Obama’s Shifts Affect U.S. Legal Plan on Gay Marriage

by Adam Liptak for the New York Times 2/4/13:

WASHINGTON — The practice of law would be much more pleasant, many lawyers will tell you over a second Scotch, if it did not require clients. It is one thing to construct an airtight legal argument and quite another to deal with the demands of inconstant human beings.

Consider Solicitor General Donald B. Verrilli Jr.’s most prominent client, President Obama. In May, in announcing his support for same-sex marriage, Mr. Obama said the issue should be decided state by state. In his Inaugural Address last month, Mr. Obama seemed to make a case for a more national approach.

The timing was awkward. Mr. Verrilli is in the midst of considering what to tell the Supreme Court in a pair of momentous same-sex marriage cases to be argued in March. Just days before the inauguration, he met with lawyers challenging California’s ban on same-sex marriage, who urged him to weigh in on their side. He was noncommittal, but his client’s public marching orders until then had suggested that he should sit that one out.

Here is what Mr. Obama told Robin Roberts of ABC News in May: “What you’re seeing is, I think, states working through this issue in fits and starts, all across the country. Different communities are arriving at different conclusions, at different times. And I think that’s a healthy process and a healthy debate. And I continue to believe that this is an issue that is going be worked out at the local level, because historically, this has not been a federal issue, what’s recognized as a marriage.”

That reasoning fits tolerably well with the Justice Department’s position in one of the two cases before the Supreme Court, United States v. Windsor, No. 12-307. That case is a challenge to the constitutionality of the federal Defense of Marriage Act, a 1996 law that defined marriage as the union of a man and a woman in connection with federal benefits. The Defense of Marriage Act, Mr. Obama explained in May, “tried to federalize what has historically been state law.”

Mr. Verrilli will presumably make much the same point on March 27, when the Supreme Court hears arguments in the Windsor case.

But there is a second case, and there Mr. Verrilli faces tough choices. On March 26, the day before the argument about the 1996 law, the justices will hear Hollingsworth v. Perry, No. 12-144. It seeks to overturn Proposition 8, a voter initiative that banned same-sex marriage in California.

If marriage is a matter for the states, as Mr. Obama announced in May, you might think that California should be permitted to prohibit same-sex marriage.

The federal government is not a party to the California case, and it is not required to file a brief or to take a public position. Ms. Roberts asked Mr. Obama a direct question in May about whether he had given his lawyers instructions about what to do: “Can you ask your Justice Department to join in the litigation in fighting states that are banning same-sex marriage?”

Mr. Obama changed the subject.

All of this might have allowed Mr. Verrilli to concentrate on the case concerning the federal law and stay quiet in the California case. There is a precedent for this: the federal government took no position in 1967 in Loving v. Virginia, the case in which the Supreme Court struck down bans on interracial marriage. Nor did it weigh in on the last major gay rights case, Lawrence v. Texas, which in 2003 struck down state laws making gay sex a crime.

The solicitor general in 2003 was Theodore B. Olson. He is now in private practice and is one of the lawyers challenging the California ban on same-sex marriage. On Jan. 18, he and his colleague David Boies, along with lawyers from the San Francisco city attorney’s office, met with Mr. Verrilli to urge him to take a stand in the California case. Defenders of Proposition 8 made the opposite pitch a few days later.

Mr. Verrilli was noncommittal, but there is now reason to think that Mr. Olson will prevail in persuading Mr. Verrilli to ignore the precedent Mr. Olson had set. That is largely because Mr. Obama’s thinking on same-sex marriage continues to evolve.

In his Inaugural Address last month, Mr. Obama was no longer talking about leaving the issue to the states.

“Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law,” he said, “for if we are truly created equal, then surely the love we commit to one another must be equal, as well.”

Mr. Verrilli has until the end of the month to file a brief in the California case. Paul D. Clement, a former solicitor general who represents House Republicans defending the 1996 federal law, said he detected some paradoxes in Mr. Verrilli’s predicament.

“It will be interesting in the end,” Mr. Clement said dryly at a Georgetown University Law Center forum last week, “if the litigation position of the Justice Department and the president’s position kind of realign.”

Mr. Clement said the solicitor general’s position always had weight at the Supreme Court. But he added that it may be less consequential in the California case than in some earlier ones, given the administration’s general, if nuanced, support for gay rights.

Thomas C. Goldstein, the publisher of Scotusblog and a lawyer who argues frequently before the Supreme Court, said the justices were not the only relevant audience for a brief from the Obama administration’s top appellate lawyer.

