Same Sex Marriage, California and the Defense of Marriage Act

Published November 22, 2013 by Tjchase

Professor Tobias Wolff discusses the importance of the California Supreme Court decision regarding same sex marriage. California is the first state to allow same sex couples from any state to marry. He also reviews the effects of the Defense of Marriage Act for same sex couples.

   

By Tobias B. Wolff | Contact

Tobias Wolff

Tobias Barrington Wolff is a Professor of Law at the University of Pennsylvania Law School.

He writes and teaches in the fields of Civil Procedure, Constitutional Law, and Conflict of Laws.

He began his teaching career at the University of California, Davis Law School and has been a visiting professor at Stanford and Northwestern Law Schools.

Before entering academia, Wolff was a litigator at the firm of Paul, Weiss, Rifkind, Wharton & Garrison in New York and served as a judicial clerk for Judges Betty Binns Fletcher and William Norris, both of the Ninth Circuit Courtof Appeals.

Professor Wolff has also worked as a civilrights attorney for over ten years and has participated in gay rights cases around the country, including marriage and relationship rights litigation in Alaska, California, Hawai’i, Iowa, New York, and New Mexico and litigation over the U.S. military’s Don’t Ask, Don’t Tell policy in the First and Ninth Circuit Courts of Appeals.
 

  
   
 
 

Since the state of California will now marry same sex couples from any state, it is important to investigate how other states will treat those marriages. 

I write here exclusively in my personal capacity as a scholar and civil rights lawyer. And, in the interest of full disclosure, I should mention that I wrote and submitted one of the Constitutional Law briefs to the California Supreme Court on behalf of the California couples in the marriage case, as I did on behalf of Iowa couples in the case currently pending before the Iowa Supreme Court, and that I have consulted behind the scenes on other cases involving these issues, always on behalf of the couples.

The key points that it is important for our community to understand, and to educate the public about, are the following:

> First, this is not the first time that states have had different policies on contentious questions about civil marriage and who can get married under state law. Far from it. States have figured out sensible ways to handle these policy differences in the past, and they can do so again.

> Second, while repealing the “full faith and credit” portions of the Defense of Marriage Act is very important for a number of reasons, it will not have the dramatic and far-reaching effect of “imposing” same-sex marriage upon other states, as many on both sides of the debate often assume.

THE DECISION OF THE CALIFORNIA SUPREME COURT

The decision of the California Supreme Court contains three important rulings:

(1) Discrimination against gay men and lesbians is presumptively unconstitutional, in the same way that discrimination based upon race and sex or gender is presumptively unconstitutional;

(2) The fundamental right to marry under state law is protected by the constitution and is equally applicable to same-sex couples; and

(3) California failed to show that its laws excluding same-sex couples from marriage could satisfy the constitutional scrutiny demanded by these equality and fundamental rights principles, and so those laws are unconstitutional.

As many people have remarked, these holdings are immensely significant for reasons that go beyond the issue of marriage. The California Supreme Court is one of the most respected courts in the country and is fairly conservative on many issues, with six of the seven members having been appointed by Republican governors.

With this ruling, it is the first state supreme court to hold that antigay discrimination is inherently constitutionally suspect (i.e. that it provokes “strict scrutiny”), and the first to recognize the fundamental right to marry as one that includes same-sex couples.

These rulings are based exclusively on the California Constitution, not the U.S. Constitution, so they apply only to the laws of California and they cannot be appealed to the Supreme Court of the United States. However, it is safe to assume that the California ruling will draw attention to the interstate question in a way that the Massachusetts ruling has not, both because California is so much larger than Massachusetts and because California does not have a law like the one in Massachusetts that prevents out-of-state couples from marrying when the marriage would be prohibited in their home states.

MARRIAGE ACROSS STATE LINES

With the decisions in California and Massachusetts — and the possibility of similar rulings in Iowa and Connecticut and possible legislative reform in New York, New Jersey and Vermont — there will likely be significant differences in state laws relating to civil marriage around the country for some time to come. Some states will expressly permit same-sex couples to marry (California, Massachusetts, perhaps others), some states will expressly recognize the out-of-state marriages of same-sex couples even if the couples cannot marry locally (New Hampshire, by statute; New York, by court ruling and executive action), and many states will continue to have less sympathetic or even hostile policies toward married couples.

Courts in the United States have been dealing with this type of problem for close to two hundred years. Contrary to many public discussions and news reports, the current disagreements over civil marriage for same-sex couples do not represent the first time that significant differences have arisen between the marriage laws of the various states. Laws relating to interracial marriage (anti-miscegenation laws), marriages between people related by blood (particularly uncles and nieces or first cousins), certain marriages following divorce, and marriages involving teenagers have at times varied enormously in the United States and produced sharp differences of opinion among the states. The basic set of problems that can arise when different states have different policies on civil marriage is an old one, and courts have been working out sensible solutions to those problems for a long time.

THE “RECOGNITION” OF A CIVIL MARRIAGE

First off, it is important to say a few words about what it means for one state to “recognize” a marriage from another. There are a lot of different situations in which a couple might ask to have their civil marriage recognized under the law. These situations may have very different legal implications.

The strongest claim a married couple can make to have their marriage “recognized” is when they have a judgment, issued by a court, that entitles them to something — money from an insurance company on a claim, for example, or a particular custodial arrangement with their kids. Under the principle of full faith and credit, states have always operated under a powerful obligation to give effect to court judgments from other states. This is true even when the law that the court applied in deciding a lawsuit is one that other states disagree with. Thus, if a court resolves a dispute involving a marriage between a particular set of parties in one state, and then another state is asked to give effect to the resulting judgment (for example, by ordering an unwilling party to pay up on a damages award), state number two is not allowed to disregard the judgment simply because it disagrees with the marriage laws from state number one. Where judgments issued by courts are concerned, the obligation for every state to respect the judgments of every other state is a mandatory one and applies almost without exception.

When there aren’t any court judgments involved — which is frequently the case — the situation is very different. Often, a couple seeking to have their marriage “recognized” is merely interacting with the legal system in some way and wants to be treated as a married couple. If one spouse passes away, the surviving spouse may want to make claims on the estate based upon the fact that they were married, or he might want to have the marriage recognized for purposes of confirming custody over the children. If a state gives favored treatment to married spouses in its tax laws, or in its health, insurance and retirement benefits for public employees, a couple may want to have their marriage recognized for purposes of participating in those programs. Historically, couples sometimes even had to ask that their marriage be recognized as a defense to a criminal prosecution, where a state was going after one or both of them for illegal fornication. (Following the Supreme Court’s decision in Lawrence v. Texas, such prosecutions are happily a thing of the past, at least in the civilian world.)

When a couple asks a court to recognize their marriage in this type of situation, the analysis has always been very different. A marriage is not the same thing as a court judgment. The mere fact that a couple has been married in one state has never been treated as something that is entitled to the kind of mandatory legal enforcement that judgments receive in our legal system. Rather, courts have always treated the recognition of out-of-state marriages as a matter of public policy, and various factors have influenced the decisions that states have made about recognizing an out-of-state marriage that could not have been entered into locally.

Some states have taken a very liberal view, deciding that, if a marriage was valid and legal in the place where it was celebrated, then it should always be treated as valid and legal. California has embraced that policy since the early part of the twentieth century, for example (with the exception of marriages between same-sex couples, until the recent decision).

Other states have used a more case-by-case analysis. For example, suppose that a couple lives in a state where they cannot get married, but there are other states in the country where they could. Suppose that the couple travels to one of those other states, gets married, then returns to their home state to continue living, all with the express purpose of evading the restriction that prevents them from marrying in their home state. In states that use a case-by-case analysis, this kind of “evasive” marriage has been treated less sympathetically.

Finally, all of the various approaches to these marriage questions have generally been qualified by a “public policy” exception. Even if a state court might otherwise be inclined to recognize an out-of-state marriage under whatever rules it applies, most courts have still reserved the right to make an exception if the marriage would violate their state’s strongly held public policies. This public policy exception does not apply to judgments issued by courts. In fact, the Supreme Court recently made it very clear that even sharp differences in public policy do not give one state the right to escape the obligation to enforce another state’s judgment. But the public policy exception has long been invoked by courts in marriage disputes that don’t involve prior court judgments, like the health insurance examples described above.

