Leonard Link

"Compulsion", a new play by Rinne Groff at the Public Theater

I attended the matinee performance of "Compulsion" at the Public Theater this afternoon.  Mandy Patinkin stars, with a supporting cast of Hannah Cabell and Matte Osian.  Patinkin plays a thinly disguised version of Meyer Levin, under the name of Sid Silver.  This is a dramatization of the struggles of Levin over the dramatization of The Diary of Anne Frank. 

The Silver character served in the US military in Europe during WWII, participating in the liberation of the concentration camps, married a young French woman, and then became obsessed with The Diary of Anne Frank when his wife gave him a copy of the French language publication.  He contacted Otto Frank and thought he had an arrangement to represent Frank in attempting to get an American publisher to take up the work.  But it turned out that Frank was dealing directly with Doubleday, and Silver's role is minimized, although he is encouraged to review the book for the NY Times, writing a piece that helps to boost it to the best seller list.  He also thinks he has a deal with Frank to write the stage play based on the Diary, but is edged out by publisher and producer in favor of experienced writers who will produce something "more commercial" (i.e., "less Jewish" and more "universal" in appeal).  Silver's struggles continue, endangering his marriage and his sanity, and he dies an embittered man, after having moved to Israel and gotten a Hebrew language production of his own adaptation to be staged, only to be quickly shut down over threat of legal action.

The story is one of a man obsessed, who is determined that the story be told in all the fullness of Anne Frank's Jewish identity, and crushed as he is excluded at every turn by those who want this to be a "universal" story that will not be seen as just being of "narrow" Jewish interest.

The issue of who owns this story and how it should be told are central here.

Patinkin plays the main part as a man obsessed, bitter, argumentative, possible to understand but hard to like, and eager to pick fights with both friend and foe.  Hannah Cabell is effectively playing two characters - Silver's French wife and the junior executive at Doubleday with whom he deals on publication issues.  Matte Osian slips from character to character, playing publishing executives, a lawyer, and finally an Israeli theater producer.

What really struck me apart from the story and acting as such (and effective direction by Oskar Eustis) was the extraordinary set designed by Eugene Lee.  Effective use is made of puppetry, lighting, and, at the beginning, effectively setting the mood, to a recording of the beginning of Mahler's 10th Symphony - appropriately, a yearning, unfinished work.

The theater was packed - every seat occupied.  Despite the mixed critical reviews, this seems to be a success by Public Theater standards.

Inon Barnatan's Spectacular Recital at Peoples' Symphony Concerts

Tonight I attended the spectacular recital by Israeli-born, New York-based pianist Inon Barnatan at Peoples' Symphony Concerts, Washington Irving High School.  I had not heard of Barnatan prior to receiving the announcement of this concert, but a visit to his website filled me in nicely before the event.  Barnatan has studied with many fine teachers and has had concerto debuts with several leading orchestras in the U.S. and abroad.  He has one solo commercial recording to his credit so far, a Schubert disc (second set of Impromptus and the D960 Sonata) that was for sale at intermission.  I'm listening now as I write this, and the disc, although made several years ago, captures the same special quality that I heard tonight.

This special quality, which only the best pianist-musicians possess, is the ability to create an effect of spontaneity in their playing even thought it is clear that what they are doing has been very well thought-out and rehearsed.  When this is combined with an extraordinarily sensitive touch that creates the most beautiful piano tone I've heard in a long time, one has a fantastic musical experience in store.

Mr. Barnatan assembled a program centered on a very loose theme - the idea of some sort of "awareness of what lies beneath" in all the pieces, according to a footnote in the program.  I'm not sure I understand what he is getting at here, but I found it to be a program that cohered very nicely.

The first half began with Claude Debussy's Suite Bergamasque, an early piece not quite characteristic of the mature Debussy although it includes one of his most famous compositions: Clair de Lune.  Each movement of this 4-movement suite needs to be carefully characterized, and Barnatan did an excellent job of capturing the special quality of each.  From the very first notes, his beautiful tonal production swept me away and held me enraptured.  Even at extremes of dynamic range, the piano always sounded beautiful, the tone full and rounded.  His soft playing was exquisite, his loud playing full of well-contained power.

Debussy was followed by an arrangement by Ronald Stevenson of a piano fantasy using thematic material from Benjamin Britten's opera, Peter Grimes.  (I'm assuming it is composer-pianist Ronald Stevenson who was the composer here; the program just says "Arr. Stevenson" and there are no explanatory notes.)  This was hard to judge on first hearing.  It certainly held my attention with its dramatic contrasts of mood, but I would want more familiarity before saying much more about it.  The same goes for Darkness Visible by Thomas Adès, a brief piano fantasy that apparently provided the thematic inspiration for the entire recital program, as the pianist placed its title at the top of the program.  Both of these pieces showed that Mr. Barnatan has a flair for contemporary piano music, which is refreshing from a young pianist, as so many of them seem to want to concentrate on the same Chopin-Schumann standards.

