Leslie Gabel-Brett2013-05-18T21:32:06-04:00Leslie Gabel-Bretthttp://www.huffingtonpost.com/author/index.php?author=leslie-gabelbrettCopyright 2008, HuffingtonPost.com, Inc.HuffingtonPost Blogger Feed for Leslie Gabel-BrettGood old fashioned elbow grease.The Walls Are Tumbling Downtag:www.huffingtonpost.com,2012:/theblog//3.12965802012-02-24T17:06:00-05:002012-04-25T05:12:01-04:00Leslie Gabel-Bretthttp://www.huffingtonpost.com/leslie-gabelbrett/
In less than three weeks, here's what has happened:
Feb. 7: Federal appellate court rules that California's Prop 8 is unconstitutional.
Feb. 13: Governor Gregoire signs marriage equality into law in Washington.
Feb. 16: New Jersey legislature votes in favor of marriage equality (later vetoed, but with a vow by the head of the state senate to seek an override).
Feb. 17: Maryland House of Delegates votes in favor of marriage equality.
Feb. 21: New Jersey state court reinstates federal constitutional claim in Lambda Legal's marriage equality lawsuit in that state.
Feb. 22: Federal court rules that the key portion of the so-called Defense of Marriage Act (DOMA) denying federal recognition to valid marriages of same-sex couples is unconstitutional in Lambda Legal's Golinski v. Office of Personnel Management case.
Feb. 23: Maryland Legislature approves a marriage equality bill that Gov. O'Malley has promised to sign into law.
The victories themselves are remarkable, but equally meaningful is the number and diversity of voices insisting that the time for equality has come. For example, the majority in the Ninth Circuit Court of Appeals' decision in the Perry v. Brown challenge to Prop 8 concluded:
Proposition 8 operates with no apparent purpose but to impose on gays and lesbians, through the public law, a majority's private disapproval of them and their relationships, by taking away from them the official designation of "marriage," with its societally recognized status. Proposition 8 therefore violates the Equal Protection Clause.
In signing the marriage equality law in Washington, Gov. Gregoire passionately said:
I ask all Washingtonians to look into your hearts and ask yourselves: isn't it time? Isn't it time to tell the children of same-sex couples that their parents are as loving and important as any others? Isn't it time to support strong families, and make Washington stronger, too? And isn't it time to send a message to the world that Washington believes in equality for all? I believe if we ask ourselves those questions, our answers will be "yes." Marriage equality is right for Washington State. And the time is now.
As he introduced the marriage equality bill in Maryland, Gov. O'Malley stated:
The momentum is growing, and there's a lot of hard work to do. We are going to be successful in this legislative session by recognizing the dignity in one another, by recognizing the common humanity that all of us share. In this great state that celebrates diversity as our strength, we choose to be bound together by a common thread. That common thread is human dignity.
And in ruling that DOMA is unconstitutional in Lambda Legal's case on behalf of Karen Golinski, Judge White (a George W. Bush appointee) wrote:
The Court finds that neither Congress' claimed legislative justifications nor any of the proposed reasons proffered by BLAG [the so-called "Bipartisan Legal Advisory Group" of the House of Representatives, which intervened in the case to defend DOMA] constitute bases rationally related to any of the alleged governmental interests. Further, after concluding that neither the law nor the record can sustain any of the interests suggested, the Court, having tried on its own, cannot conceive of any additional interests that DOMA might further...
In this matter, the Court finds that DOMA, as applied to Ms. Golinski, violates her right to equal protection of the law under the Fifth Amendment to the United States Constitution, without substantial justification or rational basis, refusing to recognize her lawful marriage to prevent provision of health insurance coverage to her spouse.
The tide has turned in favor of marriage equality, and the old false arguments no longer work. Same-sex couples have been getting married now for several years in Massachusetts, Connecticut, Iowa, Vermont, and New Hampshire, and more recently in our nation's capital and New York. In all these places marriage and society are thriving. In all these places, as Gov. O'Malley said, "The common thread is human dignity."
As Judge White further explained, in response to the arguments made in Golinski that Congress had a right to move slowly on the issue of marriage equality, "Congress cannot, like an ostrich, merely bury its head in the sand ... especially at the risk of permitting continued constitutional injury upon legally married couples."