In the current discussions about marriage for same-sex couples, a few distinguished commentators have taken the position that the public policy exception should be rejected altogether. Larry Kramer at Stanford has argued that the public policy exception is inconsistent with the principles of full faith and credit. Joseph Singer at Harvard has gone further, arguing that states should always be required to recognize a marriage if that marriage was valid in the place where it was celebrated. Evan Wolfson, the influential lawyer and advocate, has taken a position similar to Joe Singer’s. But, whether these commentators are right or wrong, this is the minority position, at least for now. Most scholars and commentators in the field of Conflict of Laws — the area of law that deals with this kind of dispute across state lines — agree that states should have the power to decline to give effect to an out-of-state marriage that is inconsistent with local laws, whether because that marriage violates public policy, because it was the result of a couple deliberately evading local marriage laws, or for some other reason.

My own work in this field, for those who are interested, has focused on the particular reasons that states have given in the past for declining to recognize an out-of-state marriage and the need to revisit some of those reasons in light of recent decisions by the U.S. Supreme Court that have held that certain forms of discrimination, criminalization, or moral disapproval are unconstitutional, particularly with respect to gay people and gay couples. Even if one starts from the assumption that a state can deny same-sex couples the right to marry — and one has to start from that assumption for purposes of this kind of discussion; otherwise, the couples could get married in their home state and there would be nothing to discuss — I have argued that, following these recent developments, many of the reasons that states have relied upon in the past for denying effect to a couple’s marriage are no longer applicable, and that a proper analysis should lead many states to give effect to a same-sex couple’s marriage as a matter of good public policy, even if they are not mandated to do so. For those who are really interested, I have developed these arguments in a scholarly article that can be downloaded here.

In Summary:

> When a court in one state issues a judgment in a lawsuit, including a lawsuit that somehow involves a marriage — an award on an insurance or wrongful death claim, or the resolution of a custody dispute — full faith and credit has always required other states to give effect to that judgment, almost without exception.

> When there are no court judgments involved, and a couple has simply gotten married and wants another state to recognize that marriage for some reason — the probate of an estate, or equal participation in a public employer’s health, insurance and retirement benefits — the situation is more complicated. These questions have always been treated as a matter of policy for the states to decide, rather than as a matter of mandatory obligation. Some states have taken a liberal attitude toward such recognition, while others have employed a more case-by-case analysis.

> Historically, states have reserved the right to apply an exception for reasons of public policy when they are asked to recognize an out-of-state marriage, even if their normal rules would otherwise indicate that the marriage should be given effect. But that public policy exception has never been available where judgments by courts are involved.

THE “MINI DEFENSE OF MARRIAGE ACT” THAT STATES HAVE PASSED

Since the 1993 decision by the Hawai’i Supreme Court that placed these issues on the map, many states have enacted statutes or state constitutional amendments that prohibit same-sex couples from marrying. These provisions are often referred to as “mini-DOMAs.” When discussing what validity a same-sex couple’s marriage will have as they travel around the country, many commentators assume that these mini-DOMA provisions automatically indicate that a state will refuse to recognize an out-of-state marriage, for any purpose. That assumption is not always correct.

As noted above, state courts have long recognized that a state can refuse to recognize an out-of-state marriage when that marriage violates local public policy. But many states have been cautious in applying that exception. In particular, some courts have said that they will not deny effect to a marriage that was validly performed in another state unless their own legislature has made it unmistakably clear that it desires that result. Even where a legislature has spoken in very strong terms about its policy against allowing certain couples to marry inside the state — for example, by saying that a marriage between first cousins is prohibited and would be considered “absolutely void” — some courts have found that they should not apply that policy to out-of-state marriages unless the legislature has told them to do so explicitly.

As people frequently note, a large number number of states have enacted mini-DOMA provisions that prohibit marriage by same-sex couples, either as statutes or as state constitutional amendments. But only about two thirds of those provisions expressly address the question of out-of-state marriages. In states where the legislature has not addressed out-of-state marriages in their mini-DOMA provisions — and, of course, in states that have no such provisions at all — courts might recognize the marriages of same-sex couples on a case-by-case basis, even if those couples could not marry in the state in the first place.

Still, it is important not to understate the impact of these mini-DOMA provisions. Even at the height of one of our most contentious disputes over marriage laws in the United States — the fight over interracial marriage — few states took the view that they would always refuse to recognize an interracial marriage. Even hostile states were open to the possibility, for example, that an interracial couple who legally married in another state where they once lived, and then relocated or travelled to a hostile state, might still be entitled to have their marriage recognized for at least some purposes (like the probate of an estate). In comparison, the level of legal hostility toward the marriages of same-sex couples — with some states refusing even to recognize the marriage for purposes of allowing the couple to get a divorce when their relationship comes to an end — has been remarkable. Some of these mini-DOMA provisions lock that legal hostility into the state constitution.

In Summary:

> The mini-DOMA provisions that about forty states have now enacted pose serious obstacles to the recognition of a same-sex couple’s marriage, but only about two thirds of those provisions actually make it clear that the recognition of such a marriage from out of state would violate public policy. In the rest of the states (and in those with no mini-DOMA at all), courts have more leeway to make sensible and fair decisions.

THE FEDERAL DEFENSE OF MARRIAGE ACT

Onto this complex but fairly stable legal landscape, the federal Defense of Marriage Act was imposed in 1996. At the time of its enactment, DOMA was sold to the Congress, the President, and the American people as a necessary move to “protect” objecting states from being forced to recognize the marriages of same-sex couples performed in other jurisdictions. This was not true, and never has been. Putting to one side for the moment questions of fairness, sensible policy, and principles of equal protection, it has long been clear that states have the authority to deny recognition to an out-of-state marriage based on a public policy objection. (Once again, respected scholars like Kramer and Singer, and respected advocates like Evan Wolfson, have argued that the public policy exception should be categorically rejected. Those views remain in the minority, at least for now.) If states are concerned about the prospect that they will be compelled by California, Massachusetts, or some other state to recognize the marriages of same-sex couples, those concerns have always been misplaced. States did not need the federal Defense of Marriage Act for that. If DOMA were repealed in its entirety tomorrow, States would possess the same power that they have always had to refuse to recognize out-of-state marriages on public-policy grounds.

Some commentators, understanding this fact, have turned the argument around, suggesting that repealing the full faith and credit portion of DOMA would not accomplish anything and is unimportant. (DOMA also has a section that prohibits the federal government from extending equal federal benefits to same-sex couples who are married, civilly united or domestically partnered under state law. Everyone acknowledges the significance of repealing that portion of the law.) This view — that repealing the full faith and credit portion of DOMA would do nothing and is unimportant — is also wrong. Although the states do have the power to deny recognition to the out-of-state marriages of same-sex couples with or without DOMA, the full faith and credit portions of DOMA harm LGBT people in at least three important ways.

> First. The language of DOMA purports to give states the ability to deny recognition not just to the marriages and civil unions of same-sex couples (which states could do anyway), but also to any court judgment “respecting” the marriage or union of a same-sex couple, or respecting a right or claim arising out of that relationship. Recall the important distinction discussed above between a court judgment and a marriage. Unlike the ordinary recognition question, states have a mandatory obligation, subject to very few exceptions, to give effect to judgments rendered by courts in other states around the country. For the first time in the history of the United States, the Defense of Marriage Act takes one class of people — same-sex couples — and says that courts may simply disregard judgments rendered by courts in other states when those judgments are in some way based upon the couple’s relationship. So, if an insurance company is ordered to pay a claim on a policy, or a reckless driver is ordered to pay a damages award, or a court issues a ruling on custody or support, DOMA now gives hostile states the unprecedented power to ignore those out-of-state judgments altogether. The potential for harm and disruption that this provision of DOMA inflicts upon the families, the finances, and the stability of same-sex couples is severe.