He ended the first half with the solo version of Maurice Ravel's La Valse - a pardonable bit of exhibitionism.  This is an orchestrally-conceived piece and in one sense there is no reason to play it in a piano recital except to show off.  On the other hand, one does get a different dimension of the piece from hearing it in the relative "black and white" of the piano instead of the glittering sonic "colors" of Ravel's orchestration.  It was an exciting way to end the first half.

After intermission, with a complete change of place, we had Franz Schubert's Piano Sonata in A, D. 959.  This is a very strange piece, especially the second movement Andantino as played by Barnatan to emphasize the strangeness.  Nothing was smoothed over or stifled; instead, extremes of dynamics were faithfully produced, pauses were given their full length, and that air of spontaneity was especially effective in the dramatic moments of loud anguish in the Andantino.  The scherzo struck me as a bit rhythmically unmoored the first time through the opening statement, but gradually the rhythmic underpinnings came clear, and the repetition after the "trio" section made much more sense.  The final Allegretto was played with an extraordinary sense of joy by the pianist, with a bit of a smile in the sound as well as on his face.  This pianist is very adept at transmitting emotion through music.

The audience responded to all of this with great enthusiasm, earning two encores: Felix Mendelssohn's "Introduction & Rondo Capriccioso" and a fast sonata by Domenico Scarlatti with lots of impressive hand-crossings, to send the audience out on a high note.

I was eager to hear more, so purchased the CD at intermission, and am enjoying it now.  A visit on-line showed that there is also a violin sonata diskof Beethoven and Schubert, which I now have on order from cduniverse, which lists it as an import (Amazon hadn't heard of it), and there are downloads available through the pianist's website from various concert performances.  I hope there are more CDs to come, and I hope he will get to play with the New York Philharmonic some time soon.  This pianist is a treasure to be savored.  Add another triumphant discovery for Peoples' Symphony Concerts!

Justice Department's Brief in 9th Circuit Military Appeal Tries to Refocus the Case

On February 25, the Department of Justice (DOJ) filed its brief supporting its appeal of U.S. District Judge Virginia Phillips' ruling last year in Log Cabin Republicans v. United States, 716 F.Supp.2d 884 (C.D.Cal. 2010), in which she held that the "Don't Ask, Don't Tell" military policy, codified in 10 U.S.C. § 654, was facially unconstitutional and should be immediately enjoined from enforcement on a worldwide basis.  DOJ had previously sought to forestall having to file a brief, in light of the December enactment of the "Don't Ask, Don't Tell Repeal Act of 2010" and the impending demise of the policy, but a motions panel of the 9th Circuit rejected the request to hold the appeal "in abeyance" pending implementation of the new statute, and ordered that DOJ file its principal brief in support of the appeal by February 25.

In light of subsequent events, the DOJ brief attempts to refocus the substantive component of the appeal.  Originally, of course, DOJ was appealing not just on the issues of LCR's standing to bring the case and the extent of the district court's remedial authority, but also on the merits of the ruling that the DADT policy is unconstitutional.  Technically, the issues raised in the filing of the appeal are what DOJ should be addressing in this brief.  Instead, in a somewhat unusual move, the brief seeks to change the question for the court on the merits.  Almost as if conceding that the district court's ruling on the merits has been superseded by events, DOJ reframes the question as follows:  "Whether Congress lacked the constitutional authority to establish an orderly process for repeal of § 654, while keeping the former statute in place and maintaining the status quo during the transition in policy."

That, of course, is a different question from the one raised on appeal last fall, but the refocus seems consistent with the announcement last week that DOJ now concedes that equal protection claims concerning sexual orientation require heightened scrutiny.  In the Log Cabin Republicans case, the district court had dismissed the equal protection claim as required by 9th Circuit precedents that had upheld the DADT policy in prior litigation under that legal theory, so the case proceeded only on due process and free speech grounds.  Such a concession, of course, would suggest that the district court's dismissal of the equal protection claim, which is being cross-appealed by Log Cabin Republicans, should be reconsidered as part of the appeal and that DOJ would not contest a demand for heightened scrutiny on that claim by LCR.

But the easiest way for the 9th Circuit to put off having to decide anything about the merits of this case, as to which mootness is looming, would be for it to find that LCR lacked standing when it filed its complaint back in 2004,shortly after the Supreme Court's decision in Lawrence v. Texas, and a large portion of DOJ's brief is devoted to arguing -- rather persuasively -- that the district court's ruling on standing was mistaken.  In order to have organizational standing to contest the constitutionality of a statute, an entity must have members whose constitutional rights are threatened by enforcement of the statute.  DOJ persuasively argues that at the time LCR filed its initial complaint in the case, it had no members upon whose individual standing it could rely to claim organizational standing -- i.e., no members who were then active duty military personnel threatened by enforcement of the policy.  LCR sought to avoid this problem by conferring "honorary membership" on Alexander Nicholson, director of Servicemembers United, an organization devoted to ending the policy, but DOJ persuasively argues that Nicholson could not provide such standing because at the time he was no longer a member of the military and by all accounts was not a Republican, and therefore was not qualified for membership in LCR according to the membership requirements in its by-laws.

