This issue focuses on domestic policy, and looks at both the resurgent conservative movement and how the administration is doing from our prospective. As we read the articles on different topics, we should keep in mind two things.

First, when the Obama administration took office in January 2009, we were in an economic meltdown the likes of which we had not seen in our lifetimes. This was not like the periodic, though dramatic, stock market nosedives that happen every few years (e.g., 1968-70, 1973-74, 2000-02) – it was more, at least potentially, like 1929. While today the rich continue to get richer (the top one percent of earners get close to half the nation’s income), income inequality continues to increase, and unemployment declines only slowly, at least we have a functioning economy.

Second, despite our frustrations with the administration, and in particular with President Obama’s pervasive “moderation,” we need to be alarmed by the alternative – by, for instance, Michelle Bachman’s recent rantings in New Hampshire, Gov. Walker’s strong-arm attacks on unions in Wisconsin, and the general tenor and vigor of the resurgent right wing. Our opposition needs to be directed at this anti-woman, anti-immigrant, anti-union, anti-tax, anti-everything-progressive movement.

In the articles that follow, we look at some of the good and some of the bad: the conservative attack on women’s rights, the administration’s abandonment of Clinton-era Defense of Marriage Act and “Don’t Ask Don’t Tell,” the failure of the administration’s efforts to ameliorate the foreclosure crisis, and the anti-public sector union movement.

We also pay tribute, and say goodbye, to our old friend, Larry Shubow who passed away in late February.

- David Kelston & Chrissy Foot-

Last month the NLG Massachusetts Chapter held its Annual Meeting at which we elected a new Board of Directors and our Officers. Neil Berman will continue his 2-year term as a Chair of the Chapter; Patricia Cantor and Jeff Petrucelly were re-elected as Chapter’s Co-Treasurers. Please see the list of newly elected members of the Board of Directors on page 2. We are very thrilled to welcome new Board members who will be serving for the first time: Makis Antzoulatos, David Conforto, Jonathan Messinger, Gráinne O’Neill, Josh Raisler Cohn, and Jessica White.

(center) Chrissy Foot & Patty Garin enjoy conversation and the tasty food!

Makis graduated from Northeastern Law School and now works as a public defender for the CPCS Roxbury/Dorchester Municipal Court office. Prior to law school he worked as an advocate for at the Shattuck Homeless Shelter and was active in the movement for CORI Reform. He lives in Roslindale with his wife and daughter who keep him honest.

David is the Founder of Conforto Law Group, P.C, an employment law firm in Boston that dedicates its practice to the exclusive representation of employees.  He has successfully litigated a wide array of employment law issues — including discrimination and sexual harassment.  David has been a member of the NLG since law school and, during that time, coordinated the NLG Street Law Clinic project.  In 2007, he, along with Urszula Masny-Latos and Judy Somberg, represented the Guild among international observers for the Constitutional Referendum in Venezuela.

Patty Garin gives an engaging presentation on the parole crisis in Massachusetts

Jonathan is a graduate of Suffolk University Law School;  he also holds Master of Law degree from Lunds Universitet in Sweden.  He is licensed to practice law in Massachusetts and New York, and works as a general practitioner; Jonathan is the founder of LoveYourLawyer.com.  He enjoys traveling, singing and playing futbol when off duty.

Gráinne is a staff attorney and Coordinator of Death Penalty Engagements at the Charles Hamilton Houston Institute at Harvard Law School.  Prior to joining the Institute, Gráinne worked as a public defender in New Orleans. She attended Columbia Law School, where she served as Executive Editor of the Jailhouse Lawyers Manual.  She is a member of the Louisiana State Bar.

Josh has been active in the Guild for over 10 years as a legal worker, law student and lawyer. He has worked to support prisoners, activists and organizers, criminal defendants, and others targeted by state in both civil and criminal contexts. Josh graduated last year from Northeastern and is currently working as a public defender in the Roxbury and Dorchester courts.

Jessica White was very active in the Guild while attending Northeastern and is currently working on cases of guard brutality as a part time staff attorney at Prisoners’ Legal Services. She volunteers for the Women’s Bar Foundation Framingham Project, the Rosa Parks Committee of the Women’s Bar Association, and the Jamaica Plain Neighborhood Council.  On a more personal note, she is obsessed with romance novels and magical realism, and is now working on her own dystopian suspense romance novel.

