Jon Davidson 2013-05-24T20:25:03-04:00 Jon Davidson http://www.huffingtonpost.com/author/index.php?author=jon-davidson Copyright 2008, HuffingtonPost.com, Inc. HuffingtonPost Blogger Feed for Jon Davidson Good old fashioned elbow grease. Season Preview: Lesbian and Gay Rights at the Supreme Court tag:www.huffingtonpost.com,2012:/theblog//3.1897974 2012-09-19T18:33:00-04:00 2012-11-19T05:12:02-05:00 Jon Davidson http://www.huffingtonpost.com/jon-davidson/
In its history, the Supreme Court has only decided about a dozen gay rights cases, so any of the pending cases it reviews this term will likely be important in the development of sexual orientation law. Just how significant that will be will depend on which case or cases the Court decides to hear, which issues it reaches, and, of course, the final outcome. But with so many important cases ready for review, this year is sure to be a historic one on the path toward equality for the lesbian and gay community.

Here's a preview:

DOMA Challenges

Section 3 of the so-called Defense of Marriage Act (DOMA) forces the federal government to deny recognition to the legally valid marriages of same-sex couples. This discriminatory law mandates unequal treatment of same-sex, married couples in every program of the federal government, including Social Security, veterans' benefits, health coverage for federal employees' families, federal taxes and tax protections, and immigration.

There are four separate cases that ask the Supreme Court to strike down DOMA Section 3, arguing that it violates the Constitution: Lambda Legal brought one of the cases, Golinski v. Office of Personnel Management, on behalf of a lesbian federal employee in California who was denied spousal health insurance coverage that her heterosexual co-workers receive. Two DOMA cases were brought by Gay & Lesbian Advocates and Defenders (GLAD) -- Gill v. Office of Personnel Management and Pedersen v. Office of Personnel Management -- and a fourth case, Windsor v. United States, was brought by the ACLU. Any one or more of these cases could be granted review by the Court this year.

In the DOMA cases, Lambda Legal and the other LGBT legal groups are arguing that such discrimination by the federal government is unconstitutional. We are also urging the Court to make clear that judges should apply "heightened scrutiny" when reviewing any law, like DOMA, that treats people differently based on their sexual orientation, putting the burden on the defenders of the unequal treatment to prove it necessary to further an important government interest.

If review is granted, we think the likelihood of Section 3 of DOMA being struck down is quite high. The last five courts to review Section 3 of DOMA have all held it unconstitutional. And in a recent survey of constitutional law professors, 69 percent who responded concluded that Section 3 of DOMA is unconstitutional.

The Prop 8 Case

The Supreme Court has also been asked to review the Prop 8 case, Hollingsworth v. Perry, formerly known as Perry v. Brown. This case, brought by the American Foundation for Equal Rights (AFER) and attorneys Ted Olson and David Boies on behalf of two same-sex couples in California, is a challenge to Proposition 8, which amended the California Constitution to exclude same-sex couples from marriage.

The federal court of appeals in California has already declared Prop 8 unconstitutional, ruling that because Prop 8 did not repeal California's comprehensive domestic partnership law, the state had no legitimate reason to take away the right to marry from same-sex couples and relegate them to an unequal, inferior status.

If the Court accepts the case for review, we will all have to wait for oral arguments and the Court's decision, which likely would be issued by June 2013, to know the outcome.

But if the Court declines to hear the case, it will be over, and the prior federal court decision striking down Prop 8 will stand. If that happens, the freedom to marry will be restored in California! Same-sex couples will be able to marry again there, but the decision will have no immediate, direct impact on the marriage laws of other states.

Equal Benefits for Arizona State Employees

In Diaz v. Brewer, Lambda Legal represents seven lesbian and gay state employees -- including from state universities and the State Department of Game and Fish -- who are challenging a move by the Arizona legislature to eliminate the equal health-care benefits that those employees rely on to safeguard their families' health -- just as their heterosexual colleagues do.

The equal health coverage plan had been put in place in 2008, but Arizona lawmakers subsequently eliminated it for domestic partners -- including those of lesbian and gay state employees -- while retaining spousal benefits for heterosexual workers, in a budget deal signed by Gov. Jan Brewer in 2009.

This case is about equal pay for equal work and protecting medical benefits for the same-sex domestic partners of state employees. The federal district court and the Ninth Circuit Court of Appeals have already ruled that we are likely to prevail on the argument that selectively taking away the ability to obtain this family health coverage would violate the rights of these employees. Governor Brewer and other state officials have now appealed these losses to the U.S. Supreme Court.