Most state legislatures have no idea that DOMA gives them this kind of power, and most people certainly did not have this important issue in mind when DOMA was enacted. For example, I recently testified before the Judiciary Committee of the Pennsylvania Senate about the possible effects of a mini-DOMA constitutional amendment that they were considering. In my testimony, one of the things I discussed was the impact of the federal DOMA on the enforceability of court judgments. The legislators were astonished. No one had ever explained to them that the federal DOMA gave them such a dangerous power. (My testimony wasn’t good enough to stop the proposed amendment in Judiciary, but our strong allies in the Senate and our champions in the advocacy community succeeded in scuttling the amendment later in the process.)

> Second. DOMA encourages states to avoid any kind of serious analysis when they are presented with a recognition question. While the states have never had a mandatory obligation to recognize the relationship of an out-of-state couple when that couple could not marry locally, states have often chosen to extend such recognition as a matter of sensible policy nonetheless. As the discussion above explains, these are complicated issues. Recognition questions arise in all kinds of different situations. There are many circumstances in which a state might decide that it is good public policy to recognize a couple’s marriage, even if the couple would not have been allowed to marry under local state laws. State courts have been using careful analysis to work out sensible answers to these questions for a long time. In enacting DOMA, however, Congress sent a powerful signal to the states that they should not ask questions about what constitutes good and sensible policy when it comes to same-sex couples. Rather, Congress invited the states to give over-simplified answers, exercising a blanket prerogative to reject same-sex relationships for all purposes. DOMA, in other words, validates and encourages the states to treat same-sex couples with legal hostility.

> Third. The full faith and credit provisions of DOMA are a gratuitous affront to the dignity of 10,000,000+ LGBT Americans. Never before, in the history of the Republic, has Congress singled out one class of citizens and proclaimed that their relationships would be treated with hostility in interstate relations. To be clear: For the first eighty years of the Republic, people of African descent were enslaved, and they were denied the rights of citizenship under the Dred Scott decision even when they were free. This is a fact that we should never forget when talking about the historic treatment of classes of people. But once African-Americans were recognized as citizens under the Thirteenth and Fourteenth Amendments, and the issue of interracial marriage arose and became sharply contested, even the long American history of racial animus did not lead Congress to single out interracial relationships for the kind of discriminatory treatment in interstate relations that DOMA affords to same-sex couples. In this important respect, DOMA represents an unprecedented affront.

In Summary:

> The states never needed DOMA in order to refuse recognition to out-of-state marriages between same-sex couples. If they are bound and determined to refuse to give any recognition to those relationships, they already have the power to do that, and repealing DOMA in its entirety will not change that fact.

> Repealing DOMA remains vitally important, however, for the statute places in jeopardy all court judgments that are based upon the existence of a same-sex relationship. Authorizing states to refuse to enforce this one class of out-of-state judgments — something that has never been done in the history of the U.S. — disrupts family and financial relationships and encourages irresponsible behavior.

> DOMA also has the effect of encouraging states to avoid the kind of serious analysis that marriage recognition disputes require. There are many situations in which it makes sense for a state to recognize the relationship of a same-sex couple, even if the state would not allow the couple to marry in the first place. States have an obligation to analyze those situations carefully. DOMA validates and encourages states to treat these couples with hostility, and it represents a particular type of affront to one class of citizens that is unprecedented in federal law.

I hope that this short primer is a valuable contribution to the discussion of these important issues.

 

 

 
 

Fair faith and credit Article IV of the constitution

Published November 22, 2013 by Tjchase

DOMA Repeal and the Truth About Full Faith & Credit

Posted: 07/21/11 10:47 AM ET
 

 

 

(This post is an updated version of an essay that first appeared on the eQualityGiving website, which can be found at here.)

With the introduction of the Respect for Marriage Act and President Obama’s strong endorsement of the legislation, we are closer than ever before to achieving the repeal of the so-called “Defense of Marriage” Act, the discriminatory 1996 statute that denies equal treatment across the board to committed same-sex couples. Predictably, opponents of equal treatment are making the same alarmist claims that succeeded for them so well when they got DOMA enacted fifteen years ago: that the Full Faith and Credit clause of the U.S. Constitution will require that a marriage performed in one state between a same-sex couple automatically be recognized everywhere in the country. According to this claim, states that deny the freedom to marry to same-sex couples will suddenly have their policies overridden by the decisions of Iowa, New York or Massachusetts.

These claims are false. They always have been. In fact, it has been well established for more than a century that Full Faith and Credit does not require mandatory recognition of marriages around the country in the same way that it requires mandatory recognition of judgments by courts (which is its core function). Insofar as DOMA was enacted to address a supposed full faith and credit problem, it was enacted on a falsehood. Now that repeal is on the horizon, it is time to put that falsehood to bed.

The key points that it is important to understand are the following:

• First, this is not the first time that states have had different policies on contentious questions about civil marriage and who can get married under state law. Far from it. States have figured out sensible ways to handle these policy differences in the past, and they can do so again.

• Second, while repealing the “full faith and credit” portions of the Defense of Marriage Act is very important for a number of reasons, it will not have the dramatic and far-reaching effect of “imposing” same-sex marriage upon other states, as many on both sides of the debate often assume.

THE FREEDOM TO MARRY IN THE UNITED STATES

Same-sex couples now enjoy the freedom to marry in six states — Massachusetts, Iowa, New Hampshire, Vermont, Connecticut and New York — and the District of Columbia, and there is significant movement toward equality through the legislatures, the initiative process and the courts in Maryland, New Jersey, California, and Maine. The powerful trend in America is toward full LGBT equality. But may be many years before same-sex couples enjoy equal treatment throughout the United States. Until that happens, there will be significant differences in state laws relating to civil marriage around the country. Some states will expressly permit same-sex couples to marry (like New York and Iowa), some states will expressly recognize the out-of-state marriages of same-sex couples even if the couples cannot marry locally (like Maryland), and many states will continue to have less sympathetic or even hostile policies toward married couples.

Courts in the United States have been dealing with this type of problem for close to two hundred years. Contrary to many public discussions and news reports, the current disagreements over civil marriage for same-sex couples do not represent the first time that significant differences have arisen between the marriage laws of the various states. Laws relating to interracial marriage (anti-miscegenation laws), marriages between people related by blood (particularly uncles and nieces or first cousins), certain marriages following divorce, and marriages involving teenagers have at times varied enormously in the United States and produced sharp differences of opinion among the states. The basic set of problems that can arise when different states have different policies on civil marriage is an old one, and courts have been working out sensible solutions to those problems for a long time.

THE “RECOGNITION” OF A CIVIL MARRIAGE

First off, it is important to say a few words about what it means for one state to “recognize” a marriage from another. There are a lot of different situations in which a couple might ask to have their civil marriage recognized under the law. These situations may have very different legal implications.

The strongest claim that a married couple can make to have their marriage “recognized” is when they have a judgment, issued by a court, that entitles them to something — money from an insurance company on a claim, for example, or a particular custodial arrangement with their kids. Under the principle of full faith and credit, states have always operated under a powerful obligation to give effect to court judgments from other states on almost every subject. This is true even when other states disagree strongly with the law that one court applies in deciding a lawsuit. Thus, if a court resolves a dispute involving a marriage between a particular set of parties in one state, and then another state is asked to give effect to the resulting judgment (for example, by ordering an unwilling party to pay up on a damages award), state number two is not allowed to disregard the judgment simply because it disagrees with the marriage laws from state number one. Where judgments issued by courts are concerned, the obligation for every state to respect the judgments of every other state is a mandatory one and applies almost without exception.

When there aren’t any court judgments involved — which is frequently the case — the situation is very different. Often, a couple seeking to have their marriage “recognized” is merely interacting with the legal system in some way and wants to be treated as a married couple. If one spouse passes away, the surviving spouse may want to make claims on the estate based upon the fact that they were married, or he might want to have the marriage recognized for purposes of confirming custody over the children. If a state gives favored treatment to married spouses in its tax laws, or in its health, insurance and retirement benefits for public employees, a couple may want to have their marriage recognized for purposes of participating in those programs. Historically, couples sometimes even had to ask that their marriage be recognized as a defense to a criminal prosecution, where a state was going after one or both of them for illegal fornication. (Following the Supreme Court’s decision in Lawrence v. Texas, such prosecutions are happily a thing of the past.)

