GLAD, the organization responsible for one of the DOMA lawsuits, told the Blade the 60 days in which the Justice Department can decide whether or not to appeal the cases hasn’t yet started.

Carisa Cunningham, a GLAD spokesperson, said the time starts when “judgment is entered,” which she said usually doesn’t happen at the same time a court issues a decision.

“So, we’re still waiting for judgment to be entered, and when it is, then the clock will start ticking,” she said.

Many had thought the 60 days began on July 8 when U.S. District Judge Joseph Tauro of the U.S. District Court in Massachusetts issued his decisions striking down part of DOMA.

Cunningham said getting a final judgment means having a document outlining what a court is ordering in a particular case.

“In our case, we thought the most efficient way to get a final judgment would be for both sides to work to an agreed-upon document, and we are working to finalize it right now,” she said.

Cunningham said putting a timeline on when this judgment will be final is difficult, but said the document will probably be finished within a week.

The court determined Section 3 of DOMA, which prohibits federal recognition of same-sex marriages, is unconstitutional in two separate court cases — Gill v. Office of Personnel Management and Commonwealth of Massachusetts vs. Department of Health & Human Services.

Cunningham said the timeline will be on the same track for both the Gill case and the Commonwealth case.

Melba Abreu & Beatrice Hernandez are plaintiffs in the case Gill et al. v. Office of Personnel Management et al. (Photo courtesy GLAD)

A federal court in Massachusetts has issued two decisions finding that part of the Defense of Marriage Act is unconstitutional in response to legal challenges against the statute.

Judge Joseph Tauro of the U.S. District Court of Massachusetts ruled July 8 in the case of Gill v. U.S. Office of Personnel Management that DOMA violates the Equal Protection Clause of the U.S. Constitution.

In his decision, Tauro writes that “only sexual orientation” differentiates married couples that can receive federal benefits and those who cannot.

“As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution,” he writes.

In a separate decision in the case of Commonwealth of Massachusetts v. Department of Health & Human Services, Tauro concludes that regulating marriage is a state’s right under the U.S. Constitution’s 10th Amendment. He says that DOMA violates this right for Massachusetts.

“The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment,” Tauro writes. “For that reason, the statute is invalid.”

In a statement, Freedom to Marry Executive Director Evan Wolfson praised the court for its decision in the Gill case.

“Today’s ruling affirms what we have long known: federal discrimination enacted under DOMA is unconstitutional,” he said. “The decision will be appealed and litigation will continue. But what we witnessed in the courtroom cannot be erased: federal marriage discrimination harms committed same-sex couples and their families for no good reason.”

Brian Brown, president of the National Organization for Marriage, which opposes marriage rights for LGBT couples, criticized the decisions and Tauro’s willingness to overturn DOMA.

“With only Obama to defend DOMA, this federal judge has taken the extraordinary step of overturning a law passed by huge bipartisan majorities and signed into law by President Clinton in 1996,” Brown said. “A single federal judge in Boston has no moral right to decide the definition of marriage for the people of the United States.”

Brown attributed the rulings to the failure of U.S. Solicitor General Elena Kagan to defend DOMA adequately. Her nomination to become an associate justice for the U.S. Supreme Court is pending before the U.S. Senate.

“Under the guidance of Elena Kagan’s brief that she filed when she was solicitor general, Obama’s Justice Department deliberately sabotaged this case,” Brown said.

The rulings came in response to separate legal challenges filed last year by Massachusetts Attorney General Martha Coakley and Gay & Lesbian Advocates & Defenders.

During a conference call Thursday, Coakley said the court rulings were “a landmark decision” and a “very important step toward achieving equality for all married couples, particularly here in Massachusetts.”

“We believe that today is a victory for civil rights in Massachusetts and I hope progress toward the understanding of all as to why marriage equality is a civil rights issue,” she said.

Janson Wu, staff attorney for GLAD, said, “it’s almost certain” that both decisions will be stayed upon appeal to a higher court and that access to federal benefits for married same-sex couples right now is “almost somewhat an irrelevant point.”

“I think it’s safe to say that it’s likely that the judgment for both cases will not go into effect while the case is being appealed,” Wu said.

Both lawsuits in which the court reached decisions were aimed at Section 3 of DOMA, which prohibits the federal government from recognizing same-sex marriages.

But Doug NeJaime, a gay law professor at Loyola Law School, said the result of the Gill case doesn’t necessarily mean an end to Section 3 of DOMA, but only the programs to which the plaintiff couples in the case were denied access.

“This decision itself, while it puts pressure on Congress to repeal DOMA and provide case law in which to have broader challenges, it’s just sort of an initial chipping away at Section 3,” he said.

Nan Hunter, a lesbian law professor at Georgetown University, said her understanding of the Gill lawsuit is that it “only deals with the particular programs that these plaintiffs were challenging.”

“However, if they sustain this victory on appeal, there won’t be anything left of Section 3 of DOMA,” she said. “It won’t make sense for a court to uphold it as to any other provisions of federal law.”