It's way too soon to declare final victory, of course. The vast majority of states still prohibit same-sex couples from marrying. Moreover, LGBT people still do not have uniform protections against workplace, school, and other forms of discrimination, and many still face family disruption, unfair immigration policies, and violence.
But February 2012 may well be remembered in history as a tipping point in the fight for equality, with increasing numbers of allies and advocates joining together to say "the time is now."]]>A Very Good Day for Human Rightstag:www.huffingtonpost.com,2011:/theblog//3.11350902011-12-07T21:15:00-05:002012-02-06T05:12:02-05:00Leslie Gabel-Bretthttp://www.huffingtonpost.com/leslie-gabelbrett/
This week's events stopped us in our tracks as we saw our history continue to unfold. A vision of equality and human rights for LGBT people has taken hold, and the number and power of those who promote that vision is growing. It may be a heavy boulder up a steep hill, but many people are pushing history toward the full recognition of LGBT human rights under the law at home and around the world.
Secretary Clinton's speech was remarkable and inspiring. We are grateful to her and President Obama for seeking to translate their vision into action. And we cannot lose sight of the facts that most recently led to these announcements: terrible violence and discrimination against LGBT people here and around the world, and efforts by some countries and American states to further persecute LGBT people and even criminalize our identities, our speech and our lives. It is dangerous to be a lesbian, gay, bisexual or transgender person in many parts of the world and many parts of this country. We have a lot of work still to do.
Secretary Clinton made clear that her message was intended not only for other countries but for our country, as well. "Until 2003 ... [sex between people of the same sex] was still a crime in parts of our country," she said. "Many LGBT Americans have endured violence and harassment in their own lives, and for some, including many young people, bullying and exclusion are daily experiences. So we, like all nations, have more work to do to protect human rights at home."
Her reference to 2003 is about the year that the U.S. Supreme Court overturned the remaining state sodomy laws in Lambda Legal's historic case, Lawrence v. Texas. That victory, of course, was not easily won, as the Supreme Court had only 17 years earlier upheld the right of state governments to treat lesbian and gay people as criminals in the disastrous Bowers v. Hardwick decision. Our courts do not always get it right, but the doors of justice remain open so that we can continue to make our case for equality.
Secretary Clinton also said, "To LGBT men and women worldwide: wherever you live and whatever your circumstances... please know that you are not alone." Lambda Legal's client Vandy Beth Glenn was fired three years ago by the Georgia state legislature because her employer did not like the fact that she was transgender. She fought back, and this week a federal appeals court upheld our Constitution and protected her rights. Her victory clears the path for others; she shares this success with many and does not stand alone.
The best thing the Obama administration can do now is to set a better example in the United States to support our community here and give more power to our voice abroad: let's enact a federal statute protecting all LGBT people against discrimination and end the exclusion of same-sex couples from marriage. Let's also stop tearing apart binational same-sex couples and grant asylum to LGBT and HIV-positive people facing violence and persecution in their home countries. It is time to get these things done.
LGBT people and all our allies, here and around the globe, are not alone in fighting for equality; we are a strong and growing community of ordinary people and powerful leaders committed to justice. We stand together on the right side of history.]]>Occupy the First Amendmenttag:www.huffingtonpost.com,2011:/theblog//3.11189222011-11-29T17:33:00-05:002012-01-29T05:12:01-05:00Leslie Gabel-Bretthttp://www.huffingtonpost.com/leslie-gabelbrett/
Our nation was born of protest and has continuously been made better by it. Emancipation, suffrage, fair labor practices, civil rights -- all were won or advanced by people joining together in dissent, their ideas and lawful actions shielded by our Constitution. Ours has never been a perfect union; thank goodness people have always said so and fought to make it better.
In 1957, a federal employee named Frank Kameny was fired from his job because he was gay. He courageously fought back by bringing legal challenges against the discriminatory actions of his government. His legal challenges were unsuccessful, but he also did something that gay people in this country had not yet done: he stood outside and picketed in the streets.
A decade after his brave protest, when the New York City police raided a gay bar and tried to use their authority to harass and evict the patrons, gay and transgender people stood their ground and said "no" -- igniting the Stonewall Riots that came to be seen as the start of the modern gay rights movement. As recently as 2009, the Atlanta Police Department raided the Atlanta Eagle gay bar and violated the patrons' constitutional rights (the Fourth Amendment prohibitions against warrantless search and seizure, this time). The patrons, a local attorney and Lambda Legal fought back.
