Friday, June 19, 2009

Legislative Chatter On The Eve Of Pride: Will We Be Equal?

"Part of the problem, frankly, is with the transgender community and some of those who put that in the forefront, because they didn’t lobby. The only time they started lobbying is when we said ‘You know what, we don’t have the votes for this, we gotta to do it partially.’ Then they began lobbying the Democrats that were supportive. I’ve never seen a worse job of lobbying. For years, literally years, I have been begging them to start talking to people about this, and have said you, look, have political problems here, I wish we didn’t but we do, and you have to deal with them." — Cong. Barney Frank in 2007

As we converge on New York City next week for the 40th Anniversary of Stonewall (and others partake in their own cities' Pride celebrations), word comes out that the Employment Non Discrimination Act (ENDA) will be reintroduced to coincide with the occasion. This is tailor-made timing to induce good vibes to soothe over the raw feelings and disastrous previous sessions' disarray and fracturing of the community. How successful the community repairs will be leaves me naturally skeptical, but we'll see how they conduct themselves this time.

We've mostly heard the wording will stay similar to the original HR 2015 (the inclusive ENDA originally submitted before we were ditched and HR 3685 eventually passed. There has been at least a bit of a murmur from one contact that "there's talk of the language changing this time," but that's yet to be independently confirmed anywhere else.

There's one thing we can bet the house on. Trans folks most in need of such legislation, the outsiders and unequivocal backers of inclusive legislation, those not of the HRC ilk will be nowhere in sight or earshot of the negotiation table (much less participating). Yes, it'll be "trust us" yet again ... y'all know the modus operandi by now.

It's good timing for Rep. Barney Frank and HRC to submit this next week. In fact it couldn't be better. The Gay and Lesbian community will undoubtedly be overjoyed. There's a possibility trans people may also celebrate it equally. Maybe.

Until we see it we don't know what we'll be dealing with. Therein lies another reason the bill is timed well for Ol' Barn' and HRC: we'll be busy partying our butts off per their estimation, giving them a bit of cover in the off chance it was needed.

And as we've already seen, just because a bill drops in one version doesn't mean it's going to stay that version or that it'll not be switched yet again.

The House won't be the big worry this time unless we see a replay of Ol' Barn' and the backroom boys making a deal about abandoning trans due to the dreaded "toilet issue" (as in, "which one?") We hopefully confronted that adequately in lobbying this past May: all they have to do is look at NTAC's Lobby Packet cover to see what it is the conservatives are truly asking for – something I don't think they intended.

The worry on ENDA will be the Senate stripping out the trans inclusive language (or stonewalling it altogether.)

On a more uplifting note, the Hate Crimes Bill should be making it to the Senate vote any time now. In this case, we should have the votes to pass it. The only caveat is it's been attached to a Tourism Bill (whatever that's about). This means there will have to be a conference committee revisitation from a joint committee of Senate and House. Prospects are good, but anything can happen in a conference committee. The downside (if any) is if it gets stripped there, it goes on to the President for signature and we have no ability to affect it at that point.

If I had to put money down on it though, I'd say there are better odds on it passing inclusively as the President has already asked for the bill and checked it's progress.

Meanwhile on the DOMA brief from the Dept. of Justice, I've been watching the rhetoric and heat flying around. It's true that the head of the DOJ is President Obama's doing, but I'm sure that there's not been a massive purge of all former DOJ employees from the Bush years, nor is it the President's responsibility to micromanage the department. Atty. Gen. Eric Holder wasn't exactly known for his "bleeding-heart liberal" credentials, save for the likes of Rush Limbaugh or other extremists. Ultimately they do their job and the President reviews, but doesn't necessarily have obligation to second-guess everything.

That said, it seems some of the immediate blasts may have been more than just premature, but from a position of not even reading the brief in the first place! Originally even Cong. Barney Frank took initial umbrage, then stepped back from his initial statements by admitting he hadn't read the brief and was relying on oral arguments!

While that is a black eye on Ol' Barn', he actually came clean and admitted! That's a refreshing bit of honesty, and I've got to give Rep. Frank credit there.

Much of this seems deriven from John Aravosis' Americablog and possibly references to Charles Socarides' article, and its initial read (if indeed it was read) on the DOJ brief. Lawdork blog had the following to say (

Soon thereafter, John Aravosis published a piece that just went round the bound. I have tried to keep my blog as forward-looking as possible, but it’s clear that Aravosis’s heavy popularity at his blog and media contacts have allowed his false statements about what the filing means to push the debate into the twisted, contorted view he is giving it.

The two main problems that I have with Aravosis’s coverage are:

(1) His continued misstatements regarding whether Justice should have filed a brief in this case.

(2) His “comparing us to incest and pedophilia” claim is overstated and does not withstand any serious, legal scrutiny.

First of all, it’s clear that his poisoning of the well most likely led to Chairman Frank’s misimpressions about the brief, which he said he had not read until today. (I’ll admit that I too was surprised that he hadn’t read it yet, but I have noted before that Frank is wholly dedicated to the financial reform package that he’s been working on for the past several months.) Frank said: “I made the mistake of relying on other people’s oral descriptions to me of what had been in the brief, rather than reading it first.”

So, then John (Aravosis) falsely concludes that “Frank now thinks the brief is just super.”

