GOOD NEWS! SCOTUS Upholds Obamacare. Again!

For the second time in three years, the United States Supreme Court has defended the Affordable Care Act (more commonly known as ObamaCare) from legal challenge. The Court ruled 6-3 in King v. Burwell to uphold ObamaCare by deciding that the intent of Congress was to improve the national health care market and thus upheld the interpretation that subsidies "established by the State" could mean the state or federal government.

Any day in which Justice Antonin Scalia is reading bitter dissents from the bench is a good day! There are two more days (Friday June 26 and Monday June 29) in which the Court will be releasing the five remaining decisions (including the landmark Obergefell v. Hodges on marriage equality in all states).

Here's hoping for more Scalia dissents!

SCOTUS Fatally Wounds The 1965 Voting Right Act

Today the GOP's War on Voting was extended to the Supreme Court, when the 5 Republican justices (Roberts, Alito, Thomas, Scalia and Kennedy) voted to effectively kill one of the most significant federal civil rights statutes in the United States, the 1965 Voting Rights Act.

Just as the words "fatally wounded" are are used to deliberately obfuscate people from understanding that the subject has been killed, so did the majority opinion fatally wound the Voting Rights Act (VRA) in Shelby County v Holder. All attention was on Section 5 of the Voting Rights Act, so the opinion upheld that section of the law but struck down Section 4 of the law. However, Section 5 can not be implemented without Section 4.

NBC News reports:

The Supreme Court on Tuesday struck down a key part of the Voting Rights Act of 1965 — the map that determines which states must get federal permission before they change their voting laws. The ruling, a 5-4 decision by Chief Justice John Roberts, leaves the future of the law deeply uncertain because it will be up to a sharply divided Congress to redraw the map. 

“Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions,” Roberts wrote for the court. Under the law, nine mostly Southern states must get permission from the Justice Department or a special panel of three federal judges before they make changes. The rule also applies to 12 cities and 57 counties elsewhere.

Basically, despite the fact the VRA was reauthorized nearly unanimously by Congress in 2006 (it passed 98-0 in the Senate) the Supreme Court GOP majority struck down the current formula found in VRA Section 4 that the Justice Department uses to determine which jurisdictions need to have their election laws "pre-cleared" before they can go into effect. Without that formula, the Justice Department will not be able to challenge provisions it suspects are being issued (primarily by Republican politicians) to dilute the voting rights of people of color throughout the United States. In the 2012 election the bizarre laws and procedures GOP governors and Secretaries of State attempted to enact to prevent racial and ethnic minorities from voting became increasingly obvious and resulted in a huge voter turnout by those groups, aiding President Obama's re-election  in the end.

This is a huge loss for people who believe in civil rights and an America where all citizens have equal rights. Chief Justice John Roberts knows that by giving this Congress the option to pass a new federal law with a formula to give the the federal government the right to intervene in elections where a majority of Republican House members represent is simply not going to happen any time soon. Most definitely not before the 2014 midterm elections, and probably not before the 2016 presidential election. (Note that the next Congress will most likely be even more hostile to the civil rights of racial and ethnic minorities and actions by the federal government to protect those rights than the current Congress is, and that's saying a lot!) So, basically the Court has killed the VRA while "keeping their fingerprints off the murder weapon" as MSNBC's Chris Hayes said on TV today.

Happily, the LGBT rights community is stepping up to the plate and denouncing the Supreme Court's actions in Shelby County with a joint statement:

We, America’s leading LGBT advocacy organizations, join civil rights organizations – and indeed, all Americans whom this law has served to protect – in expressing acute dismay at today’s ruling. Not only had Congress repeatedly reaffirmed the need for this bedrock civil rights protection, but authoritative voices from across America had filed amicus briefs urging the court not to undermine the law: the NAACP; the American Bar Association; the Navajo Nation; the states of New York, California, Mississippi and North Carolina; numerous former Justice Department officials charged with protecting voting rights; dozens of U.S. senators and representatives; and many others. 

These varied and powerful voices attest to the self-evident reality that racial protections are still needed in voting in this country. As recently as last year’s elections, political partisans resorted to voter suppression laws and tactics aimed at reducing the votes of people of color.  Voting rights protections, which have long served our nation’s commitment to equality and justice, should not be cast aside now. The court has done America a grave disservice, and we will work with our coalition partners to undo the damage inflicted by this retrogressive ruling.

The statement was signed by the usual suspects: The Task Force, HRC, Pride at Work, Immigration Equality, Lambda Legal, Freedom To Marry, National Center for Lesbian Rights,  GMHC, GLAD, National Black Justice Coalition, Family Equality Council, PFLAG, and others.

