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Presidential Signing Statements And Health Insurance For Gay Partners

The NYTimes today reports on the issue of health insurance for the gay partners of federal employees:

Just seven weeks into office, President Obama is being forced to confront one of the most sensitive social and political issues of the day: whether the government must provide health insurance benefits to same-sex partners of federal employees. In separate, strongly worded orders, two judges of the federal appeals court in California said that employees of their court were entitled to health benefits for their same-sex partners under the program that insures millions of federal workers.

But the federal Office of Personnel Management has instructed insurers not to provide the benefits ordered by the judges, citing a 1996 law, the Defense of Marriage Act.

The Office of Personnel Management's citing of DOMA appears to run contra to the signing statement issued by President Clinton when he signed the DOMA bill in 1996. See also Smelt v. County of Orange, 447 F.3d 673, 683 (9th Cir. 2006) (DOMA on its face "does not purport to preclude Congress or anyone else in the federal system from extending benefits to those who are not included within [its] definition [of marriage][.]") More . . .

In his signing statement, President Clinton asserted:

Throughout my life I have strenuously opposed discrimination of any kind, including discrimination against gay and lesbian Americans. I am signing into law H.R. 3396, a bill relating to same-gender marriage, but it is important to note what this legislation does and does not do.

I have long opposed governmental recognition of same-gender marriages and this legislation is consistent with that position. The Act confirms the right of each state to determine its own policy with respect to same gender marriage and clarifies for purposes of federal law the operative meaning of the terms "marriage" and "spouse".

This legislation does not reach beyond those two provisions. It has no effect on any current federal, state or local anti-discrimination law and does not constrain the right of Congress or any state or locality to enact anti-discrimination laws. I therefore would take this opportunity to urge Congress to pass the Employment Non-Discrimination Act, an act which would extend employment discrimination protections to gays and lesbians in the workplace. This year the Senate considered this legislation contemporaneously with the Act I sign today and failed to pass it by a single vote. I hope that in its next Session Congress will pass it expeditiously. . . .

(Emphasis supplied.) If President Clinton was correct that DOMA did not reach beyond those 2 provisions, then the Office of Personnel Management is simply wrong to cite DOMA as a justification for denying coverage to gay partners. While President Clinton acknowleged that DOMA "clarified" the meaning of "marriage" and "spouse," the meanings of those words are not dispositive as to whether the federal government can offer health insurance to gay partners. (President Clinton also urged passage of anti-discrimination laws, this does not implicate the federal government's ability to provide health care coverage to gay partners. Anti-discrimination laws would prohibit NOT providing health care coverage to gay partners (and other types of discrimination), but the absence of such a prohibition would not effect the federal government's ability to not discriminate.)

The relevant passage of DOMA is this --

"Definition of 'marriage' and 'spouse':

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.

This language may seem conclusive but it is not. The federal government need not call or consider gay partners as "spouses" or their relationships "marriage" in order to provide health care coverage to gay partners. It can state quite simply that the federal government will provide health care coverage to gay partners (indeed, it can state unequivocally at the same time that it is not doing so because it deems gay partners to be "spouses," but rather it is exercising its discretionary authority to provide health care coverage to gay partners.)

In this sense, 9th Circuit appeals court judge Alex Kozinski seems to have it more right than 9th Circuit appeals court judge Steven Reinhardt (here is Judge Reinhardt's opinion (PDF) (a very good discussion of these two decisions can be found here) :

In Ms. Golinski’s case, Judge Kozinski said that federal law authorized the Office of Personnel Management to arrange health benefits for federal employees and their family members. The law, he said, defines the “minimum requirements” for health insurance, but the government can provide more.

Judge Reinhardt confronted the question differently, and concluded that the Defense of Marriage Act, as applied to Mr. Levenson’s request, was unconstitutional because it violated the Fifth Amendment guarantee of “due process of law.” “A bare desire to harm a politically unpopular group cannot provide a rational basis for governmental discrimination,” Judge Reinhardt wrote.

In adopting the Defense of Marriage Act, Congress said the government had a legitimate interest in “defending and nurturing the institution of traditional heterosexual marriage.” But Judge Reinhardt said the denial of benefits to same-sex spouses would not encourage gay men and lesbians to marry members of the opposite sex or discourage same-sex marriages. “So the denial cannot be said to nurture or defend the institution of heterosexual marriage,” the judge wrote.

