Posts filed under ‘DOMA trials’

Good news: Deportation hearing for Josh and Henry postponed

By Adam Bink

Just now, the immigration judge in the case of Josh and Henry, a couple set to be torn apart by the Administration under DOMA, decided to grant the couple’s request to adjourn the case given the news yesterday afternoon of Attorney General Holder’s intervention in a similar case. The case is adjourned until December. Not a permanent and lasting success, but very good news that gives the Administration time to, in their attorney’s words, find ways to allow same-sex couples in legal partnerships to stay under DOMA, as well as grants more time for the couple to be together.

GetEqual is live-tweeting from the courtroom, and reported that the judge acknowledged Holder’s decision and that the definition of marriage is ambiguous.

I have no doubt that the noise we have made around this case, including today’s rally and generating tens of thousands of signatures to Sec. Napolitano and getting the couple on TV, has helped lead to today.

As Henry said:

Great job to everyone involved including those of you who signed to Sec. Napolitano and shared the news of the rally. Onward to more permanent success.

Update: Some comments from Lavi Soloway, the couple’s attorney, on what transpired. Good stuff.

Speaking with Soloway, their attorney in this matter, after the hearing, he tells Metro Weekly the immigration judge adjourned the deportation proceedings, which will place the matter back on the “master calendar,” which is more of a status conference and, more importantly for Velandia and Vandiver, removes the “immediate threat” of deportation.

“The judge said at the outset that he wanted to deal with the question of whether the case should be adjourned before we discussed anything else,” he says. “Despite the fact that he had earlier twice denied our motions for continuance. At this time, he essentially reversed himself.”

Of the reasons, Soloway says, “The first reason that he granted an adjournment was that the I-130 petition filed by Josh for Henry was still pending and he felt that it was appropriate to let the U.S. CIS to adjudicate that petition, and that it would be inappropriate to move forward until that happened.”

The second reason the judge cited, Soloway says, was Holder’s May 5 decision to vacate a decision by the Board of Immigration Appeals related to the application of Paul Wilson Dorman, in which the BIA had applied Section 3 of the Defense of Marriage Act to his pending case.

“He also cited the potential that he saw from the Matter of Dorman decision yesterday, which he reviewed it in court and discussed it,” Soloways says. “He cited the potential that the government might be looking at a different way of approaching the definition of marriage for immigration purposes, and so, it was appropriate to adjourn in light of that decision to vacate.”

Once “the judge explained his reasoning,” Soloway says, “The government attorney said, ‘On behalf of the Department of Homeland Security’ that they were in agreement that that was the appropriate way to move forward.”

Of the Metro Weekly Poliglot report on Holder’s May 5 decision, Soloway notes, “I came into the court and the judge handed me Matter of Dorman, and attached to it, with a staple was [Metro Weekly‘s] article xeroxed for everyone to see, from yesterday. The judge said, ‘I’d like to make this part of the record.'”

Update 2: A wonderfully produced video of what happened yesterday (h/t Kathleen):

May 6, 2011 at 11:49 am 50 comments

Attorney General Holder steps into immigration case of bi-national same-sex couple

By Adam Bink

Some big news today from the Attorney General’s office regarding the forced separation of same-sex couples:

Attorney General Eric Holder today filed a very rare decision, vacating a decision by the Board of Immigration Appeals related to the application of Paul Wilson Dorman, in which the BIA applied Section 3 of the Defense of Marriage Act to a pending case.

Holder’s decision:

In the exercise of my review authority under that regulation, and upon consideration of the record in this case, I direct that the order of the Board be vacated and that this matter be remanded to the Board to make such findings as may be necessary to determine whether and how the constitutionality of DOMA is presented in this case, including, but not limited to: 1) whether respondent’s same-sex partnership or civil union qualifies him to be considered a “spouse” under New Jersey law; 2) whether, absent the requirements of DOMA, respondent’s same-sex partnership or civil union would qualify him to be considered a “spouse” under the Immigration and Nationality Act; 3) what, if any, impact the timing of respondent’s civil union should have on his request for that discretionary relief; and 4) whether, if he had a “qualifying relative,” the respondent would be able to satisfy the exceptional and unusual hardship requirement for cancellation of removal.