NeJaime said the Gill opinion could set precedent that would influence marriage lawsuits elsewhere. In particular, NeJaime noted a passage in which Tauro discusses the relationship between procreation and marriage.

“This court can readily dispose of the notion that denying federal recognition to same-sex marriages might encourage responsible procreation, because the government concedes that this objective bears no rational relationship to the operation of DOMA,” Tauro writes.

The judge adds “a consensus” has emerged among the medical and psychological communities that children raised by LGBT people “are just as likely to be well-adjusted as those raised by heterosexual parents.”

NeJaime said Tauro’s decision to make this point as part of his ruling is “very relevant to broader analysis of the right to marry for same-sex couples.”

“I think he’s going down that path in a way that other courts might look to it,” he said.

NeJaime said this reasoning could be applied in the case of Perry v. Schwarzenegger, a legal challenge against the ban on same-sex marriage in California that is pending before Judge Vaughn Walker in district court.

Although social conservative groups defending the ban in this case have used the argument that marriage is for procreation, NeJaime said the Gill decision can provide a reference to counter that rationale.

“I think Judge Walker can look to not only the federal government’s rejection of those rationales in the DOMA cases, but this judge’s reasoning about why that’s not a good interest anyway,” NeJaime said.

Appeals likely for lawsuits

According to GLAD, the next step in the Gill case is for the federal government to decide whether it will appeal to the U.S. First Circuit Court of Appeals. That decision is expected within the next 60 days.

Tracy Schamler, a spokesperson for the U.S. Justice Department, said last week the Obama administration was still “reviewing the decision.” Many observers expect the rulings to be appealed.

Gary Buseck, legal director for GLAD, said he believed the Justice Department would have to appeal the decisions.

“Everyone tells us — and it seems to be true — that the executive branch has a responsibility to defend acts of Congress and it would be very difficult for them not to take an appeal of this,” he said. “I suppose anything is technically possible, but I think it would be unusual for them — highly unusual — for them not to appeal this decision from the judge.”

NeJaime said he also believed the Justice Department would appeal the decisions, although he didn’t believe the administration is required to do so.

“It’s certainly conventional to see a case like this [go] up the appeals chain, but there’s instances in which the government loses at the district court level and then there’s a policy change, so there’s nothing that forecloses that,” he said.

Still, Buseck said having a win at a lower court is helpful going into appeal and that Tauro wrote a “strong opinion” that will be helpful if the case goes to a higher court.

“We’ve got a platform, which is about the best possible platform we can have going to the First Circuit,” Buseck said.

NeJaime said the plaintiffs would have an added edge upon appeal with the Gill case because Tauro didn’t apply heightened scrutiny or consider LGBT people a suspect class in his opinion.

“If you went down the path of there’s a fundamental right because of the family relationship or sexual orientation as a suspect class, it would provide a sort of threshold question for both the Court of Appeals and the Supreme Court to really say, ‘Oh, he got it wrong,’ and then the rest of the analysis then sort of goes out the window,” NeJaime said.

Hunter said she believed having the case be appealed and succeed at a higher court would be beneficial in the effort to overturn DOMA.

“To have DOMA struck down by just one judge’s opinion — it’s not a very strong basis for getting rid of the statute,” she said. “So personally — and this is probably a reflection that I’m pretty optimistic about the overcome of repeal — I think we may better off, frankly, if they do appeal it and it goes to the U.S. Court of Appeals and wins in the Court of Appeals.”

In response to a Blade inquiry on whether Obama was supportive of the court decision, Gibbs replied, “Let me — I’ll point you to the Department of Justice on that.”

Last week, the U.S. District Court in Massachusetts determined in response to two legal challenges that Section 3 of DOMA, which prevents the federal government from recognizing same-sex marriage, is unconstitutional.

The Justice Department is expected to appeal the decision to the U.S. First Circuit Court of Appeals within 60 days of last week’s ruling.

Gibbs ended the White House press conference after responding to the Blade inquiry on DOMA.

The exchange between the Blade and Gibbs during the press conference follows:

Members of the newly re-launched LGBT Congressional Staff Association intend to focus on networking and behind-the-scenes policy work. (Washington Blade photo by Michael Key)

Openly gay staffers on Capitol Hill could find new opportunities to network and advance pro-gay legislation now that an LGBT staff association has returned following a period of dormancy.

The group, named the LGBT Congressional Staff Association, seeks to facilitate communication among LGBT staffers working for members of the U.S. House of Representatives.

Scott Simpson, deputy press secretary for Rep. Marcia Fudge (D-Ohio), officially took the reins of the organization Monday after dues-paying members voted him and other new board members into leadership roles.

In a Blade interview, Simpson, who’s 26 and gay, said the organization plans to take a low-profile approach to advance the needs of LGBT staffers and advance pro-LGBT policy in Congress.

“We’re uniquely positioned to work with a targeted audience and work with however many hundreds of Hill staffers we can find,” he said. “We’re not going to be out there trying to get the [Washington] Post to quote us or anything; we’re going to be building relationships.”

The group’s re-launch comes after an earlier version of the organization was founded about 15 years ago.