If the Supreme Court declines to hear this case, then the injunction that currently protects state employees from losing the benefits will remain while Lambda Legal continues to fight in the lower courts to permanently reverse the discriminatory withdrawal of benefits. If the Supreme Court agrees to hear this case, then we will be ready to defend the lower court decisions -- and the workers and their families -- at the high court.

Announcements Coming Soon

The Supreme Court meets in conference throughout the fall to decide which cases it will accept for review, and its decisions are announced on its website soon after they are made. For example, decisions may be announced about some of these cases as soon as Sept. 25, or on other key dates throughout October and November. Stay tuned to Lambda Legal, and we will announce the news about these cases as soon as it's available.]]> Prop 8: One Landmark Decision Begets Another tag:www.huffingtonpost.com,2012:/theblog//3.1268556 2012-02-10T19:49:00-05:00 2012-04-11T05:12:01-04:00 Jon Davidson http://www.huffingtonpost.com/jon-davidson/ stare decisis" helps ensure even-handedness by eliminating ad hoc outcomes and causing like issues to be resolved in like ways. It also ensures that the accumulated wisdom of past decisions determines the results in those that follow.

The holding by the federal Ninth Circuit Court of Appeals in Perry v. Brown that California's Proposition 8 is unconstitutional is a masterful example of why this system of decision making is so brilliant. Any fair-minded person who reads the majority opinion would have to admit that it is squarely and fully based on precedent, not politics. When politicians attack Perry or any judicial decision that doesn't accord with their own views, claiming those decisions are the product of "rogue" judges "substituting their own political views" for law, they reveal either a frightening misunderstanding or a shocking misrepresentation of the American legal system. Such demagoguery ignores that judges are bound by precedent. The Ninth Circuit judges who decided Perry were simply doing their job -- in this case, quite astutely -- of following controlling precedent in order to enforce the legal protections that the Constitution safeguards for us all.

The precedent on which the Perry decision most heavily rests is the Supreme Court's 1996 opinion in Romer v. Evans, a ruling the Perry majority cites more than two dozen times -- and for good reason. As the opinion in Perry points out, Proposition 8 is "remarkably similar" to Colorado's Amendment 2, which the Supreme Court held to be unconstitutional in Romer. Because of those similarities, as the Ninth Circuit explained in Perry, the Romer precedent's reasoning "governs" the analysis of whether Prop 8 is constitutional and "compels" the result the majority reached. Politics do not.

In Romer v. Evans, Lambda Legal, along with the ACLU and some of Colorado's top lawyers, successfully challenged an amendment to the Colorado Constitution that prohibited the state and its political subdivisions from providing lesbians, gay men, and bisexuals any legal protection against discrimination on the basis of sexual orientation. As the Supreme Court explained in Romer, Colorado's Amendment 2 involved government discrimination of an "unusual character." Rather than being "a law of general applicability," Amendment 2 "withdr[ew] from homosexuals, but no others, specific legal protection ... and ... forb[ade] reinstatement of these laws and policies" except by "enlisting the citizenry of 'the state to amend the State Constitution'" for a second time. Amendment 2 thereby "single[d] out a certain class of citizens for disfavored legal status."

California's passage of Prop 8 closely parallels Colorado's passage of Amendment 2. Both state constitutional amendments involved backlashes by an electoral majority to civil rights advances by the state's gay minority. Rather than modify California's marriage law in some general fashion, Proposition 8 amended the California Constitution in an unusual way, withdrawing from gay people, but no others, the right to legally marry. Like Amendment 2, Prop 8 barred legislators from ever affording that right to the gay minority. Like Amendment 2, Proposition 8 "singled out [lesbians and gay men] for disfavored legal status," consigning same-sex couples to the second-class institution of registered domestic partnerships and reserving to only heterosexuals the right to enter the privileged status of marriage. As the Perry majority opinion explains, quoting from Romer, "both Proposition 8 and Amendment 2 'carve[d] out' rights from gays and lesbians alone."

The centrality of Romer to resolution of the legal questions raised in Perry was first discussed at length in a friend-of-the-court (or "amicus") brief that Lambda Legal, the National Center for Lesbian Rights (NCLR), and the ACLU of Northern California submitted to the trial court in Perry. In expanding on the analysis in a further amicus brief to the Ninth Circuit also joined by Gay & Lesbian Advocates & Defenders, we pointed out that the Supreme Court in Romer explained that certain laws are unconstitutional because they deny equal protection of the laws "in the most literal sense." Amendment 2 did that by forbidding the government of Colorado from protecting gay people against unequal treatment. As we explained, Proposition 8 does precisely the same thing. In a backlash to the California Supreme Court's ruling in In re Marriage Cases (litigation brought jointly by Lambda Legal, NCLR, and the ACLU, among others), Prop 8 created a gay-only exception to the state's constitutional promise of equality when it came to marriage and did so by adding a subsection to California's equal protection clause to curtail the right to equality that had compelled our victory in In re Marriages Cases. After the passage of Prop 8, racial and ethnic minorities, religious minorities, the disabled, seniors, felons and even left-handed people remain protected under California's equal protection clause -- they cannot be denied equal access to the institution of marriage. Only gay people are denied that protection. Prop 8 thus "literally" causes the California equal protection clause to provide less protection against inequality to lesbians and gay men than it accords absolutely everyone else (and indeed no protection at all when it comes to obtaining the status and designation of marriage). In essence, Prop 8 turned California's equal protection clause into one mandating unequal protection.