The graphic at the top of this post is from the Williams Institute analysis of where African-American same-sex couples live throughout the United States. So, a diminution of the electoral rights and concomitant political power of racial and ethnic minorities does impact the LGBT community, because the LGBT community encompasses all racial and ethnic minorities.

Hat/tip to Joe.My.God

Gaytterdämmerung: These 2 Guys Hold The Key Votes

Today is Day 1 of Gaytterdämmerung, when the United States Supreme Court will hear oral arguments in Hollingsworth v. Perry, the California Proposition 8 case. This is the case where the Justices could decide whether there exists a fundamental right to marry that also applies to non-heterosexual people, or simply decide that a state can not take away such a right once it has been granted, or decide that a state can not offer all the legal rights and responsibilities but deny the term marriage due to the fear of associating same-sex couples with the word. The 9th U.S. Circuit Court of Appeals and the District Court have both ruled that Proposition 8 violates the United States Constitution. Bush Administration Solicitor-General Ted Olson and Obama Administration Solicitor-General Donald J. Verrilli will be arguing in favor of that proposition, while they will be opposed by Charles J. Cooper, who has basically argued every important anti-gay marriage case for the last twenty years (and won very many of them).

There are 9 members of the US Supreme Court (Pop Quiz: How many Can You Name?) but really the two that everyone will have their eyes (and ears) on are Anthony Kennedy and John Roberts. Kennedy has written the two most pro-gay decisions in the court's history (1996's Romer v. Evans striking down Colorado's Amendment 2 and 2003's Lawrence v. Texas striking down the country's remaining sodomy laws) so he is expected to play a major role in determining how the court will rule in Hollingsworth. Roberts is the Chief Justice, and as he showed with last year's surprising decision to uphold the Affordable Care Act (i.e. Obamacare) he is a consummate politician who is always trying to maintain the legitimacy of the judicial branch in our system of government. Roberts has also caused headlines because his openly lesbian cousin will be attending the oral arguments in person as a result of action by the Justice. He is the head of the conservative wing of the Court, but is thought to be pragmatic enough to not want the two biggest gay rights cases of his generation to be 5-4 decisions.

We'll know in June 2013!

GetEqual: History is Watching The Supreme Court

This is a pretty compelling video from the direct action group GetEqual, basically warning the individual Justices of the United States Supreme Court that they might not want to get on the wrong side of history with their rulings in the Proposition 8 and DOMA cases. GetEqual is calling for nothing short of full federal equality under the law for LGBT citizens, something the Court is unwilling to do in the cases, but substantial progress, such as marriage equality in an additional 9 states and heightened scrutiny paid to laws that discriminate on the basis of sexual orientation  or gender identity are not unlikely results of decisions in Hollingsworth v. Perry and United States v. Windsor.

I'm pretty sure the voice-over is done by my friend Ben Patrick Johnson.

Hat/tip to Joe.My.God

President Obama Inaugurated For 2nd Term

Mark Wilson / Getty Images

Today, President Barack Obama was (ceremonially) sworn in for a second term, one of only 17 of 44 presidents ever to do so. During his speech, Obama laid out an inclusive progressive vision of America.

Here is the text of Obama's speech:

Remarks of President Barack Obama – As Prepared for Delivery

Inaugural Address

Monday, January 21, 2013

Washington, DC

As Prepared for Delivery –

Vice President Biden, Mr. Chief Justice, Members of the United States Congress, distinguished guests, and fellow citizens: 

Each time we gather to inaugurate a president, we bear witness to the enduring strength of our Constitution.  We affirm the promise of our democracy.  We recall that what binds this nation together is not the colors of our skin or the tenets of our faith or the origins of our names.  What makes us exceptional – what makes us American – is our allegiance to an idea, articulated in a declaration made more than two centuries ago:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty, and the pursuit of Happiness.” 

Today we continue a never-ending journey, to bridge the meaning of those words with the realities of our time.  For history tells us that while these truths may be self-evident, they have never been self-executing; that while freedom is a gift from God, it must be secured by His people here on Earth.  The patriots of 1776 did not fight to replace the tyranny of a king with the privileges of a few or the rule of a mob.  They gave to us a Republic, a government of, and by, and for the people, entrusting each generation to keep safe our founding creed. 

For more than two hundred years, we have. 

Through blood drawn by lash and blood drawn by sword, we learned that no union founded on the principles of liberty and equality could survive half-slave and half-free.  We made ourselves anew, and vowed to move forward together. 

Together, we determined that a modern economy requires railroads and highways to speed travel and commerce; schools and colleges to train our workers.

Together, we discovered that a free market only thrives when there are rules to ensure competition and fair play. 

Together, we resolved that a great nation must care for the vulnerable, and protect its people from life’s worst hazards and misfortune.