“Part of what is going on in the Inaugural Address and part of what would happen in a brief like that is a statement of what’s morally right and wrong,” he said. “It could matter to Americans much more than it matters to the Supreme Court.”

A Map of Human Dignity

by Frank Bruno - New York Times - January 21, 2013:

Seneca Falls, Selma, Stonewall. The alliteration of that litany made it seem obvious and inevitable, a bit of poetry just there for the taking. Just waiting to happen.

But it has waited a long time. And President Obama’s use of it in his speech on Monday — his grouping of those three places and moments in one grand and musical sentence — was bold and beautiful and something to hear. It spoke volumes about the progress that gay Americans have made over the four years between his first inauguration and this one, his second. It also spoke volumes about the progress that continues to elude us.

“We, the people, declare today that the most evident of truths — that all of us are created equal — is the star that guides us still, just as it guided our forebears through Seneca Falls and Selma and Stonewall,” the president said, taking a rapt country on a riveting trip to key theaters in the struggle for liberty and justice for all.

Seneca Falls is a New York town where, in 1848, the women’s suffrage movement gathered momentum. Selma is an Alabama city where, in 1965, marchers amassed, blood was shed and the Rev. Dr. Martin Luther King Jr. stood his ground against the unconscionable oppression of black Americans.

And Stonewall? This was the surprise inclusion, separating Obama’s oratory and presidency from his predecessors’ diction and deeds. It alludes to a gay bar in Manhattan that, in 1969, was raided by police, who subjected patrons to a bullying they knew too well. After the raid came riots, and after the riots came a more determined quest by L.G.B.T. Americans for the dignity they had long been denied.

The causes of gay Americans and black Americans haven’t always existed in perfect harmony, and that context is critical for appreciating Obama’s reference to Stonewall alongside Selma. Blacks have sometimes questioned gays’ use of “civil rights” to describe their own movement, and have noted that the historical experiences of the two groups aren’t at all identical. Obama moved beyond that, focusing on the shared aspirations of all minorities. It was a big-hearted, deliberate, compelling decision.

He went on, seconds later, to explicitly mention “gay” Americans, saying a word never before uttered in inaugural remarks. What shocked me most about that was how un-shocking it was.

Four years ago we lived in a country in which citizens of various states had consistently voted against the legalization of same-sex marriage.

But on Nov. 6, the citizens of all three states that had the opportunity to legalize gay marriage at the ballot box did so, with clear majorities in Maryland, Maine and Washington endorsing it.

Four years ago the inaugural invocation was given by a pastor with a record of antigay positions and remarks. This year, a similar assignment was withdrawn from a pastor with a comparable record, once it came to light. What’s more, an openly gay man was chosen to be the inaugural poet, and in news coverage of his biography, his parents’ exile from Cuba drew more attention than his sexual orientation. That’s how far we’ve come.

And the distance traveled impresses me more than the distance left. I want to be clear on that. I’m proud of our country and president, despite their shortcomings on this front and others. It takes time for minds to open fully and laws to follow suit, and the making of change, in contrast to the making of statements, depends on patience as well as passion.

But the “gay” passage of Obama’s speech underscored the lingering gap between the American ideal and the American reality. “Our journey is not complete,” he said, “until our gay brothers and sisters are treated like anyone else under the law — for if we are truly created equal, then surely the love we commit to one another must be equal as well.”

He means the right to marry. As long as we gay and lesbian Americans don’t have that, we’re being told that our relationships aren’t as honorable as those of straight couples. And if that’s the case, then we’re not as honorable, either. Is there really any other reading of the situation?

Despite our strides, gay and lesbian couples even now can marry only in nine states and the District of Columbia. The federal government doesn’t recognize those weddings, meaning that in terms of taxes, military benefits and matters of immigration, it treats gays and lesbians differently than it treats other Americans. It relegates us to an inferior class.

The Supreme Court could soon change, or validate, that. There are relevant cases before it. For his part Obama could show less deference to states’ rights, be more insistent about what’s just and necessary coast-to-coast, and push for federal protections against employment discrimination when it comes to L.G.B.T. Americans. His actions over the next four years could fall wholly in line with Monday’s trailblazing words. My hope is real, and grateful, and patient.

Pride and Prejudice

John Berry, the highest-ranking openly LGBT official in the Obama administration, delivered a stirring and poignant appeal to Justice Department employees at their Pride celebration.

It’s good to be here at the Department of Justice. I deeply appreciate the work you do and thank you for your service to our country. Thank you, Mr. Attorney General, for your leadership in continuing this wonderful tradition of celebrating Gay Pride. And thank you, Chris Hook, for the kind introduction. It’s an honor to be with you all today.