Citing the Romer decision, the Perry majority explains that "Proposition 8 denies 'equal protection of the laws in the most literal sense,' because it 'carves out' an 'exception' to California's equal protection clause by removing equal access to marriage, which gays and lesbians had previously enjoyed, from the scope of that constitutional guarantee." The Perry decision continues, again quoting Romer: "Like Amendment 2, Proposition 8 'by state constitutional decree ... put[s] [gay people] in a solitary class with respect to' an important aspect of human relations, and accordingly 'imposes a special disability under [them] alone.'"

In Romer, Justice Kennedy explained that one of the most fundamental principles of equal protection is that "the Constitution neither knows nor tolerates classes among citizens." Amendment 2 accomplished nothing other than "singling out a certain class of citizens for disfavored status." The Ninth Circuit was bound to apply Romer's holding that this is constitutionally impermissible because it is equally true of Proposition 8. The Perry majority sums it up well: "Proposition 8 serves no purpose and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples." Citing to Romer, the Ninth Circuit held that "[t]he Constitution simply does not allow for 'laws of this sort.'"

There is much one can find in the Perry opinion. There is restraint in the judges' determination not to decide questions that did not need to be reached, such as whether the Constitution requires all states to allow same-sex couples to marry. There is humor in the decision's point that "Had Marilyn Monroe's film been called How to Register a Domestic Partnership with A Millionaire, it would not have conveyed the same meaning." There is insight in the opinion's recognition that "we do not celebrate when two people merge their bank accounts; we celebrate when a couple marries." There is wisdom in the opinion's understanding that Prop 8 cannot reasonably be understood to further any purpose other than making gay people unequal "and imposing on them a majority's private disapproval of them and their relationships." But the one thing there is not is politics.

There is not because, as the Perry opinion pointed out in beginning its analysis, Prop 8 was "not the first time the voters of a state have enacted an initiative constitutional amendment that reduces the rights of gays and lesbians under state law." That had happened before, in Romer. Following the analytic approach mandated by the Romer precedent, the Ninth Circuit had no choice, as it explained, but to "reach the same conclusion." Justice Kennedy's landmark decision in Romer required the landmark outcome in Perry. And, under the rules of precedent, both Romer and Perry are now building blocks for legal landmarks yet to come. It makes me proud to be a lawyer.]]> Serving in Silence No Longer tag:www.huffingtonpost.com,2011:/theblog//3.965070 2011-09-16T12:03:08-04:00 2011-11-16T05:12:01-05:00 Jon Davidson http://www.huffingtonpost.com/jon-davidson/
However, notwithstanding this momentous achievement that we justly celebrate Tuesday, much work remains to be done in the military context. No sexual orientation anti-discrimination protections have been adopted into law by Congress, an executive order or military regulations. The same-sex partners and spouses of lesbian, gay, and bisexual service members and veterans largely continue to be denied rights and benefits provided to heterosexual service members' spouses. Disgracefully, the military still categorically excludes transgender individuals from service.

Moreover, the government has not yet taken steps to address the widespread and lasting harm that DADT continues to inflict upon previously-discharged service members. Many who have been discharged received less than honorable discharges or have records noting that their discharge was based on DADT, outing them and adversely affecting their job opportunities. Many who were discharged lost pensions and a raft of military and veteran's benefits. Adding insult to injury, the government continues to pursue individuals discharged under DADT to recover educational loans and enlistment bonuses, even though it was the government that wrongfully prevented them from working off those loans and benefits through continued service. Unless the military corrects these harms, new litigation can be expected.

