A shift in Obama’s same-sex marriage vow?

October 28, 2010 · Posted in The Capitol · Comment 

Washington (CNN) -There may be some wiggle room in President Obama’s unwavering opposition to same-sex marriage. Speaking to a group of liberal bloggers Wednesday the President said that “attitudes evolve, including mine.”

It appeared to be a departure from his stance of supporting civil unions only but not same-sex marriage.

White House spokesman Robert Gibbs said this evolution in the President’s thinking is a result of discussions he’s had with “colleagues and co-workers and hears them talking about being treated differently.

And the President internalizes that.” Gibbs could not say if this process would eventually lead the President to embrace same-sex marriage as law, but he reiterated that conversations on this issue have enlightened Mr. Obama.

“They’re good parents, they’re good people, and that’s something that he thinks about.” This comes as the military’s “don’t ask, don’t tell” policy is tangled in the legal system.

The Justice Department has appealed a court ruling that would allow openly gay people to serve in the military. Even though President Obama says the policy is discriminatory, he wants the case to be decided by Congress not the courts.

CNN Political Ticker

In Sit Down With Bloggers, Obama Hints At Change On Same-Sex Marriage, Reiterates DADT Approach

October 27, 2010 · Posted in The Capitol · Comment 

During a first-of-its-kind sit down with progressive bloggers at the White House this afternoon, President Obama told AmericaBlog’s Joe Sudbay that he didn’t think the LGBT community’s “disillusionment and disappointment” in his approach to issues like Don’t Ask, Don’t Tell was justified, saying “I guess my attitude is that we have been as vocal, as supportive of the LGBT community as any President in history.”

Speaking directly to the DADT issue, Obama reiterated that the policy “is not just harmful to the brave men and women who are serving…but it doesn’t serve our interests.” “I think that the best way to overturn it is for Congress to act,” he insisted, revealing that he asked Log Cabin Republicans’ executive director R. Clarke Cooper, who attended yesterday’s top level meeting about ending the ban, to “Get me those votes.” After district court judge Virginia Phillips ruled the ban unconstitutional and barred the Pentagon from enforcing the policy, LGBT advocates urged Obama to agree with her interpretation of the law and refuse to appeal her decision. The administration, however, is asking the Ninth Circuit Court of Appeals to stay the injunction and reverse the ruling, insisting that it was bound to defend existing law.

During the sit down, Obama avoided Sudbay’s question about the constitutionality of the policy since “I’m not sitting on the Supreme Court,” he said. “And I’ve got to be careful, as President of the United States, to make sure that when I’m making pronouncements about laws that Congress passed I don’t do so just off the top of my head.” But he also hinted that he understood the community’s frustration with the pace of change, recalling how African American civil rights leaders responded to similar arguments about “patience and time”:

Now, I say that as somebody who appreciates that the LGBT community very legitimately feels these issues in very personal terms. So it’s not my place to counsel patience. One of my favorite pieces of literature is “Letter from Birmingham Jail,” and Dr. King had to battle people counseling patience and time. And he rightly said that time is neutral. And things don’t automatically get better unless people push to try to get things better.

So I don’t begrudge the LGBT community pushing, but the flip side of it is that this notion somehow that this administration has been a source of disappointment to the LGBT community, as opposed to a stalwart ally of the LGBT community, I think is wrong.

Responding to Sudbay’s question about the growing support for same-sex marriage, Obama reiterated his belief in civil unions but conceded that “attitudes evolve, including mine.” “And I think that it is an issue that I wrestle with and think about…while I’m not prepared to reverse myself here, sitting in the Roosevelt Room at 3:30 in the afternoon, I think it’s fair to say that it’s something that I think a lot about,” he said.

For a full transcript of Obama’s remarks, click here.

Wonk Room

Wisconsin’s Lt. Governor Candidate Calls Same-Sex Marriage A ‘Fiscal Back Breaker’

October 26, 2010 · Posted in The Capitol · Comment 

Marc Felion of FeastForFun.com catches Wisconsin’s Lt. Governor candidate Rebecca Kleefisch in an unusual explanation for why gays and lesbians should be denied the right to marry. “We just don’t have the money to be giving out for extra benefits right now,” Kleefisch told WITI-TV’s ‘Real Milwaukee’ program, “It’s a fiscal back breaker”:

KLEEFISCH: I voted that way, I’m against gay marriage as well. I think that especially when it comes to $ 3 billion budget and it’s climbing. The legislative fiscal bureau announced about five days ago that we are actually $ 265 million dollars further in the hole than we expected to be this year. We just don’t have the money to be giving out for extra benefits right now. It’s a fiscal back breaker.

