The Tennessean has now published the fascinating back story behind the conservatives' campaign to kill anti-discrimination protections. The article is based on documents obtained in discovery in a lawsuit filed by proponents of the anti-discrimination law, represented by Abby Rubenfeld (photo).

It is surely a sign of the times that the successful lobbyist for the Tennessee Family Action Council used a strategy of not highlighting religious or moral objections to homosexuality when doing outreach to members of the state legislature. Instead, he painted the blockage of equal employment rights as pro-business, a gambit that paid off even though a number of businesses supported the Nashville ordinance and opposed the state law invalidating it.

Increasingly, an open and supportive environment for lgbt people is seen as going hand in glove with economic development. Not exactly a noble path to equal treatment under law, but it drives a wedge into conservative states when cities like Nashville, the Research Triangle in North Carolina, and Birmingham, Alabama start attracting knowledge industries in significant numbers.

From the Tennessean:

This dynamic is operating now in the line-up of who's supporting whom in Gill v. OPM, the GLAD challenge to DOMA pending in the First Circuit. To recap: the Department of Justice announced last spring that it would no longer argue that DOMA is constitutional, thus bouncing the ball to Congress, which is essentially always granted standing to defend a federal law if DoJ declines to do so. The Republican House jumped at the chance; the Dem-controlled Senate, no way.

Last week, when briefs were due from amicus groups supporting the plaintiffs' challenge to DOMA, ten were filed. Most were from the usual suspects of gay-supportive organizations: medical and legal professional groups, labor unions, academics, progressive religious groups, and even the majority of Democratic members of the House of Representatives.

But there was a surprising new player in the game.

President Piñera was elected as the conservative alternative to a more progressive incumbent. In last month's March for Sexual Diversity, demonstrators protested Pinera's failure to keep his promise to back a civil unions bill. He has now announced his intention to submit the legislation, although it was unclear whether his party (UDI) would support it. Similar bills have been introduced in the Chilean Congress since 2009.

In addition, a lawsuit seeking legalization of same-sex marriage is pending before the Chilean Constitutional Court.

If the bill passes, Chile will join Brazil, Colombia, Ecuador, and Uruguay in having laws similar to civil unions or the French PACS for unmarried partners. Venezuela also has such a law pending int the legislature. Argentina has legalized same-sex marriage.

Under both the Bush and Obama orders, religious organizations receiving public funds are allowed to discriminate on the basis of religion in their employment policies. Also under both orders, funding recipients are prohibited from discriminating against beneficiaries on the basis of religious affiliation or belief or the refusal to hold a belief or to attend services.

Under Title VII, religious organizations have long had the same kind of exemption allowing them to discriminate based on religion in their hiring and firing decisions. However, the Bush and now the Obama executive orders have extended that exemption to include organizations that are supported with government funds.

The Obama order did add provisions requiring federal agencies to provide alternatives for people who do not want to receive social services from religious groups and to list recipient organizations on agency web sites.

Judges Reinhardt, Hawkins and Smith peppered both sides with sharp questions, and overall, both sides acquitted themselves reasonably well. No knock-outs were scored in this round, and the judges admonished both sides repeatedly that they wanted yes, no or I don't know answers to their questions, not little speeches designed to be crowd-pleasers.

Bottom line, the primary questions that this panel will resolve will be:

• whether to certify the case to the California Supreme Court to help determine standing;
• whether to find that either the proponents (who litigated at trial) or an Imperial County deputy clerk has standing to bring the appeal;
• whether Prop 8 is unconstitutional on grounds that apply only to California;
• what constitutional standard of review to apply (assuming that they reach the merits); and
• whether the Supreme Court's decision in Romer v. Evans bars Prop 8 and perhaps other laws prohibiting same-sex marriage.

Walker's opinion is a thorough legal analysis and a comprehensive review of the factual and quasi-factual bases for each side's arguments in the marriage debates. The Due Process violation is that California denies access to a fundamental right and the form of legal recognition considered to be culturally superior - marriage - and offers only an inferior substitute - domestic partnerships. On the Equal Protection claim, Judge Walker finds that Prop 8 discriminates based on sexual orientation, a classification that he would treat as suspect, but he concludes that because Prop 8 lacks a rational basis, there is no reason to reach the question of heightened scrutiny.