Here’s what Frank actually said:

Now that I have read the brief, I believe that the administration made a conscientious and largely successful effort to avoid inappropriate rhetoric. There are some cases where I wish they had been more explicit in disavowing their view that certain arguments were correct, and to make it clear that they were talking not about their own views of these issues, but rather what was appropriate in a constitutional case with a rational basis standard – which is the one that now prevails in the federal courts, although I think it should be upgraded.
Of course, John cites to none of that in his post, which is very similar to what I’ve been writing and what Harvard Law School Professor Laurence Tribe and former Clinton Justice Department senior staffer Robert Raben have said as well. [...]

Then, Aravosis gets into this notion that the President regularly just “goes about telling the DOJ to oppose existing law in court.” Aravosis states that Richard Socarides’s vague statement results in a factual, final reality: “It’s not debatable, it’s what actually happens in the Oval office, and it’s not illegal – it’s a fact.” Yes, it is.

Aravosis has to turn words up-side-down to create this idea. He keeps changing statements from people, which admit of times when a law can be challenged, into statements that people haven’t said, which is that Justice can “never” fail to defend an existing law. Despite Aravosis’s false statements, Justice spokespersons never said that Justice always has to uphold laws. As I pointed out, Justice has consistently said only that it “generally” must defend laws. [...]

(2) “Comparing us to incest and pedophilia” claim is overstated and does not withstand any serious, legal scrutiny.

This claim, to which I’ve previously objected, has been Aravosis’s claim to fame on the brief, with him taking credit whenever anyone uses the claim.

Here’s the actual line — yes, only one sentence, and not really even a sentence but just a list of cases (called a “string cite”) after a sentence — from the brief:

And the courts have widely held that certain marriages performed elsewhere need not be given effect, because they conflicted with the public policy of the forum. See, e.g., Catalano v. Catalano, 170 A.2d 726, 728-29 (Conn. 1961) (marriage of uncle to niece, “though valid in Italy under its laws, was not valid in Connecticut because it contravened the public policy of th[at] state”); Wilkins v. Zelichowski, 140 A.2d 65, 67-68 (N.J. 1958) (marriage of 16-year-old female held invalid in New Jersey, regardless of validity in Indiana where performed, in light of N.J. policy reflected in statute permitting adult female to secure annulment of her underage marriage); In re Mortenson’s Estate, 316 P.2d 1106 (Ariz. 1957) (marriage of first cousins held invalid in Arizona, though lawfully performed in New Mexico, given Arizona policy reflected in statute declaring such marriages “prohibited and void”).

These were three cases about marriages, which were valid in one jurisdiction, not being allowed under the laws of another jurisdiction. There is nothing further. The brief does not ever use the words “incest” or “pedophilia.” And, by the way, the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition Text Revision (DSM-IV-TR), the standard for diagnosis, defines pedophilia as involving “sexual activity with a prepubescent child or children (generally age 13 years or younger).” Under that definition, there is not even a case involving pedophilia appearing in the brief at all — which is likely the reason that no mainstream publication has repeated that claim.

Despite all that, this is what Aravosis concluded this evening about Chairman Frank:

Barney thinks the language of the brief was great. He even, between the lines, defends the invocation of incest and pedophilia.
No, he clearly did not think the brief was great, as his statement made clear. Moreover, he never defended anything that isn’t in the brief, despite your constant claims to the contrary.

It is Aravosis’s spreading of this continued falsity — particularly to demean the smart, legitimate statements of members of Congress — that lead me to continued reporting about why it’s false.
That last point spiked my curiosity enough to pull up the brief and begin reading in search of the comparison to pedophilia (though I was still a long way from finishing before I got this post from the Lawdork blog. Hey, I'm not a legal beagle – it takes me a bit more time to read through the technical and the legalese. Nevertheless, I'm glad to see this. The claim seemed a bit more like hyperbole than fact, and apparently so.

One thing everyone needs to keep in mind is that the President cannot overturn DOMA. He can state his opinion (which he has), but ultimately it's something Congress must enact and then get the President's signature on. It's how the damn bill was enacted in the first place, and signed by Pres. Clinton! One person (one is they're George W. Bush with Dick Cheney interpreting his constitutional law) cannot simply overturn or undo a passed, signed and enacted law.

Additionally, it'd probably look a bit odd if the Dept. of Justice had sent a brief that supported overturning DOMA. Their job is to carry out the voted and enacted law of the land and interpret what's on the books. They are not in the business of defying existing law on the books (again with exceptions given to Bush-Cheney era justice opinion).

Perhaps they should've withheld any amicus, but they would've drawn howls for going against the DOMA law. If DOMA is to be overturned, even better than having the Supreme Court do so in a ruling, DOMA must be undone via legislation.

Yes, Obama could use his bully pulpit. But last I checked, we're still hemorrhaging jobs and the economy's still in the bottom of the tank. I know, I'm one of those falling through those widening economic sinkholes. Not to mention Iran, North Korea, corporate bankruptcies and fending off right-wing nutcases throwing the conjectural kitchen sink at him. Maybe priorities aren't there at the moment.

And this comes from one of those "impatient," "screaming" trannies from NTAC! Hmm ... and we're the only ones who are supposed to be histrionical, huh?

"No, I ain’t lookin’ to fight with you,
Frighten you or tighten you,
Drag you down or drain you down,
Chain you down or bring you down.
All I really want to do
Is, baby, be friends with you." — All I Really Want to Do, the Byrds

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