[This section has been edited due to finding this article that makes clear that Reinhardt and Kozinski were acting in a "judging" capacity ("Reinhardt and Kozinski handled the respective complaints from Levenson and from 9th Circuit staff lawyer Karen Golinski in their capacity as dispute resolution officials within the federal judiciary, whose employees are prohibited from suing in federal court.")] Judge Kozinski posits that the federal government is free to provide health care coverage to gay partners, even though they are not "spouses." Judge Reinhardt's argument that DOMA would be unconstitutional if applied to this situation is more expansive, addressing constitutional issues.

Of course what really matters now is what President Obama says:

Federal officials said they had to follow the laws on the books. But Richard Socarides, a New York lawyer who was an adviser to President Bill Clinton on gay issues, said he believed that Mr. Obama “has broad discretionary authority to find ways to ameliorate some of the more blatant examples of discrimination.

. . . Administration officials declined to say what they planned to do in the California cases if the judges tried to enforce their orders. Ben LaBolt, a White House spokesman, said: “While the president opposes gay marriage, he supports legislative repeal of the Defense of Marriage Act. He believes this country must realize its founding promise of equality by treating all its citizens with dignity and respect.”

Mr. Obama and his choice for director of the personnel office, M. John Berry, have endorsed the idea of providing health benefits to same-sex partners of federal employees.

(Emphasis supplied.) These responses are largely not to the point here. I think Bill Socarides gets to the core of the issue - "[President] Obama has broad discretionary authority to find ways to ameliorate some of the more blatant examples of discrimination." The question then is will he exercise this "broad discretionary authority" now.

For support of such exercise in favor of granting health care coverage to gay partners of federal employees, President Obama can cite to the signing statement issued by President Bill Clinton. While President Clinton acknowledged that the "marriage" and "spouse" are defined by DOMA, he also notes that nothing in DOMA "constrain[s] the right of [government]" to act to address discrimination. The Executive Branch clearly has the discretion to provide health care coverage for gay partners, so long as the Executive Branch does not state that gay partners are "spouses." Or as Judge Kozinski puts it, providing health care coverage to the "spouses" of federal employees is merely a minimum, the federal government can also provide health care coverage to gay partners. This does not contravene DOMA.

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  • Display: Sort:
    Maybe it is just time (5.00 / 2) (#2)
    by kenosharick on Fri Mar 13, 2009 at 08:32:59 AM EST
    to stop letting the religious views of far-right conservatives deny equal rights to millions of Americans. If gay marriage was legalized, most people would realize it does not affect their lives and the only furor would be from the right-wing nutcases. Even that would die down after everyone realizes that the world does not end. I am sick and tired of being considered second-class in this country.

    Maybe the way.... (none / 0) (#4)
    by kdog on Fri Mar 13, 2009 at 08:46:45 AM EST
    around the homophobia and hate is to rewrite the rules...let every person declare one person as their benefits partner and leave sexuality and/or marriage out of it.

    Added bonus...single people can get benefits for a loved one too.

    Everybody wins....why can't that work?

    Parent

    thats just crazy talk (none / 0) (#13)
    by Capt Howdy on Fri Mar 13, 2009 at 09:46:56 AM EST
    Crazyness is in the eye of the beholder ... (none / 0) (#59)
    by cymro on Fri Mar 13, 2009 at 04:56:39 PM EST
    ... I believe. Others, however, find kdog's viewpoint to be quite reasonable. For example, on March 9th, this ballot initiative was approved for the 2010 ballot:

    Substitutes Domestic Partnership for Marriage in California Law

    Replaces the term "marriage" with the term "domestic partnership" throughout California law, but preserves the rights provided in marriage. Applies equally to all couples, regardless of sexual orientation. Repeals the provision in California's Constitution that states only marriage between a man and a woman is valid or recognized in California.

    This initiative is being proposed by two San Diego college students, who are not themselves gay -- see this article in the SJ Mercury News: College dudes take aim at 'marriage' in ballot initiative.

    Parent

    we need an irony font (none / 0) (#60)
    by Capt Howdy on Fri Mar 13, 2009 at 05:01:23 PM EST
    Uh, yeah (none / 0) (#61)
    by jbindc on Fri Mar 13, 2009 at 05:31:19 PM EST
    I believe CaptHowdy is 100% behind kdog's point of view.

    Parent
    That's what happened in MA (none / 0) (#15)
    by CST on Fri Mar 13, 2009 at 09:50:51 AM EST
    "If gay marriage was legalized, most people would realize it does not affect their lives and the only furor would be from the right-wing nutcases"

    For the first few years, the opposition was able to get enough signatures to bring it to the legislature every year (who thankfully voted any changes down).  Last year they could not get the required signatures.  The sky did not fall in and families were not destroyed.

