LGBT Rights and the Constitution

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The Obama Administration, LGBT Rights, and the U.S. Constitution

                                                                                    William M. Leiter

Prologue: The Comparability of LGBT Goals With Those of Minority and Female Affirmative Action

As in the case of the social movements pursuing the rights of the racial / ethnic minorities, females, and the disabled, the LGBT movement has a primary objective of lessening and removing society’s systemic burdens which have disparately hindered them. Race/ethnic/gender/disability-affirmative action also targets systemic discriminatory poisons, and focuses on a variety of race/ethnic/gender/ disability- conscious governmental undertakings designed to remove them. The LGBT movement seeks affirmative governmental action for the purpose of mitigating the social burdens affecting its community, and also shares the affirmative-action objective of integrating gays, lesbians, and transgenderites into the mainstream of American society, allowing them to obtain social acceptance and other benefits of that society. Racial/ethnic minorities, the disabled and females seek such affirmative-action integration for their own.

The Obama Administration has professed its “LGBT-friendliness,”[1] and in the process of advancing and not-advancing the movement’s goals it has raised central constitutional questions concerning the following clauses in the U.S. Constitution: the Article I grant of legislative power to the congress; the Faithful Execution of the Laws and the  Executive Power clauses of Article II which concern the powers and duties of the president; and the Due Process and Equal Protection clauses of the Fifth and Fourteenth Amendments. President Obama was a professor of constitutional law at the University of Chicago for twelve years. He might have employed his “bully pulpit” to professorially help the public understand the complexities of constitutional law, but he has not undertaken this task. And the very nature of presidential approaches to constitutional “law” will doubtless prevent him from doing so, at least while he is president.

The Faithful Execution of the Laws; Heightened Scrutiny: Don’t Ask, Don’t Tell (DADT)[2] ; The Defense of Marriage Act (DOMA)[3]

During the 2008 campaign and thereafter, President Obama emphasized his opposition to both the Don’t Ask, Don’t Tell Statute (DADT) and the Defense of Marriage Act. The former statute was the result of a congressional “compromise” crafted to quiet the hubbub provoked by President Clinton’s proposed executive order banishing sexual-orientation discrimination in the military.[4]  In general, DADT was supposed to hold gays and lesbians  harmless so long as their sexuality was kept in the “dark.”  Article II of the Constitution tells us that the president is to faithfully execute the laws, and this obligation has been typically regarded as requiring the president’s officers to defend congressional statutes when they are challenged in court. Exceptions to this obligation exist where the president regards a statute as undercutting his Article II executive powers. However, in the case of DADT, the Obama Administration said that it would defend the statute. According to law Professor Antony Barone Kolenc’s astute research, this defense was pretense and not full-fledged.[5]

In support of his assertion, Professor  Kolenc details how Justice Department (DOJ) officials vetted their DADT briefs to LGBT-advocacy group leaders, and  promised to keep DOJ argumentation  free of matters offensive to homosexuals.  DOJ briefs in their so-called defense  of  DADT amazingly made it clear that the Obama Administration,  rather than supporting  the statute, viewed it as unconstitutional!  And when an appellate court ruled against the DOJ’s “defense,” the Administration did not seek Supreme Court review. Further, Obama Administration argumentation did not involve the critically strong constitutional and other positions advanced by its predecessor Bush DOJ.[6] 

Pretend to defend postures by presidents, to Kolenc, seriously frustrates the following constitutional obligations:  the president’s duty to faithfully execute the laws; the ability of  congress to investigate and correct executive branch undertakings; judicial capacity to weigh and balance arguments presented to it; the lawyerly  duty to present their best arguments ; and the need to correctly inform the public about governmental activities.  Pretense can have benefits though in that it may facilitate the achievement of presidential objectives and lubricate the president’s political flexibility.[7]  

Initially, the Obama Administration also proclaimed that it would judicially defend the Defense of Marriage Act (DOMA)[8] which defines marriage as between a man and a woman, and consequently substantially restricts federal marital benefits to such conventional unions. The Department of Justice explained that

 As it generally does with existing statutes, the Justice Department is defending the law on the books in court. The president has said he wants to see a legislative repeal of the Defense of Marriage Act because it prevents LGBT couples from being granted equal rights and benefits. However, until Congress passes legislation repealing the law, the administration will continue to defend the statute when it is challenged in the justice system.[9]

The Administration’s initial courtroom brief[10] of August 3, 2009 prompted a storm of criticism from LGBT advocates. An example of such outrage follows:[11]