Through it all, we have never relinquished our skepticism of central authority, nor have we succumbed to the fiction that all society’s ills can be cured through government alone.  Our celebration of initiative and enterprise; our insistence on hard work and personal responsibility, are constants in our character.

But we have always understood that when times change, so must we; that fidelity to our founding principles requires new responses to new challenges; that preserving our individual freedoms ultimately requires collective action.  For the American people can no more meet the demands of today’s world by acting alone than American soldiers could have met the forces of fascism or communism with muskets and militias.  No single person can train all the math and science teachers we’ll need to equip our children for the future, or build the roads and networks and research labs that will bring new jobs and businesses to our shores.  Now, more than ever, we must do these things together, as one nation, and one people. 

This generation of Americans has been tested by crises that steeled our resolve and proved our resilience.  A decade of war is now ending.  An economic recovery has begun.  America’s possibilities are limitless, for we possess all the qualities that this world without boundaries demands:  youth and drive; diversity and openness; an endless capacity for risk and a gift for reinvention.   My fellow Americans, we are made for this moment, and we will seize it – so long as we seize it together. 

For we, the people, understand that our country cannot succeed when a shrinking few do very well and a growing many barely make it.  We believe that America’s prosperity must rest upon the broad shoulders of a rising middle class.  We know that America thrives when every person can find independence and pride in their work; when the wages of honest labor liberate families from the brink of hardship.  We are true to our creed when a little girl born into the bleakest poverty knows that she has the same chance to succeed as anybody else, because she is an American, she is free, and she is equal, not just in the eyes of God but also in our own. 

We understand that outworn programs are inadequate to the needs of our time.  We must harness new ideas and technology to remake our government, revamp our tax code, reform our schools, and empower our citizens with the skills they need to work harder, learn more, and reach higher.  But while the means will change, our purpose endures:  a nation that rewards the effort and determination of every single American.  That is what this moment requires.  That is what will give real meaning to our creed.  

We, the people, still believe that every citizen deserves a basic measure of security and dignity.  We must make the hard choices to reduce the cost of health care and the size of our deficit.  But we reject the belief that America must choose between caring for the generation that built this country and investing in the generation that will build its future.  For we remember the lessons of our past, when twilight years were spent in poverty, and parents of a child with a disability had nowhere to turn.  We do not believe that in this country, freedom is reserved for the lucky, or happiness for the few.  We recognize that no matter how responsibly we live our lives, any one of us, at any time, may face a job loss, or a sudden illness, or a home swept away in a terrible storm. The commitments we make to each other – through Medicare, and Medicaid, and Social Security – these things do not sap our initiative; they strengthen us.  They do not make us a nation of takers; they free us to take the risks that make this country great. 

We, the people, still believe that our obligations as Americans are not just to ourselves, but to all posterity.  We will respond to the threat of climate change, knowing that the failure to do so would betray our children and future generations.  Some may still deny the overwhelming judgment of science, but none can avoid the devastating impact of raging fires, and crippling drought, and more powerful storms.  The path towards sustainable energy sources will be long and sometimes difficult.  But America cannot resist this transition; we must lead it.  We cannot cede to other nations the technology that will power new jobs and new industries – we must claim its promise.  That is how we will maintain our economic vitality and our national treasure – our forests and waterways; our croplands and snowcapped peaks.  That is how we will preserve our planet, commanded to our care by God.  That’s what will lend meaning to the creed our fathers once declared.

We, the people, still believe that enduring security and lasting peace do not require perpetual war.  Our brave men and women in uniform, tempered by the flames of battle, are unmatched in skill and courage.  Our citizens, seared by the memory of those we have lost, know too well the price that is paid for liberty.  The knowledge of their sacrifice will keep us forever vigilant against those who would do us harm.  But we are also heirs to those who won the peace and not just the war, who turned sworn enemies into the surest of friends, and we must carry those lessons into this time as well.

We will defend our people and uphold our values through strength of arms and rule of law.  We will show the courage to try and resolve our differences with other nations peacefully – not because we are naïve about the dangers we face, but because engagement can more durably lift suspicion and fear.  America will remain the anchor of strong alliances in every corner of the globe; and we will renew those institutions that extend our capacity to manage crisis abroad, for no one has a greater stake in a peaceful world than its most powerful nation.  We will support democracy from Asia to Africa; from the Americas to the Middle East, because our interests and our conscience compel us to act on behalf of those who long for freedom.  And we must be a source of hope to the poor, the sick, the marginalized, the victims of prejudice – not out of mere charity, but because peace in our time requires the constant advance of those principles that our common creed describes:  tolerance and opportunity; human dignity and justice. 

