The Volokh Conspiracy

Carl Paladino, the GOP nominee for governor of New York, said in prepared remarks that “perverts” were targeting children and trying to destroy their lives. For this reason, he suggested, as he flashed a snide smile to a group of Orthodox Jews, he did not march in the annual gay pride parade.

Here is the video:

[youtube]http://www.youtube.com/watch?v=BKL9TRaePww[/youtube]

Here is a transcript:

We must stop pandering to the pornographers and the perverts who seek to target our children and destroy their lives. I didn’t march in the gay parade this year — the gay pride parade — this year.  My opponent did.  And that’s not the example that we should be showing our children, and certainly not in our schools.

And don’t misquote me as wanting to hurt homosexual people in any way. That would be a dastardly lie. My approach is ‘live and let live.’ I just think my children and your children would be much better off and much more successful getting married and raising a family. And I don’t want them to be brainwashed into thinking that homosexuality is an equally valid and successful option – it isn’t.

I have some news for Mr. Paladino.  Being gay is not an “equally valid and successful option” for a heterosexual child.  But for a gay kid, being gay is the option.  Whether it is “successful” depends a lot on the love and support shown to that child as she grows up. It depends on whether the people whose words she hears in public media, and yes in schools, tell her that nobody could possibly feel the way she does unless she had been “brainwashed.” A heartbreaking number of gay youths conclude, at a rate several times that of their peers, that everyone would be better off without them.

Lots of gay and straight people would be “more successful getting married and raising a family.” I know Mr. Paladino opposes same-sex marriage, since he has pledged to veto any SSM bill that passes the state legislature. So when Mr. Paladino says that children would be better off getting married and raising a family, is he saying that gay people should marry opposite-sex spouses and bring kids into those marriages? 

Of course he is not suggesting such a thoughtless thing. Instead, his message was thoughtless in a different way: I doubt he gives any thought at all to what kind of future gay kids will have. They do not register with him, except perhaps as incipient agents of destruction. It is past time to stop pandering to Mr. Paladino by pretending that he represents any deep moral tradition, rather than a deeply immoral impulse to exploit hoary and discredited fears of people he knows and cares nothing about.

The Ninth Circuit has stayed Judge Vaughn Walker’s decision requiring California to begin issuing marriage licenses to same-sex couples starting Wednesday.  The Ninth Circuit also sped up the appellate briefing process and specifically directed the appellants to address the very interesting Article III standing issue raised by the Supreme Court’s decision in Arizonans For Official English v. Arizona.  Here is the order:

Filed order (EDWARD LEAVY, MICHAEL DALY HAWKINS and SIDNEY R. THOMAS) Appellants’ motion for a stay of the district court’s order of August 4, 2010 pending appeal is GRANTED. The court sua sponte orders that this appeal be expedited pursuant to Federal Rule of Appellate Procedure 2. The provisions of Ninth Circuit Rule 31-2.2(a) (pertaining to grants of time extensions) shall not apply to this appeal. This appeal shall be calendared during the week of December 6, 2010, at The James R. Browning Courthouse in San Francisco, California. The previously established briefing schedule is vacated. The opening brief is now due September 17, 2010. The answering brief is due October 18, 2010. The reply brief is due November 1, 2010. In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing. See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997). IT IS SO ORDERED. [7441574] (JS)

(HT: Rex Wockner)

While we’ve been focusing on whether proponent-intervenors have standing under Article III to defend a citizen initiative, gay marriage is taking hold in Mexico. Over the past few weeks, that country’s supreme court has decided three important cases on the issue.  On March 4, Mexico City’s council voted to recognize SSM. In the first of its decisions, the supreme court agreed that Mexico City had the power to recognize SSMs under that country’s federalist system.  Second, it held that such marriages are valid throughout the country. Today, it held that Mexico City had the power to include adoptions by same-sex couples in its marriage law.

This isn’t the same thing as saying that Mexico now fully recognizes gay marriages in the way that, say, Canada does. But it appears that we’re pretty close, since Mexico City undoubtedly has the country’s greatest concentration of gay couples and it seems relatively easy for couples from other parts of the country to obtain a marriage license there.  I’d welcome any insights on the latter point, especially, by those who actually know something about marriage law there.