I cannot state strongly enough how damaging this brief is to us. Obama didn't just argue a technicality about the case, he argued that DOMA is reasonable. That DOMA is constitutional. That DOMA wasn't motivated by any anti-gay animus. He argued why our Supreme Court victories in Romer[12] and Lawrence[13] shouldn't be interpreted to give us rights in any other area (which hurts us in countless other cases and battles). He argued that DOMA doesn't discriminate against us because it also discriminates about straight unmarried   couples (ignoring the fact that they can get married and we can't). He actually argued that the courts shouldn't consider Loving v. Virginia, the miscegenation case in which the Supreme Court ruled that it is unconstitutional to ban interracial marriages, when looking at gay civil rights cases. He told the court, in essence, that blacks deserve more civil rights than gays, that our civil rights are not on the same level. And before Obama claims he didn't have a choice,  he had a choice. Bush, Reagan and Clinton all filed briefs in court opposing current federal law as being unconstitutional…. Obama could have done the same. But instead he chose to defend DOMA, denigrate our civil rights, go back on his promises, and contradict his own statements that DOMA was "abhorrent." Folks, Obama's lawyers are even trying to diminish the impact of Roemer and Lawrence, our only two big Supreme Court victories. Obama is quite literally destroying our civil rights gains with this brief. He's taking us down for his own benefit.

A Washington Post editorial argued that the firestorm associated with the initial DOJ DOMA defense resulted in a “do-over” of the Administration’s  August 24, 2009 defense of the statute.  That defense maintained merely that the plaintiffs arguing against the statute lacked standing “without dabbling in noxious, outdated and irrelevant arguments.”[14] “With respect to the merits,”  the brief maintained, “this Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal.”[15] However, DOMA’s legitimacy was being defended by DOJ because it had been judicially upheld in the past and passed mere rationality (non-arbitrary and capricious) review.[16]

The DOMA “do-over” did not end with the August 24 milder brief. In February, 2011, the DOJ—prompted by the President—decided not to defend DOMA in the courts at all because of its unconstitutionality. The Administration determined concurrently to continue the statute’s enforcement. To say that DOMA is unconstitutional, but still enforce it, stimulated the Chief Justice to caustically remark: “I don’t see why he [the President] doesn’t have the courage of his convictions….” and administer the law in a fashion “consistent with his view of the Constitution, rather than saying, oh, we’ll wait till the Supreme Court tells us we have no choice.”[17] The Chief Justice might very well have concluded that the Administration’s non-defense of DOMA was

politically motivated. During the oral arguments concerning DOMA’s constitutionality (where the Chief Justice made the  “courage of convictions” remark), he said to counsel arguing for DOMA’s demise: “I suppose the sea change [in support of single-sex marriage] has a lot to do with the political force and effectiveness of people representing, supporting your side of the case?....As far as I can tell, political figures are falling over themselves to endorse your side of the case.”[18]

  The formal reasoning submitted by the Administration in connection with its change from defending to not defending DOMA was contained in a letter from the Attorney General to the Speaker of the House. The Attorney General explained that when DOJ defended DOMA it did so in jurisdictions where the U.S. Circuit Courts of Appeal had ruled that “third-tier-mere rationality” scrutiny was the evidentiary standard. However, in the jurisdiction where a new DOMA constitutionality issue had arisen in a Circuit which had not as yet adopted an evidentiary standard,  the Administration felt that “heightened scrutiny” should be the review standard, and under “heightened review” there could be no constitutional defense of  DOMA. DOMA was challenged on the basis that it violated the due process and equal protection of law dictates of the Constitution. The Supreme Court has determined that three kinds of rights are associated with equal protection and due process: lowest-tier, mid-tier, and fundamental. Where fundamental rights are alleged to have been negatively affected by government in court, judicial scrutiny is to be strict. The challenged governmental action can be upheld if it serves a compelling governmental interest, and if the challenged policy is narrowly tailored to foster that interest.[19]  Intermediate judicial scrutiny is to guide judges where mid-tier rights are at issue. Alleged negative governmental treatment of mid-tier rights is to be upheld where such negativity serves an important governmental interest, and where the challenged policy is substantially related to the nourishment of that important interest.[20] Governmental invasion of lowest-tier rights is to be upheld if  merely rational (non-arbitrary or capricious).[21] Heightened scrutiny (beyond mere rationality) is also to be employed where the rights of suspect classes are alleged to have been violated.[22]  The law has yet to provide specific, clear-cut definitions of compelling, important, narrowly tailoring, and substantial relationship, suspect-classness, and rationality.