We would like to send our heartfelt thanks to the last year’s Board members who decided to step down: Barb Dougan, Chrissy Foot, and Mary Lu Mendonça. Their contribution to the Board of Directors and the Guild has been immense. Thank you!

BOSTON UNIVERSITY:
In March, our NLG Student Chapter organized and co-sponsored several events:

• Palestine on the Precipice”: a presentaiton by Diana Buttu, former legal advisor to the PLO, with BU Students for Justice in Palestine.

• “The Goldstone Report”: a BU part of the NLG series with two editors of the book, Lizzy Ratner and Philip Weiss; moderated by Judy Somberg.

HARVARD:
In February, we co-sponsored (with Middle East Law Student Association and Justice for Palestine) a panel titled “Boycotting the Israeli Occupation?” Our guest speakers were Louis Michael Seidman, Roy Kreitner, and moderator NLG member Duncan Kennedy.

In March, we organized or co-sponsored the following events:

• “Developments in Material Support Law”: a panel discussion with panelists Claude Bruderlein, Tyler Giannini, NLG member Susan Akram, and Maureen Murphy; co-sponsored with Middle East Law Student Association and Justice for Palestine.

• “Wikileaks & the Pentagon Papers”: a conversation with Daniel Ellsberg & Scott Horton and screening of a documentary.

• “The Goldstone Report”: with Lizzy Ratner and Philip Weiss; moderated by Duncan Kennedy.

NORTHEASTERN:
In January, we hosted Christina Knowles, Lobbying Director for Mass. NOW for a “Massachusetts Lobby Training”.

In February, 10 of our members joined other NLG students at RebLaw Conference at Yale Law School in New Haven, CT.

In March, we did the following:

• Hosted the NLG Happy Hour.

• “Roundtable Discussion on Wisconsin”: what the struggle is, how it affect the labor solidarity.

• “Lunch Meeting with Flor Bermudez”: a Daynard Fellow.

• “The Goldstone Report”: an NLG series with two editors of the book, Lizzy Ratner and Philip Weiss; moderated by Judy Somberg.

ROGER WILLIAMS UNIVERSITY:
In February, we sent three of our NLG student members to the Rebellious Lawyering Conference at Yale Law School.

In March, we organized or attended the following events:

• Anti Death Penalty Day: screening of a documentary, “Mumia:  A Case for Reasonable Doubt.”

• “Tell It Like It Is”:  a panel on the truth about Immigration in the U.S.

• “Domestic Terrorism in the Context of the Animal Enterprise Terrorism Act“: a discussion panel on AETA, co-sponsored with APIL.

• Street Law Clinic Training: on Stop & Search, with NLG member Benjamin Evans.

• Annual Robert Cover Retreat (Peterborough, NH): we had almost 10 NLG students there.

From April 1 to April 3, we will host the 2011 NLG Northeast Regional Conference.

Our Student Chapter holds board meetings every two weeks which are open to the entire student body.

WNEC:
In January, our student member Lauren Marcous was selected to be an NLG Haywood Burns Fellow to do work with Prisoners’ Legal Services this summer.

In February, the following happened:

• Our NLG WNEC students attended the Rebellious Lawyering Conference at Yale.

• NLG WNEC Chapter was accepted as WNEC Student Bar Association organization and placed on probationary period.

• We completed the Legal Observer training with Urszula Masny-Latos and the Civil Disobedience training with NLG member Bill Newman.

In March, we organized or co-sponsored the following:

• Anti Death Penalty Day: a presentation by Linda Thompson, local criminal defense attorney.

• Annual Robert Cover Retreat in NH: a group of NLG WNEC students attended.

• Foreclosure & Eviction Clinic training: NLG students are co-sponsoring a training in post-foreclosure eviction defense with local housing attorney, Joel Feldman, and the Springfield No One Leaves Coalition.

• U.S. Detention Policies a Decade After 9/11: Two Perspectives on Security: a convesation with Pardiss Kebriaei of the CCR and Michael Sullivan of Ashcroft Sullivan LLC; co-sponsored with, among others, Pioneer Valley No More Guantanamos, the WNEC Federalist Society and the South Asian Law Student Association.

