GOP Rep. Adds Anti-Gay Marriage Amendment To Defense Appropriations Bill

Republican Rep. Steve King of Iowa today attached an amendment to a Defense Appropriations Bill that would ban not only same-sex marriages on military bases, but also orders military chaplains to steer clear of such ceremonies.

"The Defense of Marriage Act means this: Marriage means only a legal union between one man and one woman as husband and wife. And the word ‘spouse’ only refers to a member of the opposite sex who is a husband or a wife. Pretty simple statute being contravened by the president of the United States as exercised through the Secretary of Defense," King said of the President and the State Department's position that same-sex marriages should be allowed on bases.

"This amendment prohibits the use of military facilities or the pay of military chaplains for being used to contravene the defense of marriage act."

According to Politico, Democratic Congressman Norm Dicks of Washington called King's measure "contentious and discriminatory."

Boehner, McCain Blast 'Dangerous' Michele Bachmann For 'Muslim Infiltration' Investigation

Failed Republican presidential candidate and perennial anti-gay Rep. Michele Bachmann and four of her GOP colleagues last month asked the House of Representatives to launch an investigation into whether or not Muslim extremists had infiltrated the United States government.

One person specifically named as a potential candidate for manchurian status was Huma Abedin, a former aide to Secretary of State Hillary Clinton who is also married to former Rep. Anthony Weiner.

According to Bachmann and company, Abedin has three family members aligned with Egypt's Muslim Brotherhood and therefore she deserves investigation.

According to House Speaker John Boehner and fellow Republican John McCain, that's hogwash. "I think accusations like this being thrown around are pretty dangerous," said Boehner, while McCain called the allegations "an unwarranted and unfounded attack on an honorable woman, a dedicated American, and a loyal public servant."

"When anyone, not least a member of Congress, launches specious and degrading attacks against fellow Americans on the basis of nothing more than fear of who they are and ignorance of what they stand for, it defames the spirit of our nation, and we all grow poorer because of it," the Arizona Senator said.

Bachmann seems unfazed by this intraparty criticism, which she told CNN was based on distortions, and remains steadfast in her concern that extremists may be able to get to President Obama: "The intention of the letters was to outline the serious national security concerns I had and ask for answers to questions regarding the Muslim Brotherhood and other radical group's access to top Obama administration officials."

Chick-fil-A Does Damage Control

Trying to do some damage control after President Dan Cathy said marriage equality activists are "inviting God's judgment on our nation," Chick-fil-A today posted the above Facebook message saying the "independent" franchises treat all customers with "honor, dignity and respect — regardless of their belief, race, creed, sexual orientation or gender."

Think this message will win over those who have sworn off the company over Cathy's consistently anti-gay politics?

(h/t Joe. My. God.)

Hateful Group Pens Song Claiming Gay Boy Scout Leaders Will Molest Kids: VIDEO

As part of their protest to Ernst & Young CEO James Turley's efforts to help overturn the Boy Scouts of America's ban on gay members and leaders, the anti-gay group Public Advocate and its leader, Virginia politico Eugene Delgaudio, penned this "satirical" song about how openly gay Scout masters would molest children. Here's a sample of the lyrics, sung to the tune of George R. Poulton's "Aura Lee:"

Morally, Morally,
What will it be like
If we let the unsavory
Get close to our dear tykes?

Morally, Morally,
That's the way we like.
Do not touch our girls and boys,
Just go take a hike.

The video also features a prop check made out to the "Jerry Sandusky Defense Fund." Watch it and read the rest of the lyrics AFTER THE JUMP.

(h/t RightWingWatch)

 

We've heard about dear Turley's plan,
And we're here to say,
It's sad that such a senseless man
Is with the B.S.A!

Morally, Morally,
That's the way we like.
Do not touch our girls and boys,
Just go take a hike.

We have seen just what can come
When anyone at all
Can get quite close to little ones
And frankly, we're appalled!

Morally, Morally,
What will it be like
If we let the unsavory
Get close to our dear tykes?

Morally, Morally,
That's the way we like.
Do not touch our girls and boys,
Just go take a hike.

You say that we should open doors
And welcome one and all.
With no attention to the boors
Who'll make our children bawl.

Morally, Morally,
Whatever shall be done
If we hire Sandusky,
and let him near our sons?

Morally, Morally,
That's the way we like.
Do not touch our girls and boys,
Just go take a hike.