The annual conference will begin Monday and continue through Thursday morning.  It will be held at the Hyatt Regency Maui Resort and Spa on Maui, Hawai’i. Among this year’s highlights:

(1) Chief Judge Vaughn Walker will preside over the judicial breakfast on Tuesday morning.

(2) On the evening of Wednesday, Aug. 18, attendees will be treated to the music of a Hawaiian trio “while you stroll among traditional arts and crafts demonstrations and displays and observe the impressive torch-lighting ceremony.” This will be followed by an all-you-can-eat buffet and show featuring “authentic dances and music of old Hawai’i, Samoa, Tahiti and other Pacific islands.”

(3) On Thursday morning, Judge Alex Kozinski will introduce Circuit Justice Anthony Kennedy, who will deliver the keynote address, followed by the traditional “Conversation with the Justice.”

(HT: Lisa Leff and Rex Wockner)

but has decided to keep it in place until Aug. 18 at 5 p.m., “at which time defendants and all persons under their control or supervision shall cease to apply or enforce Proposition 8.”  The delay will allow the Ninth Circuit to hear the stay issue before any marriage licenses are issued.

Among other things, Walker concluded that because the governor and the state attorney general have so far decided not to appeal the original decision, and indeed opposed the stay, there is no party who has standing to pursue an appeal.  Specifically, the official Prop 8 proponents who defended the law in his court do not have standing, he held.  He granted them intervention in the lawsuit only as adjuncts to the state defendants.  But he did not resolve the question whether they have independent standing.  Since no party with standing is pursuing an appeal, there is no likelihood that his ruling will be overruled.

This is an issue that’s been kicking around the Intenet (for a good intro to the topic by an SSM supporter, see here), and was raised in the Plaintiffs’ opposition to the stay.  The official Prop 8 proponents apparently chose not to brief the standing issue in their support of a stay. It has been the great sleeper issue in the case.  Nevertheless, Judge Walker’s views won’t be the final word on the topic.

First comes love. Then comes marriage. Then comes the Gulag:

If this ruling [in Perry v. Schwarzenegger] is upheld, millions of Americans will face for the first time a legal system that is committed to the view that our deeply held moral views on sex and marriage are unacceptable in the public square, the fruit of bigotry that should be discredited, stigmatized and repressed. Parents will find that, almost Soviet-style, their own children will be re-educated using their own tax dollars to disrespect their parents’ views and values.

I can see it now, this post-Perry world, a land of:

hunger and frostbite, the lonely, disregarded deaths, the sadism and exploitation, the mothers snatched on the street without so much as a final goodbye to their families, the orphaned children dying of cold and starvation and neglect, the fear and mistrust felt between those who were randomly spared and those who were almost as randomly seized.

Be of good cheer, though, for it will only be almost this bad.

I’m still studying the decision today in Perry v. Schwarzenegger, which strikes down Prop 8 on both due process and equal protection grounds. I like a lot of the language, and the arguments, as a matter of rhetoric, common sense, and policy. There are some interesting twists on familiar arguments and, overall, the opinion is a pretty good compendium of a policy brief for SSM.

But my concerns about this decision outweigh what I see as its merits. In reading so far, I think a notable feature of Judge Walker’s decision is its judicial maximalism — a willingness to reach out and decide fundamental constitutional questions not strictly necessary to reach the result. It is also, in maximalist style, filled with broad pronouncements about the essential characteristics of marriage and confident conclusions about social science. This maximalism will make the decision an even bigger target for either the Ninth Circuit or the Supreme Court. If that’s right, it magnifies the potential for unintended and harmful consequences for gay-rights claims even beyond the issue of marriage. Think of a possible (but milder) anti-SSM version of Bowers v. Hardwick, which had consequences far beyond the constitutional affirmation of sodomy laws.

Walker is the first federal judge to hold that states must recognize same-sex marriages. By doing so, he eschewed a potentially narrower ruling striking down only Proposition 8, which had been suggested by some commentators. Such an alternative ruling would have focused on what critics regarded as the “animus” behind the passage of Prop 8. In theory, it would have left states free to retain traditional definitions of marriage not reinforced by passion-driven plebiscites. I think a narrow, strictly anti-Prop 8, decision would have tried to thread too thin a needle, but it was an option. Walker mentions anti-gay sentiment in the Prop 8 campaign, especially highlighting the shameful and misleading ads supporting it, but that is not the basis for his decision.

