National Review Online contributor Ed Whelan has promised to show that the record of President Obama's nominee to the U.S. Court of Appeals for the D.C. Circuit Caitlin Halligan suggests she is "hard left on a broad array of issues." Whelan's first attack on Halligan is that she is out of the legal mainstream on the issue of same-sex marriage. But it is a fairly weak attack.
Whelan attacks a memo that Halligan wrote as solicitor general of New York state on the issue of whether New York law allows same-sex marriage. It's strange for a conservative opponent of same-sex marriage like Whelan to focus on this memo, since Halligan concludes that New York law does not allow same-sex marriage even though New York law did not "explicitly prohibit same-sex marriage"; says the constitutional question has not been decided yet and does not have a clear outcome; and advises New York officials not to perform marriages for same-sex couples. Indeed, here is Halligan's conclusion on the subject:
We conclude that the Legislature did not intend to authorize same-sex marriages. This interpretation of the statute, however, raises concerns, which are best resolved by the courts of this State.
Because the purpose of the marriage licensing process is to "provide a definite, well-chartered procedure for entrance into marriage, so that parties following the statutory requirements can have a fair degree of certainty in their marital status," Practice Commentaries to DRL § 13 at 149, we recommend that clerks not issue marriage licenses to same-sex couples, and officiants not solemnize the marriages of same-sex couples, until these issues are adjudicated by the courts.
Whelan doesn't mention this, but Halligan's memo advising New York officials that they shouldn't perform same-sex marriages came only a few days after a mayor of the small New York town of New Paltz began marrying same-sex couples. Thus Halligan's memo -- which was informal and did not have the force of law -- directly contradicted the decision by a New York official that the laws of New York state allowed same-sex marriage.
Whelan's argument amounts to a criticism that Halligan does not give sufficient weight to some of the arguments that Whelan finds compelling. But that is hardly evidence that Halligan is "hard left."
A January 28 New York Times article reported that two new lawsuits challenging the Defense of Marriage Act (DOMA) may force the Obama administration to "take a stand":
WASHINGTON -- President Obama has balanced on a political tightrope for two years over the Defense of Marriage Act, the contentious 1996 law barring federal recognition of same-sex marriages. Now, two new federal lawsuits threaten to snap that rope out from under him.
Mr. Obama, whose political base includes many supporters of gay rights, has urged lawmakers to repeal the law. But at the same time, citing an executive-branch duty to defend acts of Congress, he has sent Justice Department lawyers into court to oppose suits seeking to strike the law down as unconstitutional.
The two lawsuits, however, have provoked an internal administration debate about how to sustain its have-it-both-ways stance, officials said. Unlike previous challenges, the new lawsuits were filed in districts covered by the appeals court in New York -- one of the only circuits with no modern precedent saying how to evaluate claims that a law discriminates against gay people.
That means that the administration, for the first time, may be required to take a clear stand on politically explosive questions like whether gay men and lesbians have been unfairly stigmatized, are politically powerful, and can choose to change their sexual orientation.
"Now they are being asked what they think the law should be, and not merely how to apply the law as it exists," said Michael Dorf, a Cornell University law professor. "There is much less room to hide for that decision."
The Obama legal team has not yet decided what path to take on the lawsuits, according to officials who spoke on the condition of anonymity about the internal deliberations. But the Justice Department must respond by March 11. The debate has arisen at a time when Mr. Obama has signaled that his administration may be re-evaluating its stance.
As a candidate, Mr. Obama backed civil unions for gay people while opposing same-sex marriage. But last month, after Congress -- in the final hours before Republicans took control of the House -- repealed the law barring gay men, lesbians and bisexuals from serving openly in the military, he told The Advocate, a magazine that focuses on gay issues, that his views on marriage rights "are evolving."
"I have a whole bunch of really smart lawyers who are looking at a whole range of options," Mr. Obama said, referring to finding a way to end the Defense of Marriage Act. "I'm always looking for a way to get it done, if possible, through our elected representatives. That may not be possible."