The First Amendment protects expression that is communal and organized, like marches, demonstrations, and occupying public spaces, just as it protects expression that is deeply personal. When a transgender woman walks down a street, her manner of dress and the way she carries her body and speaks is her personal expression of identity, and no police officer or government official may limit or penalize her for it.
We are in another moment in American history -- and there have been many -- when the right to challenge and protest are under attack. Tear gas, rubber bullets, and pepper spray may be "non-lethal" police instruments, but they are also remote-control-style weapons that hurt and brutalize people. Police officers are not permitted to walk up to non-violent protesters and kick and punch them; nor should they be permitted to shoot or spray them with something that causes tremendous pain and injury. They are also not allowed to raid LGBT bars for no legitimate reason, or stop, frisk, and harass transgender people who are breaking no laws.
Police abuse and misconduct weaken our constitutional freedoms. If a population becomes bullied or intimidated out of exercising rights offered on paper, those rights effectively cease to exist. Every time people watch peaceful protesters getting pepper-sprayed or hear that an Occupy protester suffered brain damage and almost died after being shot with a rubber bullet, more become fearful of exercising their rights.
And when LGBT people are attacked, harassed and arrested without cause by police while in a bar or on the street, the message is loud and clear: your government does not want you to express your identity and freely live your life and will use its authority to enforce your silence. Lambda Legal has made it a priority to challenge police and government misconduct, because we need to hold these powerful actors accountable for mistreating LGBT people and those with HIV.
Kameny recently passed away, but he lived long enough to see how his protests were made louder and stronger by hundreds of thousands of others protesting discrimination against LGBT people and demanding justice. Whenever people stand up, join together and protest injustice, we have another chance as a nation to see where some are favored and others harmed -- and to do something about it. This is what democracy looks like.]]>DOMA: What Will Congress Do?tag:www.huffingtonpost.com,2011:/theblog//3.8297302011-03-02T18:28:14-05:002011-05-25T18:35:25-04:00Leslie Gabel-Bretthttp://www.huffingtonpost.com/leslie-gabelbrett/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.]]>Listen Up -- Atlanta Victory Sends Messagetag:www.huffingtonpost.com,2010:/theblog//3.7941902010-12-09T12:20:45-05:002011-05-25T18:15:22-04:00Leslie Gabel-Bretthttp://www.huffingtonpost.com/leslie-gabelbrett/
Last year in Atlanta, the police department dispatched more than twenty officers, including its "Red Dog Unit" dressed in SWAT team gear, to storm into a gay bar known as the Atlanta Eagle. During the raid, the APD forced everyone to lie face down on a dirty floor amidst spilled beer and broken glass -- including one military veteran suffering from back injuries he got in the Iraq War -- and required them to stay there while their pockets were searched and background checks were run. Bar patrons heard antigay slurs from the police. Not a single patron was suspected of or charged with any crime.
In November 2009, attorneys for the Atlanta Eagle and some of its patrons filed a lawsuit against the city of Atlanta and the Atlanta Police Department. The plaintiffs in the case known as Calhoun v. Pennington were represented by Lambda Legal with lead counsel, Atlanta attorney Daniel J. Grossman, the Southern Center for Human Rights (SCHR) and Robins, Kaplan, Miller & Ciresi L.L.P.
The settlement reached this week will force the Atlanta Police Department to rewrite unconstitutional policies regarding arrest, search, and seizure, and make other changes to protect the public from police misconduct and ensure greater accountability. The settlement also provides for a payment of $1,025,000 by the City of Atlanta. The federal court order ending the case found that each of the individual Plaintiffs was unlawfully searched, detained, and/or arrested during the raid and that none was personally suspected of any criminal activity.
Memo to government: Cut it out.
When ordinary folks, whether LGBT or not, stop by a bar to meet people and have a drink, they should not be afraid that their town or city police force will send officers to burst in on them, terrorize and insult them, and force them to lie on the floor without a valid reason. That's unfair and unconstitutional.
And when patriotic lesbian, gay and bisexual Americans serve their country in the military, they should not be afraid that someone will seek out or discover their sexual orientation and be discharged from service as a result. In fact, they should not be told that their lawful, private lives are a secret that cannot be shared. That's bad for our military -- and discriminatory and unconstitutional.