Watch it:

Kleefisch has made this argument before. “This doesn’t just have roots in the Bible, this has roots and fiscal common sense. We can’t at this point, afford to just be handing out money to anyone,” she said during an interview with WVCY radio. “This is a slippery slope in addition to that at what point are we going to okay marrying inanimate objects? Can I marry this table, or this clock, can we marry dogs?”

Of course Kleefisch is wrong in her budgetary projections. As the Williams Institute has argued, allowing gay people to marry would actually boost state economies.

Wonk Room

Sharron Angle Tries To Conflate Don’t Ask, Don’t Tell With Same-Sex Marriage In Debate

October 14, 2010 · Posted in The Capitol · Comment 

Asked about her position on Don’t Ask, Don’t Tell during tonight’s Nevada Senate debate, Sharron Angle began by saying that lawmakers should defer the decision over wether or not to repeal the policy to the military, but then tried to conflate open service with same-sex marriage:

ANGLE: The policies within the military, especially this one are under review right now. And we should be waiting for the review of our military to make those decisions, not jumping ahead and making those decisions as Senator Reid tried to do when he put a provision of that provision in the defense bill. We and here in Nevada have been very careful to define marriage as between a man and a woman through two general elections. Over 70% of the population has voted to define marriage as between a man and a woman. I support what Mevada has done and I will represent our constituents on that basis.

Watch it:

Senate Majority Leader Harry Reid (D-NV) responded by suggesting that Angle “does not understand what went on in Washington” and reiterated that under the amendment included in the National Defense Authorization Act, DADT is not repealed until, President Obama, Secretary of Defense Robert Gates, and Chairman of the Joint Chiefs of Staff Mike Mullen “certified it would not hurt our defense.”

Angle, still unclear on how the amendment works, responded with: “We should be looking at that review before we make bills based on that review. So the review needs to come first and then the bill. I submit to you that I do know the proces. The process is, read the bill first, then pass it.


Federal Employees Can Purchase Health Insurance For Their Pets, But Not Their Same-Sex Partners

October 14, 2010 · Posted in The Capitol · Comment 

This morning, federal employees who are insured through the Federal Employees Health Benefits (FEHB) Program received an email from Aetna advertising their new pet insurance plans. “In these challenging economic times, it’s good to know you can get some financial protection for unexpected illness and injury to your pets,” the e-mail reads before listing the many benefits:


The insurance is a handsome perk for those who can afford it, but what’s illuminating about the ad is that while federal employees can buy pet insurance “in these challenging economic times,” LGBT workers are still prohibited from purchasing policies for their partners or spouses by the Defense of Marriage Act (DOMA) — a federal law which denies federal benefits to legally married same sex couples.

President Obama supports repealing DOMA (although the administration is currently defending the policy in court), but hasn’t pressured Congress to repeal the Act. Last year, he issued a memorandum instructing federal agencies to “conduct a thorough review of the benefits they provide and to identify any that could be extended to LGBT employees and their partners and families” within the scope of current law and has since ordered federal agencies to “extend a host of benefits to their employees’ same-sex domestic partners.” These benefits include: long-term health insurance, credit union membership; access to fitness facilities, planning and counseling services (including briefings on employee pay and allowances, career counseling and retirement counseling.

There are currently two separate bills in the House and Senate to provide full federal benefits to same sex domestic partners of federal employee. Last year, the legislation was voted out of the Senate Homeland Security and Governmental Affairs Committee on a bipartisan basis (Sen. Susan Collins (R-ME) co-sponsored the measure), but Sen. Joe Lieberman (D-CT) — the bill’s chief sponsor — has promised not to move this on the floor of the Senate “until we get the explicit offsets” from OPM. The Congressional Budget Office (CBO) estimates that the legislation would cost approximately $ 310 million through 2020 and benefit some 30,000 employees with same-sex partners.

The House Oversight and Government Reform Committee approved a similar domestic partner benefits bill in November of 2009.