Instead, finding a federal right to same-sex marriage itself, Walker leans on not one but two prominent constitutional arguments. First, he says that the fundamental right to marriage protected by the Due Process Clause includes the right to choose the sex of one’s mate. That’s because, he writes, sex-based classifications in marriage have long since been stripped away.  The ban on same-sex marriage is the vestige of discredited and long-abandoned sex discrimination in marriage.

Few courts upholding a right to SSM have used a fundamental-rights rationale (not even the original SSM decision, Goodridge, did so). It’s an aggressive claim, especially given the composition of the federal courts and the Supreme Court. I see little enthusiasm in this Court for expanding fundamental rights. If the Ninth Circuit and/or Supreme Court decide to reverse Walker’s ruling, they will be more likely to deal with this issue in a way that will set broader precedent. A minimalist decision for SSM by Walker could have left this matter undecided and thus would not have forced a higher court’s hand.

Second, Walker held that the ban on gay marriage violates the Equal Protection Clause.  The interesting question is why. In part of Walker’s opinion, he accepts the case for heightened scrutiny of classifications based on sexual orientation and asserts that denying marriage to same-sex couples is a form of sexual-orientation discrimination (and sex discrimination, which is related).

But he then concludes that because laws limiting marriage to opposite-sex couples are not rational, “the court need not address the question whether laws classifying on the basis of sexual orientation should be subject to a heightened standard of review.” If that’s true, why address the issue at all? He may be hoping, in maximalist fashion, to lay some foundation for future courts to apply strict scrutiny to sexual-orientation discrimination. But at the same time, leaving the intellectual structure unfinished, he invites a higher court to undermine it.

Walker then rejects as irrational each of the reasons offered for Prop 8, including tradition, procreation, and the need to proceed cautiously and incrementally on matters involving important social change. The biggest difficulty with his argument on these matters, as I see it, is that he thinks of gay marriage as a technical change in the law about which there is no need to proceed cautiously. California has enough printers and paper to issue the additional marriage licenses, so what’s the big deal?

The decision, as I read it, relies directly or indirectly upon every prominent constitutional argument for SSM. One could say this is a strength of the decision. If a higher court doesn’t like one reason, it might accept another. But it is also a weakness of the decision, from a gay-rights litigation perspective, since it invites a higher court to address them all if it decides to reverse the result. A sweeping victory becomes a sweeping defeat.

Judge Walker, I am sure, would deny that his decision is maximalist. SSM, he assures us, is not a “sweeping” change. Furthermore, his decision is couched in the lop-sided evidence presented at trial about marriage and the potential consequences of recognizing SSM.  By my count, he uses the word “evidence” 54 times in the “Conclusions of Law” section alone. This evidentiary reliance will be used to try to insulate the decision from meaningful appellate review.  The evidence just leads us, inescapably, to the conclusion that SSM is a neutral or even good thing. What’s more, the evidence is so one-sided that judges are entitled to say so as a matter of constitutional law. But I have never been convinced that the issue of gay marriage would be decided, in courts at least, by a battle of expert witnesses in the way we might decide whether a Pinto is unreasonably dangerous.

Gay-rights groups, you may recall, initially opposed the Prop 8 litigation on the grounds that it was too much, too soon. Though they are publicly  celebrating this ruling, I imagine in the background there is considerable unease about what happens next. The Supreme Court, they reasoned in early 2009, was not ready to declare a right to SSM. Premature litigation, they feared, would do more harm than good (even if there were a temporary win at a lower level). Well, nothing has changed except that the stakes have been considerably raised today in a maximalist decision, bringing us one step closer to Perry v. Schwarzenegger, ___ U.S. ___ (201_) (reversing lower court ruling for same-sex marriage on due process and equal protection grounds).

San Francisco District Judge Vaughn Walker today struck down California’s Proposition 8, the initiative passed by the state’s voters in 2008 defining marriage as the union of one man and one woman.   I’m reading the decision now.

It won’t be the last word on Prop 8, of course. Supporters of the ban on gay marriage will now ask the Ninth Circuit to reverse and, failing that, head to the Supreme Court.

A decision in the federal Prop 8 case is expected tomorrow.