When adopting “heightened scrutiny” in connection with DOMA, the Obama Administration relied on “suspect class” theory, and consequently could find no important or compelling governmental interest to support that statute’s Section 3 restriction of marriage to opposite sexes. A portion of the Attorney General’s letter[23] to the Speaker follows:

[T]he President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional. 

Standard of Review

 The Supreme Court has yet to rule on the appropriate level of scrutiny for classifications based on sexual orientation.   It has, however, rendered a number of decisions that set forth the criteria that should inform this and any other judgment as to whether heightened scrutiny applies:   (1) whether the group in question has suffered a history of discrimination; (2) whether individuals “exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group”; (3) whether the group is a minority or is politically powerless; and (4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual’s “ability to perform or contribute to society.”   See Bowen v. Gilliard, 483 U.S. 587, 602-03 (1987); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441-42 (1985).  

 Each of these factors counsels in favor of being suspicious of classifications based on sexual orientation.   First and most importantly, there is, regrettably, a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities, based on prejudice and stereotypes that continue to have ramifications today.   Indeed, until very recently, states have “demean[ed] the[] existence” of gays and lesbians “by making their private sexual conduct a crime.”   Lawrence v. Texas, 539 U.S. 558, 578 (2003). Second, while sexual orientation carries no visible badge, a growing scientific consensus accepts that sexual orientation is a characteristic that is immutable, see Richard A. Posner, Sex and Reason 101 (1992); it is undoubtedly unfair to require sexual orientation to be hidden from view to avoid discrimination, see Don’t Ask, Don’t Tell Repeal Act of 2010, Pub. L. No. 111-321, 124 Stat. 3515 (2010). Third, the adoption of laws like those at issue in Romer v. Evans, 517 U.S. 620 (1996), and Lawrence, the longstanding ban on gays and lesbians in the military, and the absence of federal protection for employment discrimination on the basis of sexual orientation show the group to have limited political power and “ability to attract the [favorable] attention of the lawmakers.”   Cleburne, 473 U.S. at 445.   And while the enactment of the Matthew Shepard [Hate Crime] Act and pending repeal of Don’t Ask, Don’t Tell indicate that the political process is not closed entirely to gay and lesbian people, that is not the standard by which the Court has judged “political powerlessness.”   Indeed, when the Court ruled that gender-based classifications were subject to heightened scrutiny, women already had won major political victories such as the Nineteenth Amendment (right to vote) and protection under Title VII (employment discrimination).   Finally, there is a growing acknowledgment that sexual orientation “bears no relation to ability to perform or contribute to society.”   Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality).   Recent evolutions in legislation (including the pending repeal of Don’t Ask, Don’t Tell), in community practices and attitudes, in case law (including the Supreme Court’s holdings in Lawrence and Romer), and in social science regarding sexual orientation all make clear that sexual orientation is not a characteristic that generally bears on legitimate policy objectives.   See, e.g., Statement by the President on the Don’t Ask, Don’t Tell Repeal Act of 2010 (“It is time to recognize that sacrifice, valor and integrity are no more defined by sexual orientation than they are by race or gender, religion or creed.”) ….

Notwithstanding this determination, the President has informed me that Section 3 will continue to be enforced by the Executive Branch.   To that end, the President has instructed Executive agencies to continue to comply with Section 3of DOMA, consistent with the Executive’s obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality.   This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised. As you know, the Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense, a practice that accords the respect appropriately due to a coequal branch of government.   However, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because the Department does not consider every plausible argument to be a “reasonable” one.   “[D]ifferent cases can raise very different issues with respect to statutes of doubtful constitutional validity,” and thus there are “a variety of factors that bear on whether the Department will defend the constitutionality of a statute.”   Letter to Hon. Orrin G. Hatch from Assistant Attorney General Andrew Fois at 7 (Mar. 22, 1996).   This is the rare case where the proper course is to forgo the defense of this statute.   Moreover, the Department has declined to defend a statute “in cases in which it is manifest that the President has concluded that the statute is unconstitutional,” as is the case here.   Seth P. Waxman, Defending Congress, 79 N.C. L.Rev. 1073, 1083 (2001).