When a couple asks a court to recognize their marriage in this type of situation, the analysis has always been very different. A marriage is not the same thing as a court judgment. The mere act by one state of marrying a couple has never been entitled to the kind of mandatory legal enforcement that judgments receive in our legal system. Rather, courts have always treated the recognition of out-of-state marriages as a matter of public policy, and various factors have influenced the decisions that states have made about recognizing an out-of-state marriage that could not have been entered into locally.

Some states have taken a very liberal view, deciding that, if a marriage was valid and legal in the place where it was celebrated, then it should always be treated as valid and legal. New York has embraced that policy since the nineteenth century, for example.

Other states have used a more case-by-case analysis. For example, suppose that a couple lives in a state where they cannot get married, but there are other states in the country where they could. Suppose that the couple travels to one of those other states, gets married, then returns to their home state to continue living, all with the express purpose of evading the restriction that prevents them from marrying in their home state. In states that use a case-by-case analysis, this kind of “evasive” marriage has been treated less sympathetically.

Finally, all of the various approaches to these marriage questions have generally been qualified by a “public policy” exception. Even if a state court might otherwise be inclined to recognize an out-of-state marriage under whatever rules it applies, most courts have still reserved the right to make an exception if the type of marriage in question would violate their state’s strongly held public policies. This public policy exception does not apply to judgments issued by courts. In fact, the Supreme Court has made it clear that even sharp differences in public policy do not give one state the right to escape the obligation to enforce another state’s judgments. But the public policy exception has long been invoked by courts in marriage disputes that where prior court judgments are not at stake, like the health insurance examples described above.

In the current discussions about marriage for same-sex couples, a few distinguished commentators have taken the position that the public policy exception should be rejected altogether. Larry Kramer at Stanford has argued that the public policy exception is inconsistent with the principles of full faith and credit. Joseph Singer at Harvard has gone further, arguing that states should always be required to recognize a marriage if that marriage was valid in the place where it was celebrated. Evan Wolfson, the influential lawyer and advocate, has taken a position similar to Joe Singer’s. Whether these commentators are right or wrong, this is the minority position. Most scholars and commentators in the field of Conflict of Laws — the area of law that deals with this kind of dispute across state lines — agree that states should have the power to decline to give effect to an out-of-state marriage that is inconsistent with local laws, whether because that marriage violates public policy, because it was the result of a couple deliberately evading local marriage laws, or for some other reason.

My own work in this field has focused on the particular reasons that states have given in the past for declining to recognize an out-of-state marriage and the need to revisit some of those reasons in light of recent decisions by the U.S. Supreme Court that have held certain forms of discrimination, criminalization, or moral disapproval to be unconstitutional, particularly with respect to gay people and gay couples. Even if one starts from the assumption that a state can deny same-sex couples the right to marry — and one has to start from that assumption for purposes of this kind of discussion; otherwise, the couples could get married in their home state and there would be nothing to discuss — I have argued that, following these recent developments, many of the reasons that states have relied upon in the past for denying effect to a couple’s marriage are no longer available, and that a proper analysis should lead many states to give effect to a same-sex couple’s marriage as a matter of good public policy, even if they are not mandated to do so by full faith and credit. Those arguments are developed at length in a scholarly article that can be downloaded here.

In Summary:

• When a court in one state issues a judgment in a lawsuit, including a lawsuit that somehow involves a marriage — an award on an insurance or wrongful death claim, or the resolution of a custody dispute — full faith and credit has always required other states to give effect to that judgment, almost without exception.

• When there are no court judgments involved, and a couple has simply gotten married and wants another state to recognize that marriage for some reason — the probate of an estate, or equal participation in a public employer’s health, insurance and retirement benefits — the situation is more complicated. These questions have always been treated as a matter of policy for the states to decide, rather than as a matter of mandatory obligation. Some states have taken a liberal attitude toward such recognition, while others have employed a more case-by-case analysis.

• Historically, states have reserved the right to apply an exception for reasons of public policy when they are asked to recognize an out-of-state marriage, even if their normal rules would otherwise indicate that the marriage should be given effect. But that public policy exception has never been available where judgments by courts are involved. 

“MINI DEFENSE OF MARRIAGE ACT” IN THE STATES

Since the 1993 decision of the Hawai’i Supreme Court that placed these issues on the map, many states have enacted statutes or state constitutional amendments that prohibit same-sex couples from marrying. These provisions are often referred to as “mini-DOMAs.” When discussing what validity a same-sex couple’s marriage will have as they travel around the country, many commentators assume that these mini-DOMA provisions automatically indicate that a state will refuse to recognize an out-of-state marriage, for any purpose. That assumption is not always correct.

As noted above, state courts have long recognized that a state can refuse to recognize an out-of-state marriage when that marriage violates local public policy. But many states have been cautious in applying that exception. In particular, some courts have said that they will not deny effect to a marriage that was validly performed in another state unless their own legislature has made it unmistakably clear that it desires that result. Even where a legislature has spoken in very strong terms about its policy against allowing certain couples to marry inside the state — for example, by saying that a marriage between first cousins is prohibited and would be considered “absolutely void” — some courts have found that they should not apply that policy to out-of-state marriages unless the legislature has told them to do so explicitly.

Only about two thirds of the mini-DOMA provisions enacted by states in recent years expressly address the question of out-of-state marriages. In states where the legislature has not addressed out-of-state marriages in their mini-DOMA provisions — and, of course, in states that have no such provisions at all — courts retain the option to recognize the marriages of same-sex couples on a case-by-case basis, even if those couples could not marry within the state in the first place.

Still, it is important not to understate the impact of these mini-DOMA provisions. Even at the height of one of our most contentious disputes over marriage laws in the United States — the fight over interracial marriage — few states took the view that they would always refuse to recognize an interracial marriage. Even hostile states were open to the possibility, for example, that an interracial couple who legally married in another state where they once lived, and then relocated or travelled to a hostile state, might still be entitled to have their marriage recognized for at least some purposes (like the probate of an estate). In comparison, the level of legal hostility toward the marriages of same-sex couples — with some states refusing even to recognize the marriage for purposes of allowing the couple to get a divorce when their relationship comes to an end — has been remarkable. Some of these mini-DOMA provisions lock that legal hostility into the state constitution.

In Summary:

• The mini-DOMA provisions that about forty states have now enacted pose serious obstacles to the recognition of a same-sex couple’s marriage, but only about two thirds of those provisions actually make it clear that the recognition of such a marriage from out of state would violate public policy. In the rest of the states (and in those with no mini-DOMA at all), courts have more leeway to make sensible and fair decisions.

THE FEDERAL “DEFENSE OF MARRIAGE” ACT

Onto this complex but fairly stable legal landscape, the federal statute known as the “Defense of Marriage” Act was imposed in 1996. At the time of its enactment, DOMA was sold to the Congress, the President, and the American people as a necessary move to “protect” objecting states from being forced to recognize the marriages of same-sex couples performed in other jurisdictions. This was not true, and never has been. Putting to one side for the moment questions of fairness, sensible policy, and principles of equal protection, it has long been clear that states have the authority to deny recognition to an out-of-state marriage based on a public policy objection. (Once again, although respected scholars like Kramer and Singer, and respected advocates like Evan Wolfson, have argued that the public policy exception should be categorically rejected, those views remain in the minority.) If states are concerned about the prospect that they will be compelled by New York, Massachusetts, or some other state to recognize the marriages of same-sex couples, those concerns have always been misplaced. States did not need the federal Defense of Marriage Act for that. If tomorrow, we were to enact the Respect for Marriage Act and repeal DOMA in its entirety, states would possess the same power that they have always had to refuse to recognize out-of-state marriages on public-policy grounds.