Simpson said the group — previously known as the Gay & Lesbian Congressional Staff Association — was founded to draw attention to the presence of LGBT staffers on the Hill.

“It was a very big deal, at least for us, on the Hill when it got started,” Simpson said. “It did a lot of good stuff for visibility at the time when there were some congressmen who outright said, ‘We would never hire a gay staffer.’”

Simpson said the LGBT Congressional Staff Association responded at the time by having press conferences to “show that there are actually LGBT people” who work on Capitol Hill.

In recent years, Simpson said the organization had the appearance of being dormant because it was continuing a commitment made when it was founded of protecting the identities of members who weren’t openly gay.

“They wanted that soft influence on policy and they wanted to protect the identities of their staffers, and that doesn’t lend itself to being the most vocal organization,” he said.

But Simpson said LGBT staffers on the Hill in recent months wanted to give new life to the organization, to make it more open and “continue on with the legacy of breaking barriers” that emerged when the association was founded.

Simpson said the group has been in the process of being reinvented for the past three to six months and, as part of its re-launch, tweaked its bylaws and took on the LGBT Congressional Staff Association name.

New goals for the organization include developing a web site and forming a women’s caucus that will have its own specific programming.

The organization’s membership varies widely depending on how it’s counted. Simpson said there are about 50 dues-paying members, but 400 are registered on the group’s e-mail list. One task the organization is considering, Simpson noted, is some type of “census” to determine how many LGBT staffers work on the Hill.

Simpson said the number of LGBT people working as Capitol Hill staffers might surprise those living outside the Beltway. He also noted that LGBT staffers “don’t line up with any particular caucus,” and can be found working with either Democratic or Republican members.

“There are a lot of LGBT staffers on the Hill and that’s a strength that we can tap into,” he said.

Some established and notable LGBT staffers comprise the LGBT Congressional Staff Association board. Diego Sanchez, who’s transgender and senior legislative adviser to Rep. Barney Frank (D-Mass.), will serve as policy director for the organization.

In a statement to the Blade, Sanchez said he’s honored to be the first openly transgender board member of the re-launched organization.

“The new bylaws and my corporate career expertise in diversity management will let me lead and work with my staffer colleagues to fortify how current laws and issues affect us and to repair any gaps to enrich the lives and careers of current and future LGBT people working on the Hill,” he said.

Group will work to influence LGBT policy

Simpson said the organization would work to influence LGBT policy matters related to bills on Capitol Hill, such as the Employment Non-Discrimination Act and repeal of “Don’t Ask, Don’t Tell.”

He said he wants to network with LGBT staffers to educate them on the issues and expand the number of co-sponsors on those bills.

“We’re going to be doing training and education on that,” he said. “We want to make sure that we are connecting and networking as many of these gay staffers in every office, in every party across geography to know what’s up.”

Simpson said one bill his organization is particularly pushing is the Domestic Partnership Benefits & Obligations Act. The legislation would make same-sex partners of federal workers eligible for the same benefits available to the spouses of straight workers, including health and pension benefits.

Repealing the Defense of Marriage Act, a move that would allow the federal government to recognize same-sex marriages, is another issue in which Simpson said his organization would be involved. With same-sex marriage now legal in D.C., he noted that many LGBT staffers are able to marry and want the federal benefits associated with marriage.

“Those directly affect our members because the federal government is prohibited from recognizing the validity of our relationships,” he said.

Additionally, Simpson said a goal of the organization is advancing the careers of LGBT staffers so they can serve in positions that give them more influence to move pro-LGBT legislation through Congress.

“If a job opens up that someone wants, we’re going to get together to use our network as a group to figure out how we can best get the person in this position, if they’re qualified for it,” he said.

But group activities won’t be all work. Simpson said networking opportunities would also include recreational events, such as happy hours.

“A lot of it is getting together and going to happy hours, just meeting and greeting, even in a non-drinking setting, believe it or not,” he said.

Elected officials have been helping re-launch the LGBT Congressional Staff Association. The openly gay members of Congress — Reps. Barney Frank (D-Mass.), Tammy Baldwin (D-Wis.) and Jared Polis (D-Colo.) — have sponsored the organization as an official staff group.

In a statement, Baldwin said she’s proud to sponsor the organization because LGBT staffers work in many capacities on the Hill for members of both parties.

“I’m very pleased to support this new iteration of the LGBT staff association,” she said. “In addition to serving as a networking and social group, this organization will help us advocate for more equitable policies in and out of government.”

Simpson said the out members of Congress aren’t technically eligible to become members of the organization because they aren’t staffers. Still, he noted that their sponsorship makes the group able to use the U.S. House web servers and e-mail system.

“If not for them, the organization wouldn’t exist,” he said. “If we need anything, we go to them because they’re our members.”

Simpson said he expects the LGBT Congressional Staff Association to have a collaborative relationship with the Gay, Lesbian & Allies Senate Staff Caucus, the affinity group for LGBT staffers working in the U.S. Senate.

Among the events in which both groups would plan joint participation are social and educational activities as well as marching in the same contingent next month during the Capital Pride parade.

“I’ve been talking with them,” Simpson said. “They’ve been helping us organize this newer reinvention for a while, so we’ve been very close.”