Lambda Legal has been fighting for the rights of LGB service members since we were founded. We filed our first lawsuit against the military back in 1975. In 1992, we represented decorated Army and National Guard veteran Col. Margarethe Cammermeyer who was discharged under pre-DADT regulations because of her sexual orientation, and we won a favorable judgment two years later from a federal district judge who held the military's ban violated the equal protection and due process guarantees of the U. S. Constitution. Col. Cammermeyer's case was dramatized in the film Serving in Silence. This success and subsequent cases undoubtedly sped the way for the right of LGB individuals to serve openly and proudly, including most recently the Log Cabin Republicans v. United States of America case, in which U.S. District Court Judge Phillips declared DADT unconstitutional. She ruled not only that DADT violated the rights of LGBT soldiers by depriving them of their rights to free speech and due process; it also had a "direct and deleterious effect" on military readiness.

It is impossible to overstate the harm DADT inflicted, not only on LGB members of the U.S. military, but beyond. In the 18 years since it was signed into law, more than 13,000 lesbian, gay and bisexual service members have been discharged at a cost the government itself estimated at nearly $200 million six years ago. Thousands more have lived in constant fear of being discovered or decided not to pursue a military career at all. Moreover, as the U.S. armed forces constitute the nation's largest employer, DADT served as nothing short of a public pronouncement by the federal government that discrimination against LGB people is acceptable, that LGB people are inferior to heterosexual people, and that being lesbian, gay or bisexual is a shameful trait that ought to be concealed. Especially for these reasons, the district court's declaratory judgment in the Log Cabin Republicans case that DADT is unconstitutional should stand even after that law's repeal, both as a platform for the continued struggle to secure equal rights for LGBT service members, and as a bulwark against efforts that a subsequent administration might undertake to re-impose discrimination. As we celebrate on the 20th, let's hope that decision's recognition of how harmful DADT has been is not erased and let's rededicate ourselves to ending the ongoing harms that DADT has caused and assuring equality in the military for all LGBT Americans.

]]> DOMA: What Will Congress Do? tag:www.huffingtonpost.com,2011:/theblog//3.829730 2011-03-02T18:28:14-05:00 2011-05-25T18:35:25-04:00 Jon Davidson http://www.huffingtonpost.com/jon-davidson/ filed papers in our case representing Karen Golinski, a federal judicial employee who has been denied equal medical coverage for her wife.

It was only last week that the president and attorney general announced that the federal government would no longer defend Section 3 of DOMA, the section that requires the federal government to ignore and discriminate against the marriages of same-sex couples, because they have concluded it is unconstitutional. The government was required by the judge in the Golinski case to explain how it intended to defend its decision to deny equal medical benefits covering Golinski's wife since the government had relied upon the very law it now agrees is unconstitutional. The government's lawyers stated that while they have concluded that Section 3 of the so-called Defense of Marriage Act (DOMA) is unconstitutional, they will continue to enforce it until it is struck down or repealed. Golinski and her wife will not get equal medical coverage today.

And in two separate DOMA challenges, one brought by our colleagues at Gay & Lesbian Advocates & Defenders (GLAD) and the other brought by the ACLU, the DOJ sent letters to the courts indicating they would "cease defending Section 3" in those matters.

What does this all mean?

First, there is a far-reaching element of the attorney general's announcement last week that will take us beyond DOMA: The DOJ concluded that laws that treat people differently on the basis of sexual orientation demand "heightened scrutiny" by courts, which means that such laws are presumed unconstitutional. When heightened scrutiny is required, the burden is on the government to prove that a law, at least, substantially relates to advancing an important government interest. The DOJ does not have the authority to establish this level of review in the law -- only courts can do that. But the opinion of the president and attorney general carry considerable weight. Courts will take it seriously.

Some anti-gay discriminatory laws have not survived even a lesser level of review, but when heightened scrutiny is applied, anti-gay laws fall quickly. When this standard of review is adopted, unfair laws like those that exclude same-sex couples from marriage, adoption and equal custody rights will be struck down. That's huge.

Second, DOMA is still in effect. The executive branch, through the DOJ, has announced its legal opinion and its decision to stop defending Section 3 of DOMA in court. But the law remains in effect until a court strikes it down or Congress repeals it. In fact, in their response late yesterday in the Golinski matter, the president and attorney general made clear their intention to continue to enforce DOMA as long as it is still in effect, in accordance with their constitutional duty to "uphold the laws."

The most interesting and still unanswered questions arise with respect to the five pending cases where DOMA is challenged: Gill v. U.S. Office of Personnel Management (OPM); Pedersen et al. v. OPM; Commonwealth of Massachusetts v. U.S. Department of Health and Human Services; Dragovich v. U.S. Department of the Treasury; Windsor v. United States and Golinski v. OPM. In the two cases filed by GLAD and the Commonwealth of Massachusetts, the government previously defended DOMA. The federal district court in those two cases ruled that DOMA was unconstitutional, and the federal government appealed. The Court of Appeals has now asked whether the government will withdraw its appeal. In the two other cases filed more recently by the ACLU and GLAD, the government has already filed notice that it will not defend DOMA. And in Lambda Legal's Golinski case, as noted above, the government will continue to try to defend its decision to deny insurance on procedural grounds, arguing that the executive branch is not bound by a federal judge's order that equal benefits must be provided. because they are bound, instead, by DOMA.