Our Student Chapter has been very involved in the anti-foreclosure work – we continue to maintain an active partnership with the Springfield No One Leaves Coalition; we plan to act as legal observers at local foreclosure auction protests, as well as eviction blockades.  With the help of local NLG attorney Bill Newman, we will train local tenant associations in civil disobedience throught the NLG Street Law Clinic project; we will recuit participants for an eviction defense clinic. With our group’s help, No One Leaves continues to gain community support in the movement to fight back against the big banks.

____________________________________

GUILD NEWS

NLG Presents…

Andrei Joseph, Shelly Kroll, and Ira Sills
Responding to Attacks on Labor!
Wednesday, April 13, 2011
5:30 pm

Kennedy’s Midtown Pub
44 Province St., 2nd Fl., Boston

Join ANDREI JOSEPH, a high school teacher, activist and leader with the Massachusetts Teachers Association, and SHELLY KROLL and IRA SILLS, partners at Segal Roitman LLP, for a discussion of attacks on unions and how progressive attorneys and activists are responding.

Following the discussion will be our NLG Monthly Happy Hour.
Hope to see you there!

2011 Regional Conference
The 2011 NLG Regional Conference will be hosted by the newly formed NLG student Chapter at Roger Williams School of Law in Bristol, RI.

2011 NLG Annual Dinner
This year, the NLG 30th Annual Dinner will be held on Friday, May 13, 6:00pm, at the Colonnade Hotel, and we will honor four outstanding Guild members: Karen Blum and Emily Yozell (Lawyer Award), Chip Berlet (Legal Worker Award), and Liz Dedrick (Student Award).  The dinner program will include silent and live auction with wonderful items, and an hour of dancing to the best tunes.  Please reserve you tickets before the deadline on May 3.  For more information please either call 617-227-7335 or go to nlgmass.org.

Street Law Clinic Report
The following Guild members conducted (or are scheduled to conduct) trainings for law students and/or clinics for members of Boston area community organizations and agencies:
March 2: Workers’ Rights  training for Suffolk Law School students, by Mark Stern.
March 3:   Legal Observing  at a pro-Palestinian rally at BU School of Law, by Urszula Masny-Latos and Daniel Werner.
March 17: Stop & Search  clinic at Cardinal Medieros Center, by law student Daniel Werner (New England) and Makis Antzoulatos.
March 25: Stop & Search training for Roger Williams Law School students in Bristol, RI, by Ben Evans.
March 28: Civil Disobedience and Legal Observer trainings at Boston University School of Law, by Jeff Feuer and Urszula Masny-Latos.  Tenants’ Rights training for New England School of Law law students, by Melinda Drew and Jeff Feuer.
March 30: Immigration Law clinic at Cambridge Rindge & Latin International Program, by Amy Wax.
March 31: Workers Rights clinic at The Workplace Boston, by law student Debra Garrett (Suffolk) and Mark Stern.

By Jennifer Berkshire

In March 11, 2011, Wisconsin’s Governor Scott Walker signed legislation eliminating critical union rights for public employees. The battle now shifts to the courts. Below are comments on Wisconsin from Massachusetts teachers union activists. Fifty years ago, one in four U.S. workers was in a union. Today, one in eight is in a union, and roughly half of the 14-15 million current union members work for some branch of government. Only the public sector unions held steady in recent decades, while unionization in the private sector declined precipitously, with job flight overseas, the transformation to a service-based economy, and attacks on organized labor. And now those public sector unions are under attack. When, as in Wisconsin, you limit collective bargaining to base pay issues, prohibit dues check-offs, and require unions to face a yearly certification vote, you are union busting, plain and simple. The struggle against this deserves our full support.

"The Reason there is No Money is the Rich have it ALL!" A February rally in Boston in support of Wisconsin workers. (Photo by Jennifer Berkshire)

Billerica Federation of Teachers:
Two thousand teachers, nurses, fire fighters and other Massachusetts workers gathered in front of the Statehouse on a frigid February afternoon to show their support for union workers in Wisconsin. Why the show of solidarity for workers in a state more than 1,000 miles away? “What is happening in Wisconsin, given the type of nation we are, can spread like wildfire across the whole nation,” said AFT Massachusetts president Tom Gosnell. Unlike states like Wisconsin, Indiana and Ohio, where Republican governors have all but declared war on union workers, Massachusetts Governor Deval Patrick was on hand for and supporting the rally.