Massachusetts District Court Judge Joseph Tauro issued two decisions in companion cases Thursday striking down Section 3 of DOMA, which defines marriage as the union of one man and one woman for purposes of federal law.  It’s the first time any federal court has declared any part of DOMA unconstitutional. One decision, Gill v. Office of Personnel Management, did so on equal protection grounds (via the Fifth Amendment). The second decision,  Massachusetts v. Dep’t of Health & Human Services, did so on federalism grounds. In this post I’ll concentrate on the equal protection decision. In a separate post I’ll have some reactions to the federalism decision.  (The decisions do not affect DOMA Section 2, which allows states to refuse to recognize SSMs from other states.)

Gill was filed last year by Gay & Lesbian Advocates & Defenders, the same group that sued Massachusetts for same-sex marriage and won a huge victory in 2003 in Goodridge. It was brought on behalf of seven same-sex married couples and three survivors of same-sex spouses who applied for, and were denied, various federal benefits to which opposite-sex married couples would have been entitled.  The various benefits are described at pp. 6-14 of the opinion, but are only a few of the 1,138 benefits identified by the U.S. Government Accountability Office that arise from federal law alone.

Analytically, the Gill decision is like the state court decisions rejecting common rationales for limiting marriage to opposite-sex couples.  The court doesn’t hold that sexual-orientation discrimination is subject to strict scrutiny or that there is a fundamental right to marry that includes same-sex couples. Instead, applying the increasingly non-deferential rational basis test, the court concludes that there is no legitimate purpose rationally served by denying federal benefits to same-sex married couples while giving the same benefits to opposite-sex married couples.  Previous state court decisions, like Goodridge, have also held that traditional marriage limitations are irrational.  

What makes the case a bit different from some of the state cases are (1) the Obama Justice Department’s abandonment of the classic rationales for limiting marriage to its traditional understanding, and (2) the peculiar federal dimension involved. 

Congress gave four basic reasons for Section 3: (1) encouraging responsible procreation and child-bearing, (2) promoting traditional heterosexual marriage, (3) defending traditional notions of morality, and (4) conserving scarce resources. The Obama Department of Justice conceded that none of the four were rationally served by Section 3. Op. at p. 23. 

Nonetheless, the court attacked them. As for the first — encouraging responsible procreation and child-rearing — the court treats as settled the debate over whether children do as well with gay parents as with heterosexual ones.  Op. at 23-24. It is not even a rationally debatable question, says the court, based on the consensus among learned family experts that has emerged since 1996.  But even if that question were rationally debatable, refusing to recognize same-sex marriages does nothing to make heterosexuals more responsible procreators and parents. Op. at 24. And, with what I’m guessing was particular glee, Judge Tauro cites Justice Scalia’s dissent in Lawrence v. Texas for the proposition that the ability to procreate has never been a precondition for marriage. Op. at 24-25. Justice Scalia’s dissent in Lawrence is effectively the first draft of a brief for SSM.

The second congressional rationale — promoting the traditional institution of marriage — was unavailing since it’s not likely that state-recognized same-sex spouses would seek opposite-sex marriages. And punishing same-sex spouses in order to make opposite-sex marriages seem more desirable would be just another way to express disdain for a politically unpopular group. Op. at 25-26.

The third rationale — promoting traditional morality — is insufficient after Lawrence.  Op. at 26. No opinion in Lawrence was clearer on the constitutional demise of morality than was Justice Scalia’s dissent.

And the final congressional rationale — conserving resources (by providing them only to certain married couples) — could not explain why Congress chose to draw the line in this particular way. Op. at 26-27.

That left the DOJ to hypothesize some possible justifications for Section 3. One was to say that Congress had an interest in preserving the status quo at the federal level on a contentious and evolving social question.  Congress had a legitimate interest, said the DOJ, in staying out of the debate over marriage and letting the states resolve it.  Judge Tauro responded that in fact DOMA changed the status quo at the federal level — from one in which the federal government had historically relied solely on states to determine the meaning of marriage to one in which Congress would now weigh in with its own understanding.  Op. at 28-35.

A related justification, said the DOJ, was Congress’ interest in moving incrementally on the issue.  The court rejected that justification on the ground that no federal administrative burden was eased by excluding married same-sex couples and that DOMA itself barred incremental evolution at the federal level. Op. at 35-37.

What also makes Gill (potentially) distinguishable from the state marriage decisions is the federal context.  Failing a legitimate justification, the court says, there is nothing to explain the 1996 federal law except animus against gay people. That animus was displayed in the cavalier way Congress passed DOMA without examining its extensive effects, op. at 5-6, and in the moral condemnation expressed in both the statutory text and in many statements by members of Congress. Op. at 5 (noting congressional remarks) and at 5, 26 (noting congressional moral disapproval of homosexuality). 