Dorman entered a civil union in New Jersey with his male partner.

I got off the phone with Lavi Soloway, the attorney for Henry and Josh, who are set to face the final deportation hearing tomorrow. Lavi said:

What this shows is the executive branch has the necessary authority to protect bi-national couples from being torn apart, but its willing to do that, and so it’s looking for ways. What we’re looking for is a moratorium. This is not that. This is the Attorney General looking into one case and seeing what can be done, which can be applauded. What we need to do is explore that… what this does is showing the executive branch wants to find a solution to this problem. This development could be a sign that the Obama administration is looking for a way to protect gay and lesbian bi-national couples who are currently barred from the regular marriage-based immigration process by the Defense of Marriage Act.

This is proof that the pressure has an impact.

If you’re in the NYC/northern NJ area, please consider joining a hundred supporters of theirs for a rally outside the courthouse before the hearing tomorrow, along with nine organizations including Courage Campaign. Details:

Department of Homeland Security
Newark Immigration Court
Peter Rodino Federal Building
970 Broad Street
Newark, NJ
WHEN:  FRIDAY MAY 6 at 11 a.m.

RSVP on Facebook.

May 5, 2011 at 6:23 pm 52 comments

NRA terminates agreement with King and Spalding

By Adam Bink

Following on the Virginia Attorney General deciding to do the same, NRA General Counsel David Lehman wrote to King & Spalding, deciding to drop their legal services:

We are writing to notify you of our decision to terminate our legal services agreement with King & Spalding, effective immediately, due to the firm’s decision to bow to political pressure and abandon a client in the midst of a legal representation. Specifically, our decision is motivated by your withdrawal as counsel for the Bipartisan Legal Advisory Group of the U.S. House of Representatives in defense of Section III of the Defense of Marriage Act.

We believe King & Spalding’s decision is indefensible and raises serious concerns about its ability to be a reliable and effective advocate for any client facing potentially controversial litigation.

To be clear, our decision is not motivated by any position on the statute itself. As you know, the National Rifle Association is a single-issue organization dedicated to the protection of the Second Amendment. We are, however, often involved in controversial issues on which emotions can run high. This is as true in the legal arena as it is in the legislative. It goes without saying that in situations in which we retain outside counsel, we expect them to zealously advocate for our interests and not abandon the representation due to pressure from those who may disagree with us.

The representation we have received to date from King & Spalding, specifically by former U.S. Solicitor General Paul Clement, has been outstanding. Given your firm’s recent conduct, we cannot continue to rely on King & Spalding to represent the NRA. Indeed, your decision only serves to embolden ideological organizations to protest the legal representation of other organizations with which they disagree, with the goal of freezing their opponents out of legal representation entirely. That, in turn, threatens the very principles on which our legal system is based.

Therefore, we hereby terminate our legal services agreement with King & Spalding.

Noting the second-last paragraph… for many, it depends on the cause. As many have noted in the comments, people are different from laws, and rights under, for example, the Bill of Rights (such as the freedom of speech) are also a separate piece and often worth defending. In this case, many including myself believe DOMA is unconstitutional, is wrong to defend and does not protect anyone whose rights would be violated if same-sex couples were given federal rights. But many also believe the Supreme Court decision defending the right to free speech of the Westboro Baptist Church was correctly decided, however horrible their aims may be. So while the NRA has a point on what may come in the future, I don’t believe everyone who believes DOMA doesn’t deserve a defense also believes that their most despised organization or individual or group of people are not worth defending.