Still, the presence of 100 Tea Party members, waving anti-union signs, was a vivid reminder of just how much hostility is directed towards public servants these days. Just three years ago the economy teetered on the brink of collapse, the result of a housing bubble, enormously magnified by complex Wall Street financial instruments. Fast forward to today and the origins of the recession have all but faded into oblivion, along with any ire towards the architects of the financial collapse. Instead, public hostility is now directed at public servants.

Tune into talk radio these days and you can be forgiven for coming away with the impression that the Great Recession was caused, not by bankers, but by teachers and their unions. Adam Bessie, an English professor at California’s Diablo Valley College, summed it up this way: The same people who imploded the economy have successfully misdirected the public’s justifiable anger away from themselves and towards teachers.

Billerica teacher Paul Gaudet:
While teachers seem to have been singled out for particular blame, hostility is directed towards virtually anyone who is employed by the public sector: faculty at public colleges and universities, librarians, even police and firefighters.

Coley Walsh, a lobbyist for AFT Massachusetts over three decades at the State House, says that the current attacks on people who serve the public are harsher than anything he’s seen before. “Hard-pressed taxpayers resent the fact that they’re paying for benefits for public employees that they don’t have themselves. You also have a powerful anti-government lobby that is using public anger to push for tax cuts and cuts in benefits and services.”

The combination of these two forces, says Walsh, is pressuring elected officials to adopt changes in policy that would have been considered extreme just six months ago. Case in point: New Hampshire, where members of the House of Representatives have just passed anti-union legislation aimed squarely at the teachers, nurses and other public sector employees in that state. The legislation, likely to be vetoed by NH Governor John Lynch, has been fiercely opposed by union members.

Lawrence Teachers Union president Frank McLaughlin:
In recent weeks, Republicans in Florida, Ohio and Indiana have introduced laws that would strip public workers of their collective bargaining rights. Idaho and Indiana are considering passing laws that would prohibit teachers unions from being part of deliberations about education policy. While no such measures have been introduced in Massachusetts, hostile rhetoric towards public employees in general and teachers in particular is on the rise. And the divisive tone of the debate only serves to drive a wedge between public sector employees and their private sector counterparts, says Diane Frey, a field representative for AFT Massachusetts who researches and writes about labor law. “The economy is being used as an excuse to take rights away from people, but the irony is that the rights we have as workers were created during the Great Depression. This is being represented as a fight between one group of employees that has something and another that has less, but the battle is really about something more fundamental,” says Frey. “Either we have rights or we don’t.”

Jennifer Berkshire is the editor of “the Advocate,” the statewide newspaper of the American Federation of Teachers, Massachusetts.

Larry Shubow leads a Progressive Party's march for the Henry Wallace Campaign in Dorchester, 1948.

Larry Shubow died February 22, 2011, at the age of 88. We will miss him. Larry was a long-time member of the Guild, even in the dark days of the 1950s, and for many years he was the only judge who dared to be a dues-paying member of our Chapter. He was our NLG Lifetime Achievement recipient at our dinner in 2004.

Larry grew up in Dorchester, graduated from Boston Latin in 1940, and from Harvard College in 1943. He enlisted in the Army after college and was stationed in Hawaii and Japan during the war. He graduated from Harvard Law School in 1951, and after distinguishing himself for almost three decades in private practice, he was appointed a district court judge in 1978 by Governor Dukakis, despite opposition branding him a communist sympathizer. When Larry reached mandatory retirement age in 1992 (he was then the presiding justice of the Brookline District Court), Governor Dukakis described him as “a model of the committed public citizen.”

Indeed he was. He was an activist in the 1950s who was described by the Boston Globe as “work[ing] tirelessly to block local investigations of suspected communists” by McCarthy forces, and he too feared he would be targeted; he continued after that in private practice to specialize in civil rights and criminal defense; and he was an advocate for judicial reform while a judge – as well as being a compassionate, decent and effective member of the judiciary.

Larry was described by his daughter in a recent Globe obituary: “He was endlessly organizing to challenge power. It was often said about him that there wasn’t a disenfranchised group he didn’t represent.” Larry lived a good life and left his mark. We should learn from that life.