LCR sought to cure this problem prior to filing an amended complaint by recruiting an active-duty military member to join the organization on an anonymous basis, but DOJ argues that such an honorary "hypothetical" member could not serve to establish standing without credible allegations that the individual in question was threatened with enforcement of DADT.  Here DOJ's argument loses persuasiveness, since the essence of the policy is that forfeiting anonymity would immediately subject the "John Doe" plaintiff to discharge.  DOJ argues that past challenges to the policy have not proceeded anonymously, but this argument overlooks two things: those past individual challenges all involved servicemembers who had been "outed" in some respect, and in fact the largest "test case" challenge brought jointly by ACLU and Lambda Legal in the 2nd Circuit was brought on behalf ofa group of anonymous servicemembers, who were identified as Able, Baker, Charlie, etc., for precisely this reason.  On firmer ground, DOJ urges that because the "John Doe" member was not recruited to join LCR until shortly before the amended complaint was filed, LCR could not establish standing because that issue most be determined as of the date of filing of their original complaint, at which time they did not know of any active duty servicemembers in their organization.  DOJ also notes that there is no allegation that the "John Doe" member is still serving or has maintained his membership in LCR, which would be required under the theory that standing must be maintained throughout the case.

In other words, if the 9th Circuit panel is looking for a way out to avoid having to struggle with the evolving state of the law concerning anti-gay government policies, they can grab on to one or more of the technical arguments on standing advanced by DOJ and order that the district court's decision be vacated and the case dismissed on that basis.

Alternatively, of course, although this strikes me as somewhat irregular, they could accept DOJ's attempt to reposition the merits question and consider solely whether the current situation, in which Congress has passed the Repeal Act and implementation is proceeding with a likely culmination before the end of this year, is sufficient to meet any constitutional requirements.  As to this, DOJ notes that the motion panel that granted the stay apparently sympathized with DOJ's argument that an orderly repeal process for the policy was necessary to avoid undue disruption of the military, and that this consideration, given the customary deference to the political branches on issues of military policy, counseled against affirming the district court's injunction.

I expect that LCR's responding brief will vociferously protest DOJ's attempt to reframe the question before the court, as not having been litigated below (of course, it couldn't have been, since the Repeal Act wasn't passed until months after the district court ruled), and of course they will reiterate the district court's affirmative ruling on standing and on the grounds for injunctive relief.  As to this last point, DOJ insists that because the case was not certified as a class action on behalf of all LGB people currently serving in the military, the only proper relief would be narrowly focused on protecting "John Doe" and forbidding the DADT policy from being used to block Nicholson from re-enlisting and serving again if he seeks to do so.  If the 9th Circuit were to buy that argument, the case effectively goes away, since by the time the 9th Circuit would get around to ruling, the entire case would likely be mooted in any event by implementation of the Repeal Act.

It's all a tangled mess, and it actually makes little sense for the 9th Circuit to schedule oral argument as long as the Defense Department seems to be moving expeditiously towards completing its transitional activities and joining the President in certifying the necessary statements to Congress.  The DOJ brief alleges that this process is well underway, new policies have been devised and training is soon to begin, with an intent to complete the process in a matter of months, not years. The appeal shouldn't be dismissed, and the district court's decision shouldn't be vacated for now, since holding this sword over the Defense Department may help to ensure the efficient completing of the task.  (And one suspects that Judge Phillips' provocative world-wide immediate injunction might have been calculated to help move things along, with an expectation that it would not be allowed by the 9th Circuit to go into effect but might aid those trying to persuade Congress to repeal the policy.  Certainly, Secretary Gates made good use of the threat of precipitate court action as a reason to pass the Repeal Act.)  In any event, repeal seems imminent, making this case a bit of a side show.

American Symphony presents Music of Spain: Composers of the Civil War

American Symphony music director Leon Botstein's main focus has usually been on music from central Europe, but now and then he veers sharply away to examine other musical traditions.  Last night's concert at Carnegie Hall provided one of those excursions, presenting performances of rarely-heard music by three self-identified Spanish composers whose lives were affected by the Spanish Civil War of the 1930s.  The result was a fascinating evening of discovery under the guidance of this intrepid musical explorer.

First up was Joaquin Turina (1882-1949), who embraced the fascists during the war and became the favorite composer of the young Franco regime.  A musical conservative whose music was heavily influenced by the most celebrated Spanish composer of the pre-war period, Manuel de Falla, he wrote  with a heavy Spanish folk-accent, his music tonal and sumptuously orchestrated.  His Sinfonia sevilliana, Op. 23, dating from 1920, provided an interesting introduction to the concert and to his music, although falling a little short of the title theme, as it so thoroughly predated his Civil War experiences.  Nonetheless, the work is tuneful and attractive, especially the middle movement with its heavy overlay of French impressionism.  (Turina studied in Paris.) 