    Parent

    If you want to have an impact, you (none / 0) (#39)
    by Think Before You Type on Fri Mar 13, 2009 at 12:37:42 PM EST
    need to understand that it's not just far-right conservatives who oppose same-sex marriage.  It's approximately half of American citizens, according to current surveys.  (If it's a type of union that has full rights but is not called marriage, the degree of opposition is not as high).

    This opposition may change over time as entrenched attitudes mellow.  But calling half of America far-right conservatives is not going to get us anywhere in influencing public opinion, and may well be counterproductive.

    Parent

    fine (5.00 / 2) (#40)
    by CST on Fri Mar 13, 2009 at 12:43:52 PM EST
    Half of America isn't "far-right conservative".

    They are just bigoted.  

    Half of America was opposed to inter-racial marriage until 1991.

    History will prove this half just as wrong.  Consider the polls of the people under 35.

    Parent

    You're completely wrong. (none / 0) (#42)
    by Think Before You Type on Fri Mar 13, 2009 at 12:57:24 PM EST
    The rank and file (I'm not talking about the far right) is not bigoted.  They're decent people like you and me who grew up with certain attitudes about homosexuality and marriage, in some cases based on religious belief.

    Calling half the population bigoted not only is untrue, but also will marginalize progressives just when we may have an opportunity to have an impact.

    Parent

    personally (5.00 / 1) (#47)
    by Capt Howdy on Fri Mar 13, 2009 at 01:38:05 PM EST
    in my experience far more than half the country is bigoted.  I work in a very young industry with young "progressive" Obama loving yuppies.
    I got news.  they are just as bigoted as their parents were.  but selectively so.  not ok to be a bigoted ass when it comes to people of color anymore but people of differing sexual preferences is a different story entirely.


    Parent
    the way I (and most people) use it.

    Everyone has biases, based on their experiences.  Calling everyone bigoted on that basis is not helpful.  The word bigot is usually reserved for the worst offenders, or else the concept loses its meaning.

    Parent

    probably you (and most people) (5.00 / 2) (#52)
    by Capt Howdy on Fri Mar 13, 2009 at 01:56:27 PM EST
    dont have to listen to people who imagine themselves to be progressives make demeaning fag jokes constantly.
     

    Parent
    If you frequently suffer that kind (none / 0) (#62)
    by Think Before You Type on Fri Mar 13, 2009 at 05:33:16 PM EST
    of humiliation, I truly feel for you.

    Parent
    Says who? (none / 0) (#65)
    by Spamlet on Fri Mar 13, 2009 at 06:24:30 PM EST
    The word bigot is usually reserved for the worst offenders

    And these "worst offenders" are defined by whom? Oh wait--by you, apparently, just as the term "most people" (not to mention "usually") has also apparently been defined by you and you alone, and for your private edification, since you haven't deigned to share these definitions, which underlie your claims.

    Thank you very much, but for me the word "bigot" and the "concept" of bigotry have not lost their meaning. I know exactly what they mean.

    "Think Before You Type," indeed.

    Parent

    Nope (5.00 / 1) (#54)
    by CST on Fri Mar 13, 2009 at 02:18:36 PM EST
    They may do decent things and support common causes to me.  That doesn't mean they aren't bigots.

    I bet Strom Thurmond thought he wasn't a bigot too.  As did 50% of the population in 1989.

    Religion has been used to marginalize women, blacks, gays, jews, etc... You can make a religious argument for just about any kind of discrimination.  Hiding behind religion doesn't make a person not bigoted.

    I know people who grew up with certain attitudes about black people.  That was what they were taught.  That doesn't make them not racist.

    Parent

    including blacks? (none / 0) (#71)
    by diogenes on Sat Mar 14, 2009 at 04:48:25 PM EST
    Blacks were much more opposed to gay marriage than whites were in California vote.  And they're hardly "far-right conservatives".

    Parent
    Yes (none / 0) (#73)
    by CST on Mon Mar 16, 2009 at 11:17:40 AM EST
    How could we still be having this discussion (5.00 / 3) (#26)
    by andgarden on Fri Mar 13, 2009 at 10:27:49 AM EST
    in 2009?

    Good question (5.00 / 1) (#27)
    by jbindc on Fri Mar 13, 2009 at 10:32:00 AM EST
    It's because scary gay people might get something that their co-workers get.

    Parent
    Honestly, I'm reminded (5.00 / 1) (#29)
    by andgarden on Fri Mar 13, 2009 at 10:38:39 AM EST
    of Apartheid South Africa having serious discussions about the meaning of "colored." This is an international embarrassment.

    Parent
    signing statements? (5.00 / 0) (#72)
    by diogenes on Sat Mar 14, 2009 at 04:49:57 PM EST
    Too bad signing statements are unconstitutional infringements of the separation of powers (or so we would be told if McCain had won).