The relatively recent enactment of DOMA, the legislative history, and the specific purpose of excluding gay couples, may make an animus conclusion more likely in the case of Section 3 (or Prop 8, or a state DOMA) than in the case of a simple, long-standing state definition of marriage. Add to that the passage of DOMA against a tradition of almost total federal deference to the states in recognizing marriage, and you have the possibility of a holding limited to the DOMA context.

I say “possibility” because I think that reading of Gill is probably not the one either side in the debate will readily adopt, and not the one that will prevail. Gill is the potentially more radical of Thursday’s decisions for SSM in the sense that its rationale could be used by other federal courts to strike down state marriage and state DOMA laws (and could provide one more paragraph in Judge Vaughn Walker’s expected decision striking down Prop 8, coming soon to a blog near you).  Thus, it also stands a better chance of being reversed by the First Circuit or, failing that, by the Supreme Court.  

HHS, the federalism decision, is more limited for SSM since its rationale wouldn’t apply directly to state marriage or state DOMA laws. But its potential effects on federal control over federal programs, especially those administered by the states, raise large questions of their own.

Either way, I have a hard time believing that DOMA Section 3 will be struck down without some input from the Supreme Court. And taken together, the decisions today present a bit of an irony: what the court giveth to the states in HHS (the full power to decide for themselves the meaning of marriage, as against Congress) it taketh away from the states in Gill (the full power to decide for themselves the meaning of marriage, as against federal courts).

On the whole, I don’t think Gill is one of the stronger judicial opinions supporting SSM.  Its reasoning is too cursory.  It doesn’t rely on the more obvious and to me more defensible argument: that discrimination against gays and lesbians is constitutionally suspect, deserving strict scrutiny.  And unless reversed by the First Circuit, Gill could turn out to be a short-lived and expensive victory for SSM when it reaches the Supreme Court (assuming the Prop 8 case doesn’t get there first).

That’s the decision this afternoon, based on equal protection principles applied to the federal government through the Fifth Amendment’s Due Process Clause.  Section 3 of the Defense of Marriage Act of 1996 established a federal definition of marriage for the first time.  This meant that the federal government could refuse to grant validly married same-sex couples the federal benefits and privileges accorded opposite-sex married couples.  I’m still looking at the decision and will probably post soon.

UPDATE: In a companion case, the same judge has ruled that DOMA intrudes on the Tenth Amendment powers of the states.  Very interesting.

The veto by Linda Lingle, a Republican, came after the bill had passed the state house, 31-20, and the state senate, 18-7. Now Lambda Legal will sue for civil unions in state court on state constitutional grounds.

The state constitution was amended in 1998 to give exclusive control over the definition of marriage to the state legislature. The amendment was spurred by the decision of the state supreme court in Baehr v. Lewin, holding that the restriction of marriage to opposite-sex couples is a form of sex discrimination.  Because of the amendment, Lambda acknowledges that it cannot sue for SSM under the state constitution. But it will now apparently argue that the amendment does not prevent state courts from ordering the recognition of identical legal rights and obligations under a different status.

Minnnesota District Judge John Tunheim has denied a temporary restraining order sought by Twin Cities Pride (TCP) to prevent an anti-gay preacher from distributing literature and displaying signs inside the park where TCP has a permit for the annual gay pride festival.  (The desision is here.  I wrote about some of the basic issues here.). Twin Cities Pride (TCP) pays the Minnesota Park and Recreation Board (MPRB) more than $36,000 annually to use the park for the festival.  TCP also pays thousands of dollars for security and insurance. But this year, for the first time, the MPRB decided that unauthorized literature distribution and signage must be allowed in the permit area.  Judge Tunheim held that TCP’s proposed restrictions on the preacher’s activities were too broad as a limitation on speech in a traditional public forum. 

In a footnote in his opinion, however, he did suggest that “free speech zones” within the permit area could be set up in which anti-gay (and other) literature could be distributed and signage could be displayed: 

 In theory, Twin Cities Pride could designate “free speech zones” on the Pride Festival grounds in which anyone who wishes to distribute literature or display signage may do so. MPRB police could enforce that area as a content-neutral restriction – assuming that those free speech zones provide attendees with ample alternative channels of expression, and assuming that oral communication would be permitted throughout the public forum. Attendees would thus have the opportunity to “reach the minds of willing listeners,” and Twin Cities Pride would have the opportunity to disclaim the content of such expression.