DNC Chair Predicts Marriage Equality Inclusion For Democratic Platform

Democratic National Committee Chair Debbie Wasserman Schultz says she plans on seeing marriage equality included in her party's official policy platform.

"I expect marriage equality to be a plank in the national party platform," the Florida Representative told Philadelphia Gay News. "Now, our platform committee process is a people-powered process. We have a platform committee and the platform is developed by our Democratic activists and the platform committee members, so they’ll go through a process. I hope that marriage equality, and expect that marriage equality, will be part of our platform."

Rep. Wasserman Schultz also said that while many Democrats remain committed to passing a transgender-inclusive Employment Non-Discrimination Act, groundwork needs to be in place before a serious effort can get going. "Just like what we went through with the hate-crimes law, in order to make sure that we could pass an inclusive hate-crimes law — we had to go through the community — we had to go through an education process. There had to be more outreach," she explained.

"We’ve been going through the same process with ENDA. I think really the last barrier to achieving ENDA is making sure that we have a Democratic majority in Congress so that we can send it to President Barack Obama for his signature. We have a Republican Congress that is so extreme."

As for whether the party will specifically help lesbian Rep. Tammy Baldwin win her Senatorial race, Wasserman-Schutlz says that's a question for the Democratic Senatorial Campaign Committee, but promised "Tammy Baldwin is going to be the next U.S. senator from Wisconsin."

Why Is This DOMA Case Different From All Others?

BY ARI EZRA WALDMAN

Three cases. Three courts. One result.

Whether it was Judge Jeffrey White of the Northern District of California, Judge Barbara Jones of the Southern District of New York, or Judge Joseph Tauro of the District of Massachusetts (or, of course, a unanimous three-judge panel of the First Circuit Court of Appeal), the result was essentially the same: the Defense of Marriage Act (DOMA) is unconstitutional.

The Department of Justice (DOJ) has asked the Supreme Court to hear the DOMA cases out of the First Circuit and the Northern District of California, bypassing the Ninth Circuit. Earlier this week, the American Civil Liberties Union (ACLU), which represents Edith Windsor (right) in the New York case, asked the Supreme Court to bypass the Second Circuit and take Ms. Windsor's case, as well. Skipping over the intermediate appellate courts is rare, but not impossible, especially when the case is so obviously headed for an ultimate decision at One First Street.

Still, each of these cases -- Golinski v. Office of Personnel Management, Massachusetts v. Department of Health and Human Services, and Windsor v. United States -- is slightly different. In Golinski, the court preferred to use heightened scrutiny to invalidate DOMA; in Massachusetts, the First Circuit used so-called "rational basis plus," or a more searching form of rational basis review; and, in Windsor, the court rejected DOMA under simple rational basis. A win is a win when it comes to equality and access to the federal marriage benefits, but a Supreme Court decision to hear Windsor, in particular, could bring the scrutiny issue front and center.

In the end, while DOMA will likely die at the Supreme Court next term, the level of scrutiny for sexual orientation discrimination will probably continue its muddled trajectory.

The issue exists at all because the appellate court precedent on scrutiny is old, the Obama Administration has changed the government's long-standing opposition to heightened scrutiny, and, most importantly, no one is entirely sure how the Supreme Court approach scrutiny of antigay discriminatory laws in Lawrence v. Texas.

Scrutiny standards are the lenses through which the judiciary reviews the constitutionality of state action. They come up in all sorts of contexts: Laws trying to restrict freedom of speech get strict scrutiny; laws regulating commerce generally get the lowest form of rational basis review (as should have been the case in the recent health care case). Rational basis review requires that a law or state action be rationally related to some legitimate government objective. Heightened scrutiny, sometimes applied to cases involving gender discrimination, requires that a law be substantially related to an important government objective. A "legitimate" government objective can be anything from conserving resources to protecting the American farm industry; "important" government objectives span a narrower bandwith, reaching only historically essential values of democracy and equality and eschewing simple administrative or financial interests. And, of course, it is easier for a law to simply be "rationally" connected to a legitimate goal than "substantially" connected to one: Lots of things are rational, fewer things are substantially important.