    How would (none / 0) (#1)
    by jbindc on Fri Mar 13, 2009 at 08:24:49 AM EST
    This work?  If "marriage" and "spouse" are clearly defined in DOMA, how could the Executive Branch be able to provide health benefits to same-sex couples who aren't married? Wouldn't this (as of now) only apply to those same-sex couples that got married in California and Massachusetts (and those couples in civil unions in Vermont)?

    I ask the question because don't most insurance programs specifically state that "spouses" are covered? Would a signing statement by Obama be able to compel the private insurance companies who do business with the federal government to cover same-sex partners?

    The federal insurance plan (none / 0) (#3)
    by Big Tent Democrat on Fri Mar 13, 2009 at 08:44:50 AM EST
    is the one at issue here and clearly the language is not as restrictive as you describe.

    Parent
    Actually, (none / 0) (#5)
    by jbindc on Fri Mar 13, 2009 at 09:11:29 AM EST
    The federal plan specifically addresses the DOMA definitions.

    General Eligibility for Coverage

    Family members eligible for coverage under your Self and Family enrollment are your spouse (including a valid common law marriage) and unmarried dependent children under age 22, including legally adopted children and recognized natural (born out of wedlock) children who meet certain dependency requirements.

    SNIP

    Defense of Marriage Act

    Same sex partners are not eligible family members. The law defines family members as a spouse and an unmarried dependent child under age 22. Public Law 104-199, Defense of Marriage Act, states, " the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."

    This seems more restrictive than most regular private plans.

    Parent

    I assume then (none / 0) (#6)
    by Big Tent Democrat on Fri Mar 13, 2009 at 09:19:21 AM EST
    that Judge Kozinski's folks are not covered under this plan.

    Parent
    I would add that (none / 0) (#7)
    by Big Tent Democrat on Fri Mar 13, 2009 at 09:22:15 AM EST
    perhaps Kozinski looked to the underlying law as opposed to the statements of that agency.

    He may disagree with their web site.

    Parent

    It seems clear that it was under (none / 0) (#10)
    by Big Tent Democrat on Fri Mar 13, 2009 at 09:40:52 AM EST
    the same insurance plan. However, the 9th Circuit enacted specific rules that would require modification of that plan in these circumstances. From Judge Reinhardt's opinion:

    The EDR Plan was adopted by the Ninth Circuit Judicial Council "to provide rights and protections to employees of the Federal Public Defender Offices ... which are comparable to those provided to legislative branch employees under the Congressional Accountability Act of 1995."! EDR Plan at A-1. The Plan
    prohibits discrimination on numerous grounds, including both sex and sexual orientation. Id. at A-2. The availability of health, dental, and vision insurance for oneself and one's family is a valuable benefit of employment,2 and denial of such a benefit on account of sex or sexual orientation would violate the terms of the EDR
    plan.

    . . . Federal employees, including employees of the FPD, receive health benefits pursuant to the FEHBA. The FEFTBA permits federal employees to elect coverage "either as an individual or for self and family," 5 U.S.C. § 8905(a), and defines
    "member of family" as "the spouse of an employee or annuitant" or "an unmarried dependent child under 22 years of age ...." 5 U.S.C. § 8901(5). FEDVIP likewise defines "family member" as "a spouse .. . and/or unmarried dependent child(ren)." 5 C.F.R. § 894.101. These definitions of family member are limited,
    however, by DOMA, which provides that, "[i]n determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage'
    means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife." 1 U.S.C. § 7. Accordingly, the FEHBA and FEDVIP provisions
    defining family members to include spouses must be interpreted, pursuant to DOMA, to include only opposite-sex spouses.6

    DOMA on its face "does not purport to preclude Congress or anyone else in the federal system from extending benefits to those who are not included within [its] definition [of marriage]," Smelt v. County of Orange, 447 F.3d 673, 683 (9th
    Cir. 2006). DOMA simply limits the definition of "spouse" under federal law. It is the FEHBA, when read in light of the subsequently enacted DOMA, which appears to have that effect/ For two reasons, however, I conclude that, DOMA and the FEHBA notwithstanding, it is both necessary and appropriate to direct that Levenson's husband receive the federal benefits requested by Levenson.



