President Obama Strengthens ENDA by Rejecting DOMA

[Ian David]

President Obama Strengthens ENDA by Rejecting DOMA
Filed by: Guest Blogger

Editors' Note: Guest blogger Tico Almeida is a civil rights litigator at the boutique law firm of Sanford Wittels & Heisler LLP, which was recently named by Law360 as the only plaintiff-side law firm on the 2010 list of the Top Five employment law practices in the United States. Tico-Almeida.jpgFrom 2007 to 2010, Mr. Almeida served as the lead counsel on the proposed Employment Non-Discrimination Act (ENDA) in the U.S. House of Representatives.

Some advocates within the lesbian, gay, bisexual and transgender (LGBT) community have presented a false choice between advocating for marriage equality and the proposed Employment Non-Discrimination Act (ENDA), which would outlaw workplace discrimination based on sexual orientation and gender identity. The truth is that the steps we take toward one goal also bring us closer to the other goal. Equality begets equality.

In fact, this week's much-celebrated announcement by U.S. Attorney General Eric Holder in the litigation challenging the so-called Defense of Marriage Act (DOMA) will likely bolster efforts to secure equal rights both in civil marriage and in employment. Because of President Obama's still-evolving position on marriage equality for gay and lesbian couples, we are one step closer to a federal ENDA statute that can survive an attack by conservatives who will surely challenge that statute's constitutionality in federal court sometime shortly after we have enacted ENDA into law.

For starters, the Obama Administration deserves credit for refusing to defend the constitutionality of the clearly discriminatory Section 3 of DOMA. According to Yale Law School professor Jack Balkin, the Obama Administration's new position likely increases the chances that at least some portions of DOMA will be struck down by the federal courts, including eventually the U.S. Supreme Court. Professor Balkin is right, and I would add that the legal briefs submitted by the U.S. Department of Justice (DOJ) in the DOMA cases will also increase the long-term chances that LGBT victims of workplace discrimination and harassment will one day have the opportunity to hold accountable their discriminatory employers in federal court.

That's because of the following key portion of the announcement by U.S. Attorney General Holder:

"After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a heightened standard of scrutiny."

More:
http://www.bilerico.com/2011/02/president_obama_strengthens_enda_by_rejecting_doma.php?utm_source=twitterfeed&utm_medium=twitter&utm_campaign=Feed%3A+BilericoProject+%28The+Bilerico+Project%29&utm_content=Twitter



Who wants some?

[_ed_]

1. The Fierce Urgency of Waiting for 2.5 Years

At this rate, he'll embrace gay marriage around 2050.

[TheWraith]

2. Thanks for the proof that nothing is good enough for you. nt

[MNBrewer]

4. Good enough would have been making that determination earlier

at the outset.

[TheWraith]

6. Except that the cases hadn't been decided at that point.

And they had no case law to point at and justify the decision--which is even now bending the rules.

[MNBrewer]

13. The administration could have argued that a heightened level of scrutiny was warranted

at the outset. No rule bending required. They are completely unrestrained in that aspect.

[Ian David]

8. Why didn't President Obama send the buses to New Orleans during Katrina? n/t

[dsc]

11. we are referring to the first brief that was filed by the Obama Administration

in defense of DOMA. If you didn't know that then you had no business posting. If you did and posted what you posted anyhow you are dishonest.

[TheWraith]

14. The one that was written by Bush administration lawyers, you mean?

No joke--the two guys who wrote that brief were hired under the Bush admin and their policy of putting political hacks in what are supposed to be non-partisan jobs.

[Cherchez la Femme]

18. But the fact is

they were Obama's AG's, under Obama's Presidency.
That blame cannot be put upon Bush -- Obama kept them, these 'Bushies',
and whatever briefs they filed UNDER Obama BELONG to Obama

[TheWraith]

19. The Bushies put political appointees in civil service jobs. It is illegal to fire civil service...

...for political reasons.

Quite literally, if you went through and fired the lawyers the Bush Administration had hired, you would be committing a crime. That's WHY the Bushies put them in those jobs.

[Cherchez la Femme]

20. A Crime?

A CRIME??!!

Mingia, sorry dude, but you got eggses all over your face.
You know, shouldn't one actually have knowledge of what they talk about before they open their mouths, or in this case, put fingers to keyboard?

Best learn some Historical Presidential rights & actually, duties: Any incoming president has every right
and until this last flap with Bush, DID
appoint their own choices for State AG's

What Bush did that nobody ever did before is fire his own AG's in the middle of their service for no good reason

other than they weren't "Loyal" (i.e. prosecute Democrats for no good reason) or colloquially "Bushie" enough!.
Ask Don Siegelman, for just one instance, about it why don't you?

