William M. Leiter
Accessible by Using Windows 7 or Higher. This Post on LGBT Rights is Followed by a Book Review of Bruce Ackerman's "We the People--Volume 3: The Civil Rights Revolution
Abstract
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. Likewise,
the LGBT movement seeks affirmative governmental action for the purpose of
mitigating the systemic burdens affecting its community, and shares the affirmative-action
objective of integrating gays, lesbians, and transgender persons into the
mainstream of American society, allowing them to obtain social acceptance and
other benefits of that society. The Obama Administration has engaged in a
variety of affirmative-action governmental activities designed to thwart
systemic discrimination against the LGBT community. A number of these efforts
are discussed below, along with constitutional issues they raise. The
President’s Executive Order of July 21, 2014 continues this effort, but it
raises the question as to whether federal contraction will be required to make
good faith efforts to cure the employment underrepresentation of LGBT members.
The
Faithful Execution of the Laws; Heightened Scrutiny: Don’t Ask, Don’t Tell
(DADT)[1]
; The Defense of Marriage Act (DOMA)[2]
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.[3] 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.[4]
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 members of that
community. 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 robust constitutional
and other positions advanced by its predecessor Bush DOJ.[5]
Pretend
to defend posture 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.[6]
And indeed, Congress repealed DADT in 2011.[7]
Initially,
the Obama Administration also proclaimed that it would judicially defend the
Defense of Marriage Act (DOMA)[8]
which defined marriage as between a man and a woman, and consequently
substantially restricted federal marital benefits to those 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 alleged unconstitutionality. However, the Administration
determined concurrently to continue the statute’s enforcement. To say that DOMA
is unconstitutional, but still enforce it, stimulated the Supreme Court’s 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
Obama Administration’s refusal to judicially defend DOMA deprived the Supreme
Court of jurisdiction under the Constitution’s “cases and controversies”
standard.[19] Nevertheless,
the Court, citing prudential reasons,[20]
still went on to find that the congressionally mandated statute was
unconstitutional.[21]
The formal reasoning submitted by the
Administration in connection with its change from defending to not defending
DOMA in court 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.[22]
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.[23] Governmental
invasion of lowest-tier rights is to be upheld if merely
rational (non-arbitrary or capricious).[24]
Heightened scrutiny (beyond mere rationality) is also to be employed where the
rights of suspect classes are alleged
to have been violated.[25]
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[26]
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),[27]
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. [28]
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[29]--
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.”[30]
Aiding the LBGT Community Through Executive Order: Other Examples
Mathew
Nosanchuk’s article[31]
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.[32]
Advocates of LGBT rights have urged executive action as a partial substitute
for legislation, and the Obama Administration’s LGBT substantial executive-action
efforts,[33]
raise the question of whether existing federal law supports these Obama
law-like measures. The Constitution clearly grants the legislative power to the
Congress,[34] 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[35]
as not including gender identity or
sexual orientation, 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.[36]
The
Clinton 1998 Executive Order [37]
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.[38] 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.[39]
---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.[40]
---A Housing and Urban Development regulation
requiring equal access to HUD housing programs regardless of sexual orientation
or gender identity.[41]
----A change in State Department rules designed to
help transgender individuals change their gender designations on passports.[42]
---A Health and Human Services Department regulation
banning alien admissibility to the U.S. solely for HIV infection.[43]
---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.[44]
Importantly,
until July 21, 2014, President Obama has failed –against LGBT advocacy[45]--
to add a ban on LGBT discrimination to Executive Order 11,246[46]
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.[47] It
should be noted that the LGBT antidiscrimination statutory proposals--the ENDA
(Employment Non-Discrimination Act) proposals-- have specifically rejected the
application of disparate-impact remediation based on statistical
underrepresentation.[48]
The Executive Order (EO) signed by the President on July 21, 2014 amends EO 11,
246 by adding the prohibition of discrimination on the basis of sexual
orientation and gender identity to the other discriminatory prohibitions in EO
11246.[49]
Affirmative
action differs from other antidiscrimination initiatives in that (1) it targets
and seeks to remedy systemic-societal bias
(as manifested in public and private illegal action), not malefactors engaged in intentional
discrimination prohibited by law ; (2) in specific programs, or as major
portions of universal programs, it mandates race, ethnic, gender, sexual
orientation, gender identity, and disability-conscious remedies for the
statistical disproportionately-adverse effects -- the so-called disparate
impact -- of societal discrimination
on protected groups, whether or not specific discriminatory intent on the part of defendants can be
isolated; and (3) it seeks to integrate institutions by race, ethnicity,
disabled condition, and sex. [50] The
law calls intentional discrimination
disparate treatment. What the ENDA
proposals have called for is protection against disparate treatment, and not
remedies for the statistical disproportionately-adverse effects -- the
so-called disparate impact -- of societal
discrimination. Whether President Obama’s Executive Order of July 21, 2014 is
interpreted by the OFCCP as a requirement for the curing of gay, lesbian, and
transgender underrepresentation remains to be seen. If not, why not? Also left
hanging by the new EO is the extent to which the bans on sexual- orientation
and gender-identity discrimination override religious commitments. These
questions associated with the Obama July 21, 2014 Executive Order may prompt
the Supreme Court to finally rule on whether heightened scrutiny is the
appropriate level of scrutiny for sexual-orientation and gender-identity
discrimination.
