Wednesday, August 25, 2010

Policy Matters - August 24, 2010

Front Page Headlines
Third Way Op-Ed in Politico: Moving the Middle on Marriage. This month, a federal district court judge in California struck down Proposition 8 — the state ballot measure that banned same-sex couples from marrying — as unconstitutional, and the case is most likely to be settled by the Supreme Court. Although the decision has been stayed (meaning that no marriages can occur while the case is under review in the Ninth Circuit), many understandably saw it as a victory and perhaps an indication that legal arguments — not public persuasion — are going to be the fastest way to bring about equality. But lawsuits are not a substitute for public support, and legal arguments do not operate in a vacuum. This decision makes it all the more crucial to build a solid majority of Americans who strongly support the full range of legal relationship recognition, including allowing same-sex couples to marry.

John Wells Bennett Op-ED: Employment Non-Discrimination Act Long Overdue. John Wells Bennett, nephew of Republican Sen. Robert Bennett (R), expresses his support for the passage of the Employment Non-Discrimination Act (ENDA): "As a gay man, I find it painful to realize that something as seemingly basic as employment non-discrimination is still controversial. But I, for one, am not willing to see this year and this session of Congress pass into history without a vote on ENDA. My grandfather, Sen. Wallace F. Bennett, back in 1964 and 1968, broke ranks with his party and voted for both major civil rights laws of that decade. I call upon all the members of the current Utah delegation to become co-sponsors of ENDA and to help move this important bill forward for a vote this session."

Prop 8 Stay Gives Congress Room to Focus on Midterm Elections. Some Congressmembers are reportedly relieved by the U.S. Ninth Circuit Court of Appeals decision that extended the stay on Judge Vaughn Walker's ruling in the federal Proposition 8 trial until the appellate court hears the case. They believe marriages for same-sex couples could have been a distraction in the upcoming midterm elections. Marriage equality opponents in California said in a statement that they are pleased the appellate bench will hear the matter in December, while supporters for marriage equality were hugely disappointed by the decision, but hope the appellate bench will declare Prop 8 unconstitutional.

Pentagon to Send “Don’t Ask, Don’t Tell” Surveys to Spouses of Service Members. The Pentagon plans to survey approximately 150,000 military spouses about the military's "Don't Ask, Don't Tell" policy. In a statement, Department of Defense spokeswoman Cynthia Smith said the surveys "will help the military leadership assess the impacts, if any, a change in the law…might have on family readiness and military community life." The survey comes as part of a larger reevaluation of the controversial policy, which the House voted to repeal in May as part of a defense authorization bill. The policy prohibits lesbians, gay and bisexual people from serving openly in the military. A vote by the Senate and a review by the Pentagon are required for any change in the policy to become official. Smith said the information from the survey will be used to develop a "contingency plan" if "don't ask" is eventually repealed.

Transgender People Harassed on the Job. The transgender community faces extreme difficulties when trying to find work due to severe discrimination and a stagnant economy. Currently, it is legal to discriminate against transgender people in 38 states. Harper Jean Tobin, Policy Counsel for the National Center for Transgender Equality, explained the misconceptions and misinformation that far too many people have with regard to trans individuals, and how this plays out in disturbing numbers that are reported by our friends at the National Gay and Lesbian Task Force and the National Center for Transgender Equality’s 2009 survey on transgender discrimination.

Public Policy Watch
Fall “Don’t Ask, Don’t Tell” Lobby Day Announced. Our friends at Servicemembers United announced earlier this week that it will host another "Don't Ask, Don't Tell" lobby day for repeal supporters on Thursday, September 16, 2010. The fall lobby day, affectionately nicknamed "The Final Assault," will come at a critical time after the Senate reconvenes but before the chamber is expected to take up the repeal-inclusive defense authorization bill. During the lobby day, PFLAG members will join Service Members United, which plans to host a first-ever meeting in Washington for military partners from around the country. The Campaign for Military Partners initiative was created in 2009 to connect and support the partners of LGBT military personnel. Military partners who are interested in attending this meeting can register for this event at

DOJ has Sixty Days to Appeal MA Ruling that Declared DOMA Unconstitutional. Federal Judge Joseph Tauro officially entered his judgment in a case challenging the Defense of Marriage Act in Massachusetts, giving the federal government 60 days to decide whether to appeal. Judge Tauro ruled in early July that DOMA, which defines marriage as between one man and one woman, is unconstitutional. Yesterday, he officially entered the judgment, starting a 60-day clock for the Justice Department (DOJ) to decide whether to appeal his ruling. Tauro also approved a stay for his ruling, pending appeal. The plaintiffs, represented by GLAD, didn't fight the stay. GLAD said the stay is in its clients' best interests, adding that only a "final victory" ensures that they will have access to the Social Security and other benefits of their spouses. The DOJ has not yet decided whether to appeal the case, the head government lawyer told the Bay Area Reporter. It's unlikely the government would decline to pursue the case, but the Obama administration took a big hit among LGBT rights advocates (and voters) last year when it filed a brief defending DOMA and comparing same sex marriage laws to those against incest and child marriage. The end of the 60 days falls on Oct. 11 -- National Coming Out Day and less than a month before the midterms.