In a CNSNews.com column, NewsBusters' Brent Bozell complains that Entertainment Weekly, Glee's Chris Colfer, Hollywood press awards (Colfer just won a Golden Globe for playing a bullied gay teen on Glee), and the entertainment industry in general are "evangelists for a revolution of sexual immorality." Bozell also criticized Colfer for his acceptance speech, in which he dedicated his award to kids who face bullying because of who they are:
If anyone doubts that our entertainment industry and our entertainment media are evangelists for a revolution of sexual immorality (or in their lingo, "progress"), he needs only to read the latest cover story in Entertainment Weekly magazine, a "special report" on gay teen characters on TV, and "How a bold new class of young gay characters on shows like 'Glee' is changing hearts, minds, and Hollywood."
Gay "Glee" actor Chris Colfer and his boyfriend on the show, Darren Criss, lovingly put their heads together on the cover. Colfer just won a Golden Globe for his part, which is another way the Hollywood press rewards propagandizing the youth of America. In his acceptance speech, he lamented anyone who would say a discouraging word about teen homosexuality, somehow putting all of those words in mouths of bullies: "Screw that, kids!"
As you might suspect, Entertainment Weekly didn't plan to debate gay teen propaganda, but to encourage it, energetically. Not a single soul had anything critical to say. Not even a question. If this magazine weren't so earnestly in the tank, the story could come with a disclaimer: "This issue is an advertisement bought and paid for by the Gay and Lesbian Alliance Against Defamation.
They are not celebrating diversity. They are intimidating dissidents.
In their Gay Teen Timeline, we hear the gay actors proclaiming the lack of opposition. "We never received a negative word," says the gay actor on ABC's 1994 bomb "My So-Called Life." The gay teen on ABC's "Ugly Betty" insisted "99 percent of the public response was positive." Translation: get in line.
Bozell has a history of anti-gay rhetoric. He previously argued Hollywood demonstrated "liberal bias" by failing to portray gays as "morally wrong." He's also warned that the gay lifestyle and agenda "endorses the right of gays to marry and teach children, and that's in utter opposition to mainstream America." Bozell's Media Research Council is also boycotting the Conservative Political Action Conference (CPAC), becuase GOProud, a group for conservative gays and their allies, is participating.
As Media Matters has previously noted, recently Fox & Friends presented right-wing radio host Brian Sussman as a climate expert so that he could peddle misinformation to cast doubt on global warming. However, Sussman, a former radio show meteorologist, has a history of making inflammatory comments and is a frequent promoter of "birther" and other conspiracy theories.
As we all know now, President Barack Obama has pinned his sights on the future -- a word he peppered throughout his State of the Union speech 15 times on Tuesday evening. The president offered forward looking and aspirational goals on everything from education and innovation to investment and infrastructure.
But what worries me in terms of LGBT concerns is that, other than working on the implementation of "Don't Ask, Don't Tell" (DADT) repeal, he and his administration have not revealed any road map to equality over the next year in his speech or otherwise.
Advocates for lesbian, gay, bisexual and transgender Americans had varying reactions to the president's shout out to the community in Tuesday's speech.
"Our troops come from every corner of this country -- they are black, white, Latino, Asian and Native American. They are Christian and Hindu, Jewish and Muslim. And, yes, we know that some of them are gay," Obama said. "Starting this year, no American will be forbidden from serving the country they love because of who they love. And with that change, I call on all of our college campuses to open their doors to our military recruiters and the ROTC."
True, he and his speech writers checked at least part of our constituency's box by using the word "gay." But they essentially used the accomplishment of the DADT repeal as a vehicle to provide the president an opportunity to urge campuses that had banned military recruiters and ROTC programs over the misbegotten policy to reinstate access. In other words, abolishment of the ban was more of a mechanism to get Obama from Point A to Point B. The mention fell short of laying out any new benchmarks for the community and certainly didn't begin "a conversation" about relationship recognition that the president has said we must have as a nation.
Additionally, the president's assertion that "this year" lesbians and gays would be able to serve openly revealed no new details about the timeline for certification of the repeal (60 days after which, the ban will finally end in earnest). Those details may be more clear after a Pentagon briefing Friday in which senior officials are expected to roll out an implementation training plan over the next few months.
But what was far more disconcerting than the president's handling of LGBT concerns in his SOTU speech was the administration's announcement of an entire initiative -- per a White House statement-- to "better coordinate and strengthen the Federal government's support for military families," which included absolutely no reference to the fact that those families would soon include gay service members and their partners/children. President Obama, the First Lady and Dr. Jill Biden even hosted an East Room event Tuesday and during their combined 30 minutes of remarks none of them made a single mention of gay service members or their families. Once lesbians and gays become visible in the military, will our government continue pretending their families aren't?