I’m so glad that you’re honoring Dr. Frank Kameny today. In 1957, two years before I was born, Dr. Kameny, a veteran and Ph.D. astronomer from Harvard, was fired from his civil service job solely for his sexual orientation. In one letter to him, an agency official wrote that the Government “does not hire homosexuals and will not permit their employment...” He went on to say that “the homosexual is automatically a security risk” and that he “frequently becomes a disruptive personnel factor within any organization.”

With the fervent passion of a true patriot, Frank did not resign himself to his fate or quietly endure his wrong. He fought back. After 20 years, he achieved the goal he sought: The repudiation of the Government’s policy of formal and unfounded discrimination.

That same spirit burned in the hearts of patrons of the Stonewall bar on a warm July night 40 years ago. Laws against homosexuality were often selectively enforced by police -- not to protect and defend, but to terrorize and abuse an unpopular minority. On one such raid to arrest gay and transgender patrons of the Stonewall bar, that same spark of liberty that burned so brightly in Frank Kameny’s chest burst to bonfire life in New York City.

Saying “no” to abuse, “no” to harassment, “no” to basic violations of human dignity -- proud Americans stood up, fought back, and gave birth to the national movement for lesbian, gay, bisexual, and transgender rights.

That movement’s agenda and goal is simple: All Americans should be free to work where their skills enable them; free to share equally in every right as well as every responsibility and burden of citizenship; and free to love and pursue happiness no more and no less than our fellow Americans.

This struggle follows the great American tradition of taking on difficult battles with the same full depth of commitment and passion of those who fought for liberty and against the injustices of their day. Who can forget the courage of Washington, Jefferson, and Franklin, when many of their neighbors and countrymen saw their pursuit of liberty as treason and would have cheered their hanging?

We need no public poll to tell us how half the country, desperately defending the shackles of slavery, used Scripture, courts, secession, and war to declare African-Americans as chattel and 3/5ths of a person.

Whether it was securing a woman’s right to vote or ending “separate but equal” -- make no mistake -- Susan B. Anthony and Dr. Martin Luther King Jr. were not unanimously acclaimed and embraced by all their country. Thankfully, they were embraced by enough hearts, with enough passion, that together they could stand their ground with courage and hope, carrying the day for right, for justice, and for liberty.

Today, our country is once again divided -- and pray as I do for a middle ground, finding it is often elusive when liberty is at stake.

The tree of liberty grows but in one direction -- by adding rings. It is that miraculous quality that has produced the proud sheltering and living tree whose branches have withstood the lightning strike of secession and the gale force winds of fascism and communism.

The rings of that tree are nourished by honesty and truth, warmed by love and justice, and rooted in respect and dignity. It is my belief that Frank Kameny’s fight to hold a job he did well and the passionate fight for dignity and respect that began at Stonewall were not isolated events. They were in fact the formation of a new ring of life on the American tree of liberty.

How privileged are we, in this generation, to stand upon their shoulders and carry forth their fight? We must not rest until our ring is secure. We shall be clear in our ends; we shall be honest and open; we shall work where our abilities allow; we shall continue to serve our country with bravery and distinction; we shall love who our hearts desire. And with the help of a President who supports our cause, the aid of courageous fellow country men and women who love liberty; and with God’s grace -- We Shall Prevail.

I would like to end on a personal note. I come from a family with a proud tradition of service. My father enlisted in the Marines before Pearl Harbor and served at Guadalcanal, and my uncle, for whom I am named, was killed in battle in the Pacific.

In the year before he died, my father told me that he didn’t know what all the fuss about gays in the Military was about. He said “we didn’t call 'em gays -- but they were there and they died as bravely as everyone else.” I know he was right. A good friend of mine was a Colonel who honorably served in the Middle East. His sacrifice and risk of life was no less dear than anyone. I ask America, where do you stand -- with his honorable service or with those who would make him lie to do so?


My family has never known divorce. My first partner of 10 years died after a protracted and grueling battle with AIDS that reduced a 6-foot-2 190-pound athlete to 90 pounds at death. I was his primary caregiver -- and I held him in my arms as he died. I would have gladly traded my life for his that night, just as I would do so now for my current partner of 12 years if ever need be. Were we married? No, but I dare anyone to say we were not in love. I was blessed by two supportive families and dear friends who honored our relationship. If I hadn’t been -- I shudder to think -- because no power on earth could have kept me from his side.

Again, I ask: Where do you stand? Honoring love as precious and true wherever you find it, or with those who would demean or deny it?

I urge you. Stand where you can be proud. Stand with service and truth. Stand with love. Stand for liberty and justice for all.

God Bless you and God Bless America.