And when married same-sex couples seek health insurance coverage for their spouses, or Social Security or pension benefits as other married couples do, they should not be told by their government that their marriages do not count. That's discriminatory and unconstitutional, too.
Every person who assumes public office swears to uphold the Constitution. The LGBT community, like other minority groups that face discrimination, has battles to fight on many levels -- but we should not have to fight those whose duty it is to treat everyone equally under the law. Whether it be our federal and state leaders who shape laws and institutions or local mayors, city councils, police officers, firefighters, school boards and principals, our government should be on our side, fighting with us, not against us.
]]>ENDA: We've Waited Long Enoughtag:www.huffingtonpost.com,2010:/theblog//3.5817342010-05-21T17:11:36-04:002011-05-25T16:30:24-04:00Leslie Gabel-Bretthttp://www.huffingtonpost.com/leslie-gabelbrett/
And Richard Mitchell should not have to wait any longer. In 2006, he was fired from his job as superintendent of Bremen Community High School District No. 228 in Chicago by a school board that elected a chairperson who opposed hiring him because he is gay.
These two Lambda Legal clients are suing their former employers for discrimination. They have top-notch experienced lawyers and fairness on their side. They have the constitutional guarantee of equal protection on their side, and Mitchell, who worked in Chicago, has a local law prohibiting discrimination on his side. The one thing they do not have is the very thing that every employee should have: equal opportunity on the job guaranteed by a federal law that explicitly protects against sexual orientation and gender identity discrimination.
It's time for Congress to pass the Employment Nondiscrimination Act (ENDA) to prohibit employment discrimination against LGBT people. By passing ENDA, Congress not only would provide a legal remedy for discrimination, but also would make a powerful statement of principle regarding fair treatment of all employees who work hard and perform well.
What does it take to pass a bill in Congress? A majority of votes? We've got that. Public opinion in favor of the bill? We've got that, too. An urgent need and effective remedy? That is what ENDA is all about.
It has been more than 40 years since Congress enacted Title VII of the1964 Civil Rights Act, creating for the first time a law against discrimination in employment on the basis of race, color, religion, sex or national origin. Twenty years ago, in 1990, Congress added protections against employment discrimination for people with disabilities by enacting Title I of the Americans with Disabilities Act.
It is now 2010 and many people are surprised to learn that, in a majority of states, there is no law explicitly prohibiting an employer from firing, refusing to hire or otherwise discriminating against job candidates and employees because they are lesbian, gay, bisexual or transgender. At Lambda Legal, we still fight to protect people from discrimination using constitutional principles and other laws that may apply, but too often, that's not enough. Only 12 states and the District of Columbia currently have state laws that comprehensively prohibit discrimination against LGBT people, and another nine states prohibit discrimination on the basis of sexual orientation only. The first state law prohibiting discrimination on the basis of sexual orientation was passed by Wisconsin in 1982 and the most recent was passed in Delaware in 2009 after more than ten years of trying in the state legislature.
It is difficult to overstate the importance of obtaining recourse for the widespread discrimination faced by LGBT workers. Lambda Legal operates a Legal Help Desk through which we respond to people who are seeking legal information about and assistance regarding discrimination related to sexual orientation and gender identity. Most years, we receive more calls regarding LGBT workplace discrimination than any other single issue -- about 1,000 employment discrimination calls each year. These remarkable figures certainly understate the prevalence of the problem -- we are just one telephone number that people may find.
People define themselves in large part by the work they do, spend significant portions of their time in the workplace, and depend on their jobs to support themselves and their families and to gain access to health care and other benefits. The emotional investment we all have in our jobs means that not only is it devastating when we lose a job, are denied a promotion or otherwise subjected to adverse job actions due to discrimination, but it also takes a significant toll simply to know that we can face harassment or discrimination at any moment and have almost no redress.
For now, Congress alone can provide a national solution to the problem. Having a fair and equal opportunity to get and keep a job, to be judged on the quality of your work and not to be subject to the fears and prejudices of employers should not be dependent on where you live. Vandy Beth Glenn, Richard Mitchell and hundreds of thousands of other LGBT employees around the country should not have to wait any longer.
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