Doylestown, PA: Council Takes Step to Protect LGBT Rights. The Doylestown Borough council has passed an ordinance that protects the rights of the borough’s LGBT citizens. KYW Newsradio’s Jim Melwert reports the council voted unanimously to pass the ordinance which outlaws discrimination in housing, employment and in public accommodations on the basis of sexual orientation, or gender identity. While some in the crowd wondered if this was redundant and offered protections already offered by federal or state law, Councilman Don Berk responded, “Absolutely not. The federal government does not protect LGBTQA people, 21 states have ruled this way. The District of Columbia has, 16 municipalities in Pennsylvania, but Pennsylvania hasn’t done it yet, so hopefully this will send a message up to Harrisburg.” Many who support the basis of the ordinance are concerned about cost and about who will pay for the newly-created human relations commission in Doylestown Borough. Supporters though, say what better way to spend tax dollars than on civil rights.

DOJ Seeks Role in Anti-Gay Suit Against North Country School. The U.S. Department of Justice has opposed a northern New York school district’s attempt to have a former student’s anti-gay-bias lawsuit dismissed in federal court. The Justice Department filed a motion in U.S. District Court on Friday to participate as a friend of the court in a federal discrimination lawsuit filed by former student Charles Pratt against the Indian River Central School District near Watertown. Pratt sued in April 2009, claiming he was harassed before he dropped out of high school when he was 15 years old. The district has filed a motion to dismiss the action. The Justice Department disagrees with key reasons the district believes the suit should be dismissed. The court has not decided whether to allow justice officials to join the case.

A Question from the Field
Dear Policy Matters,
Over the past few weeks we have witnessed a frenzy of activity surrounding the
Perry v. Schwarzenegger challenge of California’s Proposition 8. What does the ruling in the federal Proposition 8 trial mean and what are the next steps in the marriage equality movement?
Thanks so much,

Dear Karen,
Thank you so much for your question. As you may know, last week a three-judge panel on the U.S. Ninth Circuit Court of Appeals said that same-sex marriage licenses cannot, for the time being, be issued despite Judge Vaughn Walker’s recent ruling overturning Proposition 8, which banned same-sex marriages in California. Despite last week’s ruling, it is highly likely that the U.S. Supreme Court will finally make a decision on marriage equality.

The three-judge panel also ruled that the case will be expedited to an appeals court which will begin hearing arguments on the constitutional challenge to Prop 8 on Dec. 7. The three-judge panel directed opponents of marriage equality to make the case in an opening brief due Sept. 17 for “why this appeal should not be dismissed.” Yet even if the Ninth Circuit determines that they lack that evidence, marriage equality opponents can still appeal to the Supreme Court, say legal experts. The Ninth Circuit’s ruling gave reason for both sides to feel anxious and ready for the battle ahead, which is why it’s imperative for PFLAG members to take the time and educate community members about why marriage equality matters to their families and friends.

A top lawyer with the team that is fighting for marriage equality, Ted Boutrous, says that the decision to block marriages in California for now was expected, despite the disappointment of same-sex couples. The hold on issuing licenses could be politically advantageous to those who support marriage equality, denying the possibility for it to become a hot GOP issue come November. The expedited schedule, says Boutrous, is extremely helpful and “paves the way for us to obtain the fastest possible ruling affirming the judge’s order striking down Proposition 8.”

Boutrous does not think the biggest threat to opponents of marriage equality is the court’s Article III challenge, which requires them to show evidence that same-sex marriage harms them. The main stumbling block for opponents, he says, is simply Walker’s “detailed factual findings and legal rulings” on Prop 8’s unconstitutionality. But, he adds, the Article III challenge “is another weapon in our arsenal, and another problem for them.”

Sadly, there are no clear answers to the fate of marriage equality in California or the United States at large. The final verdict might come in 2011—at the earliest—if the case keeps moving swiftly, and it will come, as all sides still expect, from the Supreme Court. Should you have more marriage equality questions, please feel free to contact us at your earliest convenience.

Warmest regards,
Policy Matters
P.S. Have you downloaded your new edition of Bringing the Message Home yet? Get your 2010 version of the how-to guide to PFLAG advocacy now and share it with your chapter. Visit. for more information now.

Please note that Policy Matters will return on September 7, 2010. If you would like to have a policy-related question featured in our next edition, please e-mail with your question no later than September 3, 2010.

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