    Parent
    Judge Reinhardt describes (none / 0) (#12)
    by Big Tent Democrat on Fri Mar 13, 2009 at 09:46:23 AM EST
    Judge Kozinski's opinion thusly:

    [I]n a recent decision resolving an identical complaint by a member of the central staff of the Ninth Circuit Court of Appeals, Chief Judge Kozinski, as hearing officer under the EDR Plan for Ninth Circuit employees, ordered the provision of FEHBA benefits to her same-sex spouse. According to that decision, the legal significance of the definition of "member of family" at 5 U.S.C. § 8901(5) is ambiguous, because the FEHBA does not expressly state whether
    FEHBA coverage can be afforded only to those family members falling within the definition provided by § 8901(5), or whether benefits may be provided to others as well
    .

    According to the ruling in that proceeding, under the doctrine of constitutional avoidance, see I.N.S. v. St. Cyr, 533 U.S. 289, 300 (2001), this
    ambiguity must be resolved in favor of providing the coverage to same-sex spouses even though they do not fall within the statutory definition of "member of family," because a contrary construction of the FEHBA as limited by DOMA would raise significant constitutional questions.



    Parent
    Judge Reinhardt explains why (none / 0) (#14)
    by Big Tent Democrat on Fri Mar 13, 2009 at 09:48:50 AM EST
    he did not follow Judge Kozinski's reasoning:

    Although I adopt the same remedy as the Chief Judge, I reach that conclusion in a somewhat different manner. I must reluctantly disagree with the view that the FEHBA is ambiguous. I believe instead that the only reasonable reading of that statute is that it does not permit coverage of persons falling outside its definition of family member. Accordingly, I believe that I am compelled to
    reach the constitutional issue. Doing so, I conclude that the application of DOMA to FEHBA so as to deny Levenson's request that his same-sex spouse receive federal benefits violates the Due Process Clause of the Fifth Amendment.

    (Emphasis mine.)

    Parent

    Thanks for the analysis (none / 0) (#18)
    by jbindc on Fri Mar 13, 2009 at 09:59:50 AM EST
    I'm not disagreeing with it.  In fact, I agree with kdog (below) who thinks single people should be allowed to name one other person (at least a family member) to their health plan, since a person with 0 kids is covered.

    Seems to me, as more circuits take this issue up, this is going to go to the Supreme Court eventually to get worked out, unless Congress repeals DOMA.

    I'm still not sure how a signing statement by Obama would solve this.  I'll have to re-read your excellent analysis.

    Parent

    It is not a question of signing statement (none / 0) (#21)
    by Big Tent Democrat on Fri Mar 13, 2009 at 10:05:54 AM EST
    from Obama.

    It is a question of instructing his Administration on what interpretation to give to the provisions in question.

    Parent

    So, to play Devil's advocate (none / 0) (#22)
    by jbindc on Fri Mar 13, 2009 at 10:13:18 AM EST
    If Obama instructs his Administration to interpret the provisions in question as we would all like (to include same-sex partners), could a federal employee who opposes this sue, based on DOMA? My guess is if they could sue, in most other circuits they may get a different interpretation than the 9th Circuit gave.  (At least it would put political pressure on the Harry and Nancy show to repeal DOMA, no?)

    Parent
    No (none / 0) (#23)
    by Big Tent Democrat on Fri Mar 13, 2009 at 10:16:34 AM EST
    Lack of standing.

    Parent
    Then what about (none / 0) (#25)
    by jbindc on Fri Mar 13, 2009 at 10:24:05 AM EST
    the next Republican administration?  If this is just left to "interpretations", aren't we going to play ping-pong with these people's lives?  (You weren't covered here, now for 4 years, you'll be covered, then you won't, then you will, etc.)

    Doesn't this need something stronger than just Obama's direction on how to interpret these provisions?

    Parent

    I believe (5.00 / 1) (#28)
    by Capt Howdy on Fri Mar 13, 2009 at 10:36:23 AM EST
    I will live to see DOMA follow Plessy v. Ferguson onto the trash heap of history.
    but I guess its more of a hope than a belief, really.

    Parent
    A better point (none / 0) (#30)
    by Big Tent Democrat on Fri Mar 13, 2009 at 10:43:54 AM EST
    At the least, the section that is geared towards denying gays and lesbians equal access to benefits should be repealed.

    Parent
    On what grounds could a Federal employee sue (none / 0) (#24)
    by jawbone on Fri Mar 13, 2009 at 10:20:05 AM EST
    about coverage for other employees?


    Parent
    Spouses, not partners (none / 0) (#31)
    by Peter G on Fri Mar 13, 2009 at 10:46:52 AM EST
    I agree with jbindc's suggestion and understanding that the Reinhardt and Kozinski opinions only apply to same-sex spouses -- that is, the issue arose because (at least between the state Supreme Court decision and the passage of Prop 8) gay marriage was legal in California.  The rationale of these opinions, as I understand them, does not apply to same-sex or different-sex partners who are not married under state law.  The issue really highlights that while DOMA tries to define "married" and "spouse" for federal purposes, in fact these terms refer to a status that is (in the secular domain) almost entirely regulated by state not federal law.