Some commentators, understanding this fact, have turned the argument around, suggesting that repealing the full faith and credit portion of DOMA would not accomplish anything and is unimportant. (DOMA also has a section that prohibits the federal government from extending equal federal benefits to same-sex couples who are married, civilly united or domestically partnered under state law. Everyone acknowledges the significance of repealing that portion of the law.) This view — that repealing the full faith and credit portion of DOMA would do nothing and is unimportant — is also wrong. Although the states do have the power to deny recognition to the out-of-state marriages of same-sex couples with or without DOMA, the full faith and credit portions of DOMA harm LGBT people in at least three important ways.

First. The language of DOMA purports to give states the ability to deny recognition not just to the marriages and civil unions of same-sex couples (which states could do anyway), but also to any court judgment “respecting” the marriage or union of a same-sex couple, or respecting a right or claim arising out of that relationship. Recall the important distinction discussed above between a court judgment and a marriage. Unlike the ordinary recognition question, states have a mandatory obligation, subject to very few exceptions, to give effect to judgments rendered by courts in other states around the country. For the first time in the history of the United States, the Defense of Marriage Act takes one class of people — same-sex couples — and says that courts may simply disregard judgments rendered by the courts of other states when those judgments are in some way based upon the couple’s relationship. So, if an insurance company is ordered to pay a claim on a policy, or a reckless driver is ordered to pay a damages award, or a court issues a ruling on custody or support, DOMA now gives hostile states the unprecedented power to ignore those out-of-state judgments altogether. The potential for harm and disruption that this provision of DOMA inflicts upon the families, the finances, and the stability of same-sex couples is severe.

Most state legislatures have no idea that DOMA gives them this kind of power, and most people certainly did not have this important issue in mind when DOMA was enacted. For example, I testified before the Judiciary Committee of the Pennsylvania Senate several years ago about the possible effects of a mini-DOMA constitutional amendment that they were considering. In my testimony, one of the things I discussed was the impact of the federal DOMA on the enforceability of court judgments. The legislators were astonished. No one had ever explained to them that the federal DOMA gave them such a dangerous power.

Second. DOMA encourages states to avoid any kind of serious analysis when they are presented with a recognition question. While the states have never had a mandatory obligation to recognize the relationship of an out-of-state couple who could not marry locally, some states have nonetheless chosen to extend such recognition as a matter of sensible policy. As the discussion above explains, these are complicated issues. Recognition questions arise in all kinds of different situations. There are many circumstances in which a state might decide that it is good public policy to recognize a couple’s marriage, even if the couple would not have been allowed to marry under local state laws. State courts have been using careful analysis to work out sensible answers to these questions for a long time. In enacting DOMA, however, Congress sent a signal to the states that they should not ask questions about what constitutes good and sensible policy when it comes to same-sex couples. Rather, Congress invited the states to give over-simplified answers, exercising a blanket prerogative to reject same-sex relationships for all purposes. DOMA, in other words, validates and encourages the states to treat same-sex couples with legal hostility.

Third. The full faith and credit provisions of DOMA are a gratuitous affront to the dignity of 10,000,000+ LGBT Americans. Never before in the history of the Republic has Congress singled out one class of citizens and proclaimed that their relationships would be treated with hostility in interstate relations. The historical antecedent of interracial marriage is instructive. For the first eighty years of the Republic, people of African descent were enslaved, and they were denied the rights of citizenship under the Dred Scott decision even when they were free. No other group of people in the United States has suffered a similar harm. But once African-Americans were recognized as citizens under the Thirteenth and Fourteenth Amendments, and the issue of interracial marriage arose and became sharply contested, even the long American history of racial animus did not lead Congress to single out interracial relationships for the kind of discriminatory treatment in interstate relations that DOMA affords to same-sex couples. In this important respect, DOMA represents an unprecedented affront.

In Summary:

• The states never needed DOMA in order to refuse recognition to out-of-state marriages between same-sex couples. If they are bound and determined to refuse to give any recognition to those relationships, they already have the power to do that, and repealing DOMA in its entirety will not change that fact.

• Repealing DOMA remains vitally important, however, because the statute places in jeopardy all court judgments that are based upon the existence of a same-sex relationship. Authorizing states to refuse to enforce this one class of out-of-state judgments — something that has never been done in the history of the United States — disrupts family and financial relationships and encourages irresponsible behavior.

• DOMA also has the effect of encouraging states to avoid the kind of serious analysis that marriage recognition disputes require. There are many situations in which it makes sense for a state to recognize the relationship of a same-sex couple, even if the state would not allow the couple to marry in the first place. States have an obligation to analyze those situations carefully. DOMA encourages states to treat these couples with hostility, and it represents a particular type of affront to one class of citizens that is unprecedented in federal law.

The untold native american history

Published November 16, 2013 by Tjchase

Like the rest of the country, California has two separate histories – one that’s sterilized, disemboweled and taught to children in grade school, and the truths that Native Americans know on a visceral level. But if the state’s native past is especially brutal, it also has been hidden particularly well.

“It’s kind of a buried past,” said Dave Singleton, program analyst for the California Native American Heritage Commission. “It’s an untold history.”

Maybe that’s why the past constantly resurfaces in the present.

Throughout North America, the struggles of First Nations peoples continue. The Elsipogtog people of New Brunswick have been using their bodies to blockade at a fracking project on sacred land by Houston-based Southwestern Energy Company. Their efforts resulted in a paramilitary-style raid on their encampment in October by the Royal Canadian Mounted Police. But their action continues.

Meanwhile, as Native Americans nationwide are pushing to change the name of an NFL team from a racial slur, Lakota Indians are petitioning the United Nations with complaints against the US government of genocide. The Kizh-Gabrieleño of Los Angeles and Orange counties filed a grievance with The Hague over desecration of Indian burials in Downtown L.A., an issue that continually plagues them in a region beset by high land values and relentless development.

Environmental destruction and cultural desecration of sacred sites and burials have driven Native Americans to initiate broad indigenous-led movements like Idle No More and the Dakota Unity Ride, demanding protection of the Earth, natural resources, sacred ancestral lands and grave sites.

But while those battles rage on the national and even global level, in California, many indigenous find themselves blocked from achieving the most basic hurdle in self-determination – federal recognition. Specifics of California history make it impossible for many to meet federal criteria as they battle misperceptions that no California Indians are left.

“How many people think all California Indians are dead? But we are still here,” said Ann Marie Sayers, Ohlone storyteller and tribal chairwoman of Indian Canyon, an ancestral ceremonial ground in Hollister. “My mother was an extremely proud native person, and I was raised thinking we were the only native people in San Marino County.”

In the layered history of Spanish missions, Mexican and American rule meant tribes were dispersed genetically and geographically, many brought to the brink of extinction. In the mid-1800s, 18 treaties setting aside 7.5 million acres of land were negotiated with Indian communities, but thanks to powerful political lobbying, none of the treaties was ratified.

“People assume no reservation means no Indians, but that’s backward,” said Mel Vernon of the San Luis Rey Band of Mission Indians, or Luiseño.

As settlers spread west at the commencement of American rule, discovery of gold and high-value real estate created a zeal to take land and rid it of its original inhabitants, resulting in unquenchable bloodlust, with the government paying people to kill California Indians.

“In 1854 alone, the federal government paid in excess of $1.4 million (to kill Indians) at $5 a head, 50 cents a scalp,” Sayers said. “In the 1850s and 1860s, to say you were Indian was suicidal with the amount of money paid to professional Indian killers.”

Furthermore, the need for free human labor prompted the 1850 Act for the Government and Protection of Indians, known to critics as the Indian Slave Act, which allowed whites to basically kidnap Indians and force them to work against their will.

Sayers pointed to the 1992 documentary “Ishi: the Last Yahi” as an example of a typical tragedy befalling California Indians. The Yahi, like many pre-European contact California tribes, numbered only a few hundred to begin with. California Indian communities were characterized by highly diverse, numerous but relatively small groups – with evidence of civilizations reaching back at least 10,000 years. Ishi survived systematic massacres of Yahi by “Indian killers” until he was the sole survivor. He died in 1916.

California’s mission past set it apart

While Californians are generally familiar with large out-of-state tribes like the Iroquois, Cherokee, Navajo and Sioux, few have heard about the Ohlone, Kizh, Esselen or Kumeyaay. The three-layered history of colonial conquest in California was so ruthless that destruction of the state’s native peoples seemed inevitable. Throughout California, there are little-known or unrecognized sites of Indian massacres – Las Flores Canyon, McCain Valley, Mendocino and Modoc counties, just to name a few.