Alex Levy, co-chair of GLASS and legislative aide to Sen. Chuck Schumer (D-N.Y.), said his organization is “thrilled” to have the opportunity to collaborate with another LGBT group.

“They have lots of energy and it looks to be a dynamic leadership team, and we intend to work collaboratively with them to work for the interests of LGBT Hill staffers,” Levy said.

SALT LAKE CITY — In the wake of allegations that he had sexual contact with two male escorts, an anti-gay organization’s board member is resigning his membership with the group.

But George Rekers said in a statement published Tuesday to the National Association for Research & Therapy of Homosexuality’s web site that he is not gay “and never have been.”

“I am immediately resigning my membership in NARTH to allow myself the time necessary to fight the false media reports that have been made against me,” he said. “With the assistance of a defamation attorney, I will fight these false reports because I have not engaged in any homosexual behavior whatsoever. I am not gay and never have been.”

Rekers drew international media attention — and jabs from television comics — last week after the Baptist minister was photographed at Miami International Airport with a man he allegedly met through Rentboy.com, a gay web site.

The BBC reported that Rekers said he hired the man as a travel assistant and “was not involved in any illegal or sexual behavior.”

Various outlets later reported the man Rekers hired said the two had sexual contact. A second man reportedly came forward May 7, claiming he had a sexual encounter with Rekers in 1992.

In the statement published Tuesday on its web site, NARTH noted that it “has accepted Dr. Rekers’ resignation and would hope that the legal process will sufficiently clarify the questions that have arisen in this unfortunate situation.”

Gay couples ask judge to toss Defense of Marriage Act

BOSTON — Seven gay couples and three widowers who married in Massachusetts after it became the first state in the nation to legalize same-sex marriage went to court May 6 to challenge the constitutionality of a federal law that defines marriage as a union between a man and a woman.

The couples filed a lawsuit last year, arguing that the Defense of Marriage Act is discriminatory because it denies same-sex couples access to federal benefits given to heterosexual couples. U.S. District Judge Joseph Tauro held the first hearing in the case last week.

The Associated Press reported that the couples include a Social Security Administration retiree who was denied health insurance for his spouse; three widowers who were denied death benefits for funeral expenses; and couples who have paid more in taxes because they are not allowed to file joint returns.

Mary Bonauto, an attorney with Gay & Lesbian Advocates & Defenders, said the 1996 law, known as DOMA, got the federal government involved in regulating marriage, something it had left to the states for more than 200 years. She said the law denies gay couples access to more than 1,000 federal programs and legal protections in which marriage is a factor.

“What DOMA does is negate their marital status,” Bonauto argued during the hearing, according to the Associated Press.

The law was enacted by Congress in 1996 when it appeared Hawaii would soon legalize same-sex marriage and opponents worried that other states would be forced to recognize such marriages. The lawsuit challenges only the portion of the law that prevents the federal government from affording Social Security and other benefits to same-sex couples.

Since then, five states and the District of Columbia have legalized gay marriage.

W. Scott Simpson, a Justice Department lawyer, said the Obama administration is opposed to the law, but the department has an obligation to defend the constitutionality of laws passed by Congress.

“This presidential administration disagrees with DOMA as a matter of policy and would like to see it repealed, but that does not affect the statute’s constitutionality,” Simpson said.

Simpson said the law does not interfere with the rights of individual states to “experiment in the area of marriage, but that should not dictate how the federal government applies federal law.”

Tauro did not indicate when he would rule on the government’s motion to dismiss the lawsuit and the couples’ request to declare the law unconstitutional.

Pope: Church’s own sins to blame in sex scandal

LISBON, Portugal — In his most thorough admission of the church’s guilt in the clerical sex abuse scandal, Pope Benedict XVI said Tuesday the greatest persecution of the institution “is born from the sins within the church,” and not from a campaign by outsiders.

The Associated Press reported the pontiff said the Catholic church has always been tormented by problems of its own making — a tendency that is being witnessed today “in a truly terrifying way.”

“The church needs to profoundly relearn penitence, accept purification, learn forgiveness but also justice,” the Associated Press quoted him as saying. “Forgiveness cannot substitute justice.”

Benedict was responding to journalists’ questions, submitted in advance, aboard the papal plane as he flew to Portugal for a four-day visit.

In a shift from the Vatican’s initial claim that the church was the victim of a campaign by the media and abortion rights and pro-gay marriage groups, Benedict said: “The greatest persecution of the church doesn’t come from enemies on the outside but is born from the sins within the church.”

Previously, he has taken to task the abusers themselves and, in the case of Ireland, the bishops who failed to stop them.

Benedict has promised that the church would take action to protect children and make abusive priests face justice. He has started cleaning house, accepting the resignations of a few bishops who either admitted they molested youngsters or covered up for priests who did.

Critics are demanding more. They recall that while Benedict has scolded his church and accepted some bishops’ resignations, none of them has been actively punished or defrocked, even those who admitted molesting children.

“Many are tiring of hearing about his ‘strong comments.’ They want to see strong action,” said David Clohessy, director of the main U.S. victims’ group, the Survivors Network of those Abused by Priests.