We, the people, declare today that the most evident of truths – that all of us are created equal – is the star that guides us still; just as it guided our forebears through Seneca Falls, and Selma, and Stonewall; just as it guided all those men and women, sung and unsung, who left footprints along this great Mall, to hear a preacher say that we cannot walk alone; to hear a King proclaim that our individual freedom is inextricably bound to the freedom of every soul on Earth. 

It is now our generation’s task to carry on what those pioneers began.  For our journey is not complete until our wives, our mothers, and daughters can earn a living equal to their efforts.  Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law – for if we are truly created equal, then surely the love we commit to one another must be equal as well.  Our journey is not complete until no citizen is forced to wait for hours to exercise the right to vote.  Our journey is not complete until we find a better way to welcome the striving, hopeful immigrants who still see America as a land of opportunity; until bright young students and engineers are enlisted in our workforce rather than expelled from our country.  Our journey is not complete until all our children, from the streets of Detroit to the hills of Appalachia to the quiet lanes of Newtown, know that they are cared for, and cherished, and always safe from harm. 

That is our generation’s task – to make these words, these rights, these values – of Life, and Liberty, and the Pursuit of Happiness – real for every American.  Being true to our founding documents does not require us to agree on every contour of life; it does not mean we will all define liberty in exactly the same way, or follow the same precise path to happiness.  Progress does not compel us to settle centuries-long debates about the role of government for all time – but it does require us to act in our time. 

For now decisions are upon us, and we cannot afford delay.  We cannot mistake absolutism for principle, or substitute spectacle for politics, or treat name-calling as reasoned debate.  We must act, knowing that our work will be imperfect.  We must act, knowing that today’s victories will be only partial, and that it will be up to those who stand here in four years, and forty years, and four hundred years hence to advance the timeless spirit once conferred to us in a spare Philadelphia hall.

My fellow Americans, the oath I have sworn before you today, like the one recited by others who serve in this Capitol, was an oath to God and country, not party or faction – and we must faithfully execute that pledge during the duration of our service.  But the words I spoke today are not so different from the oath that is taken each time a soldier signs up for duty, or an immigrant realizes her dream.  My oath is not so different from the pledge we all make to the flag that waves above and that fills our hearts with pride. 

They are the words of citizens, and they represent our greatest hope. 

You and I, as citizens, have the power to set this country’s course. 

You and I, as citizens, have the obligation to shape the debates of our time – not only with the votes we cast, but with the voices we lift in defense of our most ancient values and enduring ideals. 

Let each of us now embrace, with solemn duty and awesome joy, what is our lasting birthright.  With common effort and common purpose, with passion and dedication, let us answer the call of history, and carry into an uncertain future that precious light of freedom. 

Thank you, God Bless you, and may He forever bless these United States of America.

###

Analyzing This SCOTUS Term To Predict The Next

In today's New York Times reporter Adam Liptak analyzes the just-completed 2011-12 term of the United States Supreme Court and unearths some interesting (and surprising) facts. The Court heard oral arguments in 65 cases and summarily decided 10 other cases without oral argument. That's 75 decisions in which certioari was granted despite getting literally thousands of appeals from all the lower courts in the land.

Chief Justice John Roberts was only 1 percentage point behind Anthony Kennedy, who is widely viewed as the fulcrum around which the nation's highest court pivots around, in the percentage of cases in which they were in the majority (92% to 93%). This number is a widely watched measure as a signifier for the most "powerful" or influential member of the Court.

The court decided 15 cases by 5-to-4 votes, roughly in line with earlier terms. It was also not unusual that two-thirds of those decisions divided along ideological lines, with Justice Kennedy joining either the court’s four more liberal members (Justices Kagan, Stephen G. Breyer, Ruth Bader Ginsburg and Sonia Sotomayor) or its four more conservative ones (Chief Justice Roberts and Justices Alito, Scalia and Clarence Thomas). 

What was striking this year was that Justice Kennedy, a moderate conservative, swung right and left an equal number of times. Since 2000, there have been only two terms in which Justice Kennedy did not vote with the conservatives at least 60 percent of the time in such ideologically divided cases.

Is Kennedy evolving to the left? I guess I'm pretty happy with a 10-point shift towards liberal results instead of his usual 60-40 split between conservative and liberal positions. Maybe it's because he seems to be getting closer to Elena Kagan, since the two voted similarly 83% of the time this term. There are only two pairs of justices who voted similarly more than 90% of the time  (you guessed it!) Antonin Scalia and Clarence Thomas with the other (somewhat surprising) pair being George W. Bush appointees Roberts and  Samuel Alito. I guess "Scalito" is not living up to his reputation to become "a little Scalia" on the Court.
And that's a good thing. As his absolutely unacceptable fit of pique in the Arizona immigration ruling aptly demonstrated, even one Scalia on the Supreme Court is one too many!

