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Obama and the Constitutionality of DADT and Other LGBT Discrimination

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After nearly two years of ignoring, scorning, demeaning and lecturing the progressive blogosphere that provided substantial and critical portions of the fuel propelling him into office, President Obama suddenly found time to sit down with five carefully chosen token representatives of the unwashed dirty hippy community five days before the coming mid-term election. An election increasingly looking quite catastrophic to his own Democratic party, and due in large part to his performance and policy selection in office. How thoughtful of Mr. Obama to finally have a dialect with his base now that he is desperate and less than a week out from the electoral tsunami.

Courtesy of Duncan Black (Atrios), one of the participants, here is a transcript of the festivities. You can draw your own conclusions as to how large of a dog and pony show this was, but I would like to focus on the portions of the meeting dealing with LGBT discrimination and the government’s relentless DADT policy.

Asked by Joe Sudbay of Americablog whether he actually had any real plan to accomplish passage of repeal legislation for DADT, Obama responded:

…And my hope is that will culminate in getting this thing overturned before the end of the year.

Now, as usual, I need 60 votes. So I think that, Joe, the folks that you need to be having a really good conversation with — and I had that conversation with them directly yesterday, but you may have more influence than I do — is making sure that all those Log Cabin Republicans who helped to finance this lawsuit and who feel about this issue so passionately are working the handful of Republicans that we need to get this thing done.

….

You’re financing a very successful, very effective legal strategy, and yet the only really thing you need to do is make sure that we get two to five Republican votes in the Senate.

And I said directly to the Log Cabin Republican who was here yesterday, I said, that can’t be that hard. Get me those votes.

Asked to describe his plan to pass critical legislation he has long promised one of his core constituencies, this is the pathetic drivel Barack Obama comes up with? The President of the United States and leader of the entire Democratic party pleads powerlessness to accomplish the goal, but demands the Log Cabin Republicans go forth and deliver him intransigent GOP Senators on a golden platter? Seriously, that is his plan? Perhaps Mr. Obama has mistaken the LCRs for the NRA or something, but if there is any entity with less sway over the entrenched and gilded GOP Senate leadership than Obama, it is the Log Cabin Republicans. Absurd and lame is too kind of a description for such tripe. I honestly don’t know what is worse, that this is Obama’s response or that he has the politically incompetence to state it on the record.

But there was more, oh yes there was more. Asked by Sudbay the straightforward yes or no question as to whether he considered DADT to be unconstitutional, the self proclaimed “Constitutional scholar” President came up with the following bucket of blarney:

And one of the things I’d like to ask you — and I think it’s a simple yes or no question too — is do you think that “don’t ask, don’t tell” is unconstitutional?

THE PRESIDENT: It’s not a simple yes or no question, because I’m not sitting on Read more →

The DOMA Decisions In The 9th Circuit

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I have had several people ask me off blog about the “opinions” on the Defense Of Marriage Act (DOMA) that have surfaced recently in the 9th Circuit. I may write more later; but for now I want to lay out the sequence of facts and actions and start the discussion.

The current issue really took flight last month when 9th Circuit Chief Judge Alex Kozinski entered an order dated November 19, 2009 on the matter of Karen Golinski, a staff attorney for the 9th Circuit Court of Appeals. Judicial branch employees such as Golinski are Federal employees and therefore have their benefits administered by the Office of Personnel Management (the same folks Obama and Harry Reid want to administer their poor excuse of a substitute for the Public Option). Based upon the OPM’s stated position, the contracted benefits carrier (Blue Cross/Blue Shield) refused to provide health benefits for her same sex legal spouse, Amy Cunninghis.

From Judge Kosinski’s November 19 Order:

Karen Golinski has been denied a benefit of federal employment because she married a woman rather than a man. I previously determined that violates this court’s guarantee of equal employment opportunity. To avoid a difficult constitutional problem, I harmonized the Defense of Marriage Act (DOMA), 1 USC §7; the statutes creating the benefit program at issue, the Federal Employees Health Benefits Program (FEHBP), 5 USC §8901 et seq.; and this court’s commitment to equal employment opportunity.

I then entered [an] order
…
No “party or individual aggrieved” by my decision appealed it.

The Administrative Office of the United States Courts (AO) complied with my order and submitted Ms. Golinski’s form 2089 to the Blue Cross and Blue Shield Servie Benefit Plan, Ms. Golinski’s health insurance carrier. That’s as it should be; the AO is subject to the “supervision and direction” of the Judicial Conference of the United States, 28 USC §604(a), and I exercised authority delegated by the Judicial Conference when I ordered relief. After the AO submitted Ms. golinski’s form, I thought this matter had concluded.

The Executive Branch, acting through the Office of Personnel Management (OPM), thought otherwise. It directed the insurance carrier not to process Ms. Golinski’s form 2089, thwarting the relief I had ordered. (citations omitted)

That is the basic tale of Golinski and Kozinski. Since the November 19 Order the above language was taken from, the situation has become even more exacerbated by the intransigence of the Obama Administration and its OPM which, either comically or tragically depending on one’s view, is headed by John Berry who the Administration made a big show of touting as its highest ranking openly gay official.

The irony just oozes. After further refusal and contempt of his clear order, which the Administration never appealed, Read more →