Portugal has reported no cases of abuse, and the pontiff was expected to address other issues during his appearances here, especially the neglect of Christian values.

Solicitor General Elena Kagan, a U.S. Supreme Court nominee, could be asked to address past comments on ‘Don’t Ask, Don’t Tell’ and same-sex marriage during her confirmation hearings. (Photo by Lawrence Jackson; courtesy of White House)

President Obama’s nomination of Solicitor General Elena Kagan to the Supreme Court is inspiring varied reactions, ranging from excitement to caution, as questions linger about her record on LGBT issues.

Many LGBT advocacy groups are pleased that Kagan opposed military recruitment on Harvard’s campus because “Don’t Ask, Don’t Tell” violates university non-discrimination policies, but others are waiting for her to clarify her positions on LGBT issues in congressional testimony before the Senate.

Meanwhile, questions about Kagan’s sexual orientation distracted attention from her record this week, as some anti-gay conservatives — along with more than a few LGBT bloggers — speculated that she is a lesbian.

Obama nominated Kagan to fill the seat that will be vacated at the end of the term by retiring Associate Justice John Paul Stevens. If the Senate confirms her to the position, there would be three women sitting on the Supreme Court, the most women the bench has seen in its history.

Prior to her tenure as solicitor general, in which she defended federal law before the Supreme Court, Kagan was a clerk for former Associate Justice Thurgood Marshall, an associate White House counsel for former President Bill Clinton and dean of Harvard law school.

In a statement, Sen. Patrick Leahy (D-Vt.), chair of the Senate Judiciary Committee, said the Senate would consider Kagan’s nomination this summer and should confirm her nomination before the August recess.

Joe Solmonese, president of the Human Rights Campaign, in a statement, praised Obama for selecting Kagan to serve on the bench.

“We applaud President Obama for choosing Elena Kagan to become our nation’s next U.S. Supreme Court Justice,” Solmonese said. “We are confident that Elena Kagan has a demonstrated understanding and commitment to protecting the liberty and equality of all Americans, including LGBT Americans.”

Doug NeJaime, a gay associate law professor at Loyola Law School, expressed similar excitement over the nomination of Kagan, whom he called a “fantastic” choice to serve on the bench.

In 2008, NeJaime said he attended a Harvard gay and lesbian caucus conference where Kagan moderated a panel with sexual orientation law scholars. He noted that Kagan “was clearly really knowledgeable about these issues.”

“I think she’ll do a good job in dealing with them and hopefully having conversations with other justices — getting them more on board with what LGBT legal issues entail,” NeJaime said.

But Hayley Gorenberg, deputy legal director for Lambda Legal, was more cautious about embracing Kagan’s nomination and said she was awaiting the Senate confirmation process.

“She’s just been nominated, and we are studying everything that we can on her,” she said. “We’re looking toward the confirmation hearings so that we can learn more about her positions on legal areas that are core to the right of LGBT people and people with HIV.”

In particular, Gorenberg said she’s looking to see whether Kagan will separate herself from the Justice Department’s legal briefs defending challenges to the Defense of Marriage Act and “Don’t Ask, Don’t Tell,” which occurred under her watch during the Obama administration.

“Those briefings give us concern, and we certainly voiced it with the Obama administration,” Gorenberg said. “So, what we need to see now is her views apart from an institutional position, and that’s what we’re looking toward in confirmation hearings.”

‘Don’t Ask’ stance
could be obstacle

One potential obstacle that Kagan may encounter on her path to confirmation — despite the favor it may win her among LGBT supporters — is her opposition as dean of Harvard law school to military recruiting on campus because of “Don’t Ask, Don’t Tell.”

In October 2003, Kagan wrote in an e-mail to students that military recruiting on campus caused her “deep distress” and that she “abhor[s] the military discriminatory recruitment policy,” according to a recent report in the Washington Post.


She was quoted as calling the recruitment policy in the U.S. military “a profound wrong — a moral injustice of the first order.”

In 2005, Kagan was also one of 40 Harvard professors who signed a friend-of-the-court brief in favor of an appellate court ruling overturning the Solomon Amendment, which would have allowed colleges to limit the military’s presence at campus recruiting events. The Supreme Court unanimously disagreed with the lower court ruling.

Conservative senators could pounce on Kagan’s views on military recruitment on campus as dean of Harvard law school as reason to vote against her confirmation.

Sen. Jeff Sessions (R-Ala.), ranking Republican on the Senate Judiciary Committee, said in a statement published shortly after her nomination that Kagan’s position is “deserving review.”

“This is a significant issue for me since I worked hard for the passage of the Solomon Amendment,” Sessions said. “Her actions in this case, along with other issues, will need to be addressed, and Ms. Kagan will be given a fair opportunity to respond.”

Sen. James Inhofe (R-Okla.) said Monday he plans to vote against Kagan’s confirmation — making him the first senator to commit to a “no” vote — because of her position on campus military recruitment.