County Clerk’s Office May Have Duty to Accommodate Employee With Religious Objections to Processing Same-Sex Domestic Partnerships

October 7, 2010 · Posted in The Capitol · Comment 

(Eugene Volokh)

From Slater v. Douglas County (D. Or. Sept. 24, 2010) (just released on Westlaw today):

Plaintiff is a former ten-year employee of the County Clerk’s Office of defendant Douglas County …. In December 2007, she asked to be excused from doing any work related to domestic partnership registrations because doing such work would be contrary to her religious belief that homosexuality is a sin. The County offered to help her find another position outside the Clerk’s Office, but otherwise denied her request on the basis that such would have caused an undue hardship in the operation of the Clerk’s Office. The County terminated plaintiffs employment February 6, 2008, when she confirmed that she would not perform work related to domestic partnership registrations…. 

Between the time the domestic partnership law went into effect [February 4, 2008] and December 31, 2009, there were thirty-seven applications for domestic partnership registrations in Douglas County. Twenty-nine were processed in 2008, and eight in 2009. Of the five employees remaining in the Clerk’s Office after plaintiff’s termination, two processed twenty-six of the registrations during the aforementioned two year period, and the other three registered the remaining eleven. Each registration involves approximately ten minutes of clerical time….

[Plaintiff sued claiming that the County had a statutory duty to accommodate her religious beliefs. –EV] The County contends that it is entitled to judgment as a matter of law because it made an effort to accommodate plaintiff by offering to transfer her out of the Clerk’s Office into another County position if an opening arose and for the alternative reason that accommodating her request to be relieved of registering domestic partnerships would have caused undue hardship in the operation of the Clerk’s Office….

To establish a prima facie case of [failure to accommodate under] Title VII, the plaintiff must prove the following: 

1. She had a bona fide religious belief, the practice of which conflicts with an employment duty; 

2. She informed her employer of the belief and conflict; and 

3. The employer discharged her because ofher inability to fulfill the job requirement….

The key issues in the case are whether the County made reasonable efforts to accommodate the plaintiff’s religious beliefs or whether no reasonable accommodation was possible without creating an undue burden on the County. …

Under the circumstances of this case, I am unable to find that a general offer by the County to help plaintiff transfer to another position if one became available constituted a good faith effort to accommodate her in her religious beliefs…. Here, no positions were available in the brief period between when Slater requested an accommodation and when she was fired. After she was terminated, the County rejected her application for re-employment. Thus, I am unable to conclude that a relatively vague promise to assist plaintiff to transfer if a position became available during a very short window of time constitutes reasonable accommodation. Undue Hardship 

The County, without exploring any options to accommodate Ms. Slater other than notifying her of vacancies that might become available in other departments, determined that all staff in the Clerk’s Office must be available to process domestic partnerships and that anything less would constitute an undue hardship upon the staffing and effective operations of the Office. 

The “undue hardship” exception to Title VII has been explained as follows: … “[U]ndue hardship cannot be supported by merely conceivable or hypothetical hardships …. The magnitude as well as the fact of hardship must be determined by ‘actual imposition on co-workers or disruption of the work routine.’”

Here, no inquiries were made to ascertain the details of plaintiff’s accommodation proposal. For example, was Slater willing to take on additional registration duties in marriage licensing in exchange for being relieved of domestic partnership duty. No inquiry was made of Slater’s colleagues to ascertain whether they were willing to take up the slack of any accommodation and, no inquiry was made of whether other counties had received accommodation requests for similar reasons and, if so, how they responded. Instead, the County here insisted that all staff must be willing to register domestic partnerships or be terminated for failing to perform a duty of the job. The County’s position all but ignores the requirement that there be a case-by-case assessment of the accommodation requested and the hardship presented. For example, in Noesen v. Medical Staffing Networks, 232 Fed. Appx. 581 (7th Cir. 2007), a pharmacist who refused on religious grounds to fill prescriptions for birth control was offered the accommodation of being relieved of the obligation to fill birth control prescriptions, taking orders for birth control, and performing checks on birth control orders. His refusal to forward calls from customers seeking birth control prescriptions to other pharmacists, however, was deemed unreasonable and thus an undue hardship on the employer. Here, as noted, the County engaged in no interactive process to determine whether Slater’s duty to register domestic partnerships could be effectively handled by other clerks at de minimis cost and inconvenience to the public. See Brady v. Dean, 173 Vt. 542, 547 (2001) (noting that Vermont’s civil union law, which granted same-sex couples civil union licenses, did not burden religious beliefs because the civil union law’s provision allowing assistant town clerks to register civil unions offered an “accommodation” for town clerks with religious reservations about issuing a civil union). Certainly the track record of domestic partnership registrations in the aftermath of Slater’s termination supports the proposition that the County would not have suffered an undue hardship Slater was never replaced, and two of her five colleagues processed twenty-six of thirty-seven registrations with the other three dealing with the remaining eleven. And, unlike Noesen, there is nothing in the record to indicate that Slater was unwilling to refer domestic partnership registrants to others in her department. To the contrary, in her declaration plaintiff states that she would have been be willing to refer such registrants, but because of the lack of any interactive process, was never asked. 