            President Obama might have might have refused DOMA’s defense and execution from the inaugural of his Administration. He cited his rejection of the statute when running for the presidency and continually thereafter. There was much support from the Supreme Court to bolster  the President’s constitutional objections. In Lawrence v. Texas (2003),[24] the Court defined sexual-orientation rights broadly:

 In Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 120 L. Ed. 2d 674, 112 S. Ct. 2791 (1992), the Court reaffirmed the substantive force of the liberty protected by the Due Process Clause.  The Casey decision again confirmed  that  our laws and tradition afford constitutional   protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.  Id., at 851, 120 L Ed 2d 674, 112 S Ct 2791.  In explaining the respect the Constitution demands for the autonomy of the person in making these choices, we stated as follows:

"These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.  Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State." Ibid.

     Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. [25]

Why then the Administration’s half-way measures described above—pretend to defend DADT; moderating the defense of DOMA; and finally not defending DOMA in court, but committing to its enforcement?  Has there been a “faithful execution of the laws”? Law Professor Arthur Miller focuses on the existence of both a written and unwritten constitution for presidents. Key to the unwritten law guiding presidents is to do what is politically necessary to promote both an administration’s potency, and the general welfare[26]-- including pluralistically deferring to the interests of as many legitimate interest groups as is prudently possible.  President Obama seems seriously supportive of LGBT rights, while understanding the very substantial concern and opposition to them. His Administration’s partial defense of DADT and DOMA convolutions represent efforts at attempting to please “all sides.” The problem that the unwritten law of political necessity creates, as Professor Miller noted, “is obvious: the notion of a government under law is lost. Perhaps the concept never existed, except in the myth system…. The President does what the political process allows him to do--or to get away with.”[27] 

Aiding the LBGT Community Through Executive Action

Mathew Nosanchuk’s article[28] reports on the difficulty in obtaining congressional statutes augmenting LGBT civil rights. LGBT hate crimes legislation was introduced in 2001 but was not signed into law until the Obama Presidency,  as was the repeal of  Don’t Ask, Don’t Tell. Efforts to obtain legislation banning LGBT employment discrimination was first introduced in 1974, but has not been enacted.[29] Advocates of LGBT rights have urged executive action as a partial substitute for legislation, and the Obama Administration’s LGBT substantial executive efforts,[30] raises the question of whether existing federal statute law supports these measures. The Constitution clearly grants the legislative power to the Congress,[31]  and that body—save for aforementioned hate crimes and anti-DADT statutes—has not specified LGBT protection  in its promulgations. Further, the courts have generally interpreted federal statutory sex-discrimination bans[32] as not including gender identity (transexuality) or sexual orientation, (homosexuality), although the Supreme Court has concluded that the bar against sex discrimination also includes a ban on sexual stereotyping.—a conclusion which arguably bans LGBT discrimination.[33]

The Clinton 1998 Executive Order [34] banning  sexual-orientation discrimination in the federal workforce  was an important guide for the Obama Administration’s executive action on behalf of the LGBT community. The Administration also kept operative the Clinton interpretation that federal statutes prohibiting  sexual harassment  arising from sexual stereotyping.[35]  Among the executive actions undertaken by the Obama Administration are:

---A presidential memo to agency and department heads ordering the extension of lawfully permitted federal benefits to same-sex partners in the federal workforce.[36]

---A presidential memo ordering that patients in hospitals receiving Medicare or Medicaid assistance be given the right to receive visitors and designate decision makers irrespective of their sexual orientation or gender identity.[37]

---A Housing and Urban Development regulation requiring equal access to HUD housing programs regardless of sexual orientation or gender identity.[38]

----A change in State Department rules designed to help transgender individuals change their gender designations on passports.[39]

---A Health and Human Services Department regulation banning alien admissibility to the U.S. solely for HIV infection.[40]

---Twenty-Four federal agencies included gender identity in their equal opportunity employment policies prohibiting discrimination. Of these, eleven interpreted Title VII of the 1964 Civil Rights Act’s ban on employment sex discrimination to cover gender identity.[41]

Importantly, President Obama has failed –against LGBT advocacy[42]-- to add a ban on LGBT discrimination to Executive Order 11,246[43] administered by the Office of Federal Contract Compliance Programs (OFCCP). EO 11,246 broadly bans federal contractors from engaging in employment-opportunity discrimination against minorities and females. OFCCP has insisted, for the last half century,  that EO 11,246 also requires federal contractors make good faith efforts to remedy  statistical underrepresentation of minorities and females in employment opportunities or face potential contract loss or antidiscrimination suits. OFCCP has been a major actor in disparate-impact, affirmative-action remediation. Critics assert that contractors (to avoid contract loss or federal antidiscrimination suits)  are guided by color, race, ethnicity, and gender –to the neglect of merit--in providing employment opportunities.[44]  It may be that including the LGBT community members among  those protected by EO 11,246 is viewed by the Obama Administration as an executive action that will be regarded by affirmative-action critics as designed to bring “quota” employment opportunities for gays, lesbians, and transgender people. It should be noted that the LGBT antidiscrimination statutory proposals have specifically rejected the application of disparate-impact remediation based on statistical underrepresentation.[45]