“All those massacres around the gold country, California has not owned up to the genocide,” Singleton said.

While entire family units fleeing Europe were landing on the East Coast, the Spanish were intent on protecting geopolitical interests by creating a physical buffer zone with native converts and colonial subjects. The task of Franciscan padres and accompanying soldiers was to subjugate Indians, not wipe them out.

But Spanish imperial rule set off a disastrous chain of events so destructive that between 1769 and 1900, the California Indian population declined by a catastrophic 95 percent.

“There really is a very specific California story that comes out of these missions,” said Leslie Dunton-Downer, writer for the California Mission Ride, a documentary film team that rode 600 miles on horseback through all 21 missions. “There is the universal colonial story, but what happened here was a very particular thing.”

Even though the goal wasn’t outright genocide during the 64 years of Spanish rule, the missions, stretching from the San Diego border to Sonoma, were characterized by forced conversions, dehumanizing corporeal punishment, slave labor, deadly disease outbreaks and widespread rape and abuse by Spanish soldiers.

“This mission here, to my people, was a concentration camp,” said Andy Tautimez Salas, chair of the Kizh-Gabrieleño Band of Mission Indians, while giving an October tour of Mission San Gabriel Arcangel in Los Angeles County.

Tautimez Salas’ ancestor, a converted Gabrieleño given the Catholic name Nicolas Jose, was the instigator of the 1785 mission rebellion, along with Toypurina, a young but influential female shaman. Throughout Alta California from San Diego to San Gabriel to Santa Barbara, California Mission Indians were revolting against the Spanish for their brutal treatment.

But when the Spanish era ended in the early 1820s, Mexico secularized the missions. And for the Gabrieleño, this resulted in a massacre at Las Flores Canyon near what is now the Rose Bowl. According to the eyewitness account of a Californian named Philippe Lugo stored at the Huntington Library in San Marino, Mexican forces destroyed “the greater part of them.”

The few survivors lived in fear and hid with Mexican families, changed their names and identities, gave up their native language and learned Spanish, Salas said.

Or tribe members were terrorized and physically separated from each other.

Sayers’ property, hidden in mountainous landscape, served as a historical haven for escaped mission Indians and is testimony to the bloodshed they were running from.

“Many of the native peoples would go back to their village that was no longer, and they were rounded up. Usually, one or two were killed to set an example for runaways,” she said. “In Indian Canyon, you were right in the center of the mountain range. You have to be very familiar with the terrain to find Indian Canyon, and that’s the case today.”

Toypurina’s mother was raped by the Spanish. And when her father, a chief, retaliated, he was executed and decapitated, his head raised on a pole, according to her descendant Ray Williams.

For her leadership role in a 1785 uprising against the Spanish, Toypurina was given what Williams calls a show trial then imprisoned and exiled to present-day Carmel. After completing her prison term, she married a Spanish soldier. Although Williams is a Gabrieleño descendant, he lives hundreds of miles from the rest of the community.

“Here you have a family line historically known as tribal leadership that has been exiled and separated,” Williams said.

The Bureau of Indian Affairs’ Office of Federal Recognition criteria require that native tribes applying for recognition demonstrate a semblance of cohesion from “historical times” to the present period, something rendered impossible for many California Indians.

“About 50 percent of California Indians are not recognized tribally,” Sayers said. “The criteria for recognition, for anyone that’s affiliated with a mission, there’s no way in hell they can make the requirements. So consequently, it leaves the un-federally recognized tribes in a very horrible situation.”

For example, she said, federal law makes it impossible for the Ohlone to claim about 12,000 burials sitting in a basement of an old gymnasium at UC Berkeley. They are prevented from burying their kin according Ohlone beliefs and customs.

“Because the Ohlone people are not recognized tribally, all the burials are considered culturally unidentifiable,” she said. “We cannot take them and put them back into the ground where they belong so they can go back to the spirit world.”

Despite the overall lack of awareness and education, Sayers sees signs of hope under her own roof. Her daughter, Kanyon, an artist and activist, has taken it upon herself to learn her native language, songs and culture along with other young indigenous people in her community.

Salas teaches his children the lessons he learned from his own father and tribal chief, Ernest Tautimez Salas, to ensure the tribe’s legacy and heritage aren’t lost. Williams said his teenage daughter displays uncanny leadership qualities and a strong sense of justice, reminding her family of her extraordinary ancestor. The family sometimes calls her “Little Toypurina,” Williams said.

“I pretty much maintain contact with all the native youth, and I definitely go to as many events as I possibly can, even though finances are rarely available,” said Sayers’ daughter, Kanyon Sayers-Roods in a videotaped interview on her web site. “I maintain a cultural presence, and I also just pretty much like to educate people about me being native, me being Costanoan Ohlone and Chumash, and me still being here.”

The safety of the residents in North Dakota have been put at risk due to Government shut down

Published October 12, 2013 by Tjchase

Over 865,200 Gallons of Fracked Oil Spill in North Dakota, Public in Dark for Days Due to Government Shutdown Over 20,600 barrels of oil fracked from the Bakken Shale has spilled from a Tesoro Logistics pipeline in Tioga, North Dakota in one of the biggest onshore oil spills in recent U.S. history.

(Photo: Nicole Bengiveno / The New York Times)Though the spill occurred on September 29, the U.S. National Response Center – tasked with responding to chemical and oil spills – did not make the report available until October 8 due to the ongoing government shutdown. “The center generally makes such reports available on its website within 24 hours of their filing, but services were interrupted last week because of the U.S. government shutdown,” explained Reuters. The “Incident Summaries” portion of the National Response Center’s website is currently down, and the homepage notes, “Due to [the] government shutdown, some services may not be available.” At more than 20,600 barrels – equivalent to 865,200 gallons – the spill was bigger than the April 2013 ExxonMobil Pegasus pipeline spill, which spewed 5,000-7,000 barrels of tar sands into a residential neighborhood in Mayflower, Arkansas.So far, only 1,285 barrels have been cleaned, and the oil is spread out over a 7.3 acre land mass.Kris Roberts, environmental geologist for the North Dakota Department of Health Division of Water Quality told the Williston Herald, “the leak was caused by a hole that deteriorated in the side of the pipe.”“No water, surface water or ground water was impacted,” he said. “They installed monitoring wells to ensure there is no impact now or that there is going to be one.”  Roberts also told the Herald he was impressed with Tesoro’s handling of the cleanup. “They’ve responded aggressively and quickly,” Roberts commented, also noting that the cleanup will cost upward of $4 million. “Sometimes we’ve had to ask companies to do what they did right off the mark. They’re going at this aggressively and they know they have a problem and they know what they need to do about it.”  Tesoro Logistics Chairman and CEO Greg Goff also weighed in on the spill.   “Protection and care of the environment are fundamental to our core values, and we deeply regret any impact to the landowner,” said Goff in a press release. “We will continue to work tirelessly to fully remediate the release area.”

Pipeline to Albany Refinery, Barging on the HudsonTesoro’s six-inch pipeline was carrying oil obtained via the controversial hydraulic fracturing (“fracking”) process to the Stampede, ND rail facility. From Stampede, Canadian Pacific’s freight trains take the oil piped from Tesoro’s pipeline and ship it to an Albany, NY holding facility by Global Partners located along the Hudson River.

Albany, NY Global Partners Facility; Image Credit: Google Maps “Over five years, the equivalent of roughly 91 million barrels of oil will be transported via CP’s rail network from a loading facility in Stampede, N.D., to a Global terminal in Albany,” explained a September story appearing in the Financial Post. Albany’s holding facility received its first Canadian Pacific shipment from the Bakken Shale in December 2011, according to Bloomberg, with 1.4 million barrels of storage capacity. The facility receives 149,000-157,000 barrels of Bakken crude per day from Canadian Pacific.  Once shipped to Global’s Albany holding facility, much of the oil is barged to market on tankers along the Hudson from the Port of Albany.  “As much as a quarter of the shale oil being produced in North Dakota could soon be headed by rail to the Port of Albany,” explained an April 2012 article appearing in the Albany Times-Union. “The crude oil…will be loaded onto barges to be shipped down the Hudson River to refineries along the East Coast.”