How gay partners of service members will be treated by the military still warrants serious consideration since the law includes no clause that requires parity and President Obama has not committed to administering a nondiscrimination mandate (by executive order or any other means) once the ban is lifted. In fact, he meticulously avoided giving that specific assurance twice during my Decemberinterview with him.
But other than implementation of repeal, the only vision we've heard from the president about what he can do for LGBT Americans over the next two years involves "looking for constant opportunities" to use his bully pulpit to advance the equality conversation and making administrative changes within the federal government.
"One of the most important things I can do as president is to continually speak out about why it's important to treat everyone as our brothers and sisters, as fellow Americans, as citizens," he said in December. "And as I said, there are things that we can continue to do administratively that I think will send a message that the federal government, as an employer, is going to constantly look for opportunities to make sure that we're eliminating discrimination."
It remains to be seen what those administrative changes will entail. The federal government already has a nondiscrimination clause that protects the entire continuum of our community from transgender to gay (Obama added trans Americans to the federal guidlines). And in 2009, the president already bestowed certain benefits on federal LGBT workers and their same-sex partners, but the Defense of Marriage Act -- which his administration continues to defend -- still prohibits the government from offering the most critical benefits such as health insurance and Social Security survivor benefits.
The LGBT community should look at President Obama as the CEO of a company -- in this case, that company is the federal government. He has plenty of latitude and he can aim as high or as low as he wants. If the president wanted to go big, he could require all businesses that contract with the federal government to have nondiscrimination policies providing protections on the basis of both gender identity and sexual orientation.
And how he handles LGBT concerns during the repeal implementation period will be a proving ground for him of sorts. He can issue a nondiscrimination mandate that covers all gay service members and their legally wed spouses. He can formalize a policy banning discharges of transgender individuals. Or, he and his administration can hedge and divvy out benefits piecemeal. If we begin to see the government and its lawyers use any terminology that amounts to handling issues on a "case-by-case basis," that will be an immediate red flag for equality advocates.
Equality, by definition, is not subject to caveats.
The White House may have to change the narrative on marriage equality soon if the media continues questioning President Barack Obama's 1996 pro-gay marriage stance.
In a '96 candidate questionnaire when Obama was running for Illinois State Senate, he stated: "I favor legalizing same-sex marriages, and would fight efforts to prohibit such marriages."
When White House press secretary Robert Gibbs was asked about the matter at Monday's briefing, he was in a serious bind.
"I think there's a whole host of issues that I would direct you to the campaign on different questionnaires and I would again reiterate what the president has said recently [about his evolving views] on that issue," Gibbs told Washington Blade reporter Chris Johnson.
Pressed by Johnson on whether he disputed the accuracy of the questionnaire, Gibbs channeled his first dodge.
"Again, I'm happy to send you the several thousand clips of which went around during the course of 2008 on a whole host of those issues," he said.
Obama's '96 marriage stance was also referred to in two separate op-eds over the weekend: Dan Savage's Sunday New York Times piece urging the president to address marriage equality in his State of the Union address and my Washington Post op-ed on Friday, which pointed out the inherent flaw in Obama's civil unions stance.
White House aides have never faced serious questioning on the matter of Obama's previous stance and the reasons for his devolution on same-sex marriage - an explanation on which I'm sure they'd rather not deliberate.
But I have spoken with enough mainstream journalists to know that they are already curious about what "Don't Ask, Don't Tell" repeal means for marriage equality and, if the president's '96 positioning becomes part of the mainstream discussion, the White House will have to find a way to redirect this recurring loop in the media before President Obama enters the thick of the 2012 election.
We've previously reported on the background and views of David Barton, the factually challenged "historian" whom Glenn Beck has called "the most important man in America today." Barton inspired Beck to form his "Black Robe Regiment," and he also serves up (factually challenged) lectures at Beck's online university.
Barton -- like the rest of Beck's Black Robe Regiment -- is virulently anti-gay; he has even wondered why we don't "regulate homosexuality" like cigarettes or trans fats. So it's no real surprise that Barton would go on another gay-bashing tear.