Getting President Obama to Help Us Understand the Constitution

            Professor Prakash of the University of Virginia has suggested that the public would benefit if President Obama—once a constitutional law professor—would help instruct the people on the niceties of the supreme law of the land. The citizenry would then be able to compare and evaluate his positions with those of other constitutional expounders.[46] Truly, it could be instructive if the President gave us his extensive views on the Constitution’s allocation of powers, and the complexities of due process and equal protection . Where and how do the statutes allow  the executive branch to issue rules and regulations?  How can the statutory interpretative process by the executive branch be made more transparent? What is the meaning of strict, intermediate, mere rationality scrutiny? Suspect classness? Is a government of laws possible?

            It is unlikely that presidents will provide extensive constitutional commentary for public consumption. Any such posture will invite an avalanche of criticism because the major dimensions of the Constitution are subject to and receive a broad variety of interpretations. Further, firm presidential public views of the Constitution could limit flexibility.  The safe course will be to determine what the public welfare requires, allowing presidential lawyers to craft constitutional support for governmental decision makers. Even if a president would be willing to provide professorial constitutional commentary, the document has become encrusted with legalistic complexities requiring dedicated study, an undertaking which the citizenry does not have the time or will to tackle. If the Constitution has ever been a people’s document, that time has long-since passed.

Copyright 2013 © by William M. Leiter. All rights reserved.

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[1] Michael J. Klarman, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage (Oxford, 2012), 126, 140-142. For example of presidential friendliness, see http://www.gpo.gov/fdsys/pkg/DCPD-201000524/pdf/DCPD-201000524.pdf

[2] 10 U.S.C. § 645(a)(1)-(15) (2006). http://www.gpo.gov/fdsys/pkg/USCODE-2010-title10/pdf/USCODE-2010-title10-subtitleA-partII-chap37-sec654.pdf Repealed by Don't Ask, Don't Tell Repeal Act of 2010, Pub. L. No. 111-321, 124 Stat. 3515. http://www.gpo.gov/fdsys/pkg/PLAW-111publ321/html/PLAW-111publ321.htm

[3] Pub. L. 104-199, § 3, 110 Stat. 2419, 2419 (1996).http://www.gpo.gov/fdsys/pkg/PLAW-104publ199/html/PLAW-104publ199.htm DOMA’s sections of LGBT concern are codified at 1 U.S.C. § 7 (2010), and   28 U.S.C. § 1738C (2010).

[4] Klarman, From the Closet to the Altar: Courts at 43-44, 46-47 (cited in note 1).

[5] Antony Barone Kolenc, Pretend to Defend: Executive Duty and the Demise of ‘Don’t Ask, Don’t Tell,  48 Gonz. L. Rev. 107 (2012/2013).

[6] Id at 138-140.

[7] Id at 140-144.

[8] Pub. L. 104-199, § 3, 110 Stat. 2419, 2419 (1996).http://www.gpo.gov/fdsys/pkg/PLAW-104publ199/html/PLAW-104publ199.htm DOMA’s sections of LGBT concern are codified at 1 U.S.C. § 7 (2010), and   28 U.S.C. § 1738C (2010).

[9] Obama’s Gratuitous Insult to Gay Couples, The Daily Dish—The Atlantic.Com, June 12, 2009.

[10] Defendant United States of America’s Notice of Motion and Motion To Dismiss; Memorandum of Points and Authorities In Support of Thereof, Smelt v. USA, Case No: SAC V09-00286 Doc (MLGx), August 3, 2009. Available at http://www.scribd.com/doc/16355867/Obamas-Motion-to-Dismiss-Marriage-case

[11] Id. Court citations and italics added.

[12] Romer v. Evans, 517 U.S. 620 (1996). Footnote added.

[13] Lawrence v. Texas, 539 U.S. 558 (2003). Footnote added.

[14] DOMA Do-Over: The Justice Department Gets it Right This Time, The Washington Post, August 31, 2009, Regional Ed., p. A14.