You should really read Liptak's entire piece for yourself. There are some big gay rights cases coming up in the 2012-13 term, most likely involving the so-called Defense of Marriage Act (DOMA) and another determining the constitutionality of California's attempt to withdraw marriage rights from same-sex couples by allowing voters to amend the state constitution after California's Supreme Court had ruled such a right exists (2008's Proposition 8). These cases are known as Gill and Perry, respectively. We'll know on the first Monday of October whether the Court will indeed accept these cases for final review (and issue a ruling by this time next year). There are also some very high-stakes cases coming in the new term dealing with race. The Court has already agreed to hear oral arguments in Fisher v. Texas which it could use to completely strike down race-based affirmative action in higher education. In addition, there are several voting rights cases at the federal appellate circuit level, particularly Shelby County, Alabama v. Holder, which will almost certainly reach the Court in the 2012-13 term and could be used to strike down Section 5 of the Voting Rights Act of 1965. It's this provision of federal civil rights legislation which has been instrumental in putting a check on Republican politicians' attempt to suppress the voting rights of Black and Latino voters in states like Florida, Pennsylvania, Texas, Wisconsin and others through enactment of "voter identification" laws.

In the meantime it is useful to analyze last year's term to see if any ideological movement can be discerned which can help predict how the Court will rule in Gill and Perry, though as the ruling upholding the health care reform law demonstrated, accurately predicting how the Court will rule in any particular case is almost impossible!

U.S. Supreme Court Upholds Health Care Law!

The United States Supreme Court has apparently upheld the Patient Protection and Affordable Care Act, also known as ObamaCare or health care reform law! Chief Justice John Roberts voted with Justices Sotomayor, Ginsburg, Breyer and Kagan to uphold the individual mandate under the taxing power of Congress. Justices Kennedy, Thomas and Alito joined Justice Scalia's relatively polite dissent.

Obama's List For SCOTUS Has 10 Names On It

The New York Times reports that although the top 3 favorites have not changed (Solicitor General Elena Kagan, 5th Circuit Court of Appeals Judge Diane Wood and D.C. Circuit Court of Appeals Judge Merrick Garland) President Obama is interviewing up to 10 candidates for the upcoming vacancy on the Supreme Court due to Justice John Paul Stevens already-announced retirement.

The other seven on the (not-so short) list are:

Sidney R. Thomas, 9th Circuit Court of Appeals

Ann Claire Williams, 7th Circuit Court of Appeals

Gov. Jennifer M. Granholm of Michigan;

former Chief Justice Leah Ward Sears of the Georgia Supreme Court;

Martha Minow, dean of Harvard Law School;

Justice Carlos R. Moreno of the California Supreme Court;

Homeland Security Secretary Janet Napolitano.

I'm curious as to why liberal judicial rock stars Pamela Karlan and Kathleen Sullivan are not being publicly considered. Could it be because they are openly lesbian? It is heartening to see that Justice Carlos Moreno is still under consideration, however.

Top 10 Most Significant LGBT Events of the Decade

Following up on my recent post detailing the most significant LGBT-related events of 2009, I have decided to try and compile a list for the entire decade of the "aughts," from January 1, 2000 to December 31, 2009.

By most significant, I mean the events that either had the most impact on the lives of the most number of LGBT people or that are likely to be remembered as the most significant by historians in the future.

Here we go:

10. The Vermont legislature enacts nation's first civil unions law, signed by Governor Howard Dean, in response to the Vermont Supreme Court's Baker v. Vermont ruling, 2000.

In late December 1999 the Vermont Supreme Court issued its unanimous ruling in Baker v. Vermont, deciding that there was discrimination in the differing ways that the state's laws treated same-sex couples relative to opposite-sex couples, and although it also ruled that under Vermont law the legislature had intended to have marriage be a union between a man and a woman only (and could legally do so), the Court compelled the State to come up with a statutory remedy to address the disparate treatment of same-sex and opposite-sex couples. The Vermont Civil Unions bill, modeled after European civil partnership legislation, attempted to provide "civilly united" same-sex couples all the rights and responsibilities that married couples had under Vermont law. It was signed by Governor Howard Dean on April 26, 2000 and went into effect on July 1, 2000. (Me and my other half got a civil union on August 8, 2000 in Burlington, VT.) Thus Vermont became the first state to attempt to end state-sanction discrimination in relationship recognition in the United States, leading to full marriage equality on September 1, 2009.

9. California legislature passes Assemblymember Jackie Goldberg's AB 205, the first comprehensive domestic partner statute granting almost all the rights and responsibilities of marriage in state law (signed by Governor Gray Davis, went into effect January 1, 2005), 2003.