But what will Congress do? Here the story gets more complicated in ways that may prolong the life of this ugly and discriminatory law -- but, we are confident, not save it in the end. In the rare circumstances when the executive branch declines to defend a law that it has concluded is unconstitutional, Congress may try to enter the case to defend it instead. Either chamber may order its counsel to seek to file an amicus brief or to intervene, but given the current political configuration, only the House is likely to consider this action.

The first time the executive branch decided not to defend a law passed by Congress was back in 1926, when President Wilson objected to a law passed by Congress that limited the president's power to remove postmasters. When the case got to the Supreme Court, it appointed a sitting Senator to represent the legislative branch as amicus and had him argue the case -- and then the court sided with Wilson. There have been a number of cases where one or both houses filed briefs as amici, and one, INS v. Chadha, in which they passed resolutions instructing counsel to seek to intervene at the court of appeal. This was granted, leading to the Supreme Court subsequently referring to the House and Senate as "parties" to the case. However, the Supreme Court did not issue any decision as to whether that was proper or not (In INS v. Chadha, the Reagan DOJ refused to defend a law allowing either house of Congress to "veto" a discretionary decision of the attorney general not to deport someone. The Supreme Court had struck down the law in 1983.)

Congress shouldn't seek to intervene to defend DOMA -- but we are afraid they will try. We believe the law is unconstitutional, and now the president and the DOJ think so too. The most recent judge to rule on the matter has ruled it unconstitutional. President Clinton, who signed the law in 1996, now disavows it. And most importantly, approximately 50,000 same-sex couples who have married in Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, California and the District of Columbia are facing blatant discrimination from their own government and being treated differently than their neighbors and family members. This is not only unconstitutional -- it's un-American.

But there is a good chance that the House of Representatives will seek to intervene because some influential members think it is politically advantageous to do so. They won't be able to defend the law with anything more than the tired old arguments based on prejudices that are no longer working in court, because they are wrong. But they may still try because they believe they can fire up their base by attacking two political adversaries -- LGBT people and the president -- at once.

The political backlash has already been furious -- and inaccurate. Former Speaker of the House Newt Gingrich has suggested that President Obama could be impeached for his actions. House Majority Leader Eric Cantor (R- Va.) said that he'd "never been around when a president decided not to defend a law on the books." He must not have been around all that much. Senate records show that the Department of Justice has told Congress 13 times within the last six years alone (under President Bush as well as President Obama) that it was not defending an act of Congress. Indeed, our research shows that it has happened under the administrations of at least eight presidents, including Wilson, Truman, Kennedy, Carter, Reagan, George H. W. Bush, Clinton, George W. Bush (in a case argued by now-Chief Justice John Roberts) and Obama. Claims that President Obama has done something unprecedented or lawless are simply not true.

We are on a legal roller-coaster, and the ride has been pretty exciting, but we still have a long way to go. DOMA is still in effect and must be defeated in court or repealed. Instead of using time and taxpayer money to defend discrimination in court, Congress should put this bad law to rest by repealing it. Legislation to repeal DOMA and respect all marriages is being introduced in both the House and Senate. Members of Congress should vote for repeal promptly.]]> Prop 8 Defender Flees Televised Discussion tag:www.huffingtonpost.com,2010:/theblog//3.754488 2010-10-08T11:57:41-04:00 2011-05-25T18:00:30-04:00 Jon Davidson http://www.huffingtonpost.com/jon-davidson/ On Wednesday, October 6, I participated in a public panel discussion of the Perry vs. Schwarzenegger case and the constitutionality of denying same-sex couples the freedom to marry. Hosted by the renowned public policy organization The Aspen Institute, the program was to include Chuck Cooper (counsel for the Proponents of Prop. 8 in the Perry case), Matt McGill (one of the senior lawyers for the plaintiffs in the case), and Prof. Helen Alvare of George Mason Law School (who has worked in the past for the National Conference of Catholic Bishops and has assisted the Holy See). The dialogue was to be recorded and made available online.

The day before the program was to be held, CSPAN indicated it was interested in televising the discussion. Hearing this, Chuck Cooper refused to participate and withdrew, based on opposition to having his discussions of the case appear in any way that could be seen by judges who might rule upon the case. At this point, Prof. Alvare also objected to a recording of the dialogue even being placed online (although that had been part of the terms of the original invitation) because, she said, prior public debates she had participated in had led to her receiving threatening phone calls and her husband urged her not to do something that might lead to that recurring. As a result, CSPAN was disinvited and the discussion was not put online.