    Parent
    Plenty (none / 0) (#44)
    by DaveOinSF on Fri Mar 13, 2009 at 01:24:04 PM EST
    Plenty of private-sector insurance plans provide for the eligibility of same-sex partners.  For jurisdictions where marriage or civil union or domestic partnership registry is not available, eligibility can be obtained by signing an affidavit.  I imagine the health insurance policies for federal employees could be written the same way.

    The whole issue is a great example of the private sector taking the lead where government fails.

    Parent

    BTD: I'm confused. When President Bush (none / 0) (#9)
    by Think Before You Type on Fri Mar 13, 2009 at 09:39:05 AM EST
    issued signing statements (frequently and in great number), didn't we progressives unanimously say that they are invalid and irrelevant, and that all that matters is the text of the law?

    Shouldn't we be consistent if we want to be taken seriously?  I'm puzzled about why you're citing a signing statement.

    I am citing it for the purpose (none / 0) (#11)
    by Big Tent Democrat on Fri Mar 13, 2009 at 09:42:19 AM EST
    of understanding and arguing what the EXECUTIVE understood the law meant when passed.

    I am supported also by this:

    "DOMA on its face "does not purport to preclude Congress or anyone else in the federal system from extending benefits to those who are not included within [its] definition [of marriage]," Smelt v. County of Orange, 447 F.3d 673, 683 (9th
    Cir. 2006). DOMA simply limits the definition of "spouse" under federal law."

    Parent

    Bushs signing statements (none / 0) (#16)
    by Capt Howdy on Fri Mar 13, 2009 at 09:56:48 AM EST
    were usually for the purpose of excluding people or prohibiting something.  I see no reason why we should oppose a signing statement that aims to include people or life prohibitions for the sake of "consistency".


    Parent
    um, LIFT prohibitions (none / 0) (#17)
    by Capt Howdy on Fri Mar 13, 2009 at 09:57:36 AM EST
    "life prohibitions" (none / 0) (#19)
    by jbindc on Fri Mar 13, 2009 at 10:03:24 AM EST
    was funnier  :)

    Parent
    That's not my thinking on this (none / 0) (#20)
    by Big Tent Democrat on Fri Mar 13, 2009 at 10:04:29 AM EST
    A signing statement can be useful for understanding what the Executive Branch believes a law is doing. That is not, of course, dispositive.

    But it is worth noting when we are discussing actions, or potential actions within the Executive Branch, as we are doing now.

    Parent

    Yes, but when Bush was doing it, we said (none / 0) (#32)
    by Think Before You Type on Fri Mar 13, 2009 at 11:23:39 AM EST
    (I believe correctly) that it makes no difference what the executive thinks it means - only what the law says and how the courts interpret its language.  I believe we would have been up in arms if the courts had used one of Bush's signing statements to develop its interpretation - am I wrong on this?

    Parent
    I am not saying what a court should (none / 0) (#34)
    by Big Tent Democrat on Fri Mar 13, 2009 at 12:15:09 PM EST
    decide based on President Clinton's signing statement. I am arguing for what President Obama CAN DO based on the signing statement.

    Parent
    BTW, if the President wanted to be bold, (none / 0) (#33)
    by andgarden on Fri Mar 13, 2009 at 12:10:32 PM EST
    he'd just say that DOMA is unconstitutional on its face.

    'cept (none / 0) (#35)
    by jbindc on Fri Mar 13, 2009 at 12:15:55 PM EST
    that's not his job, and he would be properly publicly chastised for that, no?

    Then there's that whole "bold" thing"?

    Parent

    Well, his job is pretty broad (none / 0) (#36)
    by andgarden on Fri Mar 13, 2009 at 12:23:08 PM EST
    Let's just say that what the president thinks matters.

    Parent
    Oh, it matters (none / 0) (#37)
    by jbindc on Fri Mar 13, 2009 at 12:30:37 PM EST
    But it's not up to the POTUS to declare something is unconstitutional on its face, and, while it would be spin, might not sit to well with the judiciary, and he would be called on that whole checks and balances thing.

    I just think it would be a PR disaster that he doesn't need.  He could come out and strongly advocate for DOMA's repeal, but he should not make constitutional pronouncements.

    Parent

    One more thing (none / 0) (#38)
    by Think Before You Type on Fri Mar 13, 2009 at 12:32:41 PM EST
    BTD - I think your writeup should be more clear on a key point.  There are two issues:

    1.  What the Federal Government MAY do
    2.  What the Federal Government MUST do

    These are completely separate and shouldn't be confused.