Right Wing Watch notes that Barton recently had as a guest on his radio show Brian Camenker of MassResistance, which the Southern Poverty Law Center lists as an anti-gay "hate group" and is best known for peddling numerous false claims about Obama administration official Kevin Jennings. Barton bizarrely blamed bullying of gays in schools not on the bullies but, rather, on "people from outside the schools coming in and saying 'Oh, you got a bullying problem and we need to teach a course for you.' " Barton continues:
BARTON: It goes back to the question Jesus asks, "What's it profit you to gain the whole world and lose your soul?" The question I gotta ask is, what's it worth to you to gain everything you want and lose your kids?
Because unless you're willing to monitor what's going on in that classroom, I guarantee you they are getting homosexual indoctrination. I don't care whether you're in a rural area or not, because this is so much a part of textbooks, so much a part of curricular stuff, it's so much a part of what goes on with other kids. We see it too often in lawsuits, we hear of accounts like this, and we hear of dozens of other accounts where nothing's ever done. You better get on top of what's being taught to your kids.
Again, this is the person Glenn Beck thinks is "the most important man in America today."
From the January 21 broadcast of CNN's Anderson Cooper 360:
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The New York Times asked Equality Matters president Richard Socarides what advice he is giving the president on what to say during the State Of The Union:
The Caucus asked more than 20 interest groups in Washington what advice they are giving the president, either in public or in private. Here's a sampling of their responses:
Richard Socarides, president of Equality Matters: "In order to be the kind of transformational leader he can be, he should show the country the way forth on dismantling the so-called Defense of Marriage Act so that the law no longer robs the states of their right to decide the question of marriage, nor deprives lawfully married gay Americans of their federal benefits. That's the advice I'm giving to all the people I know who might actually influence the speech. If you want to be a leader, this is the speech in which to do it."
Following an NPR Morning Edition story on a Pakistani lesbian couple who have to live in secret for fear of being imprisioned or killed -- part of the ongoing series on "The Hidden World of Girls" -- NewsBusters's Tim Graham complained that "NPR Celebrates Pakistani Lesbians." In the post, which was promoted by Fox Nation, Graham wrote:
On Monday's Morning Edition, National Public Radio offered the latest entry in its year-long series "The Hidden World of Girls," which is subsidized by the Corporation for Public Broadcasting and the National Endowment for the Arts. Naturally, any series with this title might disappoint if it didn't explore lesbians in Islamic countries, in this case, Pakistan.
Apparently, though, the definition of "girls" is quite flexible. On the October 16 All Things Considered, NPR celebrated the journey of Adam "Theresa" Sparks, running to be the first transgender member of the San Francisco City Council.
Graham then pasted a part of the story's transcript in which the Pakistani couple laughed and wrote:
When the story and the giggles were over, they explained that the whole Hidden Life of Girls series is available at the NPR website, and then an announcer added that this enterprise was funded by CPB and the NEA. Your tax dollars, hard at work.
During the debate over repealling the military's Don't Ask, Don't Tell (DADT) policy, several conservative media figures argued that the policy should remain intact because it was working. For example, in an editorial headlined "Don't Mess With Success," Weekly Standardeditor Bill Kristol wrote that DADT was a "successful policy" and stated that it "works pretty well at accommodating the complex demands of a war-ready military nestled in a liberal society."
Well today we got confirmation of what we already knew, that arguments like Kristol's don't hold water. On January 20, the Government Accountability Office (GAO) released its report on the "Personal and Cost Data Associated with Implementing DOD's Homosexual Conduct Policy," and found that 39 percent of the military personal discharged becuase of the policy "held critical occupations," but even that number "could be an underestimation:"
According to GAO's analysis of Defense Manpower Data Center data, 3,664 servicemembers were separated under DOD's homosexual conduct policy from fiscal years 2004 through 2009. Of the 3,664 separations, 1,458 of these separated servicemembers held a critical occupation or an important foreign language skill as determined by GAO and the services. More specifically, 1,442 (39 percent) of the servicemembers separated under the policy held critical occupations, such as infantryman and security forces, while 23 (less than 1 percent) of the servicemembers held skills in an important foreign language, such as Arabic or Spanish. Seven separated servicemembers held both a critical occupation and an important foreign language skill. However, the number of separated servicemembers with critical occupations could be an underestimation because of a number of factors. For example, the Air Force provided the occupations eligible for enlistment bonuses from fiscal years 2006 through 2009, but could not provide this information for fiscal years 2004 and 2005 because the Air Force's data were incomplete.