The problem, as suggested by Judge Tunheim, is the “in theory” part.  Numerous practical questions arise.  And a group of TCP volunteers stretched to capacity preparing for the arrival of hundreds of thousands of people starting tomorrow already have a lot of responsibility on their hands.

Must an expressive association that paid for a permit in a public park to advance its message include someone using the event to convey an opposing message? Specifically, must an anti-gay preacher and others be allowed to condemn homosexuality in signs and literature by roaming the permit grounds of a gay-pride celebration?

For more than 30 years, gay-rights organizers have annually paid for a permit to hold a gay-pride festival in a small park near downtown Minneapolis.  Last year this cost amounted to more than $36,000 in fees and proceeds paid to the Minneapolis Park and Recreation Board (MPRB), which is run by elected commissioners.  More than 400,000 people attend the 2-day festival. The non-profit and mostly volunteer group that runs and pays for the event, Twin Cities Pride (TCP), does so in order to celebrate “Pride,” and to promote equality and acceptance for GLBT people.

Other gay-supportive organizations and vendors are required to distribute literature and display signs only from individual booths, which are approved by TCP if their message is consistent with the Festival message. Other restrictions are imposed to limit littering (for which TCP is responsible) and to maintain crowd control and pedestrian flow. The booths are charged fees that help defray the cost of post-event cleanup, the permit fees, insurance, and contribute significantly to TCP’s annual budget.

This year, an anti-gay activist and preacher named Brian Johnson and his family have insisted that they be given access to the permit grounds during the hours of the festival in order to display signs, distribute literature, and peronally counsel attendees with an opposing  message: that homosexuality is sinful and must be condemned rather than accepted.  Johnson was arrested for trespass last year after he confronted some festival-goers with his message of repentance and condemnation.

Facing potential litigation, the MPRB agreed to the demands of Johnson’s lawyers at the Alliance Defense Fund, one of the most active litigation outfits opposing gay equality around the country. In response, TCP is threatening its own lawsuit against the MPRB.

The basic claims are these. On the one hand, Johnson claims a First Amendment right to enter a park ordinarily open to the public in order to express his views condemning homosexuality. He says this includes the right to move around the permit grounds among the crowd distributing literature and displaying signs.  He cites some appellate and lower court decisions that have indeed allowed persons with anti-gay messages, under some circumstances, to enter the areas of gay-pride celebrations.

On the other hand, relying on the Supreme Court’s decision in Hurley v. GLIB (allowing permit-bearing Irish parade to exclude gay contingent), TCP claims that it cannot be forced to include speech from an active participant — one who distributes literature and displays signs — whose message is diametrically opposed to its own within the boundaries and during the times in which it has obtained a permit to craft its own message of acceptance of homosexuality. His active presence on the festival grounds may mistakenly be perceived as reflecting TCP’s judgement that his religious views are worthy of presentation as part of a range of views about homosexuality or to express a liberal tolerance for messages of condemnation. It would be impractical to disclaim the message of one or more moving counter-speakers. (Disclosure: I have advised Twin Cities Pride on the matter.)

I may have more to say as this develops. I’ve left out a lot of details, some that don’t matter much and some that may end up mattering a lot.

Like the trial, the closing arguments in the Prop 8 case are not available by video. But you can read a live transcript of the arguments here. It will continue into the afternoon.

Hard to imagine on the day when you set aside $20 billion to pay claims, but this is an instant classic of bad PR: “We care about the small people.”

The vote in the parliament was 49-0. The bill must be approved by the president. Of interest: the legislature simultaneously ended domestic partnerships, which had been available only to same-sex couples as a substitute for marriage.

What happened last week to the federal ban on military service by gays and lesbians? Chris Geidner has an excellent summary of the developments.

The Senate Armed Services Committee has just voted 16-12 to repeal Don’t Ask, Don’t Tell. The repeal would take effect after the release of a Pentagon study on how (not whether) to repeal the policy and after both the president and Defense Department have certified that the repeal will have no detrimental effect on recruitment, retention, unit cohesion, and so on. The House will vote soon. 