But NeJaime said he didn’t think Kagan’s position would be problematic because it’s “very much in the mainstream of the legal academic community,” and other law schools besides Harvard have challenged the constitutionality of the Solomon Amendment in court.

“It’s not like she was even completely out in front on that issue,” NeJaime said. “I also think public sentiment against ‘Don’t Ask, Don’t Tell’ is pretty high, and so it’s not a non-mainstream position.”

But Gorenberg said Senate opposition to Kagan’s confirmation because of her position on military recruitment is already apparent.

“We can already see that the positions that she promoted as dean that were targeted against discrimination against LGBT people — that those positions are already the subject of potshots from anti-gay extremists,” Gorenberg said. “We saw that instantly upon her nomination, if not before.”

Kagan’s views on military recruitment also raise the question of whether she would be asked to recuse herself in the event a “Don’t Ask, Don’t Tell” case came before the Supreme Court while she’s on the bench.

Gorenberg said “it’s not clear” that Kagan would need to seek recusal in such a situation based on her comments as dean of Harvard law.

The Servicemembers Legal Defense Network didn’t immediately respond to the Blade’s request to comment on Kagan’s statements on military recruitment or whether she would have to recuse herself if a “Don’t Ask, Don’t Tell” case reached the high court.

Same-sex marriage
a potential issue

Another topic that may come up during Kagan’s confirmation hearings is her position on same-sex marriage and whether she thinks the U.S. Constitution provides for marriage rights for same-sex couples. Such a position would be especially important for LGBT people because cases on same-sex marriage could be on their way to the Supreme Court.

Kagan previously denied that the U.S. Constitution grants a right to same-sex marriage in a questionnaire answer prior to her confirmation hearings to become solicitor general.

“There is no federal constitutional right to same-sex marriage,” she wrote in a response to a question on the issue.

In response to a subsequent question, she added that she doesn’t believe she expressed an opinion on the question before that time.

Kagan’s response could be troubling for organizations behind federal lawsuits seeking to overturn the Defense of Marriage Act or bans on same-sex marriage within states.

The American Federation for Equal Rights, the organization behind the Perry v. Schwarzenegger case seeking to overturn California’s Proposition 8, didn’t respond to the Blade’s request to comment on the Kagan nomination.

A spokesperson for the Gay & Lesbian Advocates & Defenders — which is behind Gill v. Office of Personnel Management, a case seeking to overturn part of DOMA that prohibits federal recognition same-sex marriage — said her organization isn’t commenting on the Kagan nomination because the lawsuit could go to the Supreme Court.

On the Perry case, NeJaime said Kagan’s comment on same-sex marriage could be relevant depending on whether the court takes up the case as a broad question about constitutional rights to same-sex marriage or, more simply, California’s legitimate interest in passing Proposition 8.

“I also think we don’t really know what her position will be on an issue like that until the issue is briefed and until it’s actually at the court,” he said. “I’m pretty confident that she is at least open-minded to LGBT claims under the federal Constitution.”

Gorenberg said she’s “not sure” whether Kagan’s comments would be a predictor of how the nominee would rule if marriage cases came before the Supreme Court.

She said the remarks raise the question of what Kagan meant in her questionnaire answer, but noted that it’s unknown whether Kagan’s position would become more clear during confirmation hearings.

“We would always like to know what would happen in the future on a specific issue, but it’s not surprising to us — for any nominee — that we don’t get a specific forecast on a case because it’s just not standard that the nominees ever give them to us,” Gorenberg said.

Still another issue surrounding the nomination is whether Kagan, who’s unmarried, is a lesbian.

In a deleted CBS News posting published prior to the announcement of Kagan’s nomination, conservative blogger Ben Domenech wrote that confirmation of Kagan would make her the “first openly gay justice.”

The White House disputed Domenech’s characterization of Kagan as an out lesbian and said he was making false charges. After the posting was deleted, Domenech maintained that he heard discussion about her sexual orientation.

In a later posting on the Huffington Post, Domenech wrote that he “erroneously believed” Kagan was an out lesbian because “it had been mentioned casually on multiple occasions by friends and colleagues — including students at Harvard, Hill staffers, and in the sphere of legal academia — who know Kagan personally.”

Sessions’ office didn’t respond to the Blade’s request to comment on whether the matter was of concern to the senator or whether he would expect questions on the issue to come up during the confirmation hearings.

NeJaime said he didn’t anticipate discussions of Kagan’s sexual orientation to arise during her confirmation hearings, but said it would be “sad commentary” if the matter became a stumbling block for her.

“We don’t know about her sexual orientation one way or the other, and I don’t really anticipate it being an issue that anyone takes up,” he said.

Gorenberg said she didn’t have any information on Kagan’s sexual orientation and didn’t know how lawmakers would respond to speculation that she’s a lesbian.

“There are a lot of senators out there and I don’t know [who] may or may not be inclined to go after any nominee based on their sexual orientation,” Gorenberg said.

She said one of Lambda’s central tenets is that people shouldn’t face discrimination based on sexual orientation and noted that principle could be applied in Senate confirmation hearings.

A friend of Kagan’s told Politico this week that Kagan is not a lesbian.

