February 2012

  • February 13, 2012

    by Jeremy Leaming

    Washington state did not place the effort to advance equality before the whims of voters. Today at the Washington Capitol, Gov. Chris Gregoire signed into law a measure granting lesbians and gay men the right to wed.

    “This is a very proud moment,” Gregoire (pictured) said at the bill signing ceremony, the Seattle Times reports. The law will take effect in June, at the earliest, the newspaper states.  Last week when the state’s House approved the bill sending it to her, Gregoire said the state would “no longer deny our citizens the opportunity to marry the person they love. We tell every child of same-sex couples that their family is every bit as equal and important as all other families in our state. And we take a major step toward completing a long and important journey to end discrimination based on sexual orientation.”

    Like the one enacted last year by New York, Washington’s marriage equality law includes language allowing houses of worship to refuse to wed gay couples or allow their facilities to be used for such ceremonies. Besides New York, Massachusetts, Connecticut, New Hampshire, Vermont and Iowa recognize same-sex marriages. Washington, D.C. also allows gay couples to wed.

    As is typical in all states where efforts to advance marriage equality have taken place, Religious Right organizations have rallied to counter them. Opponents of marriage equality in Washington are vowing to collect enough signatures, 241,153 by July 6, to place the newly enacted law before voters in November.

    The Family Policy Institute of Washington and the National Organization of Marriage (NOM) are pushing the effort to collect those signatures. The Family Policy Institute describes itself as an outfit that grooms “leaders” to help “impart a biblical worldview for those committed to Judeo-Christian truths ….”

  • February 13, 2012

    by Jeremy Leaming

    Catholic bishops and right-wing pundits and politicians are still slathering over the Obama administration’s contraception rule that requires health insurance policies to provide free contraceptives for employees at religious affiliated universities, hospitals and charities.

    On Friday after announcing a tweak to the rule – requiring insurance providers, not the religiously affiliated institutions to pay for the contraceptives – the United States Conference of Catholic Bishops issued a statement blasting the change as “unacceptable,” and continued to tar the policy as a violation of their religious liberty rights. (The religious liberties violation is a canard. The policy applies generally to all groups, secular and religious. As ACSblog noted last week there are numerous laws of general applicability that impact religious practice without amounting to a violation of the First Amendment’s free exercise clause. The contraception policy from the White House already exempts houses of worship, allowing them to provide inadequate health care coverage to their employees if they wish.)

    Nonetheless, Religious Right outfits, and not surprisingly many politicians, aren’t letting go of this one.

    For example, U.S. Rep. Connie Mack (R-Fla.) dished up hyperbole in a discussion of the Obama administration’s health care policy on CNN. Video of the segment is below.

    Rep. Mack claimed the flare-up over the contraception rule proved that the Obama “administration doesn’t believe that the Constitution and that personal freedoms and liberties matter. And it is an assault on our freedoms. So whether it is Obamacare forcing people to buy something they may not want to buy, and now this reaching into the church, and forcing the church to do something that is against its own tenants, this shows an arrogance.”

    “He’s a lawyer,” Mack continued, “and he is showing that the words of the Constitution don’t matter to him.”

    Regarding the administration’s landmark health care reform law, the Affordable Care Act, numerous constitutional law scholars have argued that the law’s minimum coverage provision, which starting in 2014 will require people who can afford it to obtain minimum health insurance coverage or pay a penalty, is a lawful regulation either under Congress’s power to regulate commerce or its taxing power.

    For more on the constitutionality of the Affordable Care Act’s minimum coverage provision see this ACS Issue Brief by the National Senior Citizens Law Center’s Simon Lazarus.

  • February 10, 2012
    Guest Post

    By Rebecca L. Brown, Newton Professor of Constitutional Law at USC Gould School of Law. She is the author of the 2010 ACS Issue Brief, “The Prop 8 Court Can Have it All: Justice, Precedent, Respect for Democracy, and an Appropriately Limited Judicial Role.”

    The Ninth Circuit did a great job this week in deciding the Perry case, involving the constitutionality of Proposition 8 — not only because of the result it reached, but because of how it got there. I think the court did a great service to the plaintiffs in Perry (as well as those similarly situated), to the state of California, and to the Constitution itself. I say this because the court focused very carefully and narrowly on the facts of the particular case, and did not yield to the temptation, always present in a sensational case, to be dramatic, to exaggerate, or to stretch the law. Instead, in my view, the court did exactly what we want a court to do when faced with any Equal Protection challenge:  to consider very carefully the interests that the state offers in support of its unequal treatment of some of its people, and to insist that those interests be both genuine and closely tied to the law under attack. 