Additionally, the GAO calculated that it cost the military $193.3 million to "separate and replace" the officers discharged.
Using available DOD cost data, GAO calculated that it cost DOD about $193.3 million ($52,800 per separation) in constant fiscal year 2009 dollars to separate and replace the 3,664 servicemembers separated under the homosexual conduct policy.
Kristol recently wrote that while he still opposes repealing the policy, he believes conservatives who are "hyperventilating" should "cool it," because the troops will be handle the "burden" the repeal places on them. Actually, as the GAO confirmed yesterday, it was the policy that was the "burden" on the military, and fortunately, thanks to Congress' actions, they won't have to handle it much longer.
GOProud, the conservative group for gay conservatives and their allies, just appointed Andrew Breitbart to their board. However, Breitbart and his contributors at his BigPeace, BigGovernment, BigJournalism and BigHollywood sites have repeatedly engaged in incendiary anti-gay rhetoric. Additionally, his contributors have actively opposed the repeal of Don't ask Don't tell, and opposed GOProud's inclusion in the conservative conference CPAC.
Next up for Obama: Marriage equality for gay Americans
Less than a month after President Obama repealed "don't ask, don't tell," his Justice Department filed its latest brief defending the so-calledDefense of Marriage Act - the law that makes gay Americans second-class citizens by outlawing federal recognition of their legal marriages.
This action underscores the point that the battle over gay rights is just beginning.
There is a serious flaw in the president's position of viewing civil unions as a path to giving same-sex couples equal relationship recognition: The federal government does not recognize civil unions for the purposes of spousal benefits. In fact, no legislation to formalize civil unions exists at the federal level.
That means that advocates of civil unions, Obama included, are suggesting for lesbian and gay couples a status for which the federal government has no definition and no frame of reference within its codes, and one that provides no path to legal recognition.
Meanwhile, his administration continues to defend a law that expressly prohibits the federal government from honoring same-sex marriages, which are legal in five states and the District of Columbia.
With equality legislation stalled in the Republican-controlled House of Representatives, one of the most significant advances Obama can make between now and his 2012 reelection campaign is to evolve fully on marriage equality.
The repeal of "don't ask, don't tell" was a turning point in the marriage discussion. It poses a major challenge and an opportunity for the president.
While he, like many Americans, grapples with the fact that civil unions provide no remedy for gay taxpayers with regard to federal spousal benefits, he has enlisted the most powerful lobby in the nation to work on behalf of gay rights - the U.S. military.
Once repeal is implemented, the military will begin to move toward eradicating the inequalities endured by gay service members.
Indeed, 67 percent of service members told the Pentagon's study group that lifting the ban would have a positive effect or no effect at all on readiness - surely those service members will care that their comrades in arms get equal treatment. I would bet they will insist on it.
From the January 19 broadcast of Premiere Radio Networks' The Rush Limbaugh Show:
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In a recent post, Mediaite's Tommy Christopher suggested that President Obama speak about the Defense Of Marriage Act (DOMA) and his own "evolving" position on marriage equality at the State Of The Union (SOTU):
At Tuesday's White House briefing, Robert Gibbs fielded several questions about the status of the repeal of DOMA (The Defense of Marriage Act), which he said, "given the current makeup of the Congress," would be "inordinately challenging."
Given President Obama's recent remarks about his "evolving" opinion on same-sex marriage, and the fact that he used last year's State of the Union address to promise the repeal of DADT, I asked Gibbs if the President might address the DOMA repeal, and his personal views on gay marriage, at this year's SOTU.
Rather than make an obviously empty promise to repeal DOMA, or even to hold a symbolic vote (that would, let's be honest here, put many Democrats in a tough spot, let alone Republicans), the President could speak honestly about his own struggle with the issue of same-sex marriage, and the ideas and stories that have influenced his personal feelings on the matter. In doing so, he would also bring into stark relief the fact that, even after the landmark repeal of DADT, equality under the law is still outside the grasp of many Americans.
It's true that, as it stands, there seems to be little that can be done to change the law, but an orator of President Obama's considerable skill could definitely change a few minds.