Copyright 2014 © by
William M. Leiter. All rights reserved.
[1]
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
[2]
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).
[3]
Michael J. Klarman, From the Closet to
the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage (Oxford,
2012),43-44, 46-47 140-142.
[4]
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).
[5]
Id at 138-140.
[6]
Id at 140-144.
[7]
Pub. L. 111-321. http://www.gpo.gov/fdsys/pkg/PLAW-111publ321/html/PLAW-111publ321.htm
[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.
[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]
U. S. v. Windsor, Slip Opinion #
12-307 (2013). Accessible at http://www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf
[20]
Id.
[21]
Id at 13-26.
[22]
Roe v. Wade, 410 U.S. 113 (1973); Adarand v. Pena, 515 U.S. 200 (1995).
[23]
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
[24]
Washington v. Glucksberg, 521 U.S. 702 (1997); Craig R. Ducat,
Constitutional Interpretation: Volume
II, Rights of the Individual, 10thEd. (Wadsworth, 2013), p. 1268.
[25]
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)
[26]
Letter for Attorney General Holder to
House Speaker on the Defense of Marriage Act, February 23, 2011. Footnote
omitted. (Cited in note 20)
[27]
539 U.S. 558.
[28]
Id. at 573-574.
[29]
Arthur S. Miller, The President and
Faithful Execution of the Laws, 40 Vand. L. Rev. 389 (March, 1987), 394.
[30]
Id. at 394, 399.
[31]
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.
[32]
Id. at 441-442.
[33]
Id. at 445.
[34]
Article I of U.S. Constitution.
[35]
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
[36]
Id. at 4-5.
[37]
EO 13087, May 28, 1998. Available at http://www.eeoc.gov/laws/executiveorders/13087.cfm
[38]
Mathew S. Nosanchuk, The Endurance Test: Executive Power and the Civil Rights
of LGBT Americans, 5 Albany L. Rev. 440 (2012), 466-469.
[39]
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
[40]
75 Fed Register 20, 511, April 15, 2010.
Available at http://www.gpo.gov/fdsys/pkg/FR-2010-04-20/pdf/2010-9211.pdf
[41]
77 Fed Register 5662, February 3, 2012.
Available at http://portal.hud.gov/hudportal/documents/huddoc?id=12lgbtfinalrule.pdf
[42]
7 FAM 1300 Appendix M—Gender Change, June 10, 2010. Available at http://www.state.gov/documents/organization/143160.pdf
[43]
74 Fed Register 56547. November 2, 2009. Available at http://www.gpo.gov/fdsys/granule/FR-2009-11-02/E9-26337/content-detail.html
[44]
Mathew S. Nosanchuk, The Endurance Test:
Executive Power and the Civil Rights of LGBT Americans, 5 Albany L. Rev.
440 (2012), 461-462.
[45]
See, for example, BuzzFeed Internet Post of December 3, 2012.
[47]
See, for example, Justice Scalia’s dissent in Johnson v. Santa Clara, 480 U.S. 616 (1987), 676-677.
[48]
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
[49]
http://www.whitehouse.gov/the-press-office/2014/07/21/executive-order-further-amendments-executive-order-11478-equal-employmen This Order also prohibits gender-identity
discrimination against federal
employees.
[50] Here,
"discrimination" means invidious (i.e., unfair or unjust) treatment
of people. "Societal (systemic, disparate-impact) discrimination"
means societally-rooted invidious treatment of people on account of group
membership or affiliation. "Protected group" means the racial and
ethnic (national origin/ancestral) groups, sexuality groups, and disabled
people covered by anti-discrimination laws and regulations.
"Minorities" are the racial and ethnic groups so covered.
"Affirmative action" means the general policy for treating societal
discrimination. There are many specific policies for implementing this general
policy. The relative weight accorded to race, national origin/ethnicity,
gender, sexual orientation or disability varies from program to program. Thus, affirmative action remedies range from
disseminating job information to preferential employment and admissions
practices, classroom integration, the creation of majority-minority legislative
districts, set-asides for minority and women-owned businesses, and court-ordered employment quotas in
egregious discrimination cases.
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