“I’ve known her for most of her adult life and I know she’s straight,” Sarah Walzer, Kagan’s law school roommate, told Politico. “She dated men when we were in law school, we talked about men … She definitely dated when she was in D.C. after law school … and she just didn’t find the right person.”

At one end are those who believe that we should present a united front, falling in line behind LGBT establishment leaders and trust that as Washington insiders, they will get things done. At the other end are those who have given up on the establishment and think that it is time again to protest.

Before jumping into the fray and sharing my two cents, I think that we have to accept the fact that nothing will get done by November and that progress in terms of federal legislation will halt after the GOP wins more seats in Congress. The Obama administration has made it pretty clear that “Don’t Ask, Don’t Tell” will not be repealed through defense appropriation and that any action taken will be after the Pentagon releases its findings sometime in December. And the Employment Non-Discrimination Act, in spite of having close to the 216 votes needed for passage in the House, does not have many backers in the Senate.

As for the Uniting American Families Act and the repeal of the odious Defense of Marriage Act, well, we might as well forget about these two for now. UAFA as a standalone bill still requires more sponsors in the House and will ultimately be shot down by the Senate, anyway. If it is included in a comprehensive immigration bill, I predict that it will eventually be discarded by immigration reform proponents to appease and secure the support of more conservative backers, namely the Catholic and Evangelical leaders who are pro-immigrant but anti-LGBT.

In order to repeal DOMA, the majority of Americans need to support same-sex marriage. We’re not there yet.

So what is the best way forward? I’d argue that it is not an either-or proposition. The Human Rights Campaign and other inside-the-beltway veterans do know how things work in D.C. and that means connections, access and a whole lot of horse trading and compromise. They have been around long enough to know that things don’t change overnight but through slow and painstaking effort and increments. They realize that patience, tenacity and commitment are necessary to their advocacy. I have worked beside rank-and-file HRC staffers and I do not doubt for a second their passion for our cause.

Protest and civil disobedience, on the other hand, are indispensable to any social movement. We would not be where we are were it not for the Civil Rights Movement, the Women’s Rights Movement, the Stonewall Riots and subsequent action by queer activists. The disruptive and shocking measures taken by Act Up in the late ’80s and early ’90s spurred much delayed action on the HIV/AIDS crisis. Activists that choose this path know that they need to keep everyone honest and stop movement leaders from getting too cozy with power. They realize that society needs to be challenged out of complacency and empowered. I have marched with Lt. Dan Choi and GetEqual.org’s Robin McGehee and I likewise do not doubt their commitment to winning our civil rights.

Another fact we have to face is that no movement has ever had a united front. There are far too many opinions, egos and agendas. There will always be those who work with the system and those that buck it. The LGBT movement is no different and it has a place for all players. If we are to prevail, we should all be doing what we do best and are most comfortable at.

When our legislative window closes in November, it is crucial that Gay Inc. continues to quietly work the corridors of power while radicals raucously call attention to our second-class status. It is also important that the rest of us continue what we have been doing: coming out, telling our stories, writing checks to pro-LGBT organizations and candidates, calling our elected officials and not giving up until we are all equal under the law. The best way forward? All of the above.

You can follow Erwin on Twitter at @ErwindeLeon.

First, the letter mandates that only “hospitals that participate in Medicare or Medicaid respect the rights of patients to designate visitors.” What about those that do not? What about medical institutions run by religious groups? Will they be exempt even if they receive Medicare or Medicaid funding?

Second, it says that designated visitors, “including individuals designated by legally valid advance directives (such as durable powers of attorney and health care proxies), should enjoy visitation privileges that are no more restrictive than those that immediate family members enjoy.” But what if the patient arrives unconscious and is unable to tell hospital employees who she considers her spouse and family? What if a gay couple has not set up powers of attorney, living wills and health care proxies?

The burden of proof is still on gay couples. A man who is hospitalized can easily say that a female visitor is his wife and chances are no questions will be raised. But if he were to say that another man were his husband or partner, he would have to prove his claim especially in parts of the country that are not welcoming of LGBT people. We still need to carry our marriage and domestic partnership certificates in our wallets.

Finally, the memo ends by making it clear that it “is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.” It does not create any enforceable right. As Richard Socarides, former advisor of President Bill Clinton, acknowledges, the directive does not grant any new LGBT rights.

Nonetheless, Socarides points out that President Obama’s latest action on behalf of the LGBT community does “draw attention to the very real and tragic situations many gays and lesbians face when a partner is hospitalized.” Although all this would be moot if the Defense of Marriage Act were repealed and same-sex marriages federally recognized, this is another step toward full equality and civil rights for LGBT Americans.

Although the President can put more effort in passing civil rights legislations such as the Employment Non-Discrimination Act and in repealing “Don’t Ask, Don’t Tell,” there is no denying that we are better off under his administration. I doubt that Republican Sen. John McCain would have taken this step — or any at all to help us — had he won the presidency.

You can follow Erwin de Leon on Twitter at @ErwindeLeon.

Lawyers on both sides of Gill v. U.S. Office of Personnel Management will come before the Federal District Court in Boston on May 6 to argue their cases.