The Clerk’s position that all employees must be willing to process domestic partnership registrations because otherwise co-workers would be burdened when absorbing the additional work is somewhat belied by subsequent events here: as it turned out, 40% of staff processed 70% of the registrations after Slater’s departure. The reasons are unknown, but the specific work at issue here was not equally divided. Furthermore, the Ninth Circuit has explicitly held that what constitutes undue hardship must be determined within the factual context of each case and has observed that such must involve more than a de minimis cost to the employer and/or “a significant discriminatory impact” on co-workers. Moreover, as previously noted, an undue hardship cannot be supported by merely conceivable or hypothetical hardship. 

This is not a case where the requested accommodation would expose co-workers to heightened exposure to hazardous duty. Nor is it a case involving emergency responders such as police officers charged with protecting all members of the public. See Endes v. Indiana State Police, 349 F.3d 922 (7th Cir. 2003). As important as the work is of a clerk’s office, it is not hazardous nor is it emergency response/law enforcement work. Thus, I find those cases distinguishable. If anything, I find Noesen more analogous, and I note that the employer there did not rest on a “one-size-fits-all” approach but actively engaged in a good faith effort to accommodate the religious beliefs of one of its pharmacists. That did not happen here. 

Next, I address the County’s position, as articulated in Ms. Nielsen’s December 14, 2007 memo to Slater, that accommodating her request would violate the First Amendment in that such accommodation could be construed as supporting one religious belief over another. The County cites to no case law in support of this contention. A public sector employer does not unconstitutionally “support” an employee’s religious beliefs by granting an accommodation to that employee. The Constitution does not mandate that individuals surrender their sincerely held religious beliefs as a condition of public sector employment. Thus the State does not stumble over the First Amendment if it accommodates a Seventh Day Adventist by not scheduling him to work between sundown Friday and sundown Saturday. Common sense tells us that this would be the case even in the absence of legislation such as Title VII, but certainly so in view of the requirements of title VII and its Oregon state law counterpart. 

Moreover, the County is not choosing between Slater’s religious beliefs and the beliefs of the domestic partners. For one thing, the County doesn’t even know what the religious beliefs are of the latter group (although it is a fair inference that they don’t share plaintiff’s beliefs). But, more importantly, a domestic partnership registrant has no cognizable right to insist that a specific clerical employee with religious-based objections process the registration as opposed to another employee (having no such objections). So long as the registration is processed in a timely fashion, the registrants have suffered no injury. There is no reason to even inform them of Ms. Slater’s religious views or the County’s accommodation of those beliefs. 

Finally, the County’s position that any accommodation that relieves a clerk from any clerical duty constitutes an undue hardship brings to mind a potential scenario. Suppose a deputy clerk has objections on religious grounds to capital punishment and thus asks to be relieved of any duty to file a judgment in a capital case resulting in a death sentence. Suppose further that such cases are relatively rare and that none of the other clerks have such reservations and would be willing to process such judgments. Would the County insist that the clerk with the religious objections agree, as a condition of continued employment, to process a capital punishment judgment notwithstanding the availability of other clerks with no such objections? Would an accommodation to the clerk with religious objections constitute an undue hardship to the County? Does the analysis change with the action that is the subject of the objection, or is anything less than a commitment by each clerk to fulfill every duty of the Clerk’s Office an undue hardship to the County no matter how easy it would be to fashion an accommodation? 

Because I cannot tell from the record before me whether an accommodation to Ms. Slater would have caused an undue hardship to the County, the County’s motion for summary judgment is denied and the County will be required to present their evidence on that issue to a jury….

The Volokh Conspiracy

Bloomberg for same-sex marriage

October 4, 2010 · Posted in The Capitol · Comment 

Mike Bloomberg films this video for the New York State marriage campaign of the national group Human Rights Campaign

His pitch is libertarian: "Government shouldn’t tell you whom to marry," and the campaign is part of a broader recognition that — even in a blue state — backers of gay marriage are in a fight over public opinion.

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New Poll: Majority Of Americans Support Same-Sex Marriage

September 20, 2010 · Posted in The Capitol · Comment 

A new AP-National Constitution Center Poll finds that individuals who oppose marriage equality — including President Obama — are quickly falling outside of the political mainstream, as a growing number of individuals are now embracing the idea. Support for marriage has exceeded the 50 percent mark in at least 17 states, but now, for the first time, a national poll has found that 52% of Americans believe that the federal government should “give legal recognition to marriages between couples of the same sex”:


This poll comes on the heels of another survey which found that a majority of Americans are also saying that “their definition of family includes same-sex couples with children, as well as married gay and lesbian couples.” The increasing visibility of LGBT issues, positive media representations, and the coming out of family members and friends have all contributed to the increase in support. Significantly, the nation crossed the 50 percent mark on marriage after Judge Walker’s Prop 8 decision, suggesting that his ruling (and the GOP’s quiet response) may have also played some role in changing hearts and minds.

Still, popular support does not necessarily translate into political action or repeal the many state prohibitions against extending marriage benefits to gays and lesbians. Backers of marriage are much more likely to live in large cities on the coast, giving senators from middle America almost no political reason to support the policy. But as the younger younger new voters come of age, and as their older counterparts exit the voting pool, it’s likely that support will only increase — as will the political will to actually do something about it.

The poll also found that 58 percent of Americans believe that “couples of the same sex (should) be entitled to the same government benefits as married couples of the opposite sex.” Fifty-six percent also agree that “Judges should interpret laws broadly, taking into account the broader interests of the nation.”

Wonk Room

When Obama backed off same-sex marraige

September 20, 2010 · Posted in The Capitol · Comment 

Tracy Baim, a gay Chicago reporter who has covered Obama for years, was the first one to point me to the 1996 questionnaire in which State Senate candidate Barack Obama said he backed same-sex marriage. 

Now Baim is coming out with a thick book — straightforwardly titled "Obama and the Gays" — in which she and many others trace and consider what has, at times, been a fraught political relationship. 

One tidbit: By 1998, just two years after he publicly backed same-sex marriage, he had begun to walk away from that posiiton. Baim prints this passage from a questionnaire that year:

Q: Do you favor legalizing same-sex marriage?
OBAMA: Undecided.
Q: Would you support a bill to repeal Illinois legislation prohibiting same-sex marriage?
OBAMA: Undecided.
Q: Would you co-sponsor it?
OBAMA: Undecided. 

Baim’s even-handed take:

Obama did stray slightly from that early support as he moved up the electoral food chain, but at his core he has remained committed to equal rights for gays. However, political practicality has meant that many of the issues he supports have been sidelined.

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Carly Fiorina Cites Obama’s Position On Same-Sex Marriage To Explain Her Own Opposition

September 1, 2010 · Posted in The Capitol · Comment 

Tonight during her debate against Sen. Barbara Boxer (D-CA), Republican gubernatorial candidate Carly Fiorina cited President Obama’s opposition to same-sex marriage to substantiate her belief that “marriage is between a man and a woman” and moderate her support for Proposition 8:

FIORINA: I do believe that marriage is between a man and a woman, but also have been consistant and clear that I support civil unions for gay and lesbian couples. The Defense of Marriage Act had broad bipartisan support. And actually, the position I’ve consistently aspoused is consistant with that of our President and a vast majority of senators in the U.S. Senate…The voters were quite clear about their views on this [Proposition 8] and this is now going through a legal process. Whatever your view about gay marriage, I think many of us would conclude that when voters have such a clear decision, for that decision to be overturned by a single judge seems perhaps not appropriate.

Watch it:

Indeed, in light of the growing support for same-sex marriage from prominent conservatives and Republicans, some Democrats and LGBT activists have expressed concerned that Obama’s continued opposition to marriage will become a serious political and policy hinderance. As one prominent Democratic consultant told Sam Stein, “I think they have been put in a tough place by these conservatives and they should be,” the consultant said. “There are a whole group of people who are to the left of them on gay rights. And they are Republicans. It should make them feel uncomfortable.”

Wonk Room

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