[15] Reply Memorandum In Support of Defendant, United States of America’s Motion to Dismiss, August 24, 2009. Smelt v. USA, Case No: SAC V09-00286 Doc (MLGx), pp. 1-2 Available at http://lawdork.net/wp-content/uploads/2009/08/Smeltdomareplybrief.pdf

[16] Id. at  5.

[17] Oral Arguments in U.S. v. Windsor, No. 12-307, Washington, D.C., March 27, 2013, p. 12. Oral argument transcript  available at http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-307.pdf

[18] Id. at 107-108.

[19] Roe v. Wade, 410 U.S. 113 (1973); Adarand v. Pena, 515 U.S. 200 (1995).

[20] Craig  v. Boren, 429 U.S. 190 (1976); Letter for Attorney General Holder to House Speaker on the Defense of Marriage Act, February 23, 2011.  Entire letter at http://www.justice.gov/opa/pr/2011/February/11-ag-223.html

[21] Washington v. Glucksberg, 521 U.S. 702 (1997); Craig R. Ducat, Constitutional  Interpretation: Volume II, Rights of the Individual, 10thEd. (Wadsworth, 2013), p. 1268.

[22] See Letter for Attorney General Holder to House Speaker on the Defense of Marriage Act, February 23, 2011. (Cited in note 20); San Antonio v. Rodriguez, 411 U.S. 1 (1973)

[23] Letter for Attorney General Holder to House Speaker on the Defense of Marriage Act, February 23, 2011. Footnote omitted. (Cited in note 20)

[24] 539 U.S. 558.

[25] Id. at 573-574.

[26] Arthur S. Miller, The President and Faithful Execution of the Laws, 40 Vand. L. Rev. 389 (March, 1987), 394.

[27] Id. at 394, 399.

[28] The  Endurance Test: Executive Power and the Civil Rights of LGBT Americans, 5 Alb. Gov’ t L. Rev. 440 (2012). Nosanchuk is cited in this article as the senior counselor to the head of DOJ’s Civil Rights Division.

[29] Id. at 441-442.

[30] Id. at 445.

[31] Article I of U.S. Constitution.

[32] Jody Feder and Cynthia Brogher, Sexual Orientation and Gender Identity Discrimination: A Legal Analysis of the Employment Non-Discrimination Act (ENDA), Congressional Research Service, June 8, 2012, p. 3. Available at http://www.fas.org/sgp/crs/misc/R40934.pdf

[33] Id. at 4-5.                                                          

[34] EO 13087, May 28, 1998. Available at http://www.eeoc.gov/laws/executiveorders/13087.cfm

[35] Mathew S. Nosanchuk, The Endurance Test: Executive Power and the Civil Rights of LGBT Americans, 5 Albany L. Rev. 440 (2012), 466-469.

[36] 74 Fed Register 29, 393, June 22, 2009. Available at http://www.gpo.gov/fdsys/granule/FR-2009-06-22/E9-14737/content-detail.html

[37] 75 Fed Register  20, 511, April 15, 2010. Available at http://www.gpo.gov/fdsys/pkg/FR-2010-04-20/pdf/2010-9211.pdf

[38] 77 Fed Register 5662, February 3, 2012.  Available at http://portal.hud.gov/hudportal/documents/huddoc?id=12lgbtfinalrule.pdf

[39] 7 FAM 1300 Appendix M—Gender Change, June 10, 2010. Available  at http://www.state.gov/documents/organization/143160.pdf

[40] 74 Fed Register 56547. November 2, 2009. Available at http://www.gpo.gov/fdsys/granule/FR-2009-11-02/E9-26337/content-detail.html

[41] Mathew S. Nosanchuk, The Endurance Test: Executive Power and the Civil Rights of LGBT Americans, 5 Albany L. Rev. 440 (2012), 461-462.

[42] See, for example, BuzzFeed Internet Post of December 3, 2012.

[43] Available at http://www.dol.gov/ofccp/regs/compliance/ca_11246.htm

[44] See, for example,  Justice Scalia’s dissent in Johnson v. Santa Clara, 480 U.S. 616 (1987), 676-677.

[45] Jody Feder and Cynthia Brogher, Sexual Orientation and Gender Identity Discrimination: A Legal Analysis of the Employment Non-Discrimination Act (ENDA), Congressional Research Service, June 8, 2012, p. 1-2. Available at http://www.fas.org/sgp/crs/misc/R40934.pdf

[46] Saikrishna Bangalore Prakash, Missing Links in the President’s Evolution of Same-Sex Marriage, 818 Fordham L. Rev. 553 (November, 2012) 573.