May 2, 2011 at 1:17 pm 28 comments

Continued fallout for King & Spaulding

By Adam Bink

With thanks to Sagesse for noting the news, I see the fallout for King & Spaulding continues:

Virginia Attorney General Ken Cuccinelli (R) is terminating his office’s relationship with law firm King & Spalding after the firm decided to drop its defense of the controversial Defense of Marriage Act (DOMA) last week.

“King & Spalding’s willingness to drop a client, the U.S. House of Representatives, in connection with the lawsuit challenging the Defense of Marriage Act (DOMA) was such an obsequious act of weakness that I feel compelled to end your legal association with Virginia so that there is no chance that one of my legal clients will be put in the embarrassing and difficult situation like the client you walked away from, the House of Representatives,” Cuccinelli wrote to firm partner Joseph Lynch in a letter obtained by the Washington Examiner.


According to the letter, Cuccinelli said: “Virginia does not shy away from hiring outside counsel because they may have ongoing professional relationships with people or entities, or on behalf of causes that I, or my office, or Virginia as a whole may not support. But it is crucial for us to be able to trust and rely on the fact that our outside counsel will not desert Virginia due to pressure by an outside group or groups.”

“Virginia seeks firms of committment, [sic] courage, strength and toughness, and unfortunately, what the world has learned of King & Spalding, is that your firm utterly lacks such qualities,” he added, according to the Washington Examiner. He also said that the firm would not be able to reapply for special counsel status for the state of Virginia as long as he was attorney general.

Given the reporting about how Coca-Cola and other firms had complained privately to K&S about taking on the case and the pressure they were receiving, I suspect the heat on the other side of the coin would have been worse if K&S kept the case. Bottom line, though, is that they played with fire and got burned. Kerry Eleveld, formerly of The Advocate, writes:

Exactly why the firm dropped the case is still a bit of a mystery, but LGBT advocacy organizations came out of the box swinging just as soon as the contract went public. The president of Equality Matters, Richard Socarides, appeared on MSNBC’s Hardball saying, “[T]his very prominent national law firm has taken on the defense of this horrific law, and we think it’s deplorable.” And the Human Rights Campaign reportedly contacted large clients of King & Spalding as well as LGBT student groups at top law firms to notify them of the firm’s plan to defend the statute.

Call it a gut feeling, but I have a feeling K&S may have had more to lose on the client side staying with the case than it would have gained from hard-right folks like Cuccinelli signing up with the firm.

April 30, 2011 at 3:35 pm 57 comments

Watch: Couple about to be torn apart by DOMA interviewed on MSNBC

By Adam Bink

Last week, I wrote about Courage Campaign’s and AllOut’s emergency petition to save Henry Velandia and Josh Vandiver from being torn apart because of DOMA. Sec. Napolitano has the power to put a moratorium on such deportations.

Late this week, they were interviewed by MSNBC’S Thomas Roberts:

Over 20,000 have signed this emergency petition and we are planning some, well, interesting actions to make sure DHS sees them next week. Please sign and on the following page, you’ll see one-click share options so you can ask a few friends to do so too. Stay tuned.

April 30, 2011 at 9:45 am 28 comments

Once again, who does DOMA protect?

By Adam Bink

Not to beat a dead horse on this issue, but two more points on the DOMA representation issue. The NYTimes gets in the business of opining for a Great Historic Debate as the LATimes did… THIS time lamenting the decision of King & Spaulding to drop the case. Excerpt:

King & Spalding had no ethical or moral obligation to take the case, but in having done so, it was obliged to stay with its clients, to resist political pressure from the left that it feared would hurt its business. Paul Clement, a former solicitor general who quit as partner in King & Spalding over the decision, said, “a representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters.”

Justice is best served when everyone whose case is being decided by a court is represented by able counsel.