    You are pointing out that DOMA does not prevent the Federal government from issuing these benefits, using discretionary provisions and non-spousal language - maybe you're right.

    But certainly, the Federal government under DOMA cannot be REQUIRED to issue these benefits to a married same-sex partner, since the Federal government doesn't recognize it as a marriage.

    Once we grant that it's not a legal requirement, it is vanishingly unlikely that this will happen (certainly in the current economic environment) since adding this benefits could have a substantial price tag.  So the point you are making is moot, it seems to me.

    I don't think even Obama and the other (none / 0) (#41)
    by dk on Fri Mar 13, 2009 at 12:51:23 PM EST
    anti-gay folks are pushing an economic argument against providing benefits to same-sex partners.

    Parent
    The economic argument is frequently cited (none / 0) (#43)
    by Think Before You Type on Fri Mar 13, 2009 at 01:03:11 PM EST
    by opponents of same sex benefits.  I can give you links if you're not aware of this.  When you refer to Obama as anti-gay, I'm not sure if it's a joke, so I won't respond to it.

    Anyway, that's not my point.  My point is that it's not enough that Obama may have a way to achieve this - it's just not going to happen as discretionary government spending in this environment.  It will only happen if a law is passed that requires it.

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    First of all, I'm not (none / 0) (#45)
    by dk on Fri Mar 13, 2009 at 01:25:50 PM EST
    joking when I call Obama anti-gay.  I think when a constitutional law expert says that civil marriage is between a man and a woman because god is in the mix, he is either stupid or anti-gay, and I don't think Obama is stupid.

    In any event, it is not discretionary spending if you believe that withholding the benefits is an unconsitutional form of discrimination.  If all of the gay employees suddenly decided to enter into heterosexual marriages, the spending would occur anyway.  In other words, this is not a matter of spending extra money.  It is a matter of not withholding money that would be spent were it not for the irrational basis of homophobia.


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    How Dishonest of You (none / 0) (#46)
    by squeaky on Fri Mar 13, 2009 at 01:36:32 PM EST
    Obama says that he personally believes that "marriage is between a man and a woman" but also says that "equality is a moral imperative" for gay and lesbian Americans. He advocates the complete repeal of the Defense of Marriage Act (DOMA) because "federal law should not discriminate in any way against gay and lesbian couples, which is precisely what DOMA does." He supports granting civil unions for gay couples, and in 2006 he opposed a constitutional amendment to ban gay marriage. In March 2007, Obama initially avoided answering questions about a controversial statement by a U.S. general that "homosexual acts" are "immoral," but Obama later told CNN's Larry King, "I don't think that homosexuals are immoral any more than I think heterosexuals are immoral."

    Pew

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    You're dishonest (5.00 / 0) (#48)
    by dk on Fri Mar 13, 2009 at 01:42:45 PM EST
    if you denying he said that marriage is between a man and a woman because god is in the mix.  

    Another quote I would refer to is Deval Patrick's at the end of his most recent state of the state address, where he said that in Massachusetts, whether you are gay or straight, equal means equal.  At most, the snippet you describe above is a version of separate but equal, which, by the way, has long since been declared unconstitutional as far as race is concerned.

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    Constitution (none / 0) (#53)
    by squeaky on Fri Mar 13, 2009 at 02:05:11 PM EST
    One of the reasons that the constitution was written was to allow people to have personal religious preferences that were not mandated by the GOvernment.

    Your insistence that Obama's personal feelings about his own religious beliefs are identical to those he would impose on all Americans is ludicrous, and quite dishonest.

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    My insistence is that (none / 0) (#55)
    by dk on Fri Mar 13, 2009 at 03:00:44 PM EST
    Obama is anti-gay and is promoting, at best, a regimen of separate but equal with regard to gay Amercians.  If Obama supported equal (not separate but equal) rights for gay people while personally not believing in equal rights for gay people, then you would have a point.  But, at this point, his personal opposition for equal rights for gay people is in line with his political opposition for equal rights for gay people.  

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    Hollow, IMO (none / 0) (#56)
    by squeaky on Fri Mar 13, 2009 at 03:24:04 PM EST
    You seem blinded by something.

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    I was thinking the same about you. (5.00 / 0) (#57)
    by dk on Fri Mar 13, 2009 at 03:59:40 PM EST
    Really? (2.00 / 0) (#58)
    by squeaky on Fri Mar 13, 2009 at 04:21:58 PM EST
    Except you are making sh*t up. Calling Obama a homophobe and bigot is nutty. If I remember correctly you also have called him a misogynist, also off the charts nutty, imo.  For an example of a government representative that fits that description you might want to look at some of your GOP friends who share your contempt for Obama, like Sen Ted Stevens or GOP leader Michael Steele.