In summer of 2003, California became the second state (after Vermont) to enact legislation that tried to provide same-sex couples with as much of the rights and responsibilities of marriage while still reserving the word marriage to the exclusive domain of heterosexuals. In April 2000, California voters had passed Proposition 22 by 61%-39% which re-affirmed that state law banned recognition of same-sex marriages. Unlike in Vermont, the California legislature was not reacting in response to a state Supreme Court ruling. Instead, the state legislature was specifically expanding a bundle of rights to an existing statutory entity, the registered domestic partnership, instead of creating something new from whole cloth, like the Vermont civil union. California's comprehensive domestic partnership law would become the model that other (mostly Western) states would follow later in the decade: Oregon, Washington and Nevada. At the time there was much heated debate in the LGBT community about "settling" for domestic partnership in the midst of a pitched battle for equal marriage rights that would be repeated time and again with echoes present even today. Domestic partnerships and civil unions (commonly lumped together as "everything but the word marriage" laws) became overwhelmingly popular with the general public so that even during the backlash against marriage in the middle of the decade voters repeatedly defended such measures in elections (Arizona, 2006 and Washington, 2009).

8. Democrats retake congressional majorities in both the U.S. House of Representatives and U.S. Senate, 2006.

After losing control of both Houses of Congress in 1994, fueled by the energy and organizational skills of the progressive blogosphere and under the leadership of Democratic Congressional Campaign Committee Rahm Emmanuel and Democratic Senatorial Campaign Committee head Charles Shumer the Democrats were able to shock political observers by wresting back control of the entire legislative branch of the federal government in 2006 despite losing two consecutive national Presidential elections. The return of the Democrats to the helm of the federal legislature meant that draconian measures like the Federal Marriage Amendment that would have banned legalization of marriages for same-sex couples in all the 50 states would now be unable to advance. However, with Republicans in control of the executive and judicial branches of government, there was very little positive change the Democrats would be able to enact until a change was made in the occupancy of the White House. The 2006 election were an augur of progressive change to come in the country.

7. Voters pass ballot measures amending 11 state constitutions to ban recognition and validation of same sex marriages while re-electing President Bush, 2004.

In 2004, George W. Bush chief political strategist Karl Rove together with the (closeted) head of the Republican National Committee Ken Mehlman instigated the most coordinated attack on the LGBT community in history in an attempt to boost conservative evangelical turnout for Republican candidates (especially the top of the ticket) nationwide. Their evil strategy worked, although if a mere 60,000 voters in Ohio had voted for Senator John Kerry instead of the incumbent, there would have been another historical discrepancy between the winner of the presidential popular vote and the electoral college vote. The eleven states that voted to amend their state constitution to ban marriage for same-sex couples were: Arkansas, Georgia, Kentucky, Michigan, Mississippi, Montana, North Dakota, Ohio, Oklahoma, Oregon and Utah. In all the states but Oregon the measures were supported by more than 60% of voters and resulted in harsh anti-gay language being constantly repeated during state and local electoral campaigns. 2004 was the political nadir for progressive election results in the decade, with LGBT issues caught in the downturn.

6. U.S. House of Representatives passes Employment Non-Discrimination Act prohibiting discrimination in employment based on sexual orientation nationwide after gender identity protections are dropped, 2007.

Federal gay civil rights legislation was introduced for the first time in May 1974 by New York City-based U.S. Representatives Bella Abzug and Ed Koch as a bill that would add "sexual orientation" to the 1964 Civil Rights Act. However, it was not until November 7, 2007 (a full generation later) that a version of a federal gay civil rights bill passed a single chamber of Congress. Unfortunately, the version passed in the U.S. House by a vote of 235-184 was not only watered-down to an extent that it only covered discrimination in employment (and not public accommodations and housing like the corresponding landmark civil rights legislation of the 1960s) but it also was stripped of the gender identity protections. The passage of the trans-exclusive version of ENDA in the U.S. House of Representatives was significant for the historical precedent it set as well as the internal community it sparked over transgender issues in the LGBT civil rights movement. Even among openly gay Congressmembers Tammy Baldwin and Barney Frank there was disagreement about whether it was better to pass ENDA with sexual orientation and gender identity protections or not. Frank was in favor, Baldwin opposed. For practical purposes, the issue of which measure should be law became moot because the measure died in the United States Senate after President Bush issued a veto threat. However, the passage of ENDA by the House augured well for the passage of other LGBT civil rights legislation in the future.

5. Massachusetts Supreme Judicial Court rules marriage for same-sex couples is a fundamental right that can not be constitutionally denied, 2003.