First, lawyers take and drop cases. It’s a fact of life. Second, there is no “everyone” in this case. When lawyers represent unpopular clients because of the merit of the rights being protected — the case at the SCOTUS a few months ago involving Westboro Church and the right to free speech at funerals comes to mind — there is some argument to be made. In this case, DOMA doesn’t protect anyone. It doesn’t ensure fundamental constitutional rights to any particular citizen that would be deplorable if they were taken away. In fact, it only ensures rights are excluded from one group. I can’t say this enough, but there is no “responsibility” as the LATimes put it, to take the case. There is only a choice and a bad one made at that.

NCLR’s Kate Kendell, writing in the Bay Area Reporter, picks up on that point:

Clement and his defenders argue that unpopular causes are entitled to representation. For example, the American Civil Liberties Union represented the Ku Klux Klan in the late 1970s when the KKK was denied a right to march in Skokie, Illinois. But any comparison between that case and Clement’s defense of DOMA unravels immediately. In the Skokie case, the ACLU was defending the First Amendment. They rightly took the position that even a group as repellent as the KKK had a right to free speech. In this situation, there is no similar underlying principle or right at stake. No one would be bothered, for example, if an outdated Jim Crow law that had never been repealed were challenged in court and no lawyer was willing to defend that law. In order to justify the defense of a law, it must be possible to identify some principle that deserves to be vindicated, and here, there simply is none.

DOMA was passed in order to express moral disapproval of LGBT people. It does not embody conflicting principles that need a full-throated defense on both sides to produce a just and fair result. The sole purpose of DOMA is to discriminate against same-sex couples. It perpetuates harm against an underrepresented community and singles out certain families for unequal treatment from their government. No self-respecting lawyer or law firm should be willing to tarnish their reputation by defending such an appalling law. King and Spalding’s decision to withdraw was a turning point in this struggle because it symbolized a shift in power between those who understand that simple truth and those who do not.

April 29, 2011 at 6:24 am 48 comments

Attorney General Eric Holder defends Paul Clement

No, really:

“Paul Clement is a great lawyer and has done a lot of really great things for this nation. In taking on the representation–representing Congress in connection with DOMA, I think he is doing that which lawyers do when we’re at our best,” Holder said during a roundtable with reporters at the Justice Department. “That criticism, I think, was very misplaced.”

Holder also compared the criticism of Clement to the attacks on Justice Department lawyers for their past work for detentainees at Guantanamo. “It was something we dealt with here in the Department of Justice…The people who criticized our people here at the Justice Department were wrong then as are people who criticized Paul Clement for the representation that he’s going to continue,” Holder added.

I’m not exactly thrilled to be compared to anti-Muslim zealots who thought Guantanamo detainees should be held forever on an island without right to trial by jury under a fiat issued by the Bush Administration. And it’s unclear to me what exactly are the great things that Paul Clement, a former Bush Solicitor General and all-around conservative, has done for this country. The cases he’s argued the United States Supreme Court on which he’s argued for the wrong side include McConnell v. FEC (campaign finance) Rumsfeld v. Padilla (trial by jury), Hamdi v. Rumsfeld (right to challenge detention), Rumsfeld v. FAIR (law schools have the right to freedom of speech in refusing military recruiters on campus excuse of DADT) Hamdan v. Rumsfeld (military commissions), and Gonzales v. Carhart (woman’s right to choose). I suppose Holder would defend all of those by saying Clement was “assigned” the cases, rather than noting where the man’s heart is. There’s also McDonald v. Chicago in which he, in private practice, carried water for the NRA in striking down sensible gun restrictions that protect urban residents like me.

Of course, this is the same Eric Holder who authorized a DOMA brief comparing gay rights to incest and pedophilia in the summer of 2009, and the same Eric Holder who claimed he was unaware of the vote in Maine when present in the state a week prior to the election. So I’m not sure why I should bother listening to Eric Holder’s opinion anyway.

There is a lot more I feel like saying, but John Aravosis pretty much said it for me.

April 26, 2011 at 5:35 pm 77 comments

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