Next we had the first of two samples of the music of Roberto Gerhard (1896-1970), whose inclusion in this concert prompted me to use the phrase "self-identified Spanish composers" above, for he was born, according to the informative historical program note by musicologist Byron Adams, to a Swiss father and an Alsatian mother, although he "proudly and defiantly considered himself truly Catalan."  His musical studies took him to Vienna and early-to-mid-20th century modernism of the dodecaphonic variety, as opposed to the more usual French orientation of Spanish composers of his time.  He sided with the Republicans in the Civil War and ended up fleeing to Great Britain after the victory of Franco's forces.  Thus a major part of his career was spent in England, and the music played on this program all post-dates his years of Spanish residency.

Before intermission, we heard his ballet music for Don Quixote, dating from the 1940s.  Although Gerhard used 12-tone techniques to generate the melodic materials, according to Adams, one would hardly detect this without being told, because the music is quite dramatic and tuneful in its way, and hardly prepares one for the shock of his 4th Symphony, which concluded the program.

After intermission, we heard a late work of Manuel de Falla (1876-1946), his Homenajes (Homages), written during his post-Civil War exile in Argentina.  The most conservative music on the program, this is a set of four brief pieces, each paying tribute to an important person in de Falla's musical life.  An opening wind fanfare celebrates Enrique Arbos, best known today as an orchestrator of piano works by Granados, and as the conductor of important early recordings of Spanish music.  Next is a tribute to Claude Debussy, whose impressionism influenced the development of Spanish music among the young composers who flocked to France to study.  Paul Dukas, another French composer respected by de Falla, is saluted third, and the finale, "Pedrelliana," remembers the important Spanish composer and pedagogueFelipe Pedrell, de Falla's composition teacher.  This is all vividly orchestrated and permeated with Spanish folk elements.  I can strongly recommend Ernst Ansermet's recording of this piece.  The ASO did it proud.

Finally, we had Roberto Gerhard's Symphony No. 4 "New York," written on commission from the NY Philharmonic as part of its 125th anniversary commissions during the 1960s and premiered by that orchestra in 1967.  They did not take it into their permanent repertory (has anyone heard the NYP play it again since the premiere?), and one can hear why immediately.  This is very abstruse music in the thrall of the 1960s avant-garde.  Little bits and pieces of tunes creep in from time to time, but this one-movement work is mainly devoted to texture and dramatic gesture.  It is hard to follow a thread of musical argument through the piece, but one suspects that repeated listening might lead one to find more in that direction than at first appears.  I thought the orchestra struggled with it a bit, as the writing, especially for the strings, sounded quite virtuosic.  There is much imaginative use of percussion.  I didn't come away liking the piece, but not disliking it either, feeling rather neutral and interested in hearing it again.

This concert helps to explain why the ASO is such a valuable part of NYC's musical life. Although none of the works were billed as US or NY premieres (as frequently occur on their programs), none of these works have had frequent exposure on our concert programs.  Actually, Spanish orchestral music is mainly ignored by our leading musical institutions in this city, apart from an occasional trotting out of de Falla's ballet music, and I would love to hear more of it.  One contemporary Spanish composer whose works I've been exploring is David Del Puerto, and it would be great if the ASO would take him up....

The Prop 8 Case - Will It Ever End?

The 9th Circuit gave notice today that it received a motion to intervene in the pending appeal in Perry v. Schwarzenegger by Chuck Storey, who was elected Imperial County Clerk last year and recently took office.  Last fall, the Imperial County Deputy Clerk unsuccessfully sought to intervene as an Appellant in order to lend the standing of a governmental office so that the district court's decision striking down Prop 8 could be appealed.  The question whether the Proponents of Prop 8 had standing to appeal is pending before the California Supreme Court and, ultimately, the 9th Circuit, and is the subject of some doubt in light of US Supreme Court precedents under Article III.  Neither the governor nor the attorney general nor any other named defendant in the case had sought to appeal, and the lawyers for American Foundation for Equal Rights (AFER), the sponsor of the lawsuit attacking Prop 8, argued that the Proponents do not have standing to appeal in the absence of an appeal by a California public official.

In its January decision rejecting the Deputy Clerk's attempt to intervene, the court suggested that if anybody had standing, it might be the actual elected County Clerk, but surely not the clerk's appointed deputy.  "Where is the County Clerk?" rang out from the bench during oral argument.  Well, now the County Clerk wants to participate.  Is he too late?  Will the court reject his motion as untimely?  Or will it re-open and schedule a new hearing to determine whether the actual County Clerk has standing, in which case there would be no need to wait for the California Supreme Court to answer the certified question on whether Proponents have standing as a matter of California law, which threatens to delay the case by as much as a year or more.

Postscript added March 2:  This week, the newly elected Governor and Attorney General of California were substituted as named respondents in the Prop 8 case appeal, so now the case is known as Perry v. Brown (even more ironic than its original title, seeing as how Brown, when Attorney General, opined that Prop 8 is unconstitutional).  Also, briefing was submitted on behalf of Brown and A.G. Harris in support of respondent's petition to lift the stay.