Not a surprising analysis, but well done. Is it a watershed, either legally or culturally? Too soon to know.

Following the jump are the aspects of the 138-page opinion strike me as the most important.

Blocking disclosure of names would be constitutional, the Court holds, "if there were a reasonable probability that the group's members would face threats, harassment, or reprisals if their names were disclosed."

Reed arose when a group called Protect Marriage sought to block release of the names of those who had signed a petition to put R-71 - a measure to stop the implementation of a state domestic partners law - on the ballot. (Voters defeated R-71 in the 2008 election, allowing the partner registration system to take effect.) A generally applicable state public records law authorizes the release of the names and addresses of those who sign referenda petitions, and several pro-lgbt groups requested that information. (More background here and here.)

Protect Marriage argued that individuals who oppose lgbt rights fear harm because of possible retaliation by lgbt advocates, and therefore should have their identities kept private. The Court ruled that release of names and addresses of petition signers was normally justified by the state's interest in protecting against election fraud, i.e., against individuals signing a petition multiple times and/or using forged or invented names.

The case will now go back to the lower courts for a determination of whether the signers of this petition have a reasonable fear of harm if their identifying information is released. Key to that assessment will be evidence that such fears are exaggerated or fabricated. An excellent amicus brief filed by Lambda Legal and several other lgbt organizations was before the Court in Reed, and was doubtless a factor in producing some of the excellent language in the Sotomayor and Stevens opinions (see analysis after the jump).

The closing argument in the Perry case was tee'd up to be much more interesting than most, however, if only because Judge Walker scheduled it to go on for five hours, much longer than normal. Thanks to its posting by AFER (the group formed to bring and finance the case), the Transcipt of Closing Arguments of the argument is available to everyone. So the old line about how you had to have been there doesn't hold - it really doesn't matter if you were there or not; you can read everything that happened.

And since predicting that Judge Walker will rule for the plaintiffs ranks right up there with predicting that the sun will rise in the east, the most fun way to read the transcript is to search for signs of what the bases for his reasoning will be, rather than for hints about who will win. Following are the themes and exchanges that struck me as the most interesting, although it is truly anyone's guess how relevant they will end up being to the court's opinion.

Takeaway: Because pollsters create a bottom line prediction by allocating the "undecided's" in the same proportion as the "decided's," polls have consistently overestimated the number of voters who support marriage equality, by an average of 3 percent.

Put another way, either a chunk of voters tell pollsters they will support marriage rights but then don't, or essentially all of the undecided's vote against marriage equality. The study's significance lies in the repetition of this finding - across 10 years of rapidly changing public opinion and 28 different states from Maine to Alaska and Hawaii. Most of the polls analyzed involved proposals allowing amendment of the state's constitution to ban same-sex marriage, now adopted by voters in 30 states.

It's quite a list. And if the questions are any indication, the Walker opinion will be a blockbuster, at least in terms of its scope, depth and detail. Court decisions generally take an analysis far enough to resolve the particular issues presented, but no farther. But from the beginning of this case, Judge Walker has indicated a willingness to dig deeper, by forcing both sides - plaintiffs and defendants initially both resisted the demand for extensive evidence on the ground that it was unnecessary - to come up with evidentiary support for the kinds of quasi-philosophical arguments that make constitutional law so fascinating.

Like the trial itself, Judge Walker's post-trial questions range all over the place, including history (how can a right be characterized as fundamental, given the Supreme Court's focus on tradition, when it did not exist in American society until a few years ago), culture (what is the difference between gays and lesbians on one hand and heterosexuals on the other), and economics (why is it relevant that state and local governments would benefit economically if same-sex couples could marry, especially if the magnitude of the benefit is small). The list consists of a dozen questions for each side, plus a dozen more for both sides.

