coordinator responsible for helping those veterans connect to available services since 2016.

“We’re making these changes not only because they are the right thing to do but because they can save lives,” McDonough said. He added that the VA would also change the name of the Veterans Health Administration’s LGBT health program to the LGBTQ+ Health Program to reflect greater inclusiveness.

Much of the push for better access to healthcare and for recognition of the trans community is a result of the polices of President Joe Biden, who reversed the ban on Trans military enacted under former President Trump, expanding protections for transgender students and revived anti-bias safeguards in health care for transgender Americans.

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Prominent LGBTQ+ activist found dead in Florida landfill

Diaz-Johnston was the brother of former Miami mayor and Florida Democratic Party Chair Manny Diaz & he led the fight for marriage equality



Photo courtesy of Don Diaz Johnston

Police in Florida’s capital city confirmed that the body of Jorge Diaz-Johnston, 54, who had been reported missing was found in a Jackson County landfill Saturday morning.

Diaz-Johnston was last seen alive Jan. 3 in Tallahassee, more than an hour from where his body was found, according to a missing person notice released by police. Detectives are investigating his death as a homicide, a police spokesperson said.

Diaz-Johnston, was the brother of former Miami mayor and Florida Democratic Party Chair Manny Diaz. As an LGBTQ advocate he led the fight for marriage equality, he and his husband were plaintiffs in an historic 2014 lawsuit that led to the legalization of same-sex marriage in Miami-Dade County.

ABC News reported at the time that a South Florida circuit court judge sided with Diaz-Johnston and five couples suing the Miami-Dade County Clerk’s Office for refusing to issue marriage licenses to same-sex couples. Florida dropped its ban on same-sex marriage in 2015.

His husband wrote in a poignant Facebook post; “There are just no words for the loss of my beloved husband Jorge Isaias Diaz-Johnston. I can’t stop crying as I try and write this. But he meant so much to all of you as he did to me. So I am fighting through the tears to share with you our loss of him.”

“We are heartbroken to learn of the death of Jorge. He and his husband Don were two of the brave plaintiffs who took on Florida’s anti-gay marriage ban and helped win marriage equality for all Floridians,” Equality Florida said adding, “Our deepest condolences to Don and Jorge’s extended family.”

Detectives urge anyone who may have information to call 850-891-4200, or make an anonymous tip to Big Bend Crime Stoppers at 850-574-TIPS.

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Bill prohibiting ‘gay panic defense’ clears New Hampshire House

New Hampshire could soon join over a dozen other states which ban the use of ‘gay panic’ as a defense



New Hampshire State House (Blade file photo by Michael Key)

Legislation prohibiting defendants accused of manslaughter from using the victim’s gender, gender identity or sexual orientation as a defense, which had died in committee during the 2021 regular session of the New Hampshire House of Representatives, was reintroduced this session and passed with a 223-118 vote last week.

House Bill 238, stirred up controversary from opponents who claimed that state statues already covered murder and manslaughter. During a Criminal Justice committee hearing last Spring, Rep. Dick Marston, a Manchester Republican, voiced opposition, saying that the laws already cover murder and manslaughter and that “there’s no way in heck that you’re going to be able to say ‘Well because he or she was some deviant sexuality that I’m not–‘”

Marston was cut off by committee chairman Daryl Abbas, a Salem Republican, who gaveled him down and rebuked him for the derogatory language the Concord-Monitor reported

Later, the committee Republicans blocked an effort to move the bill out of committee alleging it needed more work and was not necessary because a jury could already strike down a similar attempted defense. The bill was then stalled in the committee, effectively killing it from being pushed further in last year’s session.

As the measure now heads to the state Senate, New Hampshire could soon join over a dozen other states which ban the use of the ‘gay panic’ as a defense.

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