In November 2003, the Supreme Judicial Court of Massachusetts in Goodridge v. Department of Public Health became the first high court in the United States to rule that opposite-sex only marriage laws were unconstitutional and that the remedy required was to allow same-sex couples full marriage equality. The Court deemed that the state did not even have a rational basis for denying such an important fundamental right to a class of its citizens on both equal protection and due process grounds. On May 17, 2004, the 50th anniversary of the United States Supreme Court decision in Brown v. Board of Education, the Goodridge decision went into effect and the first legal marriages between same-sex couples occurred on U.S. soil. Although the marriage of the lead plaintiffs Julie and Hilary Goodridge did not survive the decade, Massachusetts marriage equality did, and the 4-3 Goodridge decision was the harbinger of positive marriage equality decisions in California (In Re Marriage Cases, 2008; 4-3) Connecticut (Kerrigan v. Department of Public Health, 2008; 4-3) and Iowa (Varnum v. Brien, 2009; 7-0). Through intensive political organizing, the LGBT community and its allies were able to prevent the state legislature from allowing a constitutional amendment from going to the voters and by the end of the decade Massachusetts marriages were considered safe and the state was suing the federal government for discriminating against its legally married same-sex couples in the disbursal of federal recognition and benefits.

4. United States Supreme Court overturns the homophobic Bowers v. Hardwick (1986) precedent, ruling that sodomy laws are unconstitutional, in Lawrence v. Texas, strengthening privacy rights for all Americans, 2003.

For nearly two decades the Bowers v. Hardwick ruling of the United State Supreme Court was used as a legal club to eliminate any claims for civil rights for gay men and lesbians in a number of different contexts. In a 5-4 majority opinion written by Justice Byron White, the court contemptuously dismissed the notion of "a fundamental right to homosexual sodomy" and affirmed the state of Georgia's law criminalizing oral or anal sex between consenting adults--even in the privacy of their own house. The indisputable fact that the highest court in the country had decided that the act which defines homosexuals makes them criminals was used over and over again to refute the concept of equal rights for gay men and lesbians. This all changed on June 26, 2003 when Justice Anthony Kennedy read part of the majority decision in Lawrence v. Texas before assembled court reporters and teary-eyed LGBT legal advocates which declared that the Court's previous sodomy decision in 1986 "was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled." The Court's action struck down sodomy laws in 13 states including four states (Texas, Oklahoma, Kansas and Missouri) that had restricted their laws to homosexuals only. The court ruled that the sodomy laws violated due process and equal protection laws. By decriminalizing homosexuality nationwide, the decision in Lawrence dramatically reduced stigma against gay men and lesbians and was a significant legal and cultural advance in the movement for full LGBT equality.

3. Proposition 8 is passed by California voters, stripping the recently-granted right to marry after an $83 million electoral campaign filled with lies and deception, 2008.

In May 15, 2008 the California Supreme Court issued its landmark ruling In Re Marriage Cases which not only ruled that California's marriage laws discriminated against same-sex couples but also declared that sexual orientation was a suspect classification deserving of strict judicial scrutiny on par with race and sex and ordering civil marriage licenses to be issued to gay and lesbian couples in 30 days, on June 15th. 173 days after that, on November 5, 2008, California voters passed a ballot measure 52.3% to 47.7% to amend their constitution to strip away the recently granted right and banned gay marriage. The electoral battle to pass Proposition 8 became the most expensive ballot measure over a social issue in the nation's history with an estimated $83 million ($40 million by Yes on 8, $43 million by No on 8). Many LGBT activists felt that the No on 8 campaign squandered what public polls said were double-digit leads through an overly safe television campaign which did not feature images of gay or lesbian people. However, internal polls never showed the campaign ahead and no public poll ever showed majority support for the concept of marriage equality in the state. The battle over Proposition 8 was a political coming of age for an entire generation of LGBT activists. After Proposition 8 passed an incredible outpouring of rage and disappointment resulted in demonstrations (primarily organized online) in dozens of cities around the country which were estimated to have been attended by over 1 million people. In California, several brand-new grassroots organizations were formed and statewide gatherings of LGBT activists were held in Los Angeles, Fresno and San Bernardino to organize, inform and strengthen the community activists who attended. The lessons of Proposition 8's passage (that majorities would vote to strip away the right to marry from their fellow citizens even in a presumably progressive state like California) were repeated in 2009 when Question 1 in Maine was passed by an even larger margin. Currently Proposition 8's constitutionality is being challenged under Federal law by the legal dream team of super-litigators David Boies and Ted Olson after the California Supreme Court refused to strike down the measure under the state constitution with a full trial on the merits set for the beginning of the next decade, on January 11, 2010.