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    So let me see if I have this right (5.00 / 1) (#63)
    by dk on Fri Mar 13, 2009 at 05:45:34 PM EST
    Because I am pointing to Obama's own words to show that he personally and politically holds views that are anti-gay and supportive of government imposed separate but equal status for gays, I am somehow friends with Ted Stevens and Michael Steele?  The twists and contortions of logic in such a view defy my understanding, to be honest.  

    Believe it or not, but there are non-nutty politicians who believe in full equality for gay people and bolster their words with actions; there are non-nutty people who do not ascribe to the view (either privately or in terms of public policy) that marriage is between man and a woman because god is in the mix; there are non-nutty people who believe that separate and equal does mean equal.

    It's 2009, and I think it's about time to start calling people out as homophobes if they don't believe in equal rights for gay people.  I make no apologies for that, and I'm certainly not going to make excuses for Obama or any democrat in that regard simply because they are democrats.  

    So, go ahead and try to marginalize me by calling me nutty, or calling me a friend of Ted Stevens or whomever.  What do I care, I'm already a second class citizen as it is.  I'll just add you to the list of gaybashers and move on.

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    His Own Words (none / 0) (#64)
    by squeaky on Fri Mar 13, 2009 at 06:13:58 PM EST
    You are cherrypicking and taking statements out of context to grind an axe. It is clear that is how you are using his own words to make the point that he is a homophobe and a bigot, you are being dishonest, imo, as I originally pointed out.

    This rundown does not paint the picture of a homophobe or a bigot, imo.

    Clearly your definition of a homophobe and a bigot is someone who says that they are personally against gay marriage because of religious reasons. So be it, imo, you have a very shallow definition of a bigot and homophobe. Must drive you nuts to decide that so many people hate you. Or maybe you flourish under those conditions, hard to tell.

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    I guess I'm missing (none / 0) (#66)
    by dk on Fri Mar 13, 2009 at 06:58:05 PM EST
    the part where Obama supports gay marriage as public policy.  Or where he pays more than lip service to repealing DOMA or Don't Ask Don't Tell, or finds something better to say about the gay man who most influenced him other than that he wasn't "proselytizing all the time" (apparently that's what gays do, who knew?). Or where he refrained from gay-baiting to win southern primaries, or decided that Rick Warren didn't deserve a position of honor at a presidential inauguration or, getting back to this post, didn't order his personnel agency not to give equal rights to gay federal employees.  

    But perhaps if you put personally in bold a few more times, we'll all forget and just read about.com.  And believe it or not, but as a gay person in this country I have long resigned myself to the fact that many people hate me.  And while you may not understand, that is not so nutty, unfortunately.  And having homophobic presidents certainly does not help matters, believe me.

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    Sorry To Hear That (none / 0) (#67)
    by squeaky on Fri Mar 13, 2009 at 07:25:41 PM EST
    And I truly believe you are wrong about Obama being a bigot or homophobic. Sounds like you have suffered quite a bit for just being who you are.

    I do believe that times are a changing demographically. Most younger people do not care much about who anyone is sleeping with, save for the gossip which supersedes sexual preference.

    Obama is part of that crowd, and there will be lots more coming.

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    All second class citizens suffer. (none / 0) (#68)
    by dk on Fri Mar 13, 2009 at 07:31:41 PM EST
    I believe as well that times are changing demographically.  I just don't think that Obama represents that change.  

    And he's not a younger person, by the way.  He's 47.

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    Yes (none / 0) (#69)
    by squeaky on Fri Mar 13, 2009 at 08:24:01 PM EST
    Although, it in no way mitigates your suffering, all people suffer, imo. Hate is a particularly nasty form of suffering. Most of the times external hate is a reflection of self loathing.

    I would rather be hated than a hater, personally speaking.

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    Maybe, but Armando didn't say (none / 0) (#50)
    by Think Before You Type on Fri Mar 13, 2009 at 01:49:20 PM EST
    it was unconstitutional, and no Federal court has suggested this.  What Armando said was that it would be within Obama's authority as a discretionary decision to open up this kind of benefit.  What I replied is that even if this is true (which I'm agnostic on), it won't fly in this economic environment, so I'm not sure exactly what his point is.

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    Well, my point is that (none / 0) (#51)
    by dk on Fri Mar 13, 2009 at 01:52:55 PM EST
    if you think it is discretionary spending, you could be right.  But it is not discretionary spending, but rather ceasing from being discriminatory in how you spend.

    Parent