Another Department Heard From: NY Appellate Division, 1st Department, Affirms Recognition of Same-Sex Marriage Performed in Canada

Adding to the body of appellate precedents recognizing same-sex marriages in New York, the Appellate Division, 1st Department, ruled today in Ranftle v. Leiby, No. 4214 (Index 4585/08), that a same-sex marriage performed in Canada in 2008 would be recognized in New York for purposes of probating the will of one of the spouses. 

The unanimous ruling by a four-judge panel, affirming N.Y. County Surrogate Kristen Booth Glen's refusal to allow the decedent's brother to contest the will, is the first such ruling by the appellate court whose jurisdiction covers Manhattan and the Bronx, and cites as precedent the 4th Department's ruling in Martinez v. County of Monroe, 50 App.Div.3d 189, appeal dismissed, 10 N.Y.3d 856 (2008).  The 3rd Department has also ruled in favor of same-sex marriage recognition, in Lewis v. N.Y.S. Department of Civil Service (2009), and the 2nd Department has cited Martinez twice, although it has not yet issued a direct ruling on the question.

According to the court's memorandum opinion, the decedent Ranftle executed his last will and testament on August 12, 2008, two months after marrying Leiby in Canada.  Decedent appointed Leiby as the executor of his will, which includes an in terrorem clause.  Ranftle died soon thereafter, and Leiby filed a petition for probate on December 12, 2008, identifying himself as surviving spouse and sole distributee.  (When a married person dies, his or her surviving spouse and any offspring are the only distributees under New York law.  A distributee is somebody who would be entitled to inherit by operation of law in the absence of a valid will.)  Under the will, Ranftle left bequests to his three brothers and a goddaughter, and named Leiby to receive the rest of his estate. On the same date, Leiby served notice of probate on  the legatees (those who were to receive bequests).  Three days later, Surrogate Glen issued a decree granting probate.

On January 26, 2009, Surrogate Glen followed up her decree with a written opinion formally finding that Leiby was "decedent's surviving spouse and sole distributee" and so it was not necessary for the court to issue "citation of the probate proceeding" to anybody else.  Had Ranftle died without leaving a surviving spouse, citation of the probate proceeding (i.e., notice to the distributees that a will has been filed for probate) would have to be issued to those who would be entitled to inherit as a matter of law in the absence of a valid will, so they would have an opportunity to apepar in the proceeding to contest the will.  Such an opportunity is denied to legatees or others under New York law when a married person dies, as the spouse and any surviving offspring would be the only recognized distributees. 

Wrote the Appellate Division: "The [Surrogate's] court found that the decedent's same-sex marriage to respondent was valid under the laws of Canada, where it was performed, and did not fall into either of the two exceptions to the marriage recognition rule, as the marriage was not affirmatively prohibited or proscribed by natural law.  Accordingly, the Surrogate's Court found that the marriage was entitled to recognition."

But one of Ranftle's brothers, Richard, claimed that the marriage was not valid in New York and petitioned the Surrogate's Court to vacate the probate decree and allow him to file objections.  He claimed that the court lacked jurisdiction to probate the will because recognizing the marriage would violate public policy, and failure to give him appropriate notice of the pending probate proceeding as a distributee meant the court did not have proper jurisdiction to probate the will.  Denying the petition, Surrogate Glen cited the Martinez decision, stating that Richard Ranftle's argument "is patently without merit."  "We agree," wrote the Appellate Division panel, finding that "Same-sex marriage does not fall within either of the two exceptions to the marriage recognition rule." 

Ranftle had argued that the legislature's vote against the Marriage Equality bill in December 2009 reflected a public policy against same sex marriage.  The court rejected this contention, stating, "The failure of the Legislature to enact a bill 'affords the most dubious foundation for drawing positive inferences.'  Thus, the Legislature's failure to authorize same-sex couples to enter into marriage in New York or require recognition of validly performed out-of-state same-sex marriages, cannot serve as an expression of public policy for the State.  In the absence of an express statutory prohibition legislative action or inaction does not qualify as an exception to the marriage recognition rule."

The Manhattan firm of Weiss, Buell & Bell and Lambda Legal are co-counsel for Leiby and the Ranftle Estate on this appeal.  Lambda's Susan Sommer argued before the Appellate Division.

Obama Administration Declines to Defend Constitutionality of Section 3 of the Defense of Marriage Act

Facing an imminent deadline on March 11 to file either an answer or a motion to dismiss in two lawsuits challenging the constitutionality of Section 3 of the Defense of Marriage Act pending in federal district courts in New York and Connecticut, which necessarily meant taking a position on the level of judicial scrutiny to be applied to a law that discriminates based on sexual orientation within a circuit (the 2nd Circuit) that has no established precedent on the issue, the Justice Department and President Obama have agreed that a "heightened scrutiny" standard should apply and that under this standard Section 3 is unconstitutional.