North Dakota Petroleum Council Responds 

North Dakota Petroleum Council’s response to the largest fracked oil spill in U.S. history and one of the biggest onshore spills in U.S. history? Ho-hum.  “You know, this is an industrial business and sometimes things happen and the companies are certainly responsible to take care of these things when they happen,” Petroleum Council President Ron Ness told KQCD.

Send out the word to ban Fracking: http://banmichiganfracking.org/

It takes money to grease the wheels, question is, whose money?

Published October 11, 2013 by Tjchase

Snyder under oath: ‘I don’t know’ who donates to NERD fund

  • Rick Snyder
 
Michigan Gov. Rick Snyder (Carlos Osorio / Associated Press)

Lansing — Gov. Rick Snyder testified Wednesday under oath that he doesn’t know who is bankrolling his secretive NERD Fund that is paying for some of Emergency Manager Kevyn Orr’s living and travel expenses and a close aide’s $100,000-a-year salary.

A union attorney asked Snyder during his Detroit bankruptcy deposition whether the city’s bankruptcy law firm Jones Day, city restructuring firms or two powerful creditor banks have donated to his NERD Fund, according to a draft transcript obtained by The Detroit News.

“With respect to your questions as to who the donors were and that category of questioning, my answer would be I don’t know,” Snyder testified. “There’s an independent board that does that work.”

According to the transcript, Snyder made the disclosure after an assistant attorney general initially protested the line of questioning. The attorney argued the questioning was outside of the scope of the deposition and the American Federation of State, County and Municipal Employees objections to Detroit’s eligibility for bankruptcy.

AFSCME attorney Sharon Levine said the identify of the NERD Fund’s donors could be relevant to whether Orr has a “conflict of interest” that needs disclosed, according to the transcript.

After a brief two-minute consultation with the governor, Assistant Attorney General Margaret Nelson told Levine that Snyder agreed to answer the NERD Fund question “in the spirit of cooperation and to move these proceedings along,” according to the transcript.

Levine also asked the governor if he knew whether the NERD Fund contributed to ballot campaigns for or against last year’s repeal of Snyder’s first emergency manager law.

“I don’t know,” Snyder testified.

Snyder has publicly said his office is considering releasing the names of the NERD Fund donors, while his spokeswoman has acknowledged the Republican governor may even shut down the fund altogether.

NERD is an acronym for New Energy to Reinvent and Diversify, but plays off of Snyder’s self-designated “one tough nerd” title. The fund, a 501(c)4 organization, states on its Internal Revenue Service forms that its purpose is “to promote charitable causes, including lessening the financial burdens of government in the state of Michigan.”

Last month, Snyder’s office disclosed that the NERD Fund is spending $4,200 a month paying for Orr’s lodging at the Westin Book Cadillac hotel in downtown Detroit and flights back home to Maryland on weekends. The reimbursements are made in addition to Orr’s $275,000-a-year state salary.

Snyder defended those expenses in his deposition Wednesday.

“With respect to the question of expenses, Kevyn Orr’s agreement is such that some of his expenses can be reimbursed by the NERD fund because it was created to offset the burdens of government and does similar things such as press auditorium upgrades, help with expenses for travel,” Snyder testified.

But Democrats and government watchdog groups have criticized the secrecy of the non-profit civic fund’s donors, even as Snyder’s office has disclosed the NERD Fund paying the $100,000 annual salary of Rich Baird, who works in the governor’s office but is not a state employee. The IRS does not require the NERD Fund to disclose its donors or detailed expenses.

On Thursday, the campaign of Snyder’s likely 2014 Democratic opponent, Mark Schauer, launched a website calling on the governor to disclose the NERD Fund donors’ names and contributions. SecretiveSnyder.com includes a counter showing its been 66 days since Snyder’s office first said it was considering releasing the donors’ names.

“I think it’s extremely disingenuous for him to claim he doesn’t know who donated to that fund,” Schauer spokesman Zack Pohl said Thursday.

Snyder spokeswoman Sara Wurfel said Thursday “the governor’s answer is clear and speaks for itself.”

“The fund has its own board of directors and the governor is not involved with managing it or raising money for it,” Wurfel said in an email to The News.

Baird, whose official title is “transformation manager,” is a close adviser to the governor and recruited Orr to resign his partnership from Jones Day’s Washington office to become Detroit emergency manager in March. Snyder confirmed Baird’s role in his deposition, according to the transcript.

Snyder was deposed for three hours Wednesday morning inside his Lansing office by attorneys representing city labor unions and retirees fighting to derail Detroit’s bankruptcy case.

The governor’s decision to testify under oath about his authorization of Detroit’s bankruptcy is unprecedented, with AFSCME attorney Sharon Levine even acknowledging it was “highly unusual.”

Union and retiree attorneys hope to use the governor’s testimony as part of a mountain of evidence they’re gathering to convince U.S. Bankruptcy Judge Steven Rhodes that the city did not negotiate in good faith with creditors prior to the July 18 Chapter 9 bankruptcy filing.

During the deposition, Snyder also revealed he only personally interviewed Orr and one other candidate for the EM job and acknowledged that the race of the candidates to run the majority African American city “would be a factor that could be of some consideration.”

Snyder also testified that Jones Day did not offer Kevin Orr as a packaged deal to win a multi-million dollar contract as the city’s restructuring counsel before he was appointed emergency manager in March.

At several times during the deposition, Snyder says cutting pensions and privatizing Detroit’s water department or selling other city assets remains a “hypothetical” proposition.

“I view that that’s part of the bankruptcy process that those are not my decisions to make,” Snyder said. “There’s a plan of adjustment that will be presented by the city, assuming Chapter 9 goes forward, and that would be adjudicated by Judge Rhodes.”

The union attorneys deposed Baird and state Treasurer Andy Dillon on Thursday.

In a statement, Dillon reiterated that bankruptcy was the city’s best option for stemming the tide of six decades of economic and financial decline.

“The administration has been clear from the outset; the decision to seek bankruptcy protection was not an easy one but was determined to be the only remaining way to address Detroit’s long-running financial crisis and ensure a viable, successful future for the city, its residents and businesses,” Dillon said in a statement.

From The Detroit News: http://www.detroitnews.com/article/20131010/METRO01/310100104#ixzz2hRlI955S

Bill Moyers take on the government shut down

Published October 8, 2013 by Tjchase

This week’s government shutdown has consequences for all of us, costing an estimated$300 million each day that the government is closed for business. Many Americans have voiced their frustrations with the fallout from the shutdown on Facebook, Instagram, and Twitter using the hash tag #DearCongress. Here, Bill Moyers shares his own thoughts on the shutdown, and the resulting sabotage of democracy.

“When the president refused to buckle to this extortion, they threw their tantrum,” Bill says. “Like the die-hards of the racist South a century and a half ago, who would destroy the union before giving up their slaves, so would these people burn down the place, sink the ship.” He goes on to tell us where the “reckless ambition” of the Republicans could lead us.

TRANSCRIPT:

Bill Moyers: And now to the people who refuse to let democracy work. The people who hate government so much they’ve shut it down. Unable to abide by the results of democracy when they don’t win, they turned on it.

Republicans have now lost three successive elections to control the Senate and they’ve lost the last two presidential elections. Nonetheless, they fought tooth and nail to kill President Obama’s health care initiative. They lost that fight, but with the corporate wing of Democrats, they managed to bend it toward private interests.

So we should be clear on this, Obamacare, as it’s known, is deeply flawed. Big subsidies to the health insurance industry. A bonanza for lobbyists. No public option. And as The New York Times reported this week, “Millions of Poor Are Left Uncovered by Health Law.” Largely because states controlled by Republicans refuse to expand Medicaid.

As far as our bought and paid for legislative process goes, Obama’s initiative made it through the sausage factory. Yet even after both the House and Senate approved it, the president signed it, and the Supreme Court upheld it, the Republicans keep insisting on calling the law a “bill,” thumbing their noses and refusing to accept that it is enacted legislation.

