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Friday, June 6, 2014

Jackbooted "Tolerance"

The Obama administration appears prepared to enforce its ideology regarding same-sex marriage with trademark inflexibility and atypical efficiency. Administration officials have begun inserting into federal grants notices and other official policies sweeping new requirements and definitions of marriage. 
While the new policies cite as their rationale a need to implement the Supreme Court's recent Windsor decision on same-sex marriage, the way agencies are applying that viewpoint to grants appears aimed at eliminating from the public square any groups that disagree with the administration's ideology. 
Exactly what this flood of apparently inflexible new policies means to groups with values that differ from the Obama administration will play out in the upcoming months and meanwhile requires legal analysis. The broad, sweeping language of the new policies make it difficult to determine precisely how and in what specific areas the Obama same-sex doctrine will be applied. 
Meanwhile, the outlook appears ominous, for example, for:
  • Faith-based organizations that maintain fidelity to Judeo-Christian sexual norms in their policies and personnel practices.
  • Sexual education programs that emphasize the benefits of saving sex for (traditional) marriage.
  • Adoption agencies that recognize in their policies the benefit to children of having a father and mother.
  • Health organizations that emphasize the health benefits of male-female monogamy.
Policies enforcing the administration's marriage ideology (conveniently couched in the context of Windsor) are cropping up across federal agencies:

 Federal Recognition of Same-sex Spouses/Marriages
The following policy applies to:
• all grants except block grants governed by 45 CFR part 96, part 98, and grant awards made under titles IV -A, XIX and XXI of the Social Security Act.
• programs which base eligibility or otherwise make distinctions in program participation or content on such terms as "marriage," "spouse," "family," "household member," or similar references to familial relationship.
A standard term and condition of award will be included in the final Notice of Award (NOA); all grant recipients will be subject to a term and condition that instructs grantees to recognize any same-sex marriage legally entered into in a U.S. jurisdiction that recognizes their marriage, including one of the 50 states, the District of Columbia or a U.S. territory, or in a foreign country so long as that marriage would also be recognized by a U.S. jurisdiction, when applying the terms of the Federal statute(s) governing their awards. This applies regardless of whether or not the couple resides in a jurisdiction that recognizes same-sex marriage. 
Accordingly, recipients must review and revise, as needed, any policies and procedures which interpret or apply Federal statutory or regulatory references to such terms as "marriage," "spouse," "family," "household member," or similar references to familial relationship to reflect inclusion of same-sex spouses and marriages. Any similar familial terminology references in HHS statutes, regulations, or policy transmittals will be interpreted to include same-sex spouses and marriages legally entered into as described herein.

This guidance is intended to implement a post-Windsor policy of treating same-sex marriages on the same terms as opposite-sex marriages to the greatest extent reasonably possible. Family support and parent engagement activities should be inclusive and supportive of single, coupled, and married LGBT parents.

For Federal tax purposes, the terms “spouse,” “husband and wife,” “husband,” and “wife” include an individual married to a person of the same sex if the individuals are lawfully married under state law, and the term “marriage” includes such a marriage between individuals of the same sex.

In keeping with the Supreme Court’s analysis and reasoning in United States v. Windsor, this guidance implements a policy of treating same-sex marriages on the same terms as opposite-sex marriages to the greatest extent reasonably possible. The AFI program now recognizes as family members and spouses any individuals in same-sex marriages as long as they have been lawfully married under the law of a state, territory, or foreign jurisdiction, as long as it would be recognized in at least one state. In other words, same-sex spouses are recognized so long as they have entered into a valid marriage in the jurisdiction in which they were married, regardless of whether they currently reside in a state that does not recognize same-sex marriages.
Within days, the Supreme Court will announce its decisions in cases involving the Obama administration's trampling of religious freedom in its drive to enforce its ideology regarding contraception and abortion. The administration's new policies enforcing its ideology regarding same-sex marriage will make good summer reading for the justices, since they can expect a raft of related cases next term.

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