- NLG Mass. Chapter Board of Directors -

____________________________________

When I heard that Larry passed away, it brought back memories, not only of his passion as a lawyer, but as a friendly and kind human being. I remember when I was very young, Larry and his family would occasionally vacation with my family somewhere down the Cape. He and my dad, Gabriel Kantrovitz, were friendly and very active in the fight against Senator McCarthy and the HUAC. When you got them a little relaxed, fishing, etc., they could take a deep breath. Years later, when I worked with his daughter, Jennifer, it brought back old times and evidence that the movement, via generations, continues on.

- Marty Kantrovitz -

By David Kelston

When President Obama took office, the economy was in crisis, major financial institutions teetering, and foreclosures exploding. The crisis has been toned down, the banks are generally doing great – but homeowners in crisis have been helped little by the federal government.

The Emergency Economic Stabilization Act was enacted under President Bush, including the Troubled Asset Relief Program (“TARP”), which went on to provide almost a trillion dollars in loans to financial institutions. Included in TARP was a requirement that the Secretary of the Treasury implement a plan to minimize foreclosures. The result was the Obama Administration’s “Making Homes Affordable Program (“HAMP”), under which the banks are given financial incentives to reduce monthly mortgage payments for homeowners either in default or, based on various criteria, likely soon to be in default. The goal of HAMP was to provide relief – and foreclosure protection – to 4 million homeowners. In fact, the participating banks have restructured mortgage payments for only a fraction of that number (about 600,000 homeowners), while many more applicants have been denied relief (740,000).

The problems with HAMP lie in the legislation and in its implementation. The statute itself is written with requirements to guarantee that homeowners accepted for a trial period mortgage restructuring, assuming (in main part) that they make their reduced payments for three months, will be enrolled in the program long-term. But a “catchall” provision appears to allow the banks, even after a homeowner has been accepted for the trial period and fulfilled his/her obligations, not to extend restructured payments for that homeowner, and horror stories abound of banks, including Bank of America and Wells Fargo, actually foreclosing on homeowners who are in restructuring programs. More fundamentally, banks are not required to participate in HAMP, suffer no penalty if they do not, and the program does not address the fundamental problem of homeowners whose mortgages exceed the value of their homes, since it does not provide for reduction of principal.

As to implementation of HAMP, the best we can do is direct you to some of the lawsuits filed by state attorneys general, which describe in detail the egregious conduct of Bank of America and others in staffing their HAMP programs inadequately, delaying, stalling, repeatedly losing homeowners’ applications, and generally engaging in practices (and policies) that have led the attorneys general to allege knowing and intentional violations of their state consumer protection statutes. See, e.g., Nevada v. Bank of America, Dist. Ct. of Nevada, Clark County, Case A-10-631557-B; Arizona v. Countrywide Financial Corp. and Bank of America Corp., Sup. Ct. of Arizona, Maricopa County, Case No. 2010-33580.

In sum, while the banks have been saved and prosper, the administration’s efforts at foreclosure protection have been both ineffective and resisted by the banks. And as reported to the New York Times on March 8, 2011, the program may soon be overhauled through some kind of settlement agreement between all 50 attorneys general (and the federal government) and the major mortgage servicers. The prospective settlement would likely include a settlement fund ($20 billion perhaps) and some restructuring of the HAMP program. But we cannot yet expect serious relief for those millions of homeowners still facing foreclosure, until the banks, which made millions of dollars in profits by engaging in and covering up predatory loans, are required to restructure those home loans by reducing the principal amount to accurately reflect the true current market value of a property.

David Kelston serves on the NLG Board of Directors and is a law partner at Adkins Kelston & Zavez.

By Gretchen Borchelt

Conservative lawmakers were elected to reduce the deficit and create jobs, but instead are making women’s lives more difficult and dangerous. They have targeted programs important to women across the board, but are particularly focused on gutting access to reproductive health care. Although a woman’s right to abortion has been the law of the land for almost four decades, attacks on it are escalating because of the increasingly hostile, anti-choice lawmakers in Congress and state legislatures.

Some of the attacks are obvious and consistent, such as attempts to ban abortion outright or to otherwise challenge the core protections of Roe v. Wade. Less obvious but just as dangerous to women’s ability to determine whether and when to have children are recent efforts to portray women’s reproductive health care as superfluous.