And our brave, brave incumbent Democratic President couldn't stand a peep being said about him from people who would never, ever like him much less vote for him
and even though --and I cannot stress this enough-- he had every right to appoint his own AG's, just as he did his own cabinet,
and in which every President prior to him had done
he KEPT the "Bushies". Jaysus Tap-Dancing Christ, man!

Go ahead, educate yourself. Look it up.
Then I'll take your apology.


Do you for one stinking moment think that ANY AG that Obama does appoint (through attrition, I'm sure -- he certainly doesn't have the fortitude to get rid of these stinking Bushies on his own), or kept by a Democratic successor (highly doubtful, unless we happen to find another Kennedy, people know "Hope" and "Change" when they see it, and this President has not delivered) will be kept by the next Republican President?

Do you?

Really?

If so, I have a bridge to sell you along with the surrounding swamp land --sure to be drained & massive housing constructed (you'll be rich! RICH I tells ya!)

A Crime.
ZOMG, unbelievable and highly disheartening.

[Cherchez la Femme]

16. What point are you attempting to make?

Surely you're not living in an alternate reality where Obama was President during Katrina... nor that Senator Obama (if he was even in the Senate then) had any power over what happened

so what's your point? It escapes me completely.

[_ed_]

9. Sorry, gay rights aren't negotiable with me

Evidently, they are with you. I won't be happy until he stops trading in bigotry and comes out in favor of full marriage rights for gays and lesbians. That's the only thing that will be "good enough for me." Civil rights are more important than Barack Obama.

[TheWraith]

15. There are a lot of things which I don't find any valid opposition to.

And I also know that there's very little chance any of them will ever see the light of day under a Republican presidency. Progress on any one issue may be slow, but as long as we have Democrats in power pushing the battle lines forward, we'll get there.

[TheWraith]

3. A brief primer in constitutional scrutiny.

Generally speaking, when it comes to the courts determining the constitutionality of various laws, there's three different levels of rigor they use depending on how much the law can potentially infringe people's rights.

The lowest standard is "rational basis." In other words, a law is valid if there is a rational basis for it. This is the minimum standard for all judicial scrutiny, and it's the least likely to result in a law getting overturned. It's typically applied to low impact laws, like safety mandates.

"Intermediate scrutiny" is exactly what it sounds like: higher scrutiny than most laws get, because these laws have more opportunity to infringe people. An example would be laws governing personal privacy, medical procedure, etcetera.

The highest level of scrutiny is "strict scrutiny." This is what's applied to enumerated constitutional rights, such as freedom of speech and assembly. Strict scrutiny means that a law has to pass a very high muster and demonstrate a clear and compelling interest on the part of the government in order to remain valid.

In this case, the Obama admin is basically saying that laws based on sexual orientation deserve the increased scrutiny that's given to other laws affecting personal behavior.

[dsc]

5. but the first time they filed a brief they said that the lowest standard

rational basis, was the right standard. I am glad they changed their minds but I wish they had argued this from the first instance.

[Unvanguard]

7. They argued that circuit precedent required rational basis, not that it was the right standard.

The absence of that circuit precedent in the Second Circuit was at least the proximate cause of the Administration shift.

[ruggerson]

10. thats' only if you accept Holder's explanation of his shift prima facie

which many don't. The change was due to political pressure and the fact that most likely, Obama's opposition to marriage equality all along has been a political ruse.

Whichever, it's a welcome change.

[Ian David]

12. See also: Widow’s $363,000 Tax Bill Led to Obama Shift on Marriage Act

Widow’s $363,000 Tax Bill Led to Obama Shift on Marriage Act
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=102x4751422

[Cherchez la Femme]

17. Right

President Obama changed his thinking when a rich woman had to *gasp!* pay taxes! OMG, the Humanity!

The heartbreak of so many partners unable to visit their wives/husbands in fact who were dying in Intensive Care wards -- meh.
(One of the best known, the woman from Rosie's family cruise who was admitted to the ICU, and subsequently died " in Fl -- the President's good buddy Jeb Bush being the governor at that time. 'You're in Florida now' the nurse said to the woman's spouse. saying some thing like 'We don't recognize your sinning relationship here.')

The denial of gays, couples or singles, to adopt -- except when certain gay households took in mentally/physically challenged children that didn't have a chance in hell of being adopted by anybody else you know, those who wanted a nice white newborn, and would travel all over the Russia's to find one, heck, even the Chinese were better to adopt than U.S. black or Latino children!)

oh well THEN these terrible homo's could adopt them.
Big difference! :eyes:


Seriously, do you really think that's going to truly impress many people?
If so, please tell me exactly how.