We've all heard the downsides of the DADT deal: The policy will continue to be enforced until the last stage of a multi-step process is complete; the arrangement could fall apart at any point in that process; and the legislation contains no anti-discrimination provision (as was originally proposed) to protect those who come out in the post-DADT world.

I'm pretty optimistic, notwithstanding these downsides, for several reasons. First, POTUS has, however reluctantly, bought in big time to the deal; having it fail would be a massive lose-lose proposition for him with every voter segment. So the administration has every incentive to make it succeed. Second, the public has "been there, done that" with this issue, and I doubt that conservatives will find much traction for obstructionism outside their die-hard base. Lastly, I question whether anti-discrimination words on paper would have been terribly useful: with or without them, DoD has to carry out this transition with a minimum of thuggish resistance in the ranks or else the U.S. military will be perceived as unable to prevent the kind of fragging that broke out in the last stages of the war in Vietnam. In other words, the self-interest of the White House and the Pentagon now lies in managing a successful phase-out, not (as before) in trying to endlessly postpone it.

Beyond skepticism about the negatives, why do I think so highly of what seems like typical beltway business-as-usual deal making?

I have to admit that the blizzard of commentary around Elena Kagan's nomination to the Supreme Court makes me realize how jaded I have become, doubtless from spending way too much time around fellow academics and politicos. Elena Kagan - the perfect academic/politico hybrid (smarter than your average politico, more pragmatic than your average academic, and with the uber careerism found in both groups) - seems to me more archetypical than exceptional. As noted by David Brooks and Andrew Sullivan, the culture of career-above-all is at the core of this discussion. What neither has recognized is how that issue plays out with a particular edge when person in question is female.

Because Elena is so smart and hardworking, I think she will carry a quality of excellence - as in intellectual excellence - to the Court. Will she evolve into a political leader, drawing on that endless ambition to cast herself as the new Brennan, crafting deft compromises to achieve maximum possible progressive results? I hope so, but I have no idea. Or could she become the next Frankfurter, the super-smart "elite's elite" Justice who leaves the Court as a sad example of disappointment rather than of greatness? Maybe. The truth is, none of us can possibly know.

And, oh yes, she might be lesbian.

Even Sullivan, who initially called for her to come out, finally got the limits to that connection, writing that "In a way, talking about the closet of sexual orientation is beside the point. Her entire life seems to have been a closet - in the pursuit of a career." Everyone - including the eight other Justices, POTUS, etc etc - has a closet with something in it. Why is sexuality assumed to be the most important, most revealing, most authentic indicator of who a person really is?

The uncertainty over ENDA is no reason to slow down on employment issues, however. No issue has greater material importance than jobs - some of us marry, some of us don't, but we all work, or want to. And in a time of massive economic anxiety, the right to fair treatment for lgbt people in the workplace is critical.

Following the jump are three goals that advocates could prioritize immediately.

This decision in and of itself means very little, because it turned on a fairly technical point: the Court found that there was an insufficient notice and comment period allowed after the proposal was made to change local court rules on broadcasting. (The portion of Judge Walker's order authorizing the posting of video on YouTube was withdrawn before today's ruling, so the opinion did not address the YouTube issue.) The dissent by Justice Breyer (joined by Justices Stevens, Ginsburg and Sotomayor) chided the majority for micromanaging how lower courts decide whether to permit cameras in the courtroom, despite the absence of any federal law that mandates what the trial courts do on this question.

The more interesting part of the opinion was the Court's willingness to find a significant risk of irreparable harm (the standard for an injunction) in the press clips about post-Prop 8 demonstrations and boycotts; these clips were filed as part of the record by Prop 8 defenders.

I did NOT mean to break any news or to cause any freak-outs about the work that lies ahead in securing an inclusive ENDA. Some readers took my reference to "issues such as restrooms" as a message that nefarious negotiations are going on or that trans inclusion is at risk. This reaction tells me that I probably stumbled into a hornet's nest that I did not anticipate. It is possible that none of the language of ENDA as introduced will change at all. That, however, would make it a quite unusual bill.

My goal in posting on this topic is to alert people that the fight for ENDA is far from over. Winning its passage should be, imho, the top priority for 2010.