Now they’re fighting to prevent it from being implemented. Here was their order of the day on Thursday from the popular right wing blog RedState.com:

“Congressmen, this is about shutting down Obamacare. Democrats keep talking about our refusal to compromise. They don’t realize our compromise is defunding Obamacare. We actually want to repeal it. This is it. Our endgame is to leave the whole thing shut down until the President defunds Obamacare. And if he does not defund Obamacare, we leave the whole thing shut down.”

Once upon a time when I was a young man working on Capitol Hill, it was commonplace that when a bill became law, everybody was unhappy with it. But you didn’t bring down the government just because it wasn’t perfect. You argue and fight and vote and then, due process having been at least raggedly served, on to the next fight.

That was a long time ago. Long before the Tea Party minority, armed with huge sums of secret money from rich donors, sucked the last bit of soul from the Grand Old Party of Abraham Lincoln. They became delusional. Then rabid. Like this:

Senator Steve King: If Obamacare is ever implemented and enforced, we will never recover from it. It is an unconstitutional takings of God-given American liberty.

Bill Moyers: That’s false, of course. Just like those right-wing talking points that keep grinding through the propaganda mills of Fox News:

Ainsley Earhardt on Fox and Friends: Thanks to Obamacare, doctors will be forced to ask patients about their sex life, even if it has nothing to do with the medical treatment that they are seeking at the time.

Bill Moyers: Not true.

Michelle Malkin on Fox and Friends: That healthcare plan puts a discount on the lives of elderly people and would result in the redistribution of health away from the elderly and the infirm to other special favored interests and patients.

Bill Moyers: Again, not true. Nor is this, from the multi-millionaire fabulist Rush Limbaugh:

Rush Limbaugh from the Rush Limbaugh Show: What we now have is the biggest tax increase in the history of the world. Obamacare is just a massive tax increase, that all it is.

Bill Moyers: That’s just a tiny sample of the lies and misinformation perpetrated by the right with the song and dance compliance of its richly paid mouthpieces. Sarah Palin set the bar for truth at about ankle height with those fictitious “death panels” that she still insists will decide our rendezvous with the Grim Reaper.

Sarah Palin on Cashin’ In: Of course there are death panels in there, but the important thing to remember is that’s just one aspect of this atrocious, unaffordable, cumbersome, burdensome, evil policy of Obama’s and that is Obamacare.

Bill Moyers: Despite what they say, Obamacare is only one of their targets. Before they will allow the government to reopen, they demand employers be enabled to deny birth control coverage to female employees. They demand Obama cave on the Keystone pipeline. They demand the watchdogs over corporate pollution be muzzled, and the big, bad regulators of Wall Street sent home. Their ransom list goes on and on. The debt ceiling is next. They would have the government default on its obligations and responsibilities.

When the president refused to buckle to their extortion, they threw their tantrum. Like the die-hards of the racist South a century and a half ago, who would destroy the Union before giving up their slaves, so would these people burn the place down, sink the ship of state, and sow economic chaos to get their way. This says it all, they even shuttered the Statue of Liberty.

Watching all this from London, the noted commentator Martin Wolf, of the capitalist friendly Financial Times, says “America flirts with self-destruction.”

This man is the biggest flirt of all, Newt Gingrich . It was Newt Gingrich who twenty years ago spearheaded the right-wing’s virulent crusade against the norms of democratic government. As Speaker of the House he twice brought about shutdowns of the federal government once, believe it or not, because he felt snubbed after riding on Air Force One with President Clinton and had to leave by the backdoor.

It was also Newt Gingrich , speaker Gingrich, who was caught lying to congressional investigators looking into charges of his ethical wrongdoing. His colleagues voted overwhelmingly, 395 to 28, to reprimand him. Pressure from his own party then prompted him to resign.

Yet even after his flame out, even after his recent bizarre race for the presidency bankrolled with money from admiring oligarchs, even after new allegations about his secret fundraising for right-wing candidates, Gingrich remains the darling of a fawning amnesic media.

Newt Gingrich on Crossfire: I’m Newt Gingrich on the right.

Bill Moyers: On CNN.com the other day he issued a call to arms to his fellow bomb-throwers, “…don’t cave on shutdown.”

At least let’s name this for what it is, sabotage of the democratic process. Secession by another means. And let’s be clear about where such reckless ambition leads. As surely as night must follow day, the alternative to democracy is worse.

Perhaps now we can build a government that believes in the people rather than politics

Published October 7, 2013 by Tjchase

Post image for New Poll Shows Republican-Led Shutdown Could Give Democrats Control Of The House

new poll released Sunday show the Democrats could take the House as a result of the Republican-led federal government shutdown. A PPP pollng examination (PDF) of 24 Republican-held battleground districts from October 2-4 shows a Democrat winning over the incumbent Republican in 17 of the 24.

“If the 2014 elections were held today, Republicans would be in grave danger of losing control of the House of Representatives,” Jim Williams of Public Policy Polling notes.

The surveys challenge the conventional wisdom that gerrymandering has put the House out of reach for Democrats. The surveys, commissioned and paid for by MoveOn.org Political Action, show Republican incumbents behind among registered voters in head-to-head contests with generic Democratic challengers in 17 districts. In four other districts, the incumbent Republican falls behind a generic Democratic candidate after respondents are told that the Republican incumbent supported the government shutdown. In only three districts do Republican incumbents best generic Democratic challengers after voters are told the incumbent supported the government shutdown. Democrats must pick up 17 seats to win control of the House. These poll results make clear that if the election were held today, such a pickup would be well within reach.

Think about what President Barack Obama and the Democrats could accomplish with control of the House and Senate for two more years.

ENDA. Immigration reform. Banking reform. Fixing the Supreme Court’s gutting of the Civil Rights Act. Gun control. Protecting a woman’s right to choose. Marriage. The list is long. Now is the time to start making your list, and pushing to get it done.

Ajah Dharma

om... may the great spirit bless you

Raven Starhawk

Sacred Garden: Herbs & Botanicals

What a Witch

I am not nice, but I am honest and that is more important.

Witches Of The Craft®

"Witchcraft For The 21st Century"

RealityShifters Blog

Live your best possible life. How good can it get?

Dear Cis People

The ramblings of a non-binary Latino.

moonshaman

The realms of Spirit, Breath, Life ~ Shamanic Endeavors

Stephanie Nicole

Righteous Health

Church of the Cosmos : Temple of Light

WE ARE IMMORTAL TIMELESS BEINGS OF LIGHT IN AN INFINITELY EXPANDING OMNIVERSE FILLED WITH INTELLIGENT LIFE

UMHS Gender Services

comprehensive gender services program for gender variant people and their families

DISMANTLE THE BEAM PROJECT

Real conspiracies - all original content

Mystery of the Iniquity

Truth is inspiring, it is guarded by GOD, and will triumph over all opposition!

wildeoats

Quality gay-shaded & m/m stories, articles & art

Josh Derke for State Representative

Democrat for Michigan's 93rd House (2014)

djmilosz

Just another WordPress.com site

Edge Induced Cohesion

A Historian's Eye View of the World

HandyBob's Blog

Making off grid RV electrical systems work

The Journey

This WordPress.com site is the cat’s pajamas

Daily Queer News

LGBTI News and Politics

evoL =

Allies for equality.

Finding my way back

How do you cope with the loss?

Mr. Moon's Meditation Chamber

The Official Blog of Hip Hop Artist Tony Moon

Different People

Being gay with a mental illness(Bipolar) is a HUGE task to undertake!

The Catbox

Musings on modern Druidry in the UK

The LGBT community and the journey ahead

Being Gay is not a choice, we are born that way

GAY MARRIAGE USA

fb.com/GayMarriageUSA

News and reviews

sharing with others

The Dream Faire

Enchanted Jewelry Designs & Magical Creations by ♥Kat

Gay Polyamory Blog

My thoughts/adventures in polyamory and life.

The Dark Bard

Sharing my thoughts, and my soul, through the medium of poetry and prose.