The aim is to reduce access to abortion and other reproductive health services by divorcing women’s reproductive health care from basic health care. This effort has gained traction since the Affordable Care Act. Displeased that the law maintains the status quo on abortion by allowing health care plans to decide whether to cover it, anti-choice lawmakers want to eliminate altogether insurance coverage of abortion. Fearful of requirements for insurance coverage of what they consider “lifestyle choices” such as contraception, conservative lawmakers want to prevent any such coverage mandate. These attacks pose a serious danger to Roe’s promise and have devastating consequences for women and their families.

At the federal level, the primary vehicle for separating abortion from basic health care is H.R. 3, a dangerous and misleading bill hailed by Speaker Boehner as one of Congress’s top priorities. Among other harmful provisions, H.R. 3 imposes a devastating tax increase on some families and small businesses that want to keep their comprehensive insurance plans that cover abortion. By increasing taxes on employers and individuals, H.R. 3 could not only force them to drop abortion from their health insurance plans, but could close down the entire private insurance market for abortion. It is an attempt to prevent women from obtaining abortion care by penalizing those who consider abortion coverage part of comprehensive health care.

At the state level, the issue has gained even more traction, due to the Affordable Care Act’s explicit invitation to pass laws banning insurance coverage of abortion in any Exchange established in the state. Five states passed these bans in 2010, joining those that already prohibit insurance coverage of abortion in all private health insurance plans in the state. This means that in nine states, women will not be allowed to use their own money to purchase an exchange-based health plan that covers abortion, and also may not be able to purchase a plan that provides insurance coverage for abortion at all. Similar bans on insurance coverage of abortion are sweeping the nation in the 2011 legislative sessions, and more are expected to pass.

These bans represent a radical departure from the status quo; most insurance plans cover abortion, so if these efforts are successful, women will lose benefits they currently have. Women will also face serious threats to their health, since the bans usually prohibit abortion coverage even for women with serious, permanent, and life-shortening health conditions, like cancer. The bans also punish women by imposing high out-of-pocket costs for services only they need, further exacerbating burdens women encounter in obtaining and paying for health care. But at their core, these efforts reflect an attempt by politicians to remove abortion from comprehensive health insurance, thereby undermining women’s access to abortion.

The attempt to denigrate women’s reproductive health goes beyond abortion. Conservative lawmakers at the federal and state levels are eliminating programs that provide birth control and other life-saving preventive health care to women. For example, the U.S. House of Representative’s spending plan completely eliminates the federal Title X program, which has provided contraceptive care, breast and cervical cancer screenings, and other preventive health care to low-income women for over forty years. Last year alone, the Title X program served more than five million low-income women and men.

The elimination of this program would be devastating for the nation, as illustrated by what has already happened in New Jersey. In 2010, Governor Christie completely eliminated state funding for family planning agencies, which affected access to contraception and other critical preventive services like routine gynecological exams, HIV testing and counseling, and screening and treatment for sexually transmitted infections. Already, 40,000 current patients have lost access and at least five health centers have closed. Other newly elected state governors, like Wisconsin’s, have proposed similar cuts in their states. Although they claim that eliminating this funding is necessary for deficit reduction, the opposite is true: research has repeatedly shown that preventive health services for women, including contraception, save money. Reproductive health care is basic health care for women, not excess or luxury.

These assaults on women’s reproductive health care are part of a larger effort to undermine the right to privacy and liberty enshrined in Roe v. Wade. Having been largely unsuccessful at swaying the public from its general support for Roe, conservative lawmakers have undertaken an ideological campaign to separate women’s reproductive health care from other medical care. In doing so, they hope to succeed in making access to contraception and abortion more difficult to obtain, with the ultimate goal of eliminating it completely. In response, women and their families need to reaffirm the centrality of women’s reproductive needs to health care generally, and demonstrate the importance of reproductive health care in women’s lives.

Gretchen Borchelt is Senior Counsel for Health and Reproductive Rights, National Women’s Law Center, Washington, DC.

By Chrissy Foot

In 2008, Obama won the support of the gay rights community with his inclusive rhetoric and ambitious campaign promises. Over the next two years, however, he disillusioned many of his gay supporters by failing to follow through on his major promises. The past few months, however, represent an uncharacteristically aggressive change in approach that will likely salvage his standing with this community.

After his slow start, the Republican gains in the midterm elections had the potential to exacerbate Obama’s lack of political will in this arena. However, perhaps surprisingly, he did not respond with more calculation and caution. Recently, he has both overseen the long-awaited demise of the military’s Don’t Ask Don’t Tell (DADT) policy and seriously curtailed the government’s defense of the Defense of Marriage Act (DOMA).