2. President Barack Obama signs the federal hate crimes bill, the Matthew Shepard and James Byrd, Jr Hate Crimes Prevention Act, into law, 2009.

Despite the carping from some corners that the legislation only gives rights to LGBT people only after they are victimized or dead, the historic echoes of the President's signature on H.R. 1913 should not be under-estimated. The federal hate crimes bill became the first piece of federally enacted legislation to ever include the words "gender identity" and only the second to expand rights based on sexual orientation. Yes, the measure was attached to a "must-pass" piece of legislation, the Defense Reauthorization Act of 2009, instead of a stand-alone bill. But this did not make Republican opposition any less fierce or morally questionable. After the federal hate-crimes act was enacted it could never be said again that there were no protections in federal law for the LGBT community. The binding precedent of the legislative action meant that it would not be unthinkable to pass other LGBT civil rights laws in the future.

1. George W. Bush is (s)elected president after U.S. Supreme Court intervention in Florida recount results in defeat of Vice-President Al Gore, 2000.

The presidential election of 2000 was the most pivotal political moment of the decade as a 2-term Democratic president was going to be replaced by either his Vice President who would maintain and mainly continue Bill Clinton's relatively pro-gay policies or by Texas Governor George W. Bush, the "compassionate conservative" attempting to restore the Bush family name to the highest echelons of power in the country. That Al Gore would get more than half a million more votes than George W. Bush but the presidency of the United States would come down to a few hundred votes in Florida (a state where the candidate's brother was the Governor) was something a Hollywood screenwriter would have been discouraged from including in a political thriller as too far-fetched and simply unbelievable. But, thanks to intervention from the United States Supreme Court in the case of Bush v. Gore where David Boies and Ted Olson were on opposite sides, Bush was declared the winner. Instead of governing like he had just won the closest presidential election in U.S. history, Bush proceeded to dismantle as much of the Clinton legacy as he could as rapidly as possible. Thanks to Bush's election (and re-election) we now have two relatively young arch-conservative jurists on the United States Supreme Court (Chief Justice John Roberts, 54 and Samuel Alito, Jr., 59) along with hundreds of other conservative federal judges in lifetime appointments on District and Appellate Courts throughout the country. Additionally, Bush being president for most of the decade meant that federal progress on enacting LGBT civil rights was stymied at every level, with attention moving to state-based legislative, judicial and administrative action. The low point came in 2004 when President Bush endorsed the Federal Marriage Amendment, which would have explicitly stripped the fundamental right to marry from same-sex couples, an unprecedented and maximalist attack on a particular minority group that would have incorporated discrimination in to the founding document of the country which has been only amended 27 times in 222 years. The main impact of having a Republican in the White House was the aid and comfort the Bush Administration gave to virulent homophobes and the political cover it provided for other Republican politicians to express and implement counterfactual and prejudiced views and policies towards LGBT citizens.

Why Elections Matter: Chief Justice Robert's New Yorker Profile

kos over at Daily Kos highlights this key graf from Jeffrey Toobin's profile of Chief Justice John Roberts in the latest New Yorker

After four years on the Court, however, Roberts’s record is not that of a humble moderate but, rather, that of a doctrinaire conservative. The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.

Thanks, John Kerry! But if we didn't have Bush's second term we probably wouldn't have Obama's first term and Democratic control of the US House and Senate.

But this also highlights why Obam's choice to replace Justice David Souter is so important.

The Inaugural Flub

Dalia Lithwick has a transcript up at Slate.com of the bizarre verbal flubs made by Supreme Court Chief Justice John Roberts during today's swearing-in of Barack Oabama as the 44th President of the United States:

ROBERTS: (working without a text, and also without an overcoat): Are you prepared to take the oath, Senator?

OBAMA: I am.

ROBERTS: I Barack Hussein Obama ...

OBAMA: (interrupting) I Barack ...

ROBERTS: Do solemnly swear ...

OBAMA: I, Barack Hussein Obama, do solemnly swear ...

ROBERTS: That I will execute the office of president to the United States faithfully...

OBAMA: That I will execute ... (pauses, smiles, waits for Roberts to put "faithfully" in correct spot)

ROBERTS: ... The off ... faithfully the pres ... the office of president of the United States...

OBAMA: The office of president of the United States, faithfully ... (if you can't beat 'em, join 'em)

ROBERTS: And will to the best of my ability ...

OBAMA: And will to [the] best of my ability ...

ROBERTS: Preserve, protect, and defend the Constitution of the United States.

OBAMA: Preserve, protect, and defend the Constitution of the United States.

ROBERTS: So help you God?

OBAMA: So help me God.

ROBERTS: Congratulations, Mr. President.

Maybe in 2013 Roberts will get it right? Obama will definitely will!