The Windsor case is special because it asks the Court and the DOJ to dive into the heart of this legal controversy. Last year, when Attorney General Holder informed the world (and Speaker Boehner) that President Obama believes that state actions that discriminate on the basis of sexual orientation deserve heightened scrutiny and that under that standard, DOMA is unconstitutional, the Government maintained that its previous position that DOMA could be upheld under rational basis review was still a reasonable (though not its preferred) interpretation of current law. The rational basis fall back was a footnote in Attorney General Holder's letter, but it seemed like the Government's position until oral argument at the First Circuit in Gill. When pressed by the judges, Acting Assistant Attorney General for the Civil Division and former WilmerHale partner Stuart Delery said that the Government "is not here to defend [DOMA] on any standard" and took no position on DOMA under rational basis. So, if Windsor reaches the Supreme Court, the Government may be forced to clarify its DOMA-under-rational-basis position.

In context, this is more than just fodder for ivory tower classroom discussion. 

First, even without Windsor, the DOMA cases will give the Court the opportunity to clarify or remuddle the scrutiny standard. The Supreme Court has never explicitly stated a scrutiny standard for antigay laws. Some appellate courts -- notably, the Ninth Circuit, in High Tech Gays (1990), and the First Circuit, in Cooke v. Gates (2008) -- have said that rational basis review is appropriate for sexual orientation discrimination, but High Tech Gays was decided in a hostile Bowers v. Hardwick (1986) world and Cooke explicitly relied on the Supreme Court's decision in Lawrence v. Texas. Unfortunately, no one is sure what the Court said in Lawrence. At times, Justice Kennedy appeared to refer to fundamental rights, which would trigger heightened scrutiny; at other times, he rejected the idea of intimacy rights as fundamental. Suffice it to say, there is evidence in the Lawrence opinion for both sides of the heightened scrutiny-rational basis divide. And, although Lawrence was decided pursuant to the due process clause and the DOMA cases implicate Equal Protection concerns, federal courts tend to learn from one another when similar issues -- namely, antigay discrimination -- come up. 

Second, the DOMA cases could produce a series of fractured opinions from the Court, even if a supermajority invalidates the law. As I have argued before, these cases offer the Court a rare chance at unity across the liberal-conservative divide. DOMA is anathematic to conservatives who despise federal intrusion into states' rights and odious to liberals who despise the obvious unequal treatment of legally married gay couples. Intellectually honest conservatives should put aside any distaste they have for same-sex marriage as an institution to strike down an obviously unconstitutional law. But, within that, the Court may disagree about the level of scrutiny. In Lawrence, the majority avoided this disagreement by muddling the language and never attacking the scrutiny issue head on. There is even some evidence in Dale Carpenter's new book about Lawrence, Flagrant Conduct, that the seemingly confusing language was meant to gloss over internal disagreements about scrutiny. I am not sure how much I buy that; Lawrence was decided in 2003, some years before lower courts started flouting old and outdated precedent to use heightened scrutiny on antigay state action.

Third, we are having this scrutiny discussion because the President favors heightened scrutiny, the adoption of which would revolutionize gay rights law. Undoubtedly, the organizations representing the DOMA plaintiffs, including Lambda Legal, the ACLU, and the Gay and Lesbian Advocates and Defenders (GLAD), would have made the heightened scrutiny arguments themselves. But, the Government carries more weight in the federal courts and the Obama Administration's position gave Judge White and others the political and legal cover to defy higher court precedent covering their jurisdictions that appeared to foreclose anything other than rational basis review. Historians may look back at the President's boldness in this area of law as one of his signature, lasting, and greatest actions on behalf of gay and lesbian Americans. If Governor Romney wins the next election and puts the DOJ on the wrong side of DOMA, the Supreme Court -- where the case will surely be at the time -- will have political reasons for upholding the law.

The Supreme Court may take all, some, or none of the DOMA cases, but the last option is the least likely. There is already an appellate court case declaring an act of Congress unconstitutional, and that decision is buttressed by a handful of lower court decisions and the Government's bold litigation actions. With briefing due next month, the decision to hear the case shortly thereafter, and oral argument in the Winter of 2012 (after the election), we can expect a decision in the Spring of 2013. And, regardless of whether than decision includes clarity on scrutiny, it should be a great victory for the gay community and our quest for marriage recognition.

***

Ari Ezra Waldman teaches at Brooklyn Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. His research focuses on technology, privacy, speech, and gay rights. Ari will be writing weekly posts on law and various LGBT issues. 

Follow Ari on Twitter at @ariezrawaldman.