With respect to DADT, facing the end of the Democratic-controlled House, Obama stepped up his advocacy for ending the policy before the new Congressional term. Now at last, he exercised his political muscle to get the Senate to join the House in repeal. It was “difficult promise kept” because it “cost a lot of political capital and a lot of work . . . [yet] this is the President’s victory [ ] and his base will reward him for it,” predicted Rachel Maddow. See www.eclectablog.com/ 2010/12/rachel-maddow-this-is-presidents.html.

Obama’s actions with respect to DOMA, by contrast, were based in legal analysis and argument. In substance, this law: affirmed that states can set the rules for marriages within their borders (Sec. 1); announced that states can decide for themselves whether to acknowledge other states’ same-sex marriages (Sec. 2); and provided that states’ lawful same-sex marriages would be not recognized as valid under federal law (Sec. 3).

DOMA was passed in 1996 and signed by President Clinton, the same year the Supreme Court decided in Romer v. Evans that a Colorado law banning antidiscrimination protections for gay people was unconstitutional. That law could not survive even “rational basis” review under the Equal Protection Clause because its sole purpose stemmed from a “bare desire to do harm” to a politically unpopular group.

Among the subsequent legal challenges to DOMA were two consolidated District of Mass. cases that focused on Section 3: 1) Gill v. Office of Personnel Management challenged the denial of federally-based marital benefits (e.g., filing joint taxes, social security, job benefits) to legally married same-sex Massachusetts citizens, and 2) Massachusetts v. Health and Human Services brought a 10th amendment challenge to the federal government’s intrusion into this area of traditional states’ rights. In his 2010 decision, Judge Tauro examined and rejected each rationale for the law offered by the government, finding that none served a legitimate government purpose. Gill v. OPM, 699 F. Supp. 2d 374 (D. Mass. 2010).

Last month, Attorney General Holder informed Speaker Boehner of the President’s decision that DOJ would stop defending DOMA in two Second Circuit cases and the Section 3 portion of the First Circuit cases. Holder conveyed DOJ’s new analysis that heightened scrutiny, rather than rational basis review, was appropriate.

In its reanalysis of the level of scrutiny, DOJ evaluated the factors for when a classification was “suspicious” and found that each supported heightened scrutiny: (1) whether the group has suffered a history of discrimination; (2) whether the group’s distinguishing characteristics have little relation to legitimate policy objectives or to an individual’s “ability to perform or contribute to society”; (3) whether the group is a minority or is politically powerless; and (4) whether individuals “exhibit obvious, immutable or distinguishing characteristics that define them as a discreet group.”

Under heightened scrutiny, DOJ needs to show that DOMA is substantially related to serving an important government interest. However, DOJ cited evidence that the “purposes” behind DOMA had more to do with moral disapproval, stereotypes, and private biases, than with any actual governmental interest. Therefore, DOJ concluded that it could not establish constitutionality.

DOJ’s withdrawal of legal defense is provided for by 28 U.S.C. § 530D. While rare, the last four presidents each used this process. See www.glad.org/ uploads/docs/publications/doma-doj-faq.pdf. As required, Holder’s letter to Boehner invited Congress to take over the litigation, if desired. It also stopped short of withdrawing from the cases, to the extent that non-Section 3 challenges remain, or that the courts do not apply heightened scrutiny. Further, it made clear that the government would not stop enforcing the law and that agencies will continue to comply with it, unless it is overturned by the courts. Speaker Boehner has asked Congressional lawyers to defend DOMA. Meanwhile, Senator Feinstein and Representative Nadler have each introduced bills (“The Respect for Marriage Act”) to repeal it.

A recent poll shows that for the first time, more support same sex marriage than oppose it. This may show that, true to his cautious form, Obama is more following popular opinion than truly leading. Even so, these recent events represent quite a turnaround. Indeed, “the practical impact of the US Government placing its prestige behind the proposition that gay people can not be made second class citizens under our constitution, it is difficult to overstate,” said Tobias Wolff, Law Professor at Univ. PA and Obama Campaign Legal Advisor.

Chrissy Foot, former member of the NLG Board, is a federal attorney in Boston and an active member of the Guild.