While these events may not seem momentous, they are emblematic of a frightening strategy increasingly used by the opponents to equal rights for gay people. The Perry trial could not be televised, they argued, because expert witnesses, whose job is explaining their views to the public, might be intimidated by the public attention. Now, apparently, even discussions of the case are to be shielded from the general public. The narrative they have used to justify this is that they supposedly are the victims, not those whose rights they seek to deny. Gay people are the bullies, they assert, not those who discriminate against and harass us. They are afraid, they say, although we are the ones repeatedly murdered or driven to suicide.The truth is that their arguments are built upon nothing more than fear and stereotypes and they do not want to have their sound-bites subjected to evidentiary or sustained analytic scrutiny by the public.



This strategy of secrecy was also employed in the Doe vs. Reed case, which was heard by the United States Supreme Court earlier this year. In that case, the group that sought to place an initiative on the Washington ballot to repeal the state's domestic partnership law claimed that those who signed petitions to place that measure on the ballot had to have their identity kept secret, lest they be targeted for harassment. Although the United States Supreme Court ruled that petition signers in general have no right to privacy, the antigay group is continuing with the lawsuit, claiming that theirs is a special case. Similarly, the National Organization for Marriage, which has raised millions of dollars to support ballot measures to prevent same-sex couples from marrying or entering civil unions, has filed lawsuits in several states to keep the identity of its donors secret.



Our nation has much to fear from these tactics. Allowing those who would deprive others of their rights to act in secrecy allows them to act free of any accountability. While the histories and tolls of racism and homophobia are not the same, banning efforts to oppress others without accountability is the reason why there are laws that prohibit members of the KKK from engaging in their activities in hoods. Such concealment is not part of our American tradition. As even conservative stalwart Justice Scalia said in his opinion in the Doe vs. Reed case:



"There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which ... campaigns anonymously... and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave."


In the 1970's, there was a song called The Revolution Will Not Be Televised, but with 24-hour news and the internet, much has changed in the coverage of public debate. If we allow political efforts to take away civil rights to proceed under the cover of secrecy, and give in to those who object to even having public discourse about those efforts be televised, this country will be in even more serious trouble.


]]> A Slow Death for 'Don't Ask, Don't Tell' tag:www.huffingtonpost.com,2010:/theblog//3.744149 2010-09-30T16:03:23-04:00 2011-05-25T17:50:22-04:00 Jon Davidson http://www.huffingtonpost.com/jon-davidson/
There's no doubt that the U.S. Senate dealt us a major setback last week when it failed to move to a vote a defense bill that contained language that would have overturned "Don't Ask, Don't Tell" (DADT), the military's ban on gays and lesbians serving openly. Democrats were unable to gather sufficient support to break a filibuster by born-again conservative John McCain.

A colossal disappointment, to be sure, and one that requires considerably more from President Obama if he is to meet his pledge to have the discriminatory policy ended before the year is out. But last week's Senate train wreck somewhat overshadowed two substantial victories won in court by opponents of the ban. On September 9, in a case brought by the gay political group Log Cabin Republicans, U.S. District Court judge Virginia Phillips ruled that not only does DADT violate the rights of lesbian, gay and bisexual soldiers by depriving them of their rights to due process and free speech; it also has a "direct and deleterious effect" on military readiness. (How could it not, when thousands of military personnel, many with vital training in Arabic, Farsi and other skills, have been expelled?) And on September 24, as activists were still shaking off their Senate-induced depression, another federal judge ordered that Maj. Margaret Witt, discharged under DADT from the Air Force in 2007, be reinstated. Lambda Legal was proud to file a friend-of-the-court brief in this ACLU case.

The roller-coaster events of this September illustrate the dangers for the LGBT community of relying too heavily on promises from our friends. Last week, the U.S. Department of Justice filed papers asking Judge Phillips to limit the injunction she is going to issue against enforcement of DADT so that it would only bar discharges of members of the Log Cabin Republicans organization, rather than halt DADT nationwide. This puts President Obama -- a self-described "fierce advocate" for gay rights -- in the position of continuing to defend a policy he himself has argued is inconsistent with national security and has promised to overturn. But the victories in court also serve as a reminder of the importance of the judicial system in safeguarding the rights of vulnerable populations. The framers of the Constitution realized that majority rule often means mob rule when it comes to the rights of unpopular minority groups. The purpose of a free and independent court system -- an apolitical court system -- is to make sure the protections of the Constitution shield all of us.