Meanwhile, Republican House members are taking the floor to complain that gay military personnel are trying to push their “overt” sexuality on others “in a bunker where they’re confined under fire,” that they “don’t care” about the military, and that they’re exploiting the armed forces for some kind of “liberal social experiment.”  Perhaps, but it appears 78% of Americans, including a majority of Republicans, are flaming liberals on this one.

UPDATE: The House of Representatives has voted to repeal DADT. The vote was 234-194, with only five Republicans supporting it and 26 Democrats opposed.

[youtube]http://www.youtube.com/watch?v=ZnBYiHHAifU[/youtube]

to a repeal of Don’t Ask, Don’t Tell. Sen. Ben Nelson (D-Nebraska) has now said he will vote for repeal, Politico reports:

“I don’t believe that most Nebraskans want to continue a policy that
not only encourages but requires people to be deceptive and to lie.
The ‘Don’t Ask, Don’t Tell’ policy does just that,” Nelson said. “It
also encourages suspicion and senior officers to look the other way.
In a military which values honesty and integrity, this policy
encourages deceit.”

“I will support the Lieberman compromise because it removes politics
from the process. It bases implementation of the repeal on the
Pentagon’s review and a determination by our military leaders that
repeal is consistent with military readiness and effectiveness, and
that the Pentagon has prepared the necessary regulations to make the
changes,” he said, adding that he spoke with Defense Secretary Robert
Gates about the issue.

“He advised that while he preferred waiting until the study is
completed, he can live with this compromise,” Nelson said.

Add that to pledges from Susan Collins (R-ME) and moderate Democrats Evan Bayh (Indiana) and Bill Nelson (Florida) to support repeal. While some gay activists and analysts have denounced the proposal as too weak because it does not actually require the military to stop discharging gay personnel, that criticism is misplaced. This is a “compromise” that eviscerates the statutory basis for the 16-year-old policy.

UPDATE:  Developments are coming quickly.  The Weekly Standard says that Sen. John McCain is organizing resistance to the repeal, releasing letters from the heads of the military branches opposing it until the Pentagon review of the policy is completed in December.  By then, it would be much more difficult to repeal the policy because a repeal would be subject to filibuster.  Additionally, action after this year would be more difficult because the next Congress is likely to be less supportive of repeal.

FURTHER UPDATE: The duel of generals has begun. Former Joint Chiefs Chairman General John Shalikashvili responds to the military chiefs. Even Sen. Robert Byrd (D-WV) is on board. That makes 16 votes on the Senate Armed Services Committee.

A deal is in the works to add a repeal of Don’t Ask, Don’t Tell to this year’s Defense Authorization bill, the method by which it was originally made law. It’s not clear that the votes are there in the House to do it, and if they aren’t there this year they’re unlikely to be there in the next Congress. It would not be subject to filibuster in the Senate. 

The repeal is limited in one sense. It does not ban discimination against gays in the militery. It returns the status quo ante DADT in 1993 when the president had sole authority to set military personnel policies on gays. The difference is that now the president has promised to reverse the old policy after a study is issued in December on how to implement the change. 

In theory, the next president could reassert the ban. But that’s very unlikely to happen once gays are serving openly. Liberalization of anti-gay public policy tends to be governed by one-way ratchet. Plus, the experience in other countries has been that allowing service by openly gay personnel presents no real problems for recruitment, retention, or discipline, and controversy about it quickly subsides.

He’s just been appointed by Gov. Pawlenty to the Minnesota Supreme Court.  David has been a friend and colleague at the University of Minnesota Law School since 2004.  It is a richly deserved honor and he will be an excellent jurist.

I don’t care whether they’re straight, gay, lesbian, bisexual, transgendered, queer, questioning, two-spirit, men-who-have-sex-with-men, womyn-loving-womyn, autosexual, or beyond categorization. I know it matters to some gay-rights activists who think every gay nominee is practically gay-bashing unless she starts her testimony with, “I am a gay American judicial nominee…” I know it matters to some anti-gay-rights activists who think every Kinsey 1 or above signs a secret pledge to promote the Protocols of the Elders of San Francisco. But I really, actually don’t care. 

In fact, if I think of it at all, I prefer to think of these folks as asexual. It helps me get on with the day.

I admire the fact that Elena Kagan made it a point to hire prominent libertarians and conservatives while she was dean at Harvard.