    On that score, Proposition 8 could not survive, for a very simple reason. The interests that were offered in support of denying marriage status to same-sex couples were not relevant to the actual inequality that Proposition 8 created. As the court recognized, Proposition 8 affected only the status of marriage, not the legal infrastructure supporting families headed by same-sex couples. The word “only” does not at all mean that the denial of this status is unimportant to either side of this debate. But it does confine the court’s equal protection inquiry to just those state interests that could be said to justify this denial of the title of marriage. The court rightly recognized that broad assertions of state interests that might arguably be served by restricting same-sex households and families were simply not germane to Proposition 8 itself, because that proposition did not have any effect on the surviving bundle of property, parenting, and companionship rights that support those households and families. The state was called upon to offer a non-hostility-based rationale for leaving same-sex households legally intact while denying them the status of marriage.  The court found none.

  • February 10, 2012
    Countering threats from Sen. Mike Lee (R-Utah) to hold up votes on all nominees, the Senate successfully confirmed Cathy Ann Bencivengo, 90-6, to the U.S. District Court for the Southern District of California on Thursday. Bencivengo will fill one of 12 vacancies in the state, and one of six vacancies considered a judicial emergency. There are 18 other nominees ripe for an immediate Senate vote, most of whom have been waiting since before the Senate’s recess in December.
    In an attempt to push forward one of these other nominees, Senate Majority Leader Harry Reid  moved to force a vote on the nomination of Adalberto Jose Jordan to the U.S. Court of Appeals for the Eleventh Circuit on Thursday evening. Jordan was unanimously approved by the Senate Judiciary Committee in October, and has been pending before the Senate since. The Senate will vote on the motion to invoke cloture Monday.
    “Judge Jordan is the kind of consensus judicial nominee that should be welcomed as one of the many examples of President Obama reaching out to work with Republican and Democratic home state senators and the kind of superbly qualified nominee we should all encourage to serve on the distinguished bench of Federal appeals court judges,” said Senate Judiciary Committee Chairman Patrick Leahy in a statement Thursday. “In the past the Senate would have voted on his nomination within days or weeks of its being reported unanimously by the Judiciary Committee.  Yet Republicans refused to consent to a vote on Judge Jordan’s nomination before the end of the last session and it has been stalled on the Senate Calendar for nearly four months.” 
    The Senate Judiciary Committee held over the nominations of four district court nominees. Sen. Patrick Leahy (D-Vt.) committed to bring them up again for a vote in the next Senate Judiciary Committee executive business meeting.
  • February 10, 2012

    by Nicole Flatow

    Following sharp attacks from religious and conservative groups of the health care rule that would require insurance plans to cover contraceptives, the White House has announced a minor alteration to the rule that maintains free access to birth control.

    The change would shift the onus of providing the contraceptive services from the employer to the insurance provider. If a religiously affiliated employer objects to providing that coverage in its benefits package, the insurance company will be required to reach out directly to the beneficiary to offer full contraceptives coverage.

    “No woman’s health should depend on who she is or where she works or how much money she makes,” Obama said in announcing the change today. He added:

    I understand some in Washington want to treat this as another political wedge issue. But it shouldn’t be. I certainly never saw it that way. … We live in a pluralistic society where we’re not gonna agree on every single issue or share every belief. That doesn’t mean we have to choose between individual liberty and basic fairness.

    Today's shift, described by one official as an “accommodation” rather than a “compromise,” was quickly endorsed by the Catholic Health Association, one of the original critics of the rule, as well as Planned Parenthood and NARAL Pro-Choice America.

    But the announcement is not likely to satisfy some of the most committed critics. Just last night during a webcast, the Family Research Council blasted the contraception rule as “not only an attack on the consciences of employers and employees, but a direct attack on religious freedom.”

    Throughout the week, constitutional experts have reiterated that the contraception rule did not violate the Constitution’s religious liberty clauses.   

     "There isn't a constitutional issue involved," prominent litigator David Boies told MSNBC’s Lawrence O’Donnell. “There isn’t anything in the Constitution that says an employer, regardless of whether you are a church employer or not, isn’t subject to the same rules as every other employer.”

    “One thing I think is crystal clear — there is no First Amendment violation by this law,” Adam Winkler, a constitutional law professor at UCLA, told TPM. “The Supreme Court was very clear in a case called Employment Division v. Smith, written by none other than Antonin Scalia, that religious believers and institutions are not entitled to an exemption from generally applicable laws.”

    Atlanta Journal-Constitution columnist Jay Bookman highlights some excerpts from the Smith decision in which Scalia, “himself a devout and very conservative Catholic,” makes the case for Obama. Scalia wrote: