hunter of justice

Why the Stupak amendment is unconstitutional

2009-11-14T05:11:00-05:00

By Cardozo Law Professor Marci Hamilton, published in Writ:

...Although many have attacked the Amendment as a policy matter, the constitutional arguments against it have been underplayed. That is a shame, because under any reasonable reading of the Constitution, the Stupak Amendment is unconstitutional: Indeed, it violates three different constitutional principles.

How the Stupak Amendment Violates The Establishment Clause

First, the Amendment violates the Constitution's separation of church and state. The anti-abortion movement is plainly religious in motivation, and its lobbyists and spokespersons represent religious groups, as is illustrated by the fact that the most visible lobbyists in the Stupak Amendment's favor have been the Catholic Bishops. This is a brazen and frank attempt to impose a minority's religious worldview on the entirety of American healthcare. (A majority of Americans have favored a woman's right to choose for many years.) There is no secular purpose for the extension of the Hyde Amendment to all private health insurance plans as well. Accordingly, whatever secular purpose might be devised by those trying to defend the Stupak Amendment in court would be a sham purpose, intended to cover the frankly religious pandering the Amendment represents.

One of the clearest Establishment Clause principles is that the government may not impose a certain group's religious beliefs on those with different beliefs. The principle was articulated by the framer of the First Amendment, James Madison, in his important work "Memorial and Remonstrance," and it has been a mainstay of Establishment Clause doctrine. The Stupak Amendment violates this principle by imposing on the entire country a religious worldview that millions of Americans do not share. Moreover, this imposition of religious belief in the private sphere is in the context of healthcare, which every American needs.

How the Stupak Amendment Violates The Equal Protection Clause

The Stupak Amendment also discriminates on the basis of gender. Only women have to deal with the difficult question of abortion. Conspicuously missing are parallel exemptions barring funding for Viagra, or for, say, prostate surgery treatments, which can leave a man sterile and therefore operate as a birth control measure.

In addition, the exemption (the purpose of which is, again, obviously a religious one) does not serve any medical end, when serving medical ends is presumably the overall and most important purpose of the Health Care Reform Act. If health is truly to be served, then refusing to permit women to obtain even private health insurance that covers unplanned pregnancies, or pregnancies involving fetuses with fatal abnormalities, is not just discriminatory, but outright irrational.

How the Stupak Amendment Violates Substantive Due Process and Privacy Rights

Finally, the Stupak Amendment attempts to curtail -- across the board – the privacy rights that Roe v. Wade and its progeny secured for women. While other restrictions on abortion (including the Hyde Amendment) have been upheld by the Supreme Court, this is a far more expansive and repressive move against women, and it surely institutes an undue burden on a woman's right to obtain an abortion in consultation with her doctor. Although it is not clear precisely where the boundary line lies, it is very clear that this move transgresses any reasonable interpretation of the line the Court's cases draw.

The Stupak Amendment is also a harbinger of future constitutional violations, for it erects a slippery slope of top-down control of the spectrum of healthcare options. Abortion is surely just the first foray of the religious lobbyists' battle to take away Americans' right to choose among the full panoply of healthcare options. Attempts to control and halt the funding of both emergency and ordinary contraception surely are not far behind, for such attempts are part of the very same politico-religious platform that includes the Stupak Amendment. There is no more obvious violation of Griswold v. Connecticut – which established that laws prohibiting contraception are unconstitutional under the Court's right-of-privacy doctrine -- than for the federal government to reduce the affordability and, therefore, the availability of contraceptives for all Americans.

Conservative Senators who are pandering to religious interests (and/or simply imposing their own religious beliefs on the country) have been quoted recently as saying that they will not permit the Health Care Reform Act to backtrack on abortion issues. But backtracking is a misleading description of what the religious lobbyists are seeking. The truth, instead, is that the Stupak Amendment is a far reach beyond the already repressive Hyde Amendment, and that the advent of the federalization of healthcare is giving anti-abortion religious believers a one-stop lobbying opportunity on an issue that they were previously having to address on a state-by-state basis.

In sum, if the millions of Americans who believe in choice do not act quickly and in a concerted fashion, then we will have a historic rollback of women's liberties. That would be a true disaster, for not only is the Stupak Amendment repressive and regressive, but it also violates constitutional rights.

Will Supreme Court grant cert in Christian Legal Society case?

2009-11-13T10:33:46-05:00

A cert petition that has been lingering before the Supreme Court since last summer raises the question of whether a Christian student group's constitutional rights were violated when a public law school refused to grant it official status because the group excluded gay and non-Christian students in violation of the school's non-discrimination policy. Clearly, someone on the Court is interested in granting cert: the case has been on the Court's conference calendar five times (counting today), but still no decision on cert has been announced. This week, the clerk of the Court sent a letter to the Ninth Circuit clerk's office requesting that the complete record in the case be transferred to the Supreme Court, a step that is normally taken only after cert is granted.

If the Court does add Christian Legal Society v. Martinez (No. 08-1371) to its docket, the debate over the conflict between religious liberty and anti-discrimination law will jump to the top of the list of important constitutional law issues related to sexual orientation. The decision could set the terms for what is increasingly the central philosophical question in lgbt rights law: the extent to which religious entities (or even individuals) should be exempt from civil rights protections for sexual orientation. (Additional background here)

If any decision is reached today on granting cert, it will be announced on Monday. Given that there is little chance that the Justices have fully reviewed the lower court documents yet, however, the case may well be rescheduled for its sixth time on the conference calendar. The Court's next conference is November 24.

Excerpts from the lower court opinion after the jump -->

The following excerpt is from the District Court opinion, 2006 WL 997217, which was summarily affirmed by the Ninth Circuit, 2009 WL 69339.

This case concerns whether a religious student organization may compel a public university law school to fund its activities and to allow the group to use the school's name and facilities even though the organization admittedly discriminates in the selection of its members and officers on the basis of religion and sexual orientation.

CLS is an unincorporated student organization comprised of students attending University of California, Hastings College of the Law (the “Law School”). The mission of CLS is “to maintain a vibrant Christian Law Fellowship on the School's campus which enables its members, individually and as a group, to love the Lord with their whole beings-hearts, souls, and minds-and to love their neighbors as themselves.” In the beginning of the 2004-2005 academic year, CLS applied for, but was denied the privilege of becoming a recognized student organization at the Law School.

University of California, Hastings College of the Law is a public law school located in San Francisco and is part of the University of California school system. …The Hastings Defendants permit student organizations to register with the Office of Student Services. Student organizations must be registered in order to gain access to [various] benefits…

As a condition of becoming a “registered student organization,” the Hastings Defendants require a student organization to comply with the Law School's Policies and Regulations Applying to College Activities, Organizations and Students, which requires, inter alia, registered student organizations to abide by the Policy on Nondiscrimination (“Nondiscrimination Policy.) The Nondiscrimination Policy provides:

The College is committed to a policy against legally impermissible, arbitrary or unreasonable discriminatory practices. All groups, including administration, faculty, student governments, College-owned student residence facilities and programs sponsored by the College, are governed by this policy of nondiscrimination....

The University of California, Hastings College of the Law shall not discriminate unlawfully on the basis of race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation. This nondiscrimination policy covers admission, access and treatment in Hastings-sponsored programs and activities.

Hastings requires registered student organizations to allow any student to participate, become a member, or seek leadership positions, regardless of their status or beliefs...

[CLS] bylaws require any student who wants to become a member to sign a “Statement of Faith” which provides:

Trusting in Jesus Christ as my Savior, I believe in:
• One God, eternally existent in three persons, Father, Son and Holy Spirit.
• God the Father Almighty, Maker of heaven and earth.
• The Deity of our Lord, Jesus Christ, God's only Son conceived of the Holy Spirit, born of the virgin Mary; His vicarious death for our sins through which we receive eternal life; His bodily resurrection and personal return.
• The presence and power of the Holy Spirit in the work of regeneration.
• The Bible as the inspired Word of God.

CLS will not permit students who do not sign the Statement of Faith to become members or officers. CLS also bars individuals who engage in “unrepentant homosexual conduct” or are members of religions that have tenets which differ from those set forth in the Statement of Faith from becoming members or officers. The bylaws also pronounce a “code of conduct” for officers which provides that officers “must exemplify the highest standards of morality as set forth in Scripture.” While only actual members of CLS may vote for or remove officers, stand for election to become an officer, or vote to amend the organization's constitution, CLS's meetings and activities are open to all students, regardless of their religion or sexual orientation.

…On September 17, 2004, CLS submitted its registration form and set of bylaws to the Office of Student Services. Hastings informed CLS that its bylaws did not appear to be compliant with the Nondiscrimination Policy, in particular the religion and sexual orientation provisions, and invited CLS to discuss changing them. Hastings further advised CLS that to become a recognized student organization, CLS would have to open its membership to all students irrespective of their religion or sexual orientation. …

CLS contends that Hastings' enforcement of its Nondiscrimination Policy, and its refusal to grant CLS an exception to exclude students on the basis of religion and sexual orientation, infringes its members' rights to free speech, free association, free exercise, and equal protection. As set forth below, the Court finds that Hastings' uniform enforcement of its Nondiscrimination Policy infringes none of these constitutional rights....

[T]he Court finds that on its face, Hastings' Nondiscrimination Policy targets conduct, i.e. discrimination, not speech. As in Rumsfeld v. FAIR, the Court finds that the Nondiscrimination Policy regulates conduct, not speech because it affects what CLS must do if it wants to become a registered student organization-not engage in discrimination-not what CLS may or may not say regarding its beliefs on non-orthodox Christianity or homosexuality.

In Hurley, even though the [Supreme] Court found that the anti-discrimination statute did not target speech on its face, the Court focused on the “peculiar” application of the statute to require a private entity organizing a parade to admit a group seeking to march behind a particular banner. Significantly, the private group expressly disclaimed any intent to exclude all openly gay, lesbian, or bisexual individuals from participating in other approved parade contingents. In contrast to Hurley, CLS is not excluding certain students who wish to make a particular statement, but rather, CLS is excluding all students who are lesbian, gay, bisexual, or not orthodox Christian….

At the hearing on these motions, CLS argued that Hastings' enforcement of its Nondiscrimination Policy suppressed CLS's speech that “homosexuality is not Christian.” First, as discussed above, the evidence does not show that CLS has been precluded from expressing any particular idea or viewpoint. Rather, to become a recognized student group, Hastings requires that CLS merely refrain from excluding students on the basis of their religion or sexual orientation. Second, even if the record could be construed to support CLS's position that its “speech” regarding homosexuality has been suppressed, CLS has not shown that the Nondiscrimination Policy targets speech as opposed to conduct. …

Therefore, the Court concludes that on its face and in its application to CLS, the Nondiscrimination Policy regulates conduct, not speech.

Because the Court finds that the Nondiscrimination Policy regulates conduct, the Court will analyze whether CLS's free speech rights have been infringed pursuant to the standard from United States v. O’Brien....

States have the constitutional authority and a substantial, indeed compelling, interest in prohibiting discrimination on the basis of religion and sexual orientation. The interest in prohibiting discrimination is particularly critical in the context of education.

Moreover, “[t]he governmental interest in prohibiting such discrimination ... is not directed at or related to suppression expression.” Therefore, the Court concludes that the Policy prohibiting discrimination on the basis of religion and sexual orientation, among other categories, is within the Hastings' constitutional authority as a state institution, and that the Nondiscrimination Policy furthers a governmental interest unrelated to the suppression of free expression-protecting students from discrimination. Furthermore, as discussed above, …Hastings' Nondiscrimination Policy is directed at conduct unrelated to the suppression of expression. Thus, the first three prongs of the O'Brien test have been satisfied.

With respect to the last prong of the O'Brien test, courts have found that the incidental restrictions on free speech rights when a government enforces an anti-discrimination statute against an organization seeking to exclude individuals were no greater than essential to the furtherance of the state's interest in prohibiting discrimination. “[A]n incidental burden on speech is no greater than essential, and therefore permissible under O'Brien, so long as the neutral regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.” Rumsfeld. The Hastings' Nondiscrimination Policy easily meets this standard. ...

Accordingly, the Court concludes that Hastings' enforcement of its Nondiscrimination Policy meets all four prongs of the O'Brien test, and thus, does not unconstitutionally infringe CLS's freedom of speech...

[The court found that the Nondiscrimination Policy is a viewpoint neutral and reasonable regulation of speech in a limited public forum.]

… CLS [also] argues that its right to expressive association has been infringed. It is undisputed that CLS is being denied the right to official recognition by Hastings and that it is being denied access to particular areas of the campus and some avenues of communicating with its members and other students. What is disputed is the legal and practical effect of these limitations.

First, it is important to note what this case is not about. Although CLS relies heavily on Dale and Roberts, these cases are inapplicable. Dale stands for the proposition that “forced inclusion of an unwanted person in a group infringes on the group's freedom of expressive association if the presence of that person affects in a significant way the group's ability to advocate public or private viewpoints.”. Similarly, the Court in Roberts addressed the validity of forcing a group to accept members it did not desire. Here, CLS is not being forced, as a private entity, to include certain members or officers….

…Hastings is not directly ordering CLS to admit certain students. Rather, Hastings has merely placed conditions on using aspects of its campus as a forum and providing subsidies to organizations. If CLS wishes to participate in the forum and be eligible to receive funds, it must comply with Hastings' Nondiscrimination Policy. If not, CLS is “free to terminate its participation ... and thus avoid the requirement of the nondiscrimination provision.” CLS may continue to meet as the group of its choice on campus, excluding any students they wish, and may continue to communicate its beliefs as it did all through the 2004-2005 academic year. Therefore, Dale and Roberts are inapplicable here….

The broad class of students CLS seeks to exclude significantly differs from the Boy Scouts' conduct in Dale. CLS does not confine its desired discrimination to students who are open and honest about being gay, lesbian, or non-orthodox Christian, let alone leaders on campus advocating for gay rights or non-Christian faiths. Rather, CLS seeks to exclude all lesbian, gay, bisexual or non-orthodox Christian students.

Moreover, CLS does not demonstrate how admitting lesbian, gay, bisexual or non-orthodox Christian students would impair its mission. Significantly, unlike the Boy Scouts in Dale, CLS has not submitted any evidence demonstrating that teaching certain values to other students is part of the organization's mission or purpose, or that it seeks to do so by example, such that the mere presence of someone who does not fully comply with the prescribed code of conduct would force CLS to send a message contrary to its mission. According to CLS, its mission is “to maintain a vibrant Christian Law Fellowship on the School's campus which enables its members, individually and as a group, to love the Lord with their whole beings-hearts, souls, and minds-and to love their neighbors as themselves.” …

Sotomayor unleashed

2009-11-12T23:01:03-05:00

The current issue of Latina magazine contains a feature on the personal side of Justice Sotomayor, written by a good friend, Sandra Guzman. The magazine has posted excerpts on its web page, including the following:

One evening this past spring, as we prepared dinner for a group of friends, I asked her for some advice. She listened closely as I relayed my marital problems. I still recall her words, which I carry in my heart to this day. She told me that we have been wrongfully taught the Cinderella fairy tale as a paradigm of what happy relationships are supposed to be. And when we fall short of that, we suffer for it. To find happiness in love, she said, we have to make up our own rules. It’s not easy, but it’s doable. The process may involve unlearning what we have been taught and then figuring out what makes us happy. There are all types of relationships and arrangements to choose from. Of course, the trick is finding a companion who shares those values.

Love is not the only area where Justice Sotomayor has faced her fears and worked her way through them. Even as recently as April, she had doubts about her potential rise to the Supreme Court. She had been on President Clinton’s Supreme Court short list, but no seats became vacant. When Obama won the White House, the legal world hedged their bets on the brilliant judge with the impeccable résumé. But weeks before Obama made public his pick to replace Souter, Sotomayor called her confidante and good friend [NY attorney Lee] Llambelis, telling her that she wanted to pull her name from consideration.

“You have to understand that Sonia is a very private person,” Llambelis explains. “She didn’t want to go through another public vetting process and a potential public dressing-down by those on the Republican right who opposed her nomination. Sonia was happy being a Federal Appeals judge, loved her life in New York and felt fulfilled. She worried about having less time to spend with her mother, family and friends, particularly given her mom’s age and potential health complications.” Llambelis recalls listening to her friend, whose “I can” mantra was being drowned out by last-minute uncertainty. She told her to think beyond herself. “At this point, this is not about you,” Llambelis said to her. “It’s about little girls and boys, brown and black, who live in the projects and in poor communities around our nation, who can dream bigger if you are in the Supreme Court. You cannot back down now.” Sotomayor promised to think about it overnight. And in the morning, she woke up with a lighter heart and a bigger purpose.

In her short tenure so far on the court, the justice we have witnessed is no shrinking violet. She asks tough questions and is not intimidated by her rookie status. Sotomayor’s charm and confidence surprise very few people who know her, including the man who nominated her. While President Obama’s staff was preparing Sotomayor for the confirmation hearings in a White House office called the War Room, the team covered all the potentially explosive questions and briefed her on every minute detail, including how to dress for the cameras. They even advised her to keep her nails a neutral shade, which she did. But on the day of the White House reception celebrating her appointment, Sotomayor asked the president to look at her freshly manicured nails, holding up her hands to show off her favorite fire engine–red hue. The president chuckled, saying that she had been warned against that color.

She sure had, but Sotomayor was not finished. She then pulled her hair back behind her ears, exposing her red and black semi-hoop earrings, a beloved accessory among Latinas across America—from the South Bronx to Houston to East Los Angeles.

Obama joked that she had been briefed on the size of the earrings as well. Without skipping a beat, Sotomayor replied: “Mr. President, you have no idea what you’ve unleashed.” He responded, “Justice: I know and remember it’s a lifetime appointment. And I and no one can take it back.” And that, as they say, is the final verdict.

Who's on first? Congress and states reshuffle lgbt issues - Updated

2009-11-12T01:49:09-05:00

In last week's election, Maine, New Jersey and Virginia delivered a triple whammy to progressives. Although it is a mistake to treat these results as a herald of conservative resurgence - polls also show strong support for a public option in health reform, for example - it is nonetheless silly to deny that winning the elections in those three states (or two, or one) would have been a lot better than losing all of them. Instead, marriage bit the dust in yet another ballot contest; and Dems in Congress are spooked by the loss of the two governorships, no matter how many op-eds proclaim that the results were driven by local issues.

So what happens as a result? As one of the most vulnerable and expendable of Dem priorities, lgbt issues look considerably shakier than they did two weeks ago.

In Congress, Rep. Barney Frank - who, whatever his faults, often speaks realpolitik to wishful thinking - now says that ENDA will likely get to the House floor in February. This is not what advocates were thinking two weeks ago, when the sense was that mark-up in the House, followed by a floor vote, could happen before Thanksgiving, certainly before Christmas. Instead, Barney is predicting that domestic partner benefits for federal employees is likely to jump the queue, moving ahead of ENDA in the sequence of lgbt rights legislation. Okay, federal employee benefits is an important issue. But ENDA is the bill that will shift workplace dynamics and help achieve basic material equality for every lgbt person in the nation who is employed.

The difference between the two? ENDA includes transgender persons; partner benefits does not implicate that issue. In other words, this is ugly. And dangerous. It is ESSENTIAL that both the House and the Senate pass ENDA before the 2010 election season begins in a few months, around spring break in academic-speak. (In some, mostly Beltway, politics-obsessed quarters, it began on November 5, 2008.)

(UPDATE - The mark-up in the House commitees on both ENDA and the Domestic Partners Benefits and Obligations Act will be next Wednesday, November 18.)

And in the states -

In New Jersey, the plan was always that the lame duck legislative session would enact a marriage law, regardless of who won the governor's race. That is still the plan, but it looks less like a lock than it once did. Soon to be ex-Governor Jon Corzine will sign a marriage law if it gets to him in the two months remaining in his term. After that, incoming Governor Chris Christie has vowed to veto such a bill. Although the top job changed hands, there was essentially no change in the party breakdown in the legislature. So will the deal to pass a new marriage bill hold, or will the Maine vote scare off enough legislators to delay any possibility in NJ for another four years? Apparently, there is little doubt that a marriage bill would make it through the state house, but the state senate vote is likely to be a squeaker.

And New York ...What can I say -- New York's state legislature has been dysfunctional for so long that even the smallest sign of adulthood looks like up from here. Governor David Paterson, who is as strong a supporter of marriage equality as any non-gay politician anywhere, has apparently struck a deal with state senate leaders to guarantee that there will be vote on the issue before Christmas. (See Gay City News for a fascinating account of the machinations.) Which side will win this vote is anybody's guess.

If we get to New Year's Day 2010 and neither New York nor New Jersey has legalized gay marriage, that campaign will be hitting its lavender ceiling much sooner than the advocacy groups expected.

Stupak amendment would result in massive cut in abortion access

2009-11-10T10:01:39-05:00

The Stupak amendment to the House health reform bill, adopted by a 240 to 194 vote, does not explicitly bar any insurance plan from covering abortion, yet it achieves that effect by barring any plan that accepts federal subsidy dollars at all from including abortion coverage from the insurance exchange through which plans will be sold. Few, if any, insurance plans will have a body of enrollees that does not include at least some receiving premium subsidies. The abortion access issue had been building for months, and finally exploded as a floor vote became imminent. (See my first post from July here; additional background here, here, and here.) The Kaiser Family Foundation has posted helpful Qs and As. Following is an analysis of the final amendment by Jessica Arons, from Wonk Room:

Here’s what the Stupak Amendment does:

1. It effectively bans coverage for most abortions from all public and private health plans in the Exchange: In addition to prohibiting direct government funding for abortion, it also prohibits public money from being spent on any plan that covers abortion even if paid for entirely with private premiums. Therefore, no plan that covers abortion services can operate in the Exchange unless its subscribers can afford to pay 100% of their premiums with no assistance from government “affordability credits.” As the vast majority of Americans in the Exchange will need to use some of these credits, it is highly unlikely any plan will want to offer abortion coverage (unless they decide to use it as a convenient proxy to discriminate against low- and moderate-income Americans who tend to have more health care needs and incur higher costs).

2. It includes only extremely narrow exceptions: Plans in the Exchange can only cover abortions in the case of rape or incest or “where a woman suffers from a physical disorder, physical injury, or physical illness that would, as certified by a physician, place the woman in danger of death.” Given insurance companies’ dexterity in denying claims, we can predict what they’ll do with that language. Cases that are excluded: where the health but not the life of the woman is threatened by the pregnancy, severe fetal abnormalities, mental illness or anguish that will lead to suicide or self-harm, and the numerous other reasons women need to have an abortion.

3. It allows for a useless abortion “rider”: Stupak and his allies claim his Amendment doesn’t ban abortion from the Exchange because it allows plans to offer and women to purchase extra, stand-alone insurance known as a rider to cover abortion services. Hopefully the irony of this is immediately apparent: Stupak wants women to plan for a completely unexpected event.

4. It allows for discrimination against abortion providers: Previously, the health care bill included an evenhanded provision that prohibited discrimination against any health care provider or facility “because of its willingness or unwillingness to provide, pay for, provide coverage of, or refer for abortions.” Now, it only protects those who are unwilling to provide such services.

One in three women will have an abortion in their lifetime. Eighty-seven percent of employer plans offer abortion coverage. None of that will matter if the Senate takes its cues from the House. In every other way, this bill will expand access to health care. But for millions of women, they are about to lose coverage they currently have and often need.

Memo to the appointments committee: how to interview minority candidates

2009-11-06T06:42:00-05:00

The hiring conference for entry-level law professors, known universally and grimly as the meat market, starts today. Having survived my one year as a candidate and many years on the hiring side of the table, I herewith pass on the following advice from a non-lawyer, but similarly experienced, historian, my friend Claire Potter, aka the Tenured Radical:

...[I]n lieu of giving bad advice to candidates, I thought I would give advice to those people who were doing the interviewing instead. And it's a particular kind of advice: how not to look like a fool when interviewing what we now call a "diversity candidate." Now for the sake of brevity, let's say the candidate is either a man or a woman (technically all women are diversity candidates), but may also be either of color or queer (technically queer people are never diversity candidates. Unless they are -- for some other reason.) Because these categories are too internally various, and because in fact there is surprising overlap in some of the ways you could possibly offend the people who occupy them, let's call them: Martians. And we'll assume for the sake of clarity in what follows that "you" are not a Martian, and that "I" am. Are you ready? Let's begin.

1. Do not tell irrelevant stories about your friends who are Martians, or that your daughter decided to come out as a Martian last year and how great you feel about it. I understand that you are doing this to make us Martians feel as though we are among friends, and to demonstrate your absolute lack of Martianophobia or your committed anti-Martianism. I appreciate that. Really, I do. But you know what? It suggests just the opposite. It suggests that the Martian in your presence, who is me, is making you uncomfortable, and that you are bravely overcoming it. We Martians are used to being in the minority, but it makes us impatient to have other people remind us of it all the time -- in the name of pro-Martianism, no less. So we will all do better during the interview if you stick to scholarship, teaching and what the actual requirements of the job are.

2. Do not take me to a Martian restaurant for dinner. First of all, a Martian restaurant that is not on Mars, or in a place with a significant Martian population, is likely not to be any good. It will serve Martian food cooked to the taste of the non-Martians who populate your planet. So I will find this depressing. But furthermore, it suggests that I, as a Martian, am in danger of feeling alienated on your planet because I may not be able to access my "culture." Though a Martian, as a scholar and an intellectual, I probably feel I am a little more cosmopolitan than that.

3. While we are at dinner, stay away from topics that betray how invisible the other Martians on campus or on your planet are to you. Telling me that I may wish to live on the planet one light year away because it has a larger Martian population is one way of conveying this, as is: explaining that retaining single Martians is so difficult because it is so difficult to meet and other, marriageable, Martians on your planet; or announcing that, incredibly, there is a Martian Episcopalian church that serves the entire planet right in your canyon! So even though there aren't many Martians on campus, there will be a terrific community for me. On Sundays. (Did I say I was religious? Are you sure?)

4. Admit it if your college does a crappy job of recruiting and serving the needs of Martians. Most colleges and universities that are not on Mars do -- it's not up to you to apologize for it. As in (1), don't tell me about the one Martian who graduated Summa and won the department prize twelve years ago. And although there may be serious Martian politics on campus, don't assume that I share your view of what it means to be progressive on these issues, even -- or especially -- if you are a fellow Martian.

5. Refrain from hinting to me coyly that there is someone I "really need to meet" but not telling me why. This is the most frequent way that people have of dropping a few hairpins that I am a Martian (duh), and this other person is a Martian, but being a person who doesn't really "see" or believe in interplanetary differences, you aren't going to say the word "Martian" (wink, wink.) Most Martians find this tiresome. We aren't at a job interview to meet other Martians: we're there to get a job. And if meeting another Martian on campus is important to me, I'll tell you so.

6. Try to police your references to Martian stereotypes, whether social or intellectual. Don't ask me, for example, why I ended up a historian and not a flight engineer; don't tell me that the special barber I need to cut the hair around my antennae is in the next town over (we don't all have antennae, ok?); and don't, for heaven's sake, if I am interviewing for a Renaissance Literature position, reassure me that the Martian Studies program is very welcoming. Don't put the chair of Martian Studies on my schedule without asking me, if I am not interviewing in Martian Studies, or set up lunch with the one other out Martian to talk about how I might like to work up a Martian survey course once I get a firm grip on the courses I am actually being hired to teach.

And last of all -- if you make any of the above errors, please forget about it and move on -- don't embarrass all of us by dwelling on your faux pas and trying to repair the damage. Martians are used to being in the minority, and we can take care of ourselves, thank you very much.

ENDA in the Senate: how the hearing went

2009-11-05T14:09:08-05:00

Bottom line: the hearing on S. 1584, the Senate side version of ENDA, was smooth sailing. Both this and the House committee hearing were probably more theater than anything else. Apparently, theater on this topic is not terribly appealing to members of Congress, since only three Senators (committee chair Harkin plus lead sponsor Merkley and Franken) stayed for the full hearing; only one additional Senator (Bennet) attended for part of it. On the House side, most Dems and even a couple of Republicans put in an appearance. Attendance is irrelevant to the end result, though - the hearing stage is now completed, and the committees in both chambers can move to mark-up, hopefully this month.

One difference in the dynamic of the hearing was that the attention paid to the two Republican witnesses - a management side lawyer and a religious broadcaster - was the opposite of what happened in the House hearing. There, committee members seemed interested only in particular points of employment law that arguably could be clarified. In the Senate, those issues were largely ignored, and instead the religious broadcaster drew a number of questions.

You can watch the hearing and read copies of the testimony here.

New proposal attempts to thread abortion needle in health reform

2009-11-05T06:42:00-05:00

Anti-abortion House Dems, whose number is large enough to defeat health reform, have balked at the compromise worked out earlier to avoid the use of federal funds for abortion and are insisting on additional conditions. From the NY Times:

Under the House bill, health plans are neither required nor forbidden to cover abortions. Under [Rep. Brad] Ellsworth’s proposal, if the public plan decides to cover abortion, it would have to hire private contractors to handle money that might be used for that purpose.

Supporters of abortion rights, like the Planned Parenthood Federation of America, said the proposed restrictions went too far. Laurie Rubiner, vice president of Planned Parenthood, said Mr. Ellsworth’s proposal would “tip the balance away from women’s access to reproductive health care. Abortion should not be treated any differently from any other medical benefit or procedure,” Ms. Rubiner said. “It is our hope and expectation that the secretary would decide to include coverage of abortion in the public option.” [The bill calls for the Secretary of HHS to decide the criteria for benefits.]

On the other hand, Liz Farrar, a spokeswoman for Mr. Ellsworth, said, “We think the public option will become the pro-life option.”

The bill stipulates that in every part of the country, there must be at least one insurance plan that provides coverage of abortions and at least one that does not.

Douglas D. Johnson, legislative director of the National Right to Life Committee, said Mr. Ellsworth’s proposal was “a phony compromise. It serves no purpose except to assist Speaker Pelosi in peeling votes away from an amendment that would flatly prohibit the public plan from paying for elective abortions,” Mr. Johnson said. That amendment was offered by Representative Bart Stupak, Democrat of Michigan. Mr. Johnson said Mr. Ellsworth’s proposal authorized “a money-laundering scheme under which the health secretary would hire an agent to pay abortion providers.”

The Congressional Research Service said recently that money received by the government insurance plan, including premiums, “may be classified as federal funds or government funds.” But in a memorandum analyzing the House bill, Prof. Laurence H. Tribe of Harvard took issue with that conclusion, which he described as “an exercise in sophistry.” Under the House bill, he said, abortion services could be financed “only by special private premiums that are segregated” from other money. Thus, he concluded, the House bill, “as it currently stands, does not authorize governmental funding of abortion.”

Gay marriage after Maine

2009-11-04T22:06:38-05:00

As heartbreaking as it was for the people on the ground and as callous as this may sound, Maine 09 was just another move in the two steps forward, one step back dance that social change movements are. The overall strategy on marriage has been to win in enough states to create a tipping point before seeking a nationwide resolution. Perry v. Schwarzenegger, the big gamble of a case now in federal court in California, might change that strategy, but a loss in any one state won't. Instead, what comes out of Maine are little lessons that are new and big questions that are old.

The little lessons are tactical points: Heavy turn-out is not necessarily a good sign for a minority rights issue. Religiosity isn't everything (Maine is one of the four least religious states in the country). A huge fundraising advantage may be necessary but definitely is not sufficient. And we should trust only automated polling - when people respond to other people instead of to computers, a chunk of them say they will vote to legalize gay marriage, then actually cast their ballots against it.

More importantly, here are three major issues reinforced by the Maine experience as ones that people need to wrap their minds around:

+ Marriage is different. For lots of progressives and lgbt people, marriage is simply the next frontier in an expanding civil rights movement. (Personally I dissent from the view that legalizing marriage is the apex of our goals, but I digress - that's another post.) We visualize it as linear because that is how we conceptualize it. But for a huge number of other Americans (at least if they are over 35), marriage really is different. Really different. Really. Maybe our team should consider ways to acknowledge that feeling without endorsing it.

+ Time may be on our side in the long run, but in the very short run of an election campaign, time feeds doubts about jettisoning the status quo. Both in Maine and California, early polls showed the good guys winning, but that lead evaporated in the run-up to the election. Draining a swamp of fear and prejudice can't be done with a three-month campaign, even a smart one.

+ Lastly, if the post-election surveys that are about to be done (if they haven't begun already) indicate that the homosexuals-indoctrinating-children-in-schools attack was as effective in Maine as it was in California, the gay marriage forces may want to consider an inoculation against that, even if the inoculation is painful. Let parents of young children register with the school if they want to opt their children out of teacher-initiated discussions of gay marriage. Not out of discussions of gay people and their families, but solely and specifically discussions of marriage. Most parents won't do it; most teachers won't be affected. It could make a difference.

ENDA chugging along

2009-11-04T06:51:00-05:00

Both publicly and behind the scenes, things are moving on ENDA.

Tomorrow at 10 a.m., the Senate Health Education Labor and Pensions (HELP) Committee will conduct a hearing on this year's (trans inclusive) version of ENDA. You can watch it here; Beltway denizens can show up in person at the Dirksen Senate Office Building, Room 430.

The Republican witnesses in the Senate will be the same two who testified on the House side: management side lawyer Camille Olson and Religious Broadcasters Association official Craig Parshall. Representing the Obama administration will be Tom Perez, the head of DoJ's Civil Rights Division. Other Dem witnesses will be Illinois Attorney General Lisa Madigan, University of Colorado Law Professor Helen Norton, a Nike Corporation respresentative, and a Massachusetts police officer.

Behind the scenes, House members are hoping to schedule a mark-up (a session during which Education and Labor Committee members will offer amendments to the bill) soon. At that point, there will be a "chairman's mark" that will include any modifications that the sponsors wish to make before the bill moves to the House floor. The chairman's mark effectively substitutes for the version of the bill as originally introduced. The floor vote on ENDA in the House will probably occur about a week after the mark-up.

Election night results - Kalamazoo equal rights ordinance wins; gay candidates win in St Pete, Detroit, Akron, & Chapel Hill; Republicans take NJ & VA

2009-11-03T21:25:48-05:00

Midnight sign-off - Things look grim for the No on 1 campaign in Maine, although no one has called the race. There might be a recount. In Washington state, however, the Approve R71 side is winning. It's been a really bad night for the Dems: the only good news for them is that the Republican civil war in NY 23 seems to have handed the district to the Dem candidate, Bill Owens. Right now it's looking like the bad guys won the big ones tonight.

[See Races to Watch for background on each]

VA - A Republican sweep, installing an openly anti-gay Governor and Attorney General.

St. Petersburg, FL - Steve Kornell wins City Council seat.

The Kalamazoo civil rights ordinance has won. Sex/o and gender identity protections will go into effect, despite a vicious anti-trans campaign.

Mark Kleinschmidt has been declared the winner in the race for Mayor of Chapel Hill, NC.

Charles Pugh not only won a Detroit City Council seat, he placed first in the entire field running for at-large seats, thus becoming City Council President.

Christie has won NJ - bad news for Obama, the Dems in Congress, and health reform.

Sandra Kurt beat back anti-gay attacks, won Akron OH City Council seat.

With 92% of the votes in, Annise Parker leads the race for Mayor of Houston, but will face a run-off election December 12.

CORRECTED - Simone Bell came in second out of five candidates in the race for a Georgia state assembly seat, and will be in a run-off election December 1.

Progressive Dem Gordon Smith won a City Council seat in Asheville, NC.

Washington state returns may take several days

2009-11-03T14:00:00-05:00

Because Washington state is now totally a vote by mail jurisdiction (with one very small exception in one county), the only results that can be announced tonight for Referendum 71, on whether to validate a civil union-style partner registration law, will be those ballots that are received by today. However, ballots will be counted if they are postmarked by today, so there could be thousands of outstanding ballots.

From the yes on 71 campaign:

Election night trends may not be meaningful unless they show Referendum 71 being approved, in which case, the outcome will be almost certain. This is because King County will be slow to report its ballots. ... [E]lection night returns may not show Referendum 71 being approved, or showing as wide a margin of support as will be reflected in the final results. Washington is a vote-by-mail state. King County, which includes Seattle, is Washington’s most populous county and is expected to strongly favor approving Referendum 71. King County will not have many of its ballots counted until several days after the election. During the 2007 election, a similar dynamic occurred with an education measure supported by the progressive community known as “Simple Majority.” On election night, this measure appeared to be failing by 38,000 votes, but ultimately passed by over 10,000 votes. And in this election, voters seem to be holding onto their ballots longer because they are undecided about the Seattle mayoral race.