It’s difficult to get many American law schools, dominated by a broadly and comfortably liberal consensus across almost every field, to recognize the importance of ideological diversity among faculty. That’s true for hiring both libertarians and conservatives, but especially the latter. It’s not that law schools flatly refuse to hire them. Most academics have a richer regard for intellectual freedom and discussion than that. They are not so crudely intolerant of dissenting views.

Instead, the process of ideological self-replication in hiring is more insidious. Whatever our views, we are more likely to admire work that broadly agrees with our own than to admire work that profoundly disagrees with our own. So we say, “I’d welcome someone who disagrees with me (on conclusions, methodology, etc.), but this person does poor scholarship, is not ‘collegial,’ etc. Next.” 

Overcoming this intellectual narcissism requires a conscious effort (a) to recognize that it exists, (b) to say so openly, and (c) to make real efforts to counter-balance it in generating the pool of candidates and in reviewing scholarship. It goes without saying that qualitative standards should not be lowered to hire conservatives or anyone else. It’s similar to the way in which overcoming racism and sexism in hiring requires a certain self-consciousness and self-criticism. (And no, I’m not saying that conservatives and libertarians are oppressed.)

While dean at Harvard, Kagan not only hired conservative scholars, but hired openly, prominently, and controversially conservative scholars. These included Adrian Vermuele and Jack Goldsmith from Chicago, and John Manning from Columbia. These were no squishes getting strange new respect from liberals.  They defended heresies about international law, executive power, constitutional and statutory interpretation, and so on. Given Harvard’s hiring track record before she took charge, bringing in such people can’t have been universally appreciated. It took leadership.

Of course, as David has pointed out, professors of the quality Harvard hired were not obscure. They were established scholars with long and distinguished publication profiles. But much as I wish it were, Harvard isn’t in the business of lifting unknowns, liberal or conservative or other,  from obscurity at Podunk U. And there have been excellent libertarian and conservative scholars not hired by law schools where they should easily have placed. Kagan broke and discredited this practice at the country’s top-ranked law school. One can hear the question now being asked around the country: If Harvard can hire conservatives, why can’t we?

How much does this matter for Kagan’s nomination?  Some, but it’s hardly dispositive. At one level, Kagan was just being a smart dean, thinking of the long-term interests of the school. But it’s not like Harvard was facing a crisis because it lacked right-wingers. Obviously, commitment to ideological diversity would not be adequate compensation for a candidate who’s otherwise unqualified by inexperience or temperament, or one whose judicial philosophy is unsuitable for the Supreme Court.

But Kagan’s decanal record does suggest an openness to opposing views, a seriousness about ideas, and perhaps a willingness to be persuaded. Those are some of the qualities I’d want to see in a judge. And they are qualities that ought to give some comfort to conservatives and libertarians facing the prospect of Justice Kagan, ca. 2040.

A lawsuit has now been filed in a Minnesota state court challenging the exclusion of same-sex couples under the state constitution. It makes the usual claims about due process and equal protection, but adds especially adventurous claims based on “freedom of conscience” and “association.”  The plaintiffs are sympathetic, including a couple of 36 years who don’t feel they have the time to wait 10 or 20 years for the state legislature to do something to protect their relationship.

This is, however, an especially reckless lawsuit. Close followers of the state courts know that the chances of ultimate success are low. The Minnesota Supreme Court was the first in the country to reject a constitutional right to same-sex marriage in Baker v. Nelson in 1971.  There is no reason to think the court is ready to overrule its decision.

The main gay civil rights groups in Minnesota are not supporting this litigation. Reputable law firms would not take it because they know it would make unfavorable precedent.  The solo practitioner who filed it is unknown as an advocate for gay and lesbian causes (but you can follow him on Twitter!). I had never heard of him before today, but a quick Google search turned up a license suspension in Minnesota and Wisconsin for professional misconduct. Olson & Boies it is not.

Aside from the legal problems, there is potential political damage, especially as this fall’s election arrives. The state legislature recently held its first hearings to recognize SSM and is considering legislation to facilitate end-of-life decisionmaking by domestic partners. Some legislators may use the existence of litigation as an excuse to do nothing. Others will use it to stoke exaggerated fears about black-robed Minnesota tyrants.

One way or another, sooner or later, this case will go away. The only question is how much damage it will inflict between this day and that one.