That means that, if the government wants to maintain a law that singles out a particular group, it must have at least a rational basis for doing so. The ample evidence presented in both Witt and Log Cabin Republicans, as well as other cases this year, including Perry v. Schwarzenegger (seeking to overturn California's Proposition 8), and Lambda Legal's Collins v. Brewer (seeking to preserve domestic partner benefits for Arizona state employees) proves that those seeking to deny equal rights to LGBT Americans are unable to produce any legitimate reason for it. We intend to prove it again in our case in Hawaii, Young v. Lingle, where we are seeking civil unions for same-sex couples after the Governor vetoed the bill passed by the legislature. Simply put, some people are denying us equality just because they want to-and that's not allowed by the Constitution.

Lambda Legal has long fought the military's anti-gay policies and likely will be filing friend-of-the-court briefs in any appeals of the Witt and Log Cabin Republicans decisions. There are three things each one of us can do at this point, however. First, we can demand that Congress proceed to a vote and pass legislation to end DADT when its members return after the midterm elections. Second, we can tell President Obama and his Department of Justice not to appeal the Log Cabin Republicans decision holding DADT unconstitutional -- a course that 80 members of Congress already have asked him to follow. And third, if President Obama persists in defending DADT before the judiciary, we can insist that he at least exercise his authority as Commander in Chief to put all DADT discharge proceedings on hold while legislation and litigation to end it remain in play. If none of those happen, as we lawyers say, we'll continue to "see you in court" -- the only branch of our government that will have proven that it cares about what our Constitution requires.]]> The Anti-Gay Litmus Test? tag:www.huffingtonpost.com,2010:/theblog//3.668757 2010-08-03T14:22:04-04:00 2011-05-25T17:15:21-04:00 Jon Davidson http://www.huffingtonpost.com/jon-davidson/ In opposing Supreme Court nominee Elena Kagan, some members of the United States Senate are reaching back to the anti-gay political playbook of 2004. After months of investigation, testimony, and questions, they have failed to identify any legitimate reason she would be unfit for the high court. So now, a number of senators instead are trying to paint her as a dangerous radical based on her history of treating lesbian, gay, bisexual and transgender (LGBT) people with respect. This sort of pandering rhetoric threatens the ideals of justice. It is premised on the disturbing notion that LGBT people are undeserving of equal rights in this country.


In the Senate Judiciary Committee, Senators Jeff Sessions, Orrin Hatch, Chuck Grassley, Jon Kyl, and John Cornyn voted against Kagan's confirmation. Explaining their votes, they all cited the fact that Kagan, as Dean of Harvard Law School, sought a compromise position on military recruiting that respected the school's longstanding nondiscrimination policy protecting LGBT students. Several of these committee members objected to Kagan's expressly stated view that the "Don't Ask, Don't Tell" law, which requires the military to discriminate against openly lesbian, gay, and bisexual service members, is bad policy. Senators Grassley and Kyl lamented the fact that Kagan would not announce clear opposition to marriage equality for same-sex couples.


In other words, to gain their votes, these Senators insist that a nominee explicitly support discrimination against LGBT people.


With a vote of the full Senate expected this week, we are seeing even more sputtering incredulity from certain senators that a Supreme Court nominee dares to consider LGBT people deserving of fair treatment.


At Lambda Legal, we believe that judges should make decisions based on the Constitution and the law, not based on personal biases or political considerations. A fair and impartial judiciary is essential for protecting us all from abuses by the political branches of government, a lesson that has been especially clear to LGBT Americans.


We know that it sometimes falls on the courts to uphold the rights of a minority against the will of the majority, to overturn discriminatory laws, and to require that the other branches of government treat all people fairly. In a 1996 Lambda Legal case, Romer v. Evans, it was the Supreme Court that reaffirmed the constitutional principle that neither the legislature nor the people at the ballot may pass a law out of a bare desire to harm a politically unpopular group. We frequently look to the courts to protect LGBT youth from harassment in schools when local officials refuse to act, such as Lambda Legal's Nabozny v. Podlesny case, which finally brought justice for a student who was brutally harassed by classmates and then blamed for his own harassment by school officials. Such landmark rulings would not be possible if the most outspoken criticisms of Elena Kagan become the standard by which we rate judicial nominees.


The litmus test for confirmation that some Kagan opponents are applying -- that the courts must always defer to the anti-gay hostility of the majority that still prevails in parts of the country -- belies our nation's Pledge of Allegiance to "liberty and justice for all." In other words, it's an attack on the fundamental principles of our government. Simply put, it's un-American. Everyone in this country is entitled to the Constitution's protections, regardless of who they are or how much some people would like to deny them equal rights. A commitment to these principles should be a requirement for service on the Supreme Court, and those who would treat it as a disqualifying factor don't belong in the Senate.