The litigation, filed by Gay & Lesbian Advocates & Defenders, aims to overturn Section 3 of DOMA, which bars the federal government from recognizing same-sex marriages.

Evan Wolfson, executive director of Freedom to Marry, said the GLAD litigation is “a very important, very well prepared case” and “offers a very promising path to beginning to undo the destructive and unconstitutional so-called Defense of Marriage Act.”

“GLAD thought through very carefully the best way to present the core concerns, powerful stories and a smart remedy to maximize our chances of winning in the U.S. Supreme Court,” he said.

Wolfson said he’s certain that GLAD’s attorneys will “be very forceful” in explaining why the federal government’s treatment of same-sex married couples is “unacceptable and unconstitutional.”

The plaintiffs in the case are seven married same-sex couples and three widowers, including Dean Hara, the spouse of Gerry Studds, the late Massachusetts congressman and first openly gay person to serve in Congress.

GLAD contends that as a result of DOMA, which President Bill Clinton signed in 1996, these plaintiffs have been harmed in various ways, including the denial of survivor benefits, health insurance coverage and Social Security benefits, as well as being forced to pay additional federal income taxes. The litigation contends DOMA violates plaintiffs’ rights under the Equal Protection Clause.

Gary Buseck, GLAD’s legal director, said preparations for the court appearance involve submitting several documents to the court to make their case before Judge Joseph Tauro.

The documents, he said, include memoranda of law to the court, a series of affidavits from the plaintiff couples and widowers, and expert affidavits showing why these couples should be treated as a suspect class for heightened scrutiny from the court.

“What we’re trying to think about is best arguments and how to succinctly present our best arguments,” he said. “We’re trying to think about — given what the government has put to writing — what are they likely to lead with, and are we content with the responses that we’ve written, and trying to imagine what the judge might ask.”

Representing the seven married same-sex couples and three widowers seeking federal marriage benefits in Massachusetts will be Mary Bonauto, GLAD’s civil rights project director.

Six years ago, Bonauto was the lead attorney in Goodridge v. Department of Public Health, the state lawsuit that brought same-sex marriage to Massachusetts, making the Bay State the first in the country to legalize gay nuptials.

Buseck said Bonauto is working on being “as heavily as prepared as possible” so she can “answer any question.”

Buseck said the court appearance on May 6 for the GLAD case wouldn’t be the same as the trial earlier this year for Perry v. Schwarzenegger, a lawsuit in California aimed at overturning Proposition 8.

Because the U.S. government filed a motion to dismiss and GLAD filed a request for summary judgment, Buseck said he’s expecting about 45 minutes to an hour of courtroom activity May 6 instead of a trial lasting several weeks, as in the Perry case.

“We don’t know exactly how much time we’re going to have,” he said. “It’s not like an appeals court where they give you a set of block of time and that’s what you get. This is going to be a little more informal than that.”

The Justice Department didn’t respond to DC Agenda’s request to discuss the case.

Buseck said GLAD can guess how the U.S. government will present itself during the court appearance because of the briefs the Justice Department has already issued.

He noted the Obama administration has said it doesn’t agree with the findings Congress presented in 1996 when it passed DOMA and that it considers the statute is discriminatory, but will nonetheless defend the statute because it believes the statute is constitutional.

Buseck predicted that the government will argue it was rational for Congress to enact DOMA in 1996 in an effort to maintain the status quo and “wait and see how this cultural debate plays out.”

“That’s been their fundamental argument to date, and presumably that’s where they’re going to stick,” he said. “So we’re ready for that. We’ve had to respond to those arguments in writing already.”

Legal experts following the case of Gill v. OPM expect it to reach the U.S. Supreme Court and, if successful, the lawsuit would force the U.S. government to recognize same-sex marriages for federal tax purposes and for Social Security benefits.

Buseck said he thinks it’s possible a decision could come down from a trial court in the summer, but more likely a ruling will be issued this fall.

Following the decision, Buseck said the case would likely go to the First Circuit Court of Appeals at the beginning of next year with a possible decision in Spring 2012. If the case were to go to the U.S. Supreme Court, it could go on the 2012 term and be decided in June 2013.

But Buseck emphasized that those dates were a “ballpark” estimate and said “there’s a lot of things that could change those dates.”

Running concurrently with the Gill lawsuit in the Federal District Court in Boston is another case challenging DOMA last year by Massachusetts Attorney General Martha Coakley: Commonwealth of Massachusetts v. U.S. Department of Health & Human Services.

Like the Gill case, the state lawsuit challenges the section of DOMA that prohibits the federal government from recognizing same-sex marriage, but contends that it violates Massachusetts’ state right to regulate marriage under the Tenth Amendment.

The Commonwealth case will be heard in the same court and by the same judge, but the court date is scheduled for May 26.

Buseck said the Commonwealth case and the Gill case “complement each other” but “are in different boxes as far as legal theories go.”

“My sense is the judge will probably just for efficiencies’ sake somehow work on these cases together and it’s been my guess — but I’ve no reason to know that — I won’t be surprised if we get decisions on the same day,” Buseck said.