As a result, according to an announcement today by Attorney General Eric Holder, the Justice Department will not be filing a motion to dismiss the two pending cases, Windsor v. U.S. (pending in New York) and Pedersen v. Office of Personnel Management (pending in Connecticut),and will presumably file answers to the two complaints conceding that under the appropriate standard of judicial review, Section 3 is unconstitutional.  It was less immediately clear how the Justice Department might proceed in another DOMA challenge now pending at the trial stage in California, Dragovich, where the Department recently loss a dismissal motion, or -- most significantly -- in an appeal the Department has filed in the 1st Circuit Court of Appeals from a ruling last summer by U.S. District Judge Joseph Tauro, Gill, finding that Section 3 does not even meet the less demanding rational basis test followed under 1st Circuit precedents.

Congress passed the Defense of Marriage Act and President Clinton signed it into law in 1996, shortly before voters were to go to the polls to elect a new Congress and to re-elect Clinton.  Section 2 of the Act, which is not involved in the pending lawsuits, provides that states are not required to give full faith and credit to same-sex marriages contracted in other states, purportedly exercising Congress's authority under the Full Faith and Credit Clause of the Constitution to determine how it should be applied.  Section 3 provides that the federal government would not recognize same-sex marriages for any purpose of federal law.  As of today, no federal appellate court has questioned the constitutionality of either provision.

When DOMA was passed, and still to this day, the Supreme Court had not declared what the appropriate standard would be for federal courts to evaluate the constitutionality of laws that discriminate on the basis of sexual orientation.  Under that court's precedents, laws that discriminate on the basis of a "suspect classification," such as race, are subjected to "strict scrutiny," a test under which the law is presumed unconstitutional and a heavy burden of justifying it as necessary to achieve a compelling public interest falls upon the government. 

Laws that do not use a "suspect classification" are normally presumed to be constitutional unless the court cannot imagine any rational non-discriminatory justification for them, the so-called "rational basis test."  However, the Supreme Court has recognized that certain characteristics, such as sex, occupy an intermediate position between these extremes, and has evaluated sex-based classifications using "heightened scrutiny," under which the burden of justifying the law as significantly advancing an important non-discriminatory governmental interest falls on the government.

In Romer v. Evans, a 1996 ruling issued shortly before DOMA was passed, the Supreme Court held unconstitutional Colorado Amendment 2, a state constitutional amendment adopted by popular initiative that prohibited the state or any of its political subdivisions from protecting gay people from discrimination.  The Supreme Court found this to be a facial violation of the 14th Amendment's Equal Protection Clause, not justifiable by any hypothetical or real non-discriminatory state interest, and did not discuss what level of scrutiny should be applied in general to laws that discriminate based on sexual orientation.  When the Supreme Court struck down the Texas Homosexual Conduct Law in 2003 in Lawrence v. Texas, it based the ruling on the Due Process Clause rather than the Equal Protection Clause, thus expressing no view on the appropriate method for analyzing sexual orientation discrimination claims.

Thus, the Supreme Court has not set a standard for reviewing such claims, leaving it up to each of the federal appellate circuits to devise its own approach until the Supreme Court finally decides the issue.  So far, every circuit court to address the issue has applied the "rational basis test," but many of those rulings pre-date Romer and Lawrence and don't take account of those important precedents.  Many of those circuit court decisions were strongly influenced by the Supreme Court's 1986 decision Bowers v. Hardwick, which rejected a constitutional challenge to the Georgia sodomy law.  Courts reasoned that if gay sex could be made a crime, then gay people were not entitled to constitutional protection from governmental discrimination. The Supreme Court overruled Bowers in Lawrence, stating that it was incorrect when it was decided.

In cases subsequent to Lawrence, however, many circuit courts, including the 1st and 9th, have continued to adhere to the view that sexual orientation discrimination claims are to be analyzed under the rational basis standard.  In defending Section 3 of DOMA in pending cases in those circuits, the Justice Department has relied on those precedents and argued to trial judges that rational arguments could be made to support the statute.  However, the 2nd Circuit, whose jurisdiction covers New York and Connecticut, has no precedent on this issue, forcing the Justice Department for the first time since the Lawrence decision to have to make an argument in federal court about the appropriate level of review when it responds to these new lawsuits.

In preparing to either move to dismiss the New York and Connecticut lawsuits or to answer those complaints, the Justice Department undertook a review of the case law on equal protection and concluded that it could not plausibly argue that a law that intentionally discriminates based on sexual orientation should be evaluated under the "rational basis test."  In a letter that Attorney General Holder sent today to Rep. John Boehner, the Speaker of the House of Representatives, explaining the Administration's new position, Holder laid out the full analysis undertaken by DOJ, and its subsequent recommendation to President Obama, that sexual orientation classifications should be analyzed under the "heightened scrutiny" test, and that when subjected to that test, such classifications would be found unconstitutional.