To learn more about how you can help protect the judiciary from political attacks, please visit Lambda Legal's Fair Courts Project.


]]> Big Footsteps for Elena Kagan tag:www.huffingtonpost.com,2010:/theblog//3.617409 2010-06-18T15:15:54-04:00 2011-05-25T16:50:20-04:00 Jon Davidson http://www.huffingtonpost.com/jon-davidson/ Lawrence v. Texas. The juxtaposition of these events points to critical issues that senators and the nation need to consider about the legacy of the position Kagan has been nominated to fill and the responsibilities of all our country's top justices.

In Lawrence v. Texas, the Supreme Court held unconstitutional the laws of the 13 states that in 2003 still criminalized certain forms of private, consensual, adult sexual intimacy. The majority opinion in the case explained that, in guaranteeing a right of "liberty," the Fifth and Fourteenth Amendments safeguard Americans against government efforts to control adults' personal relationships or the intimate conduct that may be part of such bonds. The opinion concluded that the Court had erred 17 years earlier when it rejected that conclusion in Bowers v. Hardwick. What should have been controlling then as well as now, the opinion explained, was the analysis Justice John Paul Stevens provided in his dissent in Bowers. Pointing to the Court's prior invalidation of laws prohibiting interracial marriage, Justice Stevens had explained in that dissent that "the fact that a governing majority ... has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice." He also concluded that the intimate choices of both married and unmarried persons are a protected form of liberty even when not intended to produce offspring.

Solicitor General Kagan has been nominated to fill the seat on the Court held by Justice Stevens until his recent retirement. He in turn had filled the seat of another champion of individual rights, Justice William O. Douglas, who authored the Court's decision striking down laws banning the use of contraceptives. And, before Douglas, that seat was held by one of the most brilliant defenders of constitutional rights among the court's pantheon, Justice Louis Brandeis.

The nation deserves someone equally devoted to the protection of personal freedoms as those whose position on the Court she would assume. We need someone who is fully committed to the protection of liberty, privacy, equality, and free speech -- a justice who understands, as did Stevens, Douglas, and Brandeis, that it is the judiciary's obligation to preserve the Constitution's bulwark against the overstepping of majority rule rather than to protect those already in power.

Justice Douglas wrote that the nomination of Louis Brandeis was highly contested and that Brandeis was assailed as "a militant crusader for social justice." Yet Brandeis was confirmed by more than a two-to-one margin. Kagan's record shows her to be a moderate, but even if she could be described in those terms, since when did standing up for justice become a disqualifier for the bench?

Lawrence v. Texas is a landmark decision for many reasons. It ended the branding of gay people as criminals by enforcing the Constitution's commitment to "liberty and justice for all" that caps off the Pledge of Allegiance. It freed our lesbian and gay youth from growing up any longer under laws that, in the words of the majority opinion, "demean their existence" and seek to "control their destiny." It recognized that the Constitution's protections of "personal dignity and autonomy" are "central to the liberty protected by the Fourteenth Amendment" and extend as much to lesbians and gay men as to heterosexuals. It recognized that love, sexuality, and family play the same role in gay people's lives as for everyone else.

A commitment to these constitutional principles should be a prerequisite for a place on our nation's highest court. Those who claim, as did Justice Scalia in his intemperate dissent in Lawrence, that the majority in the case departed from the judiciary's "role of assuring, as neutral observer, that the democratic rules of engagement are observed" must have failed their civics classes. The Constitution entrusts the courts not to be neutral observers, but rather to be protectors of the rights our charter protects against even those infringements that have been adopted by the "democratic rules of engagement."

Justice Scalia bemoaned in his dissent that the judges who formed the Lawrence majority were taking sides in a "culture war." If there has been a "war," it's one where gay people have long been the targets, whose love was made a crime, who have been murdered and assaulted for who they are, who have had state constitutions amended to deny them equal rights, and who have had their sexual orientation used to deprive them of their livelihoods, harass them at school, and take away their children. If it's to be seen as a war, the country is entitled to Supreme Court justices who will support the constitutional shields that shelter those under attack.

And for those who would question Supreme Court nominees about how the Constitution can provide protections that the framers may not specifically have envisioned, they too need to return to a civics class. At a minimum, they need to read the final passage of the majority opinion in Lawrence: "Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom."

As the confirmation hearings begin, it will be important to see if Solicitor General Kagan agrees. We need to know if she will commit to abide by Lawrence's precedent. And, ultimately, the Senate and the American people need to feel secure that she will protect our Constitution, just like Stevens, Douglas, and Brandeis, in whose footsteps she is being asked to follow.
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