As Holder explained, under a "rational basis" approach, the Department could argue that there were hypothetical justifications that might be advanced for the federal government to refrain from recognizing same-sex marriages.  The one upon which the Administration relied most heavily in defending Section 3 in the Gill case, decided in Boston last year, was a federal interest in uniformity, i.e., that eligibility for marriage-based federal benefits should not vary from state to state, as arguably would be the case if qualifications for marriage differed fundamentally from state to state.  Another argument was a desire by Congress to be "neutral" on the question of same-sex marriage as the issue was sorted out on a state-by-state basis. 

But that was not really the basis upon which Congress passed DOMA and, as Holder states in his letter, when a statute is subjected to "heightened scrutiny," it can't be defended based solely on such hypothetical rationalizations, but rather must be defended on the basis of the reasons articulated by Congress when it passed the law.  A review of the legislative history shows that Congress did not articulate any reasons that would be defensible under present-day constitutional analysis, as they were all based on the view that gays are morally inferior beings whose defining sexual acts are subject to criminal punishment, as one would conclude from reading statements made by members of Congress supporting the bill during the legislative debate. 

After Lawrence v. Texas, such arguments will no longer sustain a discriminatory statute.  Indeed, last summer Judge Tauro in Boston concluded that DOJ's proffered arguments were insufficient to uphold the statute under rational basis review, and District Judge Claudia Wilkens reached the same conclusion last month in her ruling denying the government's pending motion to dismiss in a California DOMA challenge.

Usually the Justice Department will defend statutes that are challenged in lawsuits against the government, and the Obama Administration has invoked the customary practice to justify its defense of DOMA (as well as the "Don't Ask, Don't Tell" statute) in pending lawsuits.  However, says Holder, when the President and DOJ become convinced that a statute is unconstitutional and that there are no longer any legally reasonable arguments that can be made in its defense, it is time to throw in the towel, as it were, and to concede the point.  This puts the Department in an odd position, especially when a bill to repeal the statute is pending in Congress but has so far had no real traction.  As Holder notes, defending statutes is part of DOJ's obligation to Congress, a co-equal branch of government.  And so, Holder says in his letter to Speaker Boehner, the Administration will do everything necessary to facilitate allowing a legal representative of Congress to join the case in defense of DOMA if Congress wants to undertake its defense.  While DOJ will continue to represent the government in these pending lawsuits, it will no longer argue that the statute is constitutional.

On the other hand, the President and DOJ do not have authority to unilaterally ignore statutes that are on the books, and so Holder announced that pursuant to the President's direction, the executive branch will continue to abide by Section 3 of DOMA until it is either repealed or finally declared unconstitutional by a court.  A final declaration of unconstitutionality by a court would presumably consist of either a decision declaring Section 3 unconstitutional by the Supreme Court or, perhaps, such a ruling by a federal court of appeals as to which Supreme Court review is sought but denied, or perhaps in which the Supreme Court summarily affirms the court of appeals without an opinion.

In his first response to these developments, Speaker Boehner questioned the timing of this major change in Administration position when there are so many other pressing issues looming for resolution, but the timing was dictated by the necessities of the litigation process, surely not by any desire by the President to stir up this contentious issue at this precise moment.  Making this decision now gives Congress - and, more particularly, the Republican-controlled House, which is the chamber more likely to seek to defend DOMA -- at least a few weeks in which to hire counsel and frame its own motion to dismiss or answer to the two pending complaints.

Holder's official statement and letter to Boehner leave unaddressed an important ramification of the Adminstration's decision about the DOMA case: its impact on the pending appeal in the 9th Circuit of the Log Cabin Republicans' challenge to "Don't Ask, Don't Tell."   DADT is a prime example of a law that discriminates on the basis of sexual orientation.  The trial judge in that case, District Judge Virginia Phillips, used "heightened scrutiny" to strike down the law based on an earlier ruling by the 9th Circuit in the case brought by Margaret Witt to challenge her discharge from the Air Force Reserve, that court concluding that after Lawrence v. Texas a law that burdens the intimate association rights of gay people must be subjected to heightened scrutiny.  Accepting that as the rule of the 9th Circuit, the Justice Department argued that DADT survived heightened scrutiny due to the special needs of the military, but lost the argument before the District Court.  The Department's new position on equal protection suggests that the equal protection part of LRC's case should acquire new life as well, although that might not change DOJ's litigation strategy, which at this point continues to rely on the argument that deference to the political branches requires the court to uphold DADT.  The main problem with that argument now, of course, is that the political branches have passed a law provisionally repealing DADT, so the argument loses all logical force. 

Postscript - For a very fine analysis of the potential impact of this move by the Administration in the battle for protection of public employees from sexual orientation discrimination, check out this blog post: http://www.bilerico.com/2011/02/president_obama_strengthens_enda_by_rejecting_doma.php

 

"Unknown" - The Film

In Ormond Beach, Florida, visiting my Mom, who asked to go out to a movie.  Despite the fact that the local multiplex has 12 screens, we were really scratching to find something to see.  The handful of films that I would want to see I had already seen in New York.  She doesn't get out much and hasn't seen many.  The only one that I hadn't seen that sounded worth seeing based on the description on moviefone.com was "Unknown," which opened last Friday and was #1 nationally over the holiday weekend.  So off we went.

This is all Liam Neeson, all the time.  The entire story is told from his perspective.  The premise is that he and his wife arrive in Berlin to attend a scientific conference at which he is scheduled to speak.  Upon arriving at their hotel, he realizes that his briefcase didn't make it into the taxi back at the airport.  Without a word to his wife, who has gone in to register for their room, he hops into another cab, heading back to the airport to try to find his briefcase.  His cab gets into a freak accident, dumping them off a bridge into a river and he is knocked out.  When he awakens in a hospital four days later, his memory is playing tricks on him.  When he goes back to the hotel, nobody knows him and there is no sign of his wife....

To say more than this would be to start to give away stuff beyond what is in the widely-distributed trailer, except to say that his identity is a big question mark throughout the film.

I found this to be fast-paced, well acted, and more than a bit incredible.  Indeed, thinking about it after the fact, I can think of details I might have changed to make it slightly more credible.  It includes one of the most fantastic car chases I've ever seen on film, and I've seen many, many car chases on film.

Is it a great movie?  No.  Is it good escapist fare?  Yes.  Can you take your mom?  There's no really explicit sex, but quite a bit of violence and killing.... all integral to the plot, of course.  My mom was baffled throughout... and even the final scenes where stuff gets sorted out did not enlighten her.  (Even my explanation after the movie did not really enlighten her.)  But that's OK - she was never bored!  And I found the continuing plot twists quite entertaining, as the "truth" slowly dawns....

"Esperar, Sentir, Morir" - Le Poème Harmonique at St. Mary the Virgin-Times Square

This evening I attended the latest concert in the Miller Theatre Early Music Series, presented at the Church of St. Mary the Virgin in Times Square.  The guest artists tonight were Vincent Dumestre and Le Poème Harmonique, a small early music ensemble consisting on this occasion of four members: Dumestre (director, Baroque guitar), Claire Lefilliâtre (soprano), Kaori Uemura (treble and bass viol), and Joël Grare (bass drum & castanets).  Their program was titled "Esperar, Sentir, Morir," appropriating the title of their last number, a song by Juan Hidalgo de Polanco (1614-85).  All of the music was written during the Baroque period, stretching from the late 16th through the early 18th century.

Most of the composers were familiar names to me, but they sounded quite unfamiliar in this setting, which I found to be, on the whole, inappropriate for the music.  This was an entirely secular concert of songs and instrumental music for a very small ensemble, suited to a small concert room or similar chamber, not a large, resonant church.  From the first notes of Luigi Rossi's song, Un ferito cavaliero, I could tell that there was little use trying to figure out the text, as the resonance of the church would make that virtually impossible.  And, indeed, the organizers of the concert agreed; although they printed texts and translations in the program book, the church was darkened to such a degree that reading was impossible.  So, a double puzzle: why incur the expense of printing texts and translations if the audience will not be permitted to read along with the performance, and why perform chamber music of this delicacy and nuance in such a spacious, resonant location?  Miller Theatre up at Columbia University, the home hall of the organizers, would have been much more suitable....

Getting past that, however, I can say that these performers are marvelous, each a master.  Ms. Lefilliâtre sang with wonderful expression and a beautiful large voice.  M. Dumestre is obviously a supreme virtuoso of the Baroque guitar, and he has his group playing together most expressively, with a feeling that is at once improvisatory and well-ordered.  Ms. Uemura provided sensitive bass-lines and counterpoint, and M. Grare a most spirited percussion accompaniment when required.  The program was well-composed to show the variety of southern European music of the time - Italians and Spaniards - and included one of my very favorite Baroque songs - Si dolce è'l tormento, by Claudio Monteverdi - exquisitely rendered as a coda to the Rossi song.  Hearing this group is a great incitement to purchase their recordings, which are featured on the French label Alpha.

Raúl Esparza in The American Songbook Series at Jazz at Lincoln Center

This isn't my normal beat, but my regular concert-going companion and I are big fans of Raúl Esparza from seeing him in a variety of productions, so we got tickets to his American Songbook concert.  These concerts tend to be autobiographical recitals, which provide a marvelous way to become better acquainted with one's favorite performers.  Mr. Esparza is a very talented actor, singer and dancer.  Through the performance he recounted his life story, with a major emphasis on his boyhood in Miami.  The program was a melange of show tunes from productions in which he has performed and Latin-American music that helped to form his musical personality from his childhood.  The man is a phenomenal performer, and this was, no doubt, quite a phenomenal performance.  He had the hall really rocking to that Latin beat.  Add the spectacular setting -- The Rose Room, with that big glass wall behind the stage looking out on Columbus Circle, 59th Street, and the south end of Central Park, and you have a truly enchanted evening.  At least I was enchanted